Cforn^U ICam ^rljonl ICibratg Cornell University Library KF 450.E7B59 1876 A treatise on the law of estoppel and it 3 1924 018 784 615 |l Cornell University J Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018784615 TREATISE-IP ^ CO ON THE LAW OF ESTOPPEL AND ITS APPLICATION IN PRACTICE BY MELVILLE M. BIGELOW SECOND EDITION BOSTON LITTLE, BROWN, AND COMPANY 1876 Entered according to Act of Congress, in the year 1876, BY MELVILLE M. BIGELOW, in the Office of the Librarian of Congress, at Washington. cambrioge: press of john wilsos and son. PREFACE TO THE SECOND EDITION. The object of this work is to illustrate as well as to pre- sent the law of Estoppel ; and to this end most of the propositions of the text, as was stated in the preface to the first edition, are followed by short reports of the adjudi- cated cases. This feature, perhaps the characteristic feature of the book, has been preserved in the present edition, but with this modification, that extended quotations from the opinions of the judges have been thrown into notes, A very considerable saving of space has thus been eff^ected, and some advantage gained of preserving a closer connection between the legal propositions of the subject. At the same time occasional diffuse illustrations of the law have been abridged or omitted ; the result of all this being, notwithstanding the additions to the text, a reduction of some fifty pages in the size of the book. The author has encountered about four hundred and fifty new cases in preparing this edition, and made the best use of them he was able to make. Many of them required nothing more than a citation ; others, involving a new ap- plication of some old principle, required a more or less full statement or examination ; while still others, overruling and supplanting earlier cases, required an essential modification of the text. Of the last class, mention may be made of the recent decisions of the Supreme Court of the United States in respect of the effect of allegations of jurisdictional facts IV PREFACE TO THE SECOND EDITION. in the record of judgments of the sister States of the Union. Thompson v. Whitman, 18 Wall. 457 ; Knowles v. Gas Light Co., 19 Wall. 58. These cases, having been deter- mined in the court of final authority upon such questions, have rendered useless the extended discussion of the point in the first edition ; and it has been omitted. Nearly every chapter in the book has received some addi- tion ; and the additions to several of the chapters have been extensive, and, it is apprehended, not unimportant. This is especially true of the chapters on Title by Estoppel, Estoppel by Conduct, and Estoppel by Election, Much of the first named subject has been carefully rewritten, and the whole is now presented, it is thought, in a clearer light. The result, indeed, of the examination into this intricate branch of estoppel has not been different from that reached in the first edition ; but it has been attained after a more extensive consideration of the historical aspects of the sub- ject, especially of the law of warranty in its application to the various modes of conveyance that have been in use.^ The author desires to express his full appreciation of the favor with which the first edition of his book was re- ceived. Boston, January 1, 1876. 1 In the Liber Albus, a collection of the legal antiquities of London from the time of the Norman Conquest until the year 1419, there is an ordinance or rather an enactment of the city government, which (if genuine) appears to l^ive foreshadowed the celebrated Statute Do Donis, so far as that statute affected the law of warranty. It is as follows : — Whereas heretofore it has oftentimes happened that where many good folks of the City of London have devised their lands, rpnts, and tenements unto their wives for term of life, or to others for term of life or in fee tail, and after their decease the remainder of the said lands, rents, and tenements to their children, or to others, for term of life, or in fee tail, or in fee-simple; and in cases where the reversion was reserved after the death of the tenant for life, or after the estate tail determined, [the said remaindermen] were to have the said estates ; others who had only for term of life or in fee tail, the lands, rents, or tenements, so devised to them, have alienated the' same in fee unto strange persons and others, with clause of wan-anty , to the disinheritance of the children and others PREFACE TO THE SECOND EDITION. V unto whom the remainder was belonging, contrary to the will of the testator. It is therefore ordained by common consent of the Mayor, Aldermen, and Coun- cil, thereunto summoned, that no person from henceforth who shall demand any lands, or tenements, or rents in the City of London, or in the suburbs thereof, by force of any right reserved unto him or unto his ancestors after the death of any tenant for term of life, or after any estate tail determined, or by force of any estate entailed upon him or upon his ancestors, after the death of any tenant for term of life, or after any estate tail determined, shall, in the case aforesaid, be barred by any deed containing warranty of any such who have no estate therein except for term of life or in fee tail, even though such person be heir unto any one of them ; unless he hold by descent in fee-simple, so as to be barred to the value of that which has so descended to him in fee-simple. Liber Albus, pp. 425, 426, Riley's Transl. No date is- given to the above, but, if a true enactment, it was probably prior to the Statute De Donis. If later, of what use could it have been ? OUTLINE OF CONTENTS. Page Cases cited xi Introduction xliii PART I. ESTOPPEL BY MATTER OP- RECORD. CHAPTER I. Preliminakt View of Estoppel bx Recokd 3 CHAiPTER II. Res Judicata 5 1. Origin of the Term, and its Meaning 5 2. Exceptional Cases 11 3. Universal Elements 20 CHAPTER III. Domestic Judgments in Personam 27 1. Former Judgment 27 2. Former Verdict 36 3. The Effect and Operation of Judgment and Verdict Estoppels . 46 4. Collateral Impeachment of Judgments 122 CHAPTER IV. Domestic Judgments in Rem 140 CHAPTER V. Foreign Judgments in Rem 151 ■Vlil OUTLINE OP CONTENTS. CHAPTER VI. Foreign Judgments in Personam 170 i. Of the Superior Courts 170 2. Of the Inferior Courts 229 PART II. ESTOPPEL BY MATTER OP DEED. CHAPTER VII. Preliminary View of Estoppel bt Deed 239 CHAPTER VIII. Parties and Privies 241 1. Parties 241 2. Privies 246 CHAPTER IX. Limitations op the Doctrine 253 1. The Deed must be Valid 253 2. Estoppel limited to Questions directly concerning the Deed . 255 3. Grantee in Deed Poll. In Indenture. Mutuality .... 258 4. Estoppel against Estoppel 262 5. No Estoppel if Truth appears 263 CHAPTER X. Recitals 266 1. Particular Recitals 266 2. General Recitals 273 CHAPTER XI. Title by Estoppel 285 1. History of 285 2. Leases. Where no Interest passes 290 3. Leases. Where an Interest passes 290 4. Grantor and Grantee 294 5. Grantee before and Grantee after Title acquired 307 6. As to Personal Property 339 OUTLINE OP CONTENTS. IX CHAPTER XII. Release op Dowek 340 PART III. ESTOPPEL BY MATTER IN PAIS. CHAPTER XIII. Preliminary View of Estoppel in Pais 345 CHAPTER XIV. Estoppel upon Persons holding Relations of Trust to Others '. 348 1. Estoppel of TeDant to deny Landlord's Title 348 2. Estoppel of Vendee in Equity 382 3. Estoppel of Bailee to deny Bailor's Title 384 4. Assignees and Licensees of Patents 388 5. Executors and Administrators 389 CHAPTER XV. Commercial Paper 391 1. Warranty of Genuineness 391 2. "Warranty of Capacity 409 3. Certification of Checks 412 4. Transfer by Indorser after Liability fixed 417 CHAPTER XVL Cohpoeations. — Agenct. — Partnership 419 CHAPTER XVn. Acknowledgment of Receipt in Parol 427 CHAPTER XVIIL Estoppel by Conduct, or Equitable Estoppel 431 1. Origin and Requisites 431 2. The Representation 437 X OUTLINE OP CONTENTS. 3. Knowledge of the Facts 467 4. The Intention 485 5. Acting on the Representation 492 CHAPTER XIX. Election. — Inconsistent Positions 503 PART IV. PLEADING, PRACTICE, AND EVIDENCE. CHAPTER XX. Pleading the Estoppel 519 CHAPTER XXI. Estoppel by Record 522 CHAPTER XXII. Estoppel bt Deed 529 CHAPTER XXIII. Estoppel in Pais 532 CHAPTER XXIV. Pkecedents in Pleading 543 Index 559 CASES CITED. FAGE Abbott V. Marshall 282 Accidental Death Insurance Co. v. Mackenzie 852, S69, 371 Achorne v. Gomme 356 Ackley «. Dygert 447 Adair v. Xew River Co. 70 Adams v. Barnes 75 V. Brown 482 V. B. & M. R. Co. 609 V. Rockwell 453, 471 V. Rowe 207 Addison v. Crow 262 Mtaa. Fire Ins. Co. v. Tyler 456 Agar V. Young 369 Albany Ins. Co. v. Bay 255 Alden v. Wilkins 494 Aldrick v. Kinney 177, 205 Alexander v. Taylor 78 Allen V. Dundas 161 V. Holton 300 Allie V. Schmitz 46 Alner v. George 427, 428 Alston V. Munford 78 Altman v. Klingensmith 249 •Anderson ». Anderson 138, 214 V. Kimbrough 18 V. Young 71 Andrews v. Lyons 476 V. Montgomery 214 Annett v. Terry 66 Anonymous 306, 334 Anstee v. Nelms 606 FAQX Archer v. Mosse 161 Armstrong v. Carson 180 Arnold v. Arnold 27 V. Grimes 115 Arnott V. Rodfern 172 Arthur v. State 124 Ashley v. Vischer 427 Ashpitel V. Bryan 404 Aslin V. Parkin 38, 45, 113 Atkinson v. Allen 136, 217 Atlantic Dock Co. v. Leavitt 259, 260 Attorney-General v. Hooker 80 Audenried v. Betteley 439 Aurora City v. West 46, 91 Austin V. Charlestown Sem. 49 V. Craven 429 Averill v. Wilson 251, 260, 336 B. Babcock v. Camp 46 Bacon v. Towne 25 Baggaley ». Hares 254 Bahia & San Francisco Ry. Co., In re 473 Bailey v. Kilburn 352 V. O'Connor 197 Baines v. Burbridge 49 Baker v. Johnston 497 536 V. Rand 193, 197 V. Stonebraker 132 V. Union Mutual Life Ins. Co. 427, 428 V. Whiting 382 xii CASES CITED. Balch V. Shaw 4 Basher u. "Wolf 452 Baldwin v. McCrea 45, 114 Bassett v. Holbrook 497 V. Thompson 262 V. Mitchell 85 Bales V. Perry 467 Basten v. Butter 102 Ballard v. Appleton 628 Bates V. Norcross 248 Ballou 0. Jones 273 Battey v. Button 96 Baltzell V. Nosier . 206 Baxley v. Linah 222 Bancroft ». White 250 Baxter v. Dear 48 V. Winspear 117 V. Duren 408 Bandon v. Beeher 135, 138 V. New England Ins. Co. Bank of Australasia v. Harding 175, 203, 219 V. Nias 153, 174, 178 Bank of Commerce v. Union Bank 398 Bank of Hindustan v. Alison 473 Bank of Ireland v. Trustees of Evans's Charities 484 Bank of St. Mary's v. St. John 513 Bank of the Commonwealth ». Hop- kins 16 Bank of the United States v. Bank of Georgia • 406 Bank of the United States v. Lee 443 Bank of Utica v. Mersereau 327 Barbell v. Gingell 405 Barber v. Hartford Bank 11 V. Lamb 175, 235 Baring v. Clagett 157 Barker v. Benninger 496 V. Cleveland 105 Barlow v. Bishop 409, 410 Barnes v. Gibbs 222 Barnesley v. Powell 134 Barnet v. Smith 417 Barney v. Dewey 68, 176 V. Douglass 74, 225 V. Patterson 81, 177, 200 Barringer v. Boyd 200 V. King 167 Barron v. Cobleigh 437, 441 Barrow v. West 71, 213 Bartlett v. Knight 176 V. Wells 447 Barton v. Smith 71 Barwick i;. Rackley 503 V. Thompson 354 Bascom v. Manning 100 156, 157, 165 V. Vincent 71 Baylor v Dejarnette 81 B. C. R. & M. R. Co. V. Stewart 609 Beal V. Smith 232, 235 Bean v. Welsh 324 Beardsley v. Foot 476 Becquet v. MacCarthy 175, 214 Beebe v. Swartwout 260 Beeman v. Duck 394, 397, 400 Beere v. Fleming 30 Belknap v. National Bank of North America 394, 399 Bell V. Banks 50 c. Cafiferty 408 Bellas V. MeCarty 330 Bellinger v. Craigue 101, 105 Belmont v. Coleman 70 Beloit V. Morgan 46 Bemis «. Call 443 Bendernagle v. Cocks 117 Benjamin v. Elmira R. Co. 59 »■ Gill 389 Bennett v. CoUey 483 V. Farnell 398 V. Smith 108 Bensley v. Burden 295, 319 Benson v. Bennett 427 V. Idle 86 V. Matsdorf 113 Benton v. Burgot 175 Berger v. Williams 70, 81 Berkley v. Watling 427 Bernard ». Hoboken 46 Bernard! v. Motteux 151, 157, 163, 164 Betteley v. Reed sgg Betts V. New Hartford 47 V. Starr 37, 105 CASES CITED. Xlll Beverly v. Lincoln Gaslight Co. 350 Bickford v. First National Bank 417 Bicknel v. Field 215 Biddle v. Bond 384 1). Wilkins 523 Bigelow V. Winsor 25 ' V. Woodward 682 Bimeler v. Dawson 177 Binck V. Wood 19, 95, 96 Bingham v. Weiderwax 328 Birch V. Funk 21, 22 V. Wright 372, 382 Birckhead v. Brown 105 Bishop V. Hayward 55 Bissell V. BrifTgs 176, 179, 180, 203 V. Jeffersonville 421 V. Kellogg 90, 92 V. Michigan So. & N. Ind. R. Co. 423 Bivins v. Vinzant 331 Blackham's Case 134 Black River & Utica R. Co. v. Clarke 424 Blake v. Banbury 504 V. Douglass 49, 122 V. Exchange Mutual Insur- ance Co. 454 V. Fash 634 V. Foster 293 V. Sanderson 355 Blanchard v. Brooks 298, 300 V. Ellis 324, 325, 327 V. Tyler 244 Blanchet v. Powell's Co. 472 Biasdale v. Babcock 67 Blevin V. Freer 480, 436 Blight V. Rochester 251, 260, 335 Bliss V. Negus 425 Blodget V. Jordan 232 Blunt V. Darrach 180 Board v. Board 505 Board of Public Works v. Colum- bia College 210 Bobe V. Stickney 46 Bodine v. Killeen 435 Bodurtha v. Goodrich 132, 206, 209 V. Phelan 100 Bogardus v. Clark 146, 160 Bogg V. Shoab 297 Boggs V. Olcott 426, 514 Boileau v. Rutlin 87 Bold Buccleugb, The 11, 148 Bole.u. Horton 288 Boiling V. Petersburg 536 Bolton V. Brewster 131 V. Gladstone 167 Bonsall v. Isett 181, 203 Borden v. Fitch 130, 214 Borden Mining Company v. Barry 25 Borrowscale v. Tuttle 23 Boston V. Worthington 67 Boston & W. R. Co. V. Sparhawk 188, 217 Bostwick V. Abbott 25 Boswell V. Otis 126 Boucher v. Lawson 159, 173, 214 Bowen v. Bgwen 135 Bower v. McCormick 269 Bowers v. Keesecker 383 Bowes V. Foster 427, 428 Bowman v. Taylor 266, 295 Bowne v. Potter 250 Boyd V. Plumb 416 Boyle V. Webster 641 Boynton v. Morrill 84 Bradbury v. Coney 471 Bradstreet v. Neptune Ins. Co. 140, 153, 156, 164, 167, 209 Braithwaite v. Gardiner 410 Brannon v. Noble 73 Branson v. Wirth 246 Brasfield u. Lee 120 Breeding v. Stamper 469, 611 Brengle v. McClellan 185 Brewer v. Boston & W. R. Co. 431, 469 V. Hardy 77 Brewster v. Striker 438 Bridge v. Johnson 13 V. Sumner 25 Bridgeport Ins. Co. v. Wilson 67 Bridgeport Sav. Bank v. Eldridge 131 Brigham v. Smith 301 Brinegar v. Chaffin 280 Brinsmead v. Harrison 61, 63 Bristow V. Pegge 349 xiv CASES CITED. Britten v. Webb 65 Bumstead v. Read 124 Brooks V. Curtis 460 Bunker v. Tufts 4f ,74 V. Hill 70 Burchfield v. Moore 397 V. Martin 461 Burgess v. Merrill 66 Bronson v. Wiman 476 V. Northern Bank of Ken- V, Wirth 262 tucky 395 Broome v. Wooton 61 Burke v. Allen 411, 412 Broughton v. Mackintosh 96 V. Elliott lo Brown v. Birdsall 198 Burkhalter v. Edwards 537 V. Bradford 66 Burlen v. Shannon 144, 648 V. Brown 532 Burley v. Russell 447 V. Cambridge 57 Burlington v. Gilbert 609, 610 V. Combs 514 Burnap v. Campbell 71 V. Coon 444 Burnett v. Smith 100 V. Dudley 71 Burnham v. Webster 177, 197 V. Dysinger 366 Burrill v. Smith 411 V. Jackson 298 Burroughs v. Jamineau 173 V. Johnson 53 Burrowes v. Lock 481 V. Leckie 417 Burrows v. Guthrie 515 V. Lexington 197, 222 V. Jemino 176 V. McCormick 330 Bursley v. Hamilton 272 V. McCune 444, 446, 447 Burt V. Sternburgh 34, 624 V. McKinally 104, 112 Burton v. Reeds 328 V. Newall 22 Burwell v. Cannady 89 V. Nichols 132 V. Knight 96 V. Ricketts 503 Bush u.' Cooper 303 V. Sprague 17, 25 V. Marshall 259 383 V. Staples 262, 263 Butcher v. Musgrave 274 V. Summerville 71,73 Butler V. Miller 115 116 V. Tucker 471 Buttrick v. Allen 176 V. Wheeler 537 V. Holden 47 Bruce v. Bruce 399 V. Lowell 515 V. Cloutman 129, 130 V. United States 272 u. Wood 340 c. Brudnell v. Roberts 293 Brummagim v. Ambrose 20 Cabot V. Washington 46 146 Bryans v. Nix 339 Cabot Bank v. Morton 408 Buchanan v. Rucker 173 201, 214 Cadaval v. Collins 112 Buckingham v. Hanna 327 Cady V. Dyer 465 Buckland v. Johnson 63, 113 V. Eggleston 279 Buckner v. Archer 211 Caffrey v. Dudgeon 263 Bufferlow v. Newsom 514 Cailleteau v. Ingouf 147 Buffington v. Cook 46 Caldwell v. Walters 49 Buford V. Kirkpatrick 200 Calhoun v. Richardson 450 476 BuUard v. Hascall 430 Calkins v. AUerton 77, 78 BuUen v. Mills 352 863, 376 Callahan v. Griswold 136 BuUis V. Noble 476 Callaway v. Johnson 642 CASES CITED. XV Callen v. Ellison Callendar v. Dittrich Calvert v. Bovill V. Sebright 122 666 161, 163, 104 301 Cambridge Institution for Savings V. Littlefield 456 Cameron u. Wurtz 185 Cammell v. Sewell 138, 168, 175 Camp V. Moseley 442 Campbell v. Knights 260, 251 0. Phelps 62 Canal Bank v. Bank of Albany 393, 394, 396, 405 Candee v. Clark 198 V. Lord 81 Canfield v. Smith 510 Candler v. Lumsford 246 Cannam ». Farmer 446 Carder v. Fayette Co. 503 Carleton v. Bickford 182, 209 V. Washington Ins Co. 122, 124, 129, 130 Carlton v. Davis 66 Carman v. Townsend 211 Carnarvon v. Villebois 148 Carnes v. Field • 479 Carpenter v. BuUer 261, 256, 263, 266, 278, 279, 530 V. Carpenter 445 V. Pier 232 V. Thompson 352 Carre. Miner 136,429 V. Townsend 60 Carson v. Faunt 349 Carter v. Bennett 186 ». Carter 266 V. James 87 Carver v. Astor 246, 306 V. Jackson 251, 296, 336 Carvill V. Garrigues 118 Case V. Case 222 V. Reeve 61, 68, 149 V. Ribelin 49 Casebeer ». Mowry 544, 547 Casler v. Shipman 81 Cassidy v. Carr 15 Castle V. Noyes 106 Castrique v. Behrens 167 Catlin V. Gilders 205 Caton V. Caton 440 Catskill Bank v. Stall 416 Cecil V. Cecil 146 V. Early 272 Certain Logs of Mahogany 11 Chamberlain v. Carlisle 82 V. Faris 213 0. Preble 15, 66 Champlain, &c.,B. Co. v. Valentine 279 Chandler v. Ford . 254 Ch'apin v. Curtis 22 Chapman v. Chapman 453 ». Shepard 498 Charlestown v. County Comm. 467, 509 Charming Betsy, The, 161 Chase v. Haughton 74, 225 V. Walker 4 Chautauque Bank v. White 453 Chautauque Co. Bank v. Risley 262 Chauvin v. Wagner 296, 304, 334 Cheesman v. Exall 384, 385, 386 Cheever v. Wilson 183 Cheongwo v. Jones 73 Chettle V. Pound 367 Chew V. Barnet 329, 334 Chicago V. Bobbins 66 Chicago & A. R. Co. ». Shea 424 Child V. Chappell 449 V. Eureka Powder Works 222, 544 Chiles V. Boothe 262 Christmas v. Oliver 311 V. Russell 138, 183, 186, 217 Christie v. Secretan 161, 163, 164 Christopher, The 168 Chudleigh's Case 320 Churchman v. Ireland 503 Churchward v. Ford 350 Cincinnati v. Morgan 421 V. White 492 Cincinnati, &c., R. Co. v. Wynne 222 City Bank of New Orleans v. Welden 22 Clapp V. Thomas 62 V. Tirrell 283 . Claridge ». Mackenzie 361 Clark V. Bryan 122, 124, 129 V. Carrington 66 XVI CASES CITED. Clark V. Deshon 283 V. Dew 161 V. Dunham 60 V. New England Mutual Fire Ins. Co. 466 ». Parsons 177, 232 V. Sammons 94 ». Young 21, 29 Clarke National Bank v. Bank of Abion 417 Clary ».• Hoggland 131 Cleaton v. Chambliss 28 Clerk V. Withers 496 Cleveland v. Rogers 235 Clink V. Thurston 520 Clinton Bank v. Hart 63 Cloud V. Whiting 461 Clun V. Clarke 373 Coakley v. Perry 262 Cobb V. Arnold 370 Coburn v. Boston, &o,, Man. Co. 190 V. Palmer 377 Cochran v. Arnold 424 Cockburn v. Thompson 70 Cocke V. Brogan 297 Cocks V. Masterman 406 Coffin V. Knott 22 Coffman v. Brown 26 Coggill V. American Exchange Bank 395, 396, 397 Coit V. Beard 26 V. Haven 122 Cole V. Raymond 326, 326, 338 V. Stone 232, 628 Coleman v. McAnulty 60 V. McMurdo 80, 228 Coles V. Soulsby 282 Collier V. Gamble 305 Collingwood v. Irvin 67 Collins V. Bartlett 260, 336 u. Lofftus 69 V. Mitchell 272 V. Woods 603 Collis V. Emmett 394, 396 Colton V. Beardsley 466 V. Ross 184 Columbet v. Pacheco 471 Comings v. Wellman 279 Commonwealth v. Andre 246 V. Blood 167, 207, 235 V. Green 182, 184, 204 V. Moltz 45 V. Wheeler 25 Compher v. Anawalt 189 Comstock V. Smith 298 Conard v. Atlantic Ins. Co. 429 Concord Bank v. Bellis 485 Cone V. Cotton 235 Conklin v. Barton ■ 426 V. Smith 514 Connelly v. Connelly 160 Connihan v. Thompson 603 Connolly v. Branstler 446, 446 Connor v. Martin 409 Continental Nat. Bank v. Nat. Bank of the Commonwealth 413 Conway v. Ellison 200 Cook V. Allen 69 V. Field 73 V. ShoU 143 V. Steuben Co. Bank 193 V. Thornhill 193 V. Toumbs 245 Cooper V. Adams 378 V. Blandy 353 ^. Meyer 396, 397, 398, 404 V. Reynolds 10, 126 Copin V. Adamson 203 Corey v. Gale 96 Corkhill v. Landers 470 Corning v. Troy Iron and Nail Fac- tory 457 Cornish ». Abington 370, 488 V. Searell 356, 368, 378 Cotes ». Davies 410 Courtland v. Willis 88 Covert V. Nelson 73 Covington & L. R. Co. v. Bowler 70 Cox V. Thomas 131, 272 Coxe V. NichoUs 189 Crafts V. Clark 628 Crane ti. Morris 251, 262 Crawford v. Howard 129 V. Whittal 171 V. White 216 Crawley v. Isaacs 175 CASES CITED. EVU Crest V. Jack 453 Davis V. Shoemaker 362, 630 Grichlow «. Parry 393 V. Smith 486 Cronk v. Trumble 542 0. Tallcot 99, 100, 101 Croudson o. Leonard 140, 156, 167, V. Tingle 445 159 162 V. Tyler 351 Croxall V. Shererd 383 Dawson v. Cropp 616 Cruchly v. Clarence 394 Day V. Green 420 Cruger v. Dougherty 463 608 Dean v. Doe 306 Crusoe V. Butler 161 V. Colt 801 Cumberland Coal Company v . Jef e. Thatcher ' 18 fries 15 De Armond v. Adams 136 Cummings v. Banks 177 Decherd v. Blanton 272 Cunningham v. Ashley 78 Deery o. Cray 279 t). Goelet 203 De Cosse Brissac v. Rathbone 174 Curtis V. Galvin 378 De Ende v. Wilkinson 189 r. Gibbs 180 Deford v. Mercer 611 V. Spitty 350 Delancey v. McKeeii 443 Curtiss V. Beardsley 220 Delaney ». Fox 364 381 V. Waterloo 424 Delano v. Jopling 207 Cuthbertson.w. Irving 263, 265, 379, Delaplaine v. Hitchcock 634 380 Demarest v. Darg 46 Cutler V. Bower 271 Dempsey v. Ins. Co. of Penn 157 V. Dickinson 272 Den d. Brinegar v. Chaffin 280 Cutter B. Waddingham 262 Bufierlow v. Newsom 614 Cyphert o. McClune 189 Candler v. Lumsford Gardiner v. Sharp Gilliam v. Bird 246 247 251 D. Grandy v. Bailey 614 Johnson v. Watts 251 , 335 Dalgleish v. Hodgson 167 Love V. Edmonston 384 Dalton 0. Whittem 612 0. Gates 251 ,335 Damouth v. Kloek 513 Williams v. Bennett 514 Damp V. Dane 510 Denison ». Hyde 161 , 206 Dancer ». Hastings 378 Denn v. Cornell 262 , 295 Dane v. Gilmore 66 Dennett v. Chick 67 Dan forth v. Adams 464 ,486 Denning v. Corwin 236 Daniel v. Morton 642 Dent V. Ashley 228 D'Arcy ». Ketchum 129 , 183 Denton v. Noyes 189 Darlington v. Gray 18 V. Stewart 480 V. Pritchard 656 Derby ». Jacques 26 Dashiel v. Collier 250 V. Johnson 117 Davenport v. Chicago, &c. R. Co 34 Despard v. Walbridge- 377 V. Tarpin 470 Destrehan v. Scudder 194 Davidson v. Young 444 Dewey v. Bell 507 ,508 Davis 0. Connelly 193 V. Field 430, 435, 436, 437, V. Davis 537 498 ,534 ». Hedges 102 , 108 Dexter v. Clark 26 V. Bainsford 270 Dey V. Dox 96 XVlll CASES CITEIK Dezell V. Odell 272, 388, 430, 435. 498, S32 Dickinson v. Goodspeed 378 V. Hayes 82 Dillett V. Kemble 471 Doak V. Wiswell 98 Doane v. Willoutt 277, 302 Dobbins v. Hyde 71, 72 ■ Dobson V. Pearce 189, 216, 217 Dodge ».«Stacey 637 Doe V. Huddart 520 V. Oliver 175 V. Wellsman 552 Doe d. Baggaley v. Hares 254 Bristow V. Pegge 349 Bullen V. Mills 352, 353, 376 Butcher r.'Musgrave 274 Chandler v. Ford 254 Christmas v. Oliver 311 Clun V. Clarke 873 Higginbotham v. Barton 364, 376, 377, 382 Hornby v. Glenn 243 Hurst V. Clifton 355 Jackson ». Wilkinson 353 Johnson v. Baytup 358 Knight V. Smythe 349, 354, 359, 376 Levy V. Home 254 Marchant v. Errington 247, 295 Marriott v. Edwards 377 McPherson v. Walters 534 Morris v. Rosser 537 Ogle V. Vickers 355 Plevin V. Brown 356, 357, 359 Preece v. Howells 254 Shelton V. Shelton 278 Stevens v. Hays 255 Strode V. Seaton 314 Taylor v. Shufford 246 Thompson v. Hodgson 539 Wheble v. Fuller 355 Worsley v. Johnson 251 Wright V. Smith 538 Doglioni V. Crispin 175 Dolde V. Vodicka 471 Dole V. Boutwell 71 Dolphin V, Robins 160 Don V. Lippman 173, 202 Donahue v. Klassner 260 Donaldson v. Hibner 471 Dooley v. Cheshire Glass Com- pany 420 Dorr ». Stockdale 78 Dorrance v. Scott 49 Doty ». Brojf n lOo Dougald V. Dougherty 294 Dougherty's Estate 137 Douglas V. Forrest 173, 197, 528 V. Fulda 364 Douglass V. Howland 18 V. Scott 326, 327, 514 Dow V. Sanborn 11 Downer v. Shaw 207, 212 Doyle V. Reilly 46 Draggoo o. Graham 235 V. MitcheU 116 Drake r. Glover 446 Drayton v. Dale 409, 410 Dresbach v. Minnis 272, 430, 436, 498 Drummond v. Prestman 81 Drury v. Foster 443, 446 Dublin V. Chadbourne 160 Duchess of Kingston's Case 11, 38, 44, 197, 339, 519, 520 Duff w. Wynkoop 614 Duffield V. Scott 66 Duffy V. Lytle 544 Duke V. Ashby 347, S87 Duncan v. Bancroft 34 V. Holcomb 46 V. Ware 72 Dunckle v. Wiles 84 Dundas v. Hitchcock 273 Dunlap B. Glidden 4 Dunn V. Pipes 17 Dunnell Manufacturing Co. v. Paw- tucket 515 Dunston v. Paterson 451 Durant v. Essex Co. 13, 25 Dutchess Cotton Manuf. Co. v. Davis 424 Dutton V. Woodman 110 Dyckman v. New York 130 Dyer v. Rich 279 Dykes v. Woodhouse 79, 228 CASES CITED. XIX Dynes V. Hoover Dreyfous v. Adams Dunning v. West 14 542 642 E. Evans V. Powel Evelyn v. Haynes 267 42 F. Fagg J'. Clements 20 East V. Dolihite 493 F.. Fox 610 V. White 353 Girard Bank u. Bank of Pennsyl- Gravenor ». Woodhouse 366, 367, vania 417 368 Glasgow V. Lowther 176 Graves v. Key 427, 428, 432, 433, Glazier v. Streamer 441 434 436 ,487 Gleason ii. Dodd 204, 208 Gray v. Dougherty • 25 Glidden v. Strupler 443, 445 V. Gray 22 Gloucester Bank v. Salem Bank 407 V. Hodge 21 Glynn v. George 381 V. Johnson 352 V. Thorpe 3 V. MacLean 272 Gochenour ». Mowry 360 V. McNeal 129 Godard v. Gray 153, 175 V. Murray 483 Goddard's Case 519, 520 Great Falls Co. v. Worster 136, Goddard v. Merchants' Bank 401,405 259 273 V. Seymour 463 Green v. Branton 48 Goit V. National Protection Ins. V. Clark 63 Co. 427 V. Hamilton 20 Gold V. Canham 174 V. Kemp 271 Golightly V. JoUicoe 92, 111 V. Sarmiento 180 184 Gorapertz v. Bartlett 409 Greenaway v. Adams 480 Goodall V. Marshall 231 Greenby v. Wilcocks 363 Goodel V. Bennett 303 Greenvault v. Davis 363 Goodman v. Pocock 117, 525 Goodrich v. City 29, 30, 46 V. Jenkins 193, 200 V. Yale 117 Gpodson 0. Beacham 334 Goodtitle V. Bailey 295, 304, 305 Gordon v. Whitehouse 543 Gore V. Brazier ' 363 Gorham v. Brenon 294 Gosling V. Bimie 385, 600 Goucher v. Clayton 19 Goudy V. Hall 131 V. Kipp 143 Gould V. Venice 423 Gouldsworth v. Knights 265 Gove V. White 637 Grace v. Martin 19, 81 Greenville & C. R. Co. v. Joyce 541 Gregg V. Von Phul 458 V. Wells 434, 462 Gregory v. Doidge 357, 360 Griefswald, The 160, 167, 168 Griffin V. Eaton 183 V. Seymour 21, 22 Griffith V. Clarke 47, 122 Griggs V. Howe 394 Grignon v. Astor 167, 200 Grissom ». Reynolds 73 Grist V. Hodges 863 Griswold V. Haven 425, 430 Grosholz V. Newman 260 Grout V. Chamberlin 228 Gunn ». Howell 72, 167, 200, 235 Guernsey ». Carver 117 xxu CASES CITED. Gurney v. Womersley Gurnsey v. Edwards Guthrie v. Howard V. Quinn H. Hadleye. Albany Hagey v. Detweiler Hahn V. Kelly Hains v, Gardiner Hale ». Skinner 408 152 48 460, 515 88 471 122, 124 250 451, 471, 537 Halifax Union v. Wheelwright 400 Hall J). Benner 366 V. Blake 73 V. Butler 357, 366 V. Fisher 453 V. Fuller 399 V. Hamlin 137 V. Odber 73, 203, 219 V. Sigel 70 V. Tiramons 448 V. Williams 182, 198, 204, 205, 209, 212 V. Winchell 195 Halliday v. McDougall 211 Hallifax V. Lyie 411 Halloran v. Whitcomb 470, 537 Hambleton ». Veere 120 Hamilton ». Cutts 77, 363 u. Dutch East India Company 175 V. Marsden 366 Hamlet v. Richardson 104 Hamlin v. Hamlin 634, 586 Hammond v. Wilder 138, 217 Hampton v. MoConnel 183, 217 Hancock v. Welch 149 Hangerford v. Gushing 203 Hanley v. Foley 45 Harding v. Hale 33 Hardman v. Willcock 386, 887 Hardy v. Akerly 863 I). Mills 82 V. Nelson 262 V. Waters 411 Harmon v. Birchard Harness v. Green Harris v. Hardeman V. Kirkpatrick V. Williams V. Willis Harrison v. Stewardson Harshcy v. Blackmarr Hart V. Cummins V. M'Namara Hartley v. Harm an Hartman v. Ogborn Haskell v. Putnam Hassell u. Hamilton Hatch V. Spofford Hawes v. Shaw 72 185, 200 124 494 194 129 70 206, 216 200 141 526 48, 137 375 199, 200 221 863, 369 V. Watson 385, 499, 500 Hawkes v. Orton 364 Hawks V. Hunger 426 i. Truesdale 648 Haws V. Tiernan 25 Hayden v. Davis 387 Haydock v. Coope 514 Hayne v. Maltby 268, 272 Haynes v. Stevens 262, 492 Hays V. Askew 280 Hazard v. Irwin 255 Healy v. Root 185 Heane v. Rogers 432, 433, 487, 686 Heard v. Hall 244, 534, 536 Heath v. Frackelton 46 V. Franklin Ins. Co. 456 V. Keyes 437 Hefferman v. Porter 14 Hefner v. Dawson 461 V. Vandslah 441 Helena, The 7, 153 Henderson v. Henderson 174 Hendrickson v. Norcross 45, 114 Henrick & Maria, The 166, 168 Henry County v. Winnebago 513 Henshaw v. Bissell 476 Hern v. Nichols 414, 415, 417 Hibshman v. DuUeban 83 Hicks V. Cram 470 Higginbotham v. Barton 364, 876, 377, 382 Higgins, Ex parte 63 CASES CITED. XXIU Hilbourn e. Fogg 362, 377 Hill V. Epley 459 V. Manchester Water Works 269 V. Tucker 228, 229 V. West 246 Hills V. Laming 271, 273 V. Miller 449 V. Sherwood 82 Hitchcock V. Aicken 176, 180 V. Harrington 250 Hitchin ». Campbell 53, 113 Hitchman o. Waltman 382 Hobbs V. Duflf 115 V. Henning 157 Hockaday v. Skeggs 200 HodsoU V. Strallebrasse 120 Hogan o. Harley 370 Holdane v. Cold Spring 491 Holden v. Putnam Fire Ins. Co. 450 Holland v. Hatch 25 HoUey o. Acre 81 Holloway v. Galliac 365 Holmes v. Remsen 224 Holt V. AUoway 207, 214 o. Martin 380 Home Mutual Ins. Co. v. Gamble 71 Homer v. Brown 24, 25 V. Fish 108, 138, 215 Hone V. Ilenriques 514 Hood V. Hood 34, 144 Hooker v. Hubbard 94, 508 Hopcraft v. Keys 357, 360 Hope V. Lawrence 453 Hopkins v. Lee 44 Hopper V. McWhorter 462 Hornby v. Glenn 243 Home V. Cole 436, 436, 490 Hortman v. Osgood 122 Horton v. Davis 511 V. Westminster Comm. 268, 269 Hortsman v. HensLaw 393, 394, 395, 396, 397, 398, 399 Houlditch V. Donegal 172 Housatonic Bank v. Martin 255, 271, 273 House V. McCormick 290 Houston V. Turk ' 246 Hovenden v. Annesley 374 Ilovey ti. Woodward 273 Howards. Carpenter 483 V. Hudson 439, 493 V. La Crosse & M. R. Co. 641 V. North 48 Howes V. Austin 23 Hewlett V. Tarte 19, 96, 138 Hoxie V. Finney 300 V. Home Insurance Co. 476 Hubbard r. Norton 261 Hubert v. Fera 648 Hudd V. Ravenor 516 Hudson V. Guestier 167 Huffer B. Allen 42 Hughes V. Alexander 94 V. Cornelius 140, 152, 156, 163 ». Edwards 374 V. United States 25 Hull V. Blake 225, 227 Hull Flax Co. V. Wellesley 474 Humphreys v. Newman 304 Hungerford v. Cushing 131 Hunt V. Cope 363 Huntington v. Charlotte 124 Hunter v. Prinsep 167 Hurst V. Clifton 366 Hutchinson v. Bank of Wheeling 47 Huz^ard v. Nagle 66 Hyde v. Baldwin 503 Ifquierdo v. Forbes 171 Ihmsen v. Ormsby 102 Ijams V. Hoffman 483 Imrie v. Castrique [167, 158, 199 Incledon v. Surges 41, 42 Indiana v. Helmer 185, 200 Ingraham v. Baldwin 366 Inman v. Mead 81 Insurance Co. of Pennsylvania v. Smith 427 Irby V. Kitchell 389 Irvine v. McKeon 282 XXIV CASES CITED. Irving Bank v. Wetherald 405 412 Jones V. Cowles 5S2 Irwin V. Merrill 448 V. Dareh 409 Ish V. Crane 611 V. Gerock 198 Ives V. North Canaan 463 ,508 V. Jamison 223 V. Sawyer 251 260 335 V. Kearney V. King V. Oswald 445 301 67 J. V. Powell 449 V. Richardson 114 V. Ryde 399 409 Jackson v. Ayres 364, 366 384 V. Stanton 307 V. Bradford 302 330 V. Underwood 25 V. Brinckerhoflf 256 V. Weathersbee 109 V. Carver 262 Jordan v. Faircloth 46 V. Cuerden 368 V. Money 440 V. Lawton 16 Jourdan v. Jourdan 806 V. Pixley 497 Joyce V. Williams 416 471 V. Randall 113 V. Sinclair 263 V. Spear 369 K, V. Summerville 108 136 ,138 V. Thompson 271 Kane v. Bloodgood 374 382 V. Tiernan 229 V. Cook 222 V. Vanderheyden 245 Kane County v. Herrington 443 V. Walker 384 Kearny v. Dean 144 V. Wilkinson 353 Keater v. Hock 22 V. Wood 90 197 Keen v. Coleman 445 447 Jacocks ».' Gilliam 331 V. Hartman 447 Janeson v. Janeson 452 Keeler v. Vantuyle 463 Jaqua v. Montgomery 461 Keiffer v. Ehler 11 Jarboe v. Smith 17 Kelley v. Mize 137 Jarvis v. Aikens 326 Kellogg V. Ely 610 Jay V. Carthage 25 V. Smith 468 Jemison v. Cozens 258 Kelly V. Dutch Church 67 Jenkins v. Robertson 17 Kendal v. Talbot 21, 22 Jennison v. W. Springfield 106 Kennedy ». Cassilis 159, 174 Jew V. Wood 356 V. Georgia State Bank 122 Jewsbury v. Mummury 97 Kent V. Hudson River R. Co 63 John V. Roberts 418 Kepp 0. Wiggett 266, 274 Johnson v. Baytup 358 Kerr v. Kerr 160, 206, 209 V. Owen 440 V. Shaw 363 V. Provincial Ins. Co . 109 Kersall v. Marshall 175 V. Pye 447 Kidder v. Blaisdell 243 V. Robertson 69 Kierlighett, The 168 V. Watts 251, 336 Kilgore V. Jordan 447 JoUiffe, Ex parte 161 Killsa «. Lermond 71 Jolly V. Arbuthnot 265, 378, 379 Kimball v. Boston 515 Jones V. Clark 508 V. Gay 74 225 CASES CITED. XXV Kimball v. Kimball 260 Lamprey v. Nudd 60 Kimberly v. Patchin 339 Landon v. Litchfield 463, 608 Kimbro v. Hamilton 279 Lane v. Degberg 143 Kincaid v. Donnell 470 Lang V. Holbrook 158 King V. Boston 102 Langdon v. Doud 438, 439 V. Chase 62, 89, 91 Langford v. Selmes 291 V. Dunn 84 V. Symes 293 V. Hoare 50, 51, 53 Langmead v. Maple 32, 526 V. Norman 81 Langton v. Lazarus 399 t). Richards 387 Langworthy v. Baker 124 V. Van Gilder 232 Lansing v. Gaine 416 Kinnear v. Lowell 300 V. Van Alstyne 363 Kinnersley v. Orpe 42, 60, 149 Lapham v. Briggs 209, 223 Kinsman v. Loorais 249, 305 Latham v. Edgerton 130 V. Farkhurst 388 Lathrop v. Kneeland 426 Kip V. Brigham 66 Latine v. Clements 228, 229 Kipp V. Fullerton 131 Laughton v. Atkins 161 Kirby v. Fitzgerald 18, 138 Laverty v. Burr 416 Kirklan v. Brown 112 V. Moore 470 Kist V. Atkinson 96 Lawrence v. Englesby 145 Kitchen v. Bartsch 411 V. Fox 271 Kitzmiller v. Rensselaer 242 V. Gaultney 232 Knapp V. Abell 198, 200 V. Hunt 54, 197 V. Marlboro 66 V. Jarvia 206, 209 Knibbs V. Hall 112 V. Luhr 453 Knight V. Smythe 349, 354 , 359, 376 V. Vernon 63 V. Wall 534, 536 Lawrence Univ. v. Smith 441 Knights V. Wiffen 371, 388 429. 436, V. Miller 111 497, 498 Lazier v. Westcott 177 Knowles v. Gaslight Co. 209, 528 Leach v. Buchanan 392 Knox V. Waldoborough 25 Lear v. Edmonds 516 Knox County v. Aspinwall 421, 423 Learned v. Bryant 436 V. Wallace 421 Leavitt v. Putnam 417 Kortz ». Carpenter 363 Le Chevelier ». Lynch 224, 225 Kramph v. Hatz 67 Lechmere v. Fletcher 60,51 Kuhl V. Jersey City 486 Lee V. Clark 67, 271 V. Hopkins 37 V. Lake 536 L. V. Munroe 431 V. West 57 Le Guen v. Gouveneur 44,96 Lackland v. Stevenson 509 Lehain v. Philpott 516 Lackman ». Wood 447 Legge V. Edmonds 65 Ladrick v. Briggs 437 Leiand v. Marsh 120 Lainson v. Tremere 263 266, 268, Leonard v. Simpson 19, 65, 97 295, 438 V. Whitney 82 Lambert v. Smith 163 Lesterjette v. Ford 211 Lampon v. Corke '239 Leutz V. Wallace 91 XXVI CASES CITED. Levy V. Bank of United States 394 V. Hale ' 496 V. Home 254 Lewis V. Meserve 260 V. Rogers 138 V. Webber 436 V. Willis 350 Lexington, &o., R. Co. v. Elwell 515 Libbey v. Pierce 273, 418, 438 Lilley v. Adams 603 Lincoln v. Tower 203, 209, 213 Lindsey v. Danville 40 Lingham v. Warren 616 Lipscomb V. Postell 66 Litchfield V. Cud worth 146 Litbgow V. Eavenagh 841 Littlefield v. Brown 603 Littleton v. Richardson 66 Livermore v. Aldrich 283 Liverpool Association v. Fairhurst 446 Liverpool Wharf v. Prescott 467 Livington v. Hastie 416 Loan Asso. v. Topeka 511 Lloyd u. Barr 17,46 V. Lloyd 319 Lomerson v. Hoffman 72 London and Northwestern Ry. Co. V. West 854, 377, 539 Long Island Ry. Co. v. Conklin 304 Loomis V. Pingree 302 V. Pulver 96 Lorain v. Hall 262 Loring V. Folger 72 V. Mansfield 19, 94, 95 V. Otis 270 V. Steineman 145 Lothian v. Henderson 167 Lothrop V. Foster 340 Love V. Edmonston 384 V. Gates 251, 385 V. Gibson 66 Lovejoy ». Murray 67, 63 Low V. Bartlett 228, 229 V. Mussey 197 Lowell V. Daniels 245, 443 Lowry v. Inman 70 V. Lumberman's Bank 73 Lucas V. Bank of Darien 214 Lucas V. Brooks V. Greenville Assoc. V. San Francisco Luckenbach v. Anderson Luf kin V. Curtis Lund V. Seaman's Bank Lunsford v. Alexander Lunt V. Holland Lynch v. Swanton Lyon V. Northup V. Reed M. 364 424 16 216 341 387 355 270 46 66 621 Mackintosh v. Smith 88 Magee v. Hallett 246 Maghee v. Collins 94 RIagrath v. Hardy 71 Mahurin v. Bickford 230 Maigley v. Hauer 282 Mailhouse v. Inloes 20 Major V. Rice 471 Malachy v. Soper 120 Males V. Lowenstein 615 Maley v. Shuttuck 161, 162 Malin v. Malin 453 Mallett V. Foxcroft 102 Man V. Drexel 112 Manigault v. Deas 79 Mankin «. Chandler 148 Manning v. Cogan 532 Manufacturers' & T. Bank v. Haz- ard 490 Marble o. Keyes 117 Marchant v. Errington 247, 295 Mariner v. Milwaukee & St. Paul R. Co. 637 Markham v. Middleton 93 Maroketa v. Willey 509 Marquart v. Bradford 452 Marriott v. Edwards 877 V. Hampton 88, 44, 96, 96, 104, 111, 112 Marsh v. Piei* 33 Marshall v. Fisher 49 V. Pierce 686 CASES CITED. XXTU Martin v. Kennard c. Kennedy V. NichoUa ti. Zellerbach Mary, The Mason v. Bair V. Finch 11. Messenger Massie v. Sabastian Mather v. Maidstone Matoon v. Clapp V. Young Matthews v. Houghton Malthey v. Wiseman Mattison v. Aussmuss Maury v. Coleman Mayenborg v. Haynes Mayo V. Ah-Loy McAdams «. Hawes McAEFerty v. Conover McAllister v. Brooks McBlair t>. Gibbes McBridge v. Greenwood McBrooin v. Lebanon McCabe v. Raney McCall V. Carpenter V. Coover 235 54 172, 174, 215 487 167 532 509 137 245 894, 405 183, 196 438 73 72 260 461 486 129 486 537 '73 389 298 424 442, 461 191, 201 295 McCance o. London and North- western Ry. Co. 494 McCarthy v. Mann 326 McClure v. Engelhardt 251 McConnell v. Bowdry 364, 366 McCoon V. Smith 444, 447 McCormick v. Barnum 471 V. SuUivant 122, 129 McCrea «. Purmort 282 McCrory v. Parks 46 McCuUough V. Clark 20 V. Wilson 446 McCusker v. McEvey 326 . McDaniel v. Hughes 224 McDowell V. Langden 110 V. Graham 533 McElmoyle v. Cohen 183, 185, 196, 196 McFarland v. White 188 McFarlane v. Cushman 25 McFerrin v. Perry 387 McGilvray v. Avery 221 Mackintosh v. Smith 88 McGregor v. Rhodes 893 McKleroy v. Southern Bank of Kentucky 405 McLean v. Meek 80 McLendon v. Dodge 200 McMaster v. Ins. Co. of N. A. 493 McMicken v. Perin 389 McMullin V. Glass 283 McNamee v. Moorland 66 McNeil V. Hill 429 V. Tenth National Bank 434 McPherson v. Walters 634 McRae v. Mattoon 138, 215 MdStea v. Matthews 434 Mc Williams v. Nisly 334 V. Ramsay 389, 390 Meadowcroft v. Huguenin 135 Meadows v. Duchess of Kingston 133, 134 Meads v. Merchants' Bank of Al- bany 413, 417 Mechanics' F. Bank v. Schuyler 894 Meeus v. Thellusson 214 Megee v. Beirne 148 Meister v. Birney 492 Meley v. Collins 608 Menlove v. Oakes 210 Mercer County v. Hacket 421 Merchants' Bank v. Chandler 70 Merchants' Insurance Co. v. De Wolf 201 Merchants' National Bank v. Na- tional Eagle Bank 405 Merchants' National Bank v. State National Bank 413, 414 Mercier v. Chace 122, 129, 130 Meredith v. Davies 539 Meriam v. Rundlett 78, 226 Merrells v. Phelps 462 Merriam v. Boston, &c., R. Co. 245, 253, 443 V. Cunningham 447 V. Hassam 382 V. Sewall 146 V. Wolcott 408 Merrill v. Tyler 602 xxvm CASES CITED. Merritt v. Harris 294 Merryman v. Bourne 260 Mervin v. Kumbel 211 Metiers v. Brown 65, 244 Meyer v. Clark 603 V. Muscatine 421 Middlesex Bank v. Butman 177 Middleton's Case 65 Mildway v. Smith Miles V. Caldwell V. Furber V. Lingerman Milford V. Holbrook 432, 495, 496 64 426 444 66 Miller v. Brooklyn Life Ins. Co. 427 V. Covert 98 V. Eagle Life Ins. Co. 456 V. Ewing 302 V. Goodwin 283 V. Lang 352, 362, 369 V. Manice 108 V. Mans 525 V. McBrier 364, 366 V. Miller 213, 509 V. Moses 277 V. White 70 Mills V. Catlin 301 V. Duryee 180, 182, 204 V. Graves 534 V. Martin 130 Milne v. Van Buskirk 199, 200, 216 Miners' Ditch Co. v. Zellerbach 423 Minet v. Gibson 396 Minor v. Mechanics' Bank 26 V. Walter 20, 121 Miranville v. Silverthorn 453 Mitchell V. Barry 259, 383 V. Cook 26, 110 V. Culver 394 V. Ingram 272 V. Kintzer 136 V. Lipe 373 V. Ostrom 426 V. Sanford 96 Moffat 1). Strong 347, 350 Mondel V. Steel 102, 103, 104 Monroe v. Douglas 128, 161, 177 Montague v. Perkins 394 Montgomery's Case 264 Montgomery v. Clark 161 V. Montgomery and W. Plank-road Co. 423 Moore v. Beasley 352 V. Metropolitan Nat. Bank 434 Moran v. Miami County 421, 423 Morgan v. Bliss 25 V. Chester 62 V. Lamed °°1 V. Moore 270 V. Rowlands 94 V. Vaughn 640 Morris v. Bethell 405 V. Hall 611 V. Rexford 603 V. Rosser 637 Mon-ison v. New Bedford Inst, for Savings 72 V. Wilson 443 Morse v. Goddard 362, 363 V. Goold 13 V. Presby 122, 124, 129 V. Toppan 48 Morton v. Sweetser 25 V. Woods 264, 265, 378, 379 Mosely v. Hunter 305 Moses V. Macferlan 95, 111 Moss V. McCuUough 70, 78 V. Oakley 70 V. Sallimore 372, 382 Moulton V. Trask 117 Mountnoy v. Collier 377 Mowrey v. Walsh 485 Moyer v. Lobengeir 73 MuUer v. Pondir 486 Munson v. Munson 197, 524 Murdock v. Chapman 270 Murphy v. Barnett 335 Murray v. Blatchford 443 V. Jones 451, 514- Mussey v. Eagle Bank 413 Myers v. Beeman 11 V. Uhrich 73 N. Naglee v. IngersoU Nason v. Allen 274 26Q CASES CITED. XXIX National Bank «. Bangs 392, 405, 408 O'Connor ti. Varney 107, 108, 516 National Park Bank v. Ninth Na- Oddie V. City National Bank 406 tional Bank 399 Odlin V. Gore 476 Nations «. Johnson 197 Offley ». Ormes 349 Needham v. Bremner 145, 548 Ogle V. Atkinson 381, 384 Nellis V. Lathrop 374 V. Smith 494 Nelson v. Oldfield 161 V. Vickers 355 Neusbaum v. Keim 18 Oldham v. Ledbetter 73 Nevett V. Berry 273 Olcott 0. L'ttle 57 Ne-yille v. Hancock 56 O'Linda v. Lothrop 270 Newcomb v. Presbrey 303 Oliver V. Hearne 624 Newell V. Nixon 464 Ormond v. Moye 11 New Harven v. Fair Haven & W. Osgood V. Abbott 242 R Co. 452 V. Nichols 387 Newington ». Levy- 526 Osterhout v. Shoemaker 251 260 New Jersey Franklinite Co . V. Otis V. Sill 453 Ames 69 Outram ». Morewood 39 149 548 Newton o. Egmont 70 Overton v. Banister 448 V. Walters 71 ». Harvey 543 New York & New Haven R Co. Owen c. Robbins 251 0. Schuyler 515 V. Slatter 461 Nichol V. Mason 223 Nicodemus v. East Saginaw 610 Nieto V. Carpenter 246 P. Nightingale v. Withington 411 Noble V. Cope 275 Packet Co. v. Sickles 34 V. Gold 180 Pagan ». Wylie 399 Noell V. Wells 133 Page V. Butler 272 Noonan v. Ilsley 328 V. Kinsman 352 Norris v. Hall 73 Paige V. Sherman 283 V. Norton 257 Palmer v. Bowker 378 V. State 272 V. Ekins 348 V. Wait 447 ,448 V. Temple 543 North Bank v. Brown 222 V. Williams 441 North V. Mudge 18 Pardon v. Dwire 122 Norton v. Doherty 33 Pargeter v. Harris 263, 264 265, I). Huxley 32 37£ , 380 0. Norton 605 Parish v. Parish 129 Novelli V. Rossi 176 V. Wheeler 423 Niven v. Belknap 449 , 452 Parker ». Barker 465 Nourse V. Nourse 253 V. Bennett V. Crittenden V. Manning 270 449 247 0. V. Thompson V. Smith 4 270 O'Beirne v. Lloyd 117 Parkhurst v. Van Courtland 453 Obicini v. Bligh 17t ,219 Partridge v. Bere 382 Ocean Ins. Co. v. Francis 91 ,157 V. Messer 255 XXX CASES CITED. Pasley v. Freeman Patterson v. Fraser V. Hansel Paul V. Witman Pawling V. Bird Payne v. Payne Pearce v. Olney Pease v. Whitten Peaslee v. Robbins Peck V. Vandenberg Peek V. Gurney Pelletreau v. Jackson Pelton V. Plainer Pendleton v. Dyett Pennington v. Gibson 431 48 364 66 176, 180 113 186, 216, 217 17 411 427 449 263 235 363 197 Penobscot R. R. Co. ». Weeks 122, 129 Penrose ». Curren 445 V. Griffith 295 People V. Brown 246, 437 V. Goodwin 510 V. Johnson 82 V. Judges of Munroe Co. 66 V. Murray 509 V. New York 615 V. Phoenix Bank 136 V. Plnmpke 470 V. Reeder 429 V. San Francisco 88 V. Smith 109 V. Townsend 136 u. White 615 Perkins v. Gray 471 V. Moore 22 V. Parker 26, 110 u. Pitts 77 V. Walker 34, 112, 524 Perrine v. Serrell 106 Perry v. Meadowcroft 136, 137 Peters v. Sanford 53 V. Warren's Ins. Co. 156 Petrie v. Nuttall 47 Peyton v. Stith 373 Phillips V. Berick 34, 98, 623 V. Godfrey 187 V. Hunter 172, 224 V. Rogers 611 V. Thurn 396 400, 402, 404 V. Van Schack 621 Phillips V. Ward Pickard v. Sears Pickering v. Busk Pico V. Webster Picquet V. Swan Pierce v. Andrews V. Carleton Pike V. Galvin Pim V. Curell Pistole V. Street Pitt V. Berkshire Life Ins. Co. V. Chappelow Pitman v. Albany Placer County v. Astin Planch^ V. Colburn Plant V. Voegelin Planter's Bank v. Merritt Piatt V. Squire Plets V. Johnson Plevin V. Brown Plumb u. Cattaraugus Plume V. Beale Plumer v. Lord 56 432, 435, 449, 473, 486, 487, 488, 489, 494, 495, 497, 636 434 63 126, 128 472 72 802 148 513 427 410 147 387 117 461 613 633 396 356, 357, 359 632 161 439 Plummer v. Woodbume 197, 203, 219, 223, 235, 528 Pond V. Makepeace 80, 228 Pool V. Lewis 537 Poole V. Whitt 364 Poor V. Robinson 244 Poorman v. Crane 207 Pope V. Bank of Albion 417 Porter v. Hill 77 «. Ingraham 55 V. Purdy 131 V. Robinson 49 Potter V. Parsons 216 Potts V. Dowdall 326 Powell V. Monson & M. Co. 341 Pratt V. Cunliff 72 V. Farrar 378 Preble v. Baldwin 283 V. Conger 441 Preece v. Ilowells 264 Prescott V. Hull 227 Preston v. Mann 476, 478 V. Merceau 281 CASES CITED. XXXI Prestwiok u.- Marshall 410 Rector v. Waugh 306 Prevot V. Lawrence 364 534 Redd V. Muscogee R. Co. 434 Price V. Neal 391 393 , 406 Reed V. Farr 470 B. Thompson 492 V. Girty 198 Prifhard «. Houlditch 360 V. McCourt 279 ,470 Priestly v. Fernie 68 Rees V. Lloyd 296 Prince i>. Brunatte 409 ,410 Reese v. Smith 328 Pritchard v. Hitchcock 76 Reid V. Darby 167 Pritchet v. Clark 177 Reigard v. McNeil 613 Proctor's Case 13 Regina v. Ambergate, &c., Ry. Co .442 Front V. Wiley- 609 V. Blakemore 75 Providence Life Ins. Co. v. Fennell 427 V. Buckinghamshire 639 Prudam v. Phillips 134 V. I^iverpool 539 Pockett ». Pope 205 V. Salop 638 Pursley v. Hayes 611 V, Shropshire Union Co. 435 Putnam v. Sullivan 394 V. South Holland Remmettu. Lawrence Remsen v. Graves 538 496 412 Q. Rennick v. Bank of Chillicothe Rennie v. Robinson 614 356 Quackenbush v. Ehle 25 Requa v. Holmes 611 Quigley v. Campbell 524 Rex V. Bentley V. Bradenham V. Cirencester 146 146 146 •R. V. Cotton u. Grundon 516 13 Radcliff V. United States Ins. Co. 91, V. Scammonden 283 157 V. St. Pancras 38 Railroad Co. v. Dubois 453 V. Vincent 134 Ralston V. Lahoe 49 Reynolds v. Blackburn 641 Randolph v. Keller 200 V. Lounsbury 434 Rangeley v. Spring 443 V. Mutual Fire Ins. Co.^ 483 Rangely v. Webster 198 222 V. Roebuck 615 Rankin v. Barnes 196 Ricard v. Sanderson 271 V. Godard 176 Ricardo v. Garcino 175 Ransom v. Stanberry 620 521 Rice V. Barrett 426 Rapalee v. Smith 614 V. Bunce 467 Rape V. Heaton 209 V. Dewey 466 Rapelye v. Prince 67 V. Rice 435 Rathbone v. Hooney 66 Rich V. Coe 69 Ravee ». Farmer 90 111 V. Rich 84 Rawlinson v. Stone 409 Richards v. Johnston 450 Rawlyns's Case 316 Richardson v. Boston 88 Ray V. Indianapolis Ins. Co. 424 V. Hickman 72 Raymond v. Holden 341 Rider v. Alexander 201 Raynor v. Timerson 470 Rieman v. Fisher 408 Read v. Sutton 4 Right V. Buoknell 266, 274, 296 319 V. Walker 633 Riker v. Hooper 33 xxxii CASES CITED, Kiley v. Murray 200 Rowley ». Howard 129 Ripley v. Billings 441 Royal British Bank v. Turquand 42a V. Etna Ins. Co. 466, 508 Rubber Co. v. Goodyear 15 453 Rivard v. Gardiner 496 Ruckman v. Alwood 616 Roach V. Garvan 159 Ruffin V. Johnson 295 Robbing v. Potter 472 Rumfelt V. Clemens 445 Roberts v. Read 120 Russ V. Alpaugh 288, 289 300 326 V. Tucker 400 Russell V. Erwin 353 V, Wentworth 387 V. Fabyan 852 Robertson v. Roberts 72 V. Langstaffe 394 V. Smith 62 V. Union Ins. Co. 163 V. Struth 175, 219 Rutherford v. Taylor 492 Robeson ». Carpenter 71 V. Tracy 470 Robins v. Crutchley 134 Rutland v. Rutland 80 Robinson v. Jones 166 Rutter V. Puckhover 49 V. Howard 22 V. Prescott 230 V. Ward 207 S. V. Yarrow 397, 400 Robinson's Case 65 Sage V. McLaughlin 442 Robson V. Eaton 206 Sahler v. Signer 381 Roby V. Chicago 614 Sainsbury i>. Jones 480 Rocco V. Hackett 198 St. John V. Palmer 363 Rochell V. Benson 260 Salter ». Kidley 266 Rock V. Leighton 19, 65, 97 Saltus V. Everett 434 Rockford Ins. Co. v. Nelson 637 Sanderson v. Collman 411 521 Rodermund v. Clark 603, 514 Sanford v. Sanford .215 ,504 Roe V. Jerome 450 Sanger v. Wood 503 Rogers v. Burlington 421 Sarchet v. Sloop Davis 196 V. Burns 189 Sargeant v. Andrews 73 V. Gwinn 216 Sargent v. Fitzpatrick 108 V. Higgins 444 V. Odell 222 V. Pitcher 356, 367, 367, 368 u. Ratcliff 88 V. Rogers 189, 191 V. Weir 387 V. Wood 11 Root V. Crock 295 V. French 435 Rose V. Himely 166 V. Hurley 461 Rosenthal v. Remick 228, 229 Ross V. Dysart 363 Rossire v. Boston , 614 Roundtree v. Turner 16 Routledge v. Hislop 114 Rowe V. Smith 96 Saunders v. Merryweather 264, 265, 379 Savage's Case 73 Sawyer v. Maine F. & M. Ins. Co. 155, 167 V. Woodbury 105, 108 Saxton V. Dodge 389 Sayles v. Smith 384 Schmaltz v. Avery 496 Schnell v. Chicago 444 Schultz V. AstU'y 394 Schumann v. Paradise 444 Schwartz v. Saunders 444, 445 Scibsby v. Westenholz 203 Scott V. Pilkington 174, 176, 178,201, 222 V. Shearman 141 CASES CITED. XXXIU Scott V. Yarborough 524 Scrimshire v. Scrimshire 160 Searcy ». Kirkpatrick 269, 883 Searle v. Abbe 469 Second National Bank v. Wal- bridge 430, 471 Secrist v. Green 81 V. Grunn 181 V. Limmerman 18 Seddon v. Tutop 92, 118, 119, 623 Segee v. Thomas 131, 203 Sergeant v. Ewing 46, 79 Sessions i*. Stevens 73 Sewell's Case 474 Seyraor's Case 319 Seymour v. Page 490 Share v. Becker 622 Sharp V. Taylor 389 Sharp, In re 510 Shaver v. Shell 14 Shaw V. Beebe 337, 537 V. Gould 160 Shawhan v. Loffer 131, 203 Sheehy v. Mandeville 50, 62 Shelbury v. Scotsford 386, 386 Sheldon v. Kibbe 62 t!. Atlantic Ins. Co. 427 V. Hopkins 236 V. Stryker 18 V. Wright 139 Shelley v. Wright 266, 269 Shelton v. Carrol 369 V. Shelton 278 V. Tiffin 132, 206, 209 Shephard v. Little 281 V. Pratt 528 Sheridan v. New Quay Co. 385, 386 Sherman v. Christy 18 V. McKeon 511 V. Parish 509 Sherrard v. Nevins 132 Sherrod v Langdon 426 Sherwood v. Vandenburgh 250 Shirreflfi). Wilks 426 Shivers v. Wilson 285 Shoemaker v. Goshen 428 Shroyer v. Richmond 272 Shufeldt V. Buckley 285 Shultz V. Elliott 364, 367 Shumway v. Stillman 183, 206, 214 Shuttlesworth v. Hughey 46 Sidensparker v. Sidensparker 81 Sill V. Beese 542 Silver Lake Bank v. Harding 232, 283 Simers v. Saltus 363 Simmons v. McKay 122 Simons ». De Bare 129 Simonton v. Liverpool, &o., Ins. Co. 439 Simpson v. Fogo 158, 175 I). Pickering 149 Sinclair v. Murphy 386 V. Sinclair 169 Sinnett v. Moles 460 Skaife v. Jackson 427 Slade's Case 113 Slee V. Bloom , 70 Slim V. Croueher 476, 478, 481 Sloan V. Holcomb 503 Sloan's Appeal 222 Slocum V. Mayberry 143 Smith V. Baker 305, 883 V. Cramer 476 V. Crompton 66 V. Elliott 524 V. Fenner 160 V. Fowle 235 V. Hall 587 V. Jones 98, 120 V. Keen 137 V. Marsack 409, 411 V. McCluskey 111 V. McNamara 470 V. Mercer 405, 407 V. Morgan 65 V. Mundy 634 V. Newton 476 V. NicoUs 203, 214, 218, 223 u. Penny 243 V. Scott 352 V. Sheeley 511 V. Shepard 368 V. Smith 137, 144, 198, 463, 505, 509 V. Strong 802 XXXIV CASES CITED. Smith V. Way V. Weeks ». Whiting V. Williams Snape v. Horgate Sneed v. Osburn Snell V. Faussatt Snider v. Croy Snodgrass v. Ricketts Snow V. Howard V. Prescott Snowdon v. Bavis Snyder v. Wise 46 95 110 157 228 471 168 523 337 18 96 112 232 Society for Propagation of Gospel V. Pawlet 251, 261 Society of Savings v. New Lon- don 423 Somes V. Skinner 324 Southard v. Perry 611 Southeastern Ry.,Co. v. Warton 256, 278, 280 Southerland v. Stout 288 Spalding v. Wathen 49, '50 Sparrow v. Kingman 245, 250, 259 Spears ». Walker 637 Spencer v. Carr 481 V. Dearth 37 V. Spencer 160 V. Vigneaux 109 V. Williams 81 Spiller V. Scribner 637 Spooner v. Davis 102 Springstein v. Schermerhorn 262 Squires v. Brown 70 Stace and Worth's Case 474 Stackpole v. Robbins 283 Stacy V. Trasher 79, 229 Stafford V. Clark 109 Standish v. Parker 88 Starbuck v. Murray 209 Starkweather v. Loomis 232, 233 State V. Candler 185 V. Delafield 416 V. Graham 246 IV. Langer 614 V. Little 137 V. Ogle 494 v.. Roswell 66 State V. Van Home 423 State Bank v. Fearing 392 Steadman o. Duhamel 399 Stearns v. Hendersass 302 V. Swift 840 V. Wrisley 71 Steckert v. East Saginaw 510 Stedman v. Patchin 194 Steel V. Smith 213 Steele v. Adams 461 V. Lineberger 79 Steen v. Bennett 145 V. Steen 129 Stein V. Prairie Rose 117 Steiner v. Baugham 301, 334 Stephens v. Baird 435, 472 Stevens v. Dennett 437, 637 V. Dunbar 21, 22 V. Fisher 71 V. Hays 256 V. Whistler 84 Stewart v. Dent 46 V. Warner 157 Stilley V. Folger 607 Stimson v. Farnham 494 Stingley ». Kirkpatrick 54 Stinson v. Sumner 77 St. John V. Roberts 273, 438 Stockton V. Williams 255 <3. Wooley 607 Stockwell V. Coleman 232 Stoddard v. Shetucket Foundry Co. 420 V. Thompson 47 Stokeman v. Dawson 448 Stonard v. Dunkin 385, 499, 500 Stone V. Dickenson 57 V. Great Western Oil Co. 483 V. Wood 78 Stoops V. Woods 65 Storer v. Storer 116 Storrs V. Barker 438 Stortzell V. Fullerton 50 Stovall V. Banks 81 Stow V. Wyse 295, 305 Stratton V. Rastall 239 Strawn v. Strawn 245 Street v. Augusta Ins. Co. 140 CASES CITED. XXXV Stribling v. Prettyman 542 Sirikev v. Keller 85 Strode V. Seaton 290, 814 Stroughill V. Buck 256, 269 Strowd V. Willis 266 Struble V. Malone 200 Strutt V. Bovingdon 149 Studdard v. Lemond 452 Sturgis V. Rogers 16 Sturtevant v. Randall 4 Succession of Gorrisson 147 Succession of Monette 508 Sumner v. Barnard 261 Sunderlin v. Struthers 241 Suydam v. Barber 198 Swan V. North British, &c., Co. 400, 417, 483 Swanson v. Tarkington 514 Swarthout v. Mich. Air Line R. Co. 424 V. Payne 66 Sweet V. Brackley 186 i>. Brown 300 V. Tuttle 87 Swick V. Sears 534 Swift V. Dean 364, 367 Swink V. Snodgrass 518 Sykes v. Bonner 101 Syllivan v. Stradling 348, 852 Syme v. Montague 268 T. Talbot V. Bank of Rochester 897 Tallant v. Burlington 609 Talmadge v. Chapel 228 Tarns V. Bullitt 71 V. Lewis 88 Tapley v. Wainwright 84 Tappan v. Bruen 67 Tarleton v. Tarleton 178, 214 Tash V. Adams 428 Tate V. Hunter 61 Tatham v. Wright 32 Taylor v. Barron 176, 228, 230, 231 V. Bryden 176 Taylor v. Castle 113 ». Columbian Ins. Co. 190 V. Croker 409 V. Dabar 833 V. Ely 464 V. Kilgore 200 V. McCrackin 26, 110 V. Needham 246 V. People 423 V. Phelps 81, 176, 177, 201, 224 V. Shew 175 V. Shufford 246 Tenant v. Elliott 389 Terrell v. Grimmell 511 Terry v. Hammonds 22 Tewksbury v. Magrafif 364, 365, 366, 367 Thatcher v. Powell 236 Thayer v. Bacon 468 V. Tyler 72 Thellusson v. Woodford 503 Theobalds v. DufFoy 337 Thistle V. Bufford 337 Thomas v. Hite 22 V. HubbelJ 67 V. PuUis 471 V. Robinson 282, 285, 528 V. Sterns 80 Thompson's Appeal 187 Thompson v. Blanchard 434 V. Hodgson 539 V. Hoop 607 V. Lee Co. 201 V. McKay 98, 642 V. National Bank of Re- demption 22 V. Roberts 54 V. Simpson 448 V. Whitman 209, 528 V. Wood 117 Thorne v. Tilbury 386 Thornton v. Thompson 106 Thouvenin v. Rodriques 137 Thurlough v. Kendal 542 Thurston v. Thurston 548 Tibbetts v. Tibbetts 503 Tibbs V. Allen 124 XXXVl CASES CITED. Tifft V. Munson 326 Tilghman v. Little 374, 384 Tilton, The 155, 167 Tilton V. Gordon 96 V. Nelson 438,-451 Tioga R. Co. V. Blossburg 45 Tobeyj). Cbipman 502 Toby V. Brown 149 Todd V. Gee 480 V. Kerr 509 Tolman v. Sparhawk 468 Tompkins v. Tompkins 160 Torrey v. Pond 46, 112 Town V. Needham 449 Towne V. Butterfield 377, 384 Towns V. Nims 90 Townsend v. Moore 161 Tracy v. Goodwin 66 Trafton v. Hawes 369 V. United States 63 Trask V. Hartford and New Haven Railroad Treadwell v. Stebbins Trevivan v. Lawrence Trull V. Eastman Tucker v. Clarke V. Conwcll V. Malloy Tufts V. Cbarlestown Tuite V. Stevens Turbill's Case Turner v. Waddington V. Waldo Twogood V. Pence 247- 118, 119 94 290, 314, 326 302 328 452 466 270 514 73 180 497 18 TJ. Union Petroleum Co. v. Bliven Pet. Co. 64 United States v. Cusbman 67 V. Lane 624 V. Merchants' Bank 220 ». Price 53, 5fi I'. Reiter 14 Unity Joint Stock Assoc, v. King 448 University?). Maultsby 26, 110 Upshaw V. Upshaw 503, 506 Usher V. Richardson 340 Valle V. Clemens 297 Vallejo Land Assoc, v. Viera 297 Van Aleri v. Rogers 113 Van Bibber v. Beirne 441 Van Hook v. Whittock 609 Van Metre v. Wolf 48 Vance v. Johnson 372 ,382 Vandenheuvel v. United Ins. Co. 167 Vanderpoel v. Van Valkenburgb 146 Vanderpool v. Brake 461 Van Doren v. Horton 137 Van Deuzen v. Howe 394 Van Horn v. Teasdale 624 Van Hostrup v. Madison 421 Vanquelin r. Bouard 174 214 Van Rensselaer v. Kearney 274, 296, 296 Van Steenburgh v. Bigelow 131 Van Vechten v. Terry 69 Van Vliet v. Olin 525 Varnam v. Smith 351 352 Vaspor V. Edwards 616 Vaughan v. Vanderstegen 446 Veale». Warner 348 Venable v. Beauchamp 307 Vere v. Lewis 396 Vibbard v. Roderick 426 Violett V. Patten 394 Vooght V. Winch 619 ,520 Voorliecs v. Seymour 81 Voorheis v. White 261 ,261 Vos V. Robinson 466 w. Waddle v. Ishe Wade V. Howard Walbridge v. Shaw Wiilcott V. Swampscott 26 25 25 615 CASES CITED. XXXVU Walden v. Bodley 26, 373 WaUlron v. McCarty 363 V. Sloper 435 Walker v. Ames 96 V. Chase 105 V. Hall 306 e. Mitchell 46 V. Walker *442 V. Witter 151, 170, 171, 172 B. Worcester 270 Wallace v. Maxwell 246 V. McConnell 74 V. Miner 245 V. Morss 444 Walsh c. Durkin 221 M''atson «. Knight 460 Walthall V. Rives 262 Walton V. Waterhouse 292 Wannell b. Ken 467 Ward V. Allen 394, 399 V. Johnson 62 V. Mcintosh 262 t>. State 16 Ware v. Percival 33, 113 Waring v. Reynolds 49 Warner v. Middlesex Assar. Co. 536 Warren v. Coinings 98 V. Flagg 229 V. Lusk 132, 206 V. Milliken 498 Washington Bridge Co. v. Stew- art 131 Washington Co. Ins. Co. v. Col- ton 279 Watkins v. Holman 213, 260 Waters's Appeal 249 Watertown v. Cowen 449 Watson V. Hopkins 132 V. Lane 381 V. New England Bank 206 Watt V. McGilliard 608 Watters v. Smith 50 Watts V. Gale 81 V. Welman 263 Way V. Arnold 331 Wayland v. Porterfield 193 Weale v. Lower 311, 315, 332 Weatherford v. Weatherford 624 Webb V. Alexander 363 i>. Austin 290, 314, 315 V. Heme Bay Commission- ers 419 Webster B.Lee 93,111 B. Lowell 72 Wedge V. Moore 260 Weedon v. Landreux 608 Weed Sewing Machine Co. «. Emerson 255, 294 Weeks b. Pearson 221, 223 Weikel v. Long 18 Welch B. Sykes 206 Weld V. Baxter 292 Welland Canal Co. ». Hathaway 424, 435 Wellboon v. Finley 255 Wells V. Dench 112 Wescott V. Brown 206, 209 West V. Tilghman 634 West Buffalo v. Walker 146 Westoby v. Day 72 Westerwelt b. Lewis 213 Wetmore v. San Francisco 98 Wetter ». Rucker 70, 72, 73 Weyr B. Zane 200 Whalin v. White 353, 363, 364 Wheble b. Fuller 355 Wheelock v. Henshaw 263 Wheeler B. Aldrich 72 V. Raymond 235 V. Ruckman 25 0. Wheeler 443 Whipple V. Parker 424 V. Robbins 73 Whistler b. Webster 604 Whitaker v. Brarason 18, 20, 22 V. Williams 478 White B. Ashton 438 B. Gardner 107 V. Jones 132 V. Merritt 99, 101, 107 B. Moseley 94, 118, 119 V. Walker 440 V. Ward 96 B. Wilks 429 Whitehouse v. Frost 429 Whitfield V. Fausset 322, 330, 333, 334 xxxviii CASES CITED. Whiting V. Johnson 213 Wilt V. Welsh 445 Whitney v. Clarendon 120 Winchester v. Evans 176 , 180 V. Porter 49, 122 V. Jackson 218 r. Walsh 142 Windham v. Wither 65 Whittier v. Wendell 222 Wingate v. Haywood 122 Whittington v. Wright 448 Winlock V. Hardy 251 ,259 , 261 Whitman v. Boiling 452 Winnard ». Robbins 384 VVhitton V. Peacock 265 Winship V. Winship 507 Wickersham v. Whedon 98 Winslow V. Grindal 76 Wight V. Shaw 245, 302 Winstell V. Hehl 363 Wilcox V. Howell 450, 477 Winton v. Hart 434 V. Kassick 209 Wise V. Hilton 71 Wiles V. Woodward 256 Wivel's Case 330 Wiley V. Pratt 122, 132 Wixom V. Stephens 20 Wilhelm v. Caul 117 Woburn v. Henshaw 251, 260, 262, Wilkins v. May 260 382 Wilkinson v. Hall 73, 225 Womack v. Dearman 201 V. Johnson 399, 400,401, Wood V. Bayard 50 402 403, 405 V. Corl 94 D. Kirby 552 V. Gamble 220 V. Moseley 513 V. Jackson 34,90 V. Scott 283 V. Ostram 620 Wilks V. Kilpatrick 446 V. Seely 449 511 Willaid V. Sperry 98 V. Turner 373 Willetts V. PhcEnix Bank 417 V. Vance 448 Williams v. Allison 508 V. Watkinson 211 V. Armroyd 157 Woodbridge v. Banning 26, no, 307, V. Bennett 614 308 V. Fitzhugb 105 Woodbury v. Sawyer 110 V. Gideon 514 Woodgate v. Fleet 82 V. Heales 853 Woodley v. Coventry 388 499 a. Jones 153 Woodrnff J). Taylor 11 148 212 V. AFatthews 418 Woods V. North 328 V. Preston 177 V. Wilson 453 V. Saunders 160 Woodworlh v. Paige 341 V. Sutton 57 Wooley V. United States 14 ». Swetland 273 Worcester Medical Institution v. f. Walbridge 416 Harding 424 V, Watkins 383 Worrall v. Gheen 399 Willison V. Watkins 372, 373, 382 Worsley v. Johnston 251, 260 Wilson V. Anderton 385, 386 Wright V. Arnold 445 V. Jackson 209 V. Boynton 203 V. Niles 213 V. De Groff 243 V. Ray 00 V. Leonard 445 446 V. Townsend 504 V. Smith 638 V. Tunstall 220 V. Snow 448 r. Wilson 390 V. Tatham 32 V. Williams 416 V. Tukey 277 CASES CITED. XXXIX "Wrigbt V. Willis V. Wright Wyatt V. Rambo Yare v. Gough Yorks V. Steele 490 322, 331, 333 72, 167 228 68 Young V. Grote 397, 398, 399, 400, 490 I). Mutual Life Ins. Co. 427 V. Raincock 256, 269 V. Ward 394 Zeller «. Eckert 373 Zuchtman v. Roberts 486, 490 THE LAW OF ESTOPPEL. THE LAW OF ESTOPPEL. INTRODUCTION. The law of Estoppel consists of three divisions ; namely, Estop- pel by Matter of Record, Estoppel by Matter of Deed, and Estoppel by Matter in Pais. The first of these relates to the conclusive- ness and effect of judgments and the memorials of the Legislature ; the second, to the conclusiveness and effect of sealed instruments ; and the third, to the conclusiveness and effect of certain classes of acts and representations in pais, that is, in parol. It may be observed of the last class of estoppels, however, that they some- times arise upon sealed instruments also, as in the case of a tenancy by lease under seal ; but in such case, while the lease may produce one or more estoppels by deed, the main estoppel arising upon it (that by which a tenant is precluded from denying his landlord's title) is of the same force and effect as where the tenancy arises in pais. And hence the tenant's estoppel, whether the holding be by sealed lease or otherwise, is treated under the third division of the subject. The historical origin of these divisions of estoppel is separated by three long and indefinite periods, which may be termed the ancient, middle, and modern. To the first belongs the doctrine of Bes Judicata, a term borrowed from the Roman law ; ^ to the second belong the doctrines of Estoppel by Deed, and also of Estoppel in Pais as it existed prior to, and in the time of. Lord Coke ; ^ to the third belongs the modern doctrine of Estoppel in 1 Post, p. 5 et seq. 2 Post, pp. 346-348. xliv INTRODUCTION. Pais.^ No definite limits can be assigned,- as has been intimated, to the origin of either of these branches of estoppel. The iivst has existed, of course, from the time of the constitution of courts ; the second is found in the earliest collections of the English law ; ^ while the third has grown up within a century.^ For a long time estoppels were considered as odious ; and the courts have not yet altogether ceased to apply the term to them. The definition given by Lord Coke has often been referred to as giving ground for the application of the term. He said that the name " estoppel," or " conclusion," was given " because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth." * The definition certainly was not a happy one ; and, if it were altogether correct, the doctrine of estoppel might well be regarded as odious. It seems to be true, however, that in Coke's day the doctrine was not favored, and because it was often used to shut out the truth, against reason and good policy.* In modern times the doctrine has lost its odium, and become one of the most important, useful, and just agencies of the law. It is safe to say, that, at the present day, it is seldom employed to exclude the truth ; its whole force and effect are directed to pre- clude parties, and those in privity with them, from unsettling a matter which they have, in solemn form, admitted and adopted. A person's admission, made in either of three ways, is considered as conclusive of the fact as to him and his privies, and neither he nor they will be permitted to dispute its truth ; not on the ground, indeed, that the thing admitted is true, but because to allow its correctness to be disputed is contrary either to sound policy or to good morals. Certain admissions, then, are indisputable, and estoppel is the agency of the law by which evidence to controvert their truth is » Post, pp. 846-348. those, the title " Estoppel " is not in- 2 Statham's and Fitzherbert's Abridg- dexed. ments, and Year-Books temp. Edw. 2, 3 Pogt, p. 849. minis 1307-1826. These are the earliest * Coke, Litt. 852 a. printed volumes of the Year-Books, ex- 6 Note to Duchess o( Kingston's Case, cept three of the reign of Edw. 1. In 2 Smith's L. C. 698, 6th Eng. ed. INTRODUCTION. xlv excluded. Such admissions, as we have said, are those which arise by matter of record, or of deed, or in pais. There is a twofold estoppel arising by matter of record, i. e. from the proceedings of the courts : first, in the record considered as a memorial or entry of the judgment; and, secondly, in the record considered as res judicata. In the first case mentioned, the record has a conclusive effect upon all the world. It imports absolute verity, not only as against tlie parties to it and those in privity with them, but against strangers also ; and no one may produce evidence to impeach it.^ The estoppel of a record as res judicata is of greater importance. The force and effect of a judgment depend, first, upon the nature of the proceeding in which it was rendered, i. e. whether it was an action in rem or in personam; and, secondly, upon the forum in which it was pronounced, — that is, whether it was a judgment of a domestic or of a foreign court. A judgment in rem, properly speaking, is one which determines the status of a person or thing ; and its peculiarity is, that it is con- clusive upon all persons.^ Proceedings in attachment, replevin, and the like, are sometimes mentioned as proceedings in rem, but not with accuracy. The judgment in these cases binds only par- ties and privies, not strangers also.* Judgments in personam are those which bind only the parties to the proceeding, and those in privity with them. They have ordi- narily no effect as to third persons.* Prom this explanation we pass to some of the general features of judgments common to these divisions. In order to work an estoppel, and preclude the parties from re- litigating questions once adjudicated, the judgment must have been rendered by a legally constituted court.^ This conclusiveness has, however, sometimes been extended to the decrees of tribunals 1 Post, pp. 3, 4. 4 Post, p. 10. 2 Post, p. 10. s Post, p. 11. s Post, pp. 10, 11.] xlvi INTRODUCTION. other than the ordinary public courts of justice. A college sen- tence of expulsion was held conclusive in a case before Lord Mansfield. 1 Judgments of provisional military courts, and of courts-martial, are also conclusive.^ The judgments of the ordinary domestic courts of inferior juris- diction are conclusive, if it appear that they have acquired juris- diction.3 The following classes of judgments have also been held to be unimpeachable, except by appeal, or by some direct proceed- ing to set them aside: the decisions of the commissioner of patents, agreed judgments, awards of arbitrators under a rule of court, and in pais when they have been ratified, judgments by con- fession, and judgments by default.* In all cases, however, to preclude the parties and their privies from contesting the matters again, the judgment must have been final, and rendered upon the merits, and judgment must in fact have been entered.^ It must also have been valid. If void, it can- not work an estoppel ; but it is otlierwise of voidable judgments.^ And if the judgment possess all of these elements, it is held to be immaterial whether it was rendered before or after the commence- ment of the action in which it is interposed as an estoppel.'' Judgments, however, possess this conclusiveness only in respect to such matters as were necessary to the decision of the case. As to matters incidentally determined, the judgment is not conclusive, but may be collaterally impeached.^ With this qualification, mat- ters once determined in a court of competent jurisdiction may never again be called in question by parties or privies, against ob- jection, though the judgment may have been erroneous, and liable to, and certain of, reversal in a higher court.^ We proceed now to a more detailed examination of this subject. And first of domestic judgments in personam. 1 Post, p. 13. 6 Post, p. 21. 2 Post, p. 14. 7 Post, p. 544. 3 Post, p. 15. 8 Post, p. 82. * Post, pp. 16-20. 9 Post, p. 45. 5 Post, pp. 20-26. INTRODUCTION. xlvii We divide this subject into four brandies : first, estoppel by former judgment ; secondly, estoppel by verdict ; thirdly, the extent and operation of judgment and verdict estoppels ; and, fourthly, the impeachment of judgments in collateral actions. The rule in respect to the first division is that the judgment of a court of competent jurisdiction may be relied upon as an estoppel in any subsequent case founded upon the same cause of action.^ The maxim is, Nemo his vexari debet pro una et eadem causa. The rule in criminal law, that no one shall twice be brought in jeopardy of life or limb, is the counterpart of this doctrine. In the case of estoppel by verdict,^ it is immaterial whether the cause of action in which the verdict was given was the same in the subsequent suit or not. The rule in this case is that a point once determined between the parties, or those under whom they claim, may be relied upon as an estoppel in any cause of action that may thereafter be tried. The estoppel arises upon the special findings of the jury. But, though it is not necessary that the cause of action should be the same in both cases, it is essential that the point decided should be precisely the same as the one raised in the subsequent suit.^ In regard to the efiect and operation of judgment and verdict estoppels, in domestic proceedings in personam, it is a general rule that only parties and privies are bound by, or may take advantage of, the adjudication.* The estoppel must be mutual ; it cannot be employed by ox against strangers. The term " parties " em- braces all persons having a right to control the proceedings, make defence, adduce and cross-examine witnesses, and to appeal from the decision, when an appeal lies.^ In some cases, however, per- sons not parties to an action may take advantage of the judgment. In the case of a judgment against one of several co-contractors, if 1 Post, pp. 27-36. ° Post, pp. 36-46. 2 The verdict must have been followed * Post, p. 46. by judgment, without which there can ^ Post, p. 47. never be an estoppel. See post, p. 548, note. xlviii INTRODUCTION. an action be thereafter brought against another of the contractors, he may plead the judgment rendered against his fellow, and this, according to the principles of the common law, will bar the action. This proceeds upon the ground of merger. The plaintiff had but one cause of action, and this was merged by the former proceed- ings into the higher claim of a judgment.^ This result, however, is not effected, according to the American law, by a judgment against one of several tort-feasors ; and only the defendant, and those claiming under him, are bound by the judgment. The tort is considered as joint and several.^ In Eng- land, however, the same rule prevails here as in the case of a judgment against one of several joint contractors. It is there held that the tort is joint only, and that it becomes merged in the judg- ment, whether rendered against a part or all of the wrong-doers.^ In other cases where the parties are really the same, though nominally different, the judgment will work an estoppel upon the real parties ; as in the case of a judgment obtained by a principal or by a bailor, which estops the agent or bailee to sue upon the same cause of action.* But the converse of this rule does not hold, unless the suit be brought at the instance of, or be acquiesced in by, the principal or bailor.^ Judgment in ejectment, under the old fictitious form of proceeding, is another instance of this kind.® But a different rule prevails where the parties are nominally the same, but really different ; and judgment in such case does not operate as an estoppel upon the real parties.'' Persons liable over are bound by judgments against the parties to whom they are so lia,ble, upon notice to appear and defend ; ^ but one who was merely a witness upon the former trial will not, it seems, be bound by the judgment ; for appearing as a witness does not give a person the rights of a party .^ 1 Post, pp. 50-54. 6 Post, pp. 60. 61. 2 Post, p. 57 J Elliott V. Hayden, 104 6 Post, p. 64. Mass. 180. This case should be cited in 1 Post, pp. 64, 65. note 4, p. 57. 8 Post, pp. 65-68. 3 Post, p. 51, note. 9 Post, p. 68. * Post, p. 63. INTRODUCTION. xlix Judgment upon garnishment or trustee process operates as an estoppel in an action by the original creditor of the garnishee or trustee, to the extent of the judgment. But the creditor may prove that the debt is greater than it was admitted to be by the debtor.i The term " privity," as applied in the law of estoppel, denotes successive relationship to the same rights of property ; and persons falling within this definition, whether privies in laiw, in blood, or in estate, are bound by, and may take advantage of, judgments, equally with parties.^ There is no privity in the relations of guarantor and principal, surety and principal, co-sureties, and the like, in the sense of mak- ing judgments against the one operate directly against the other, without notice to appear and defend.* But though a judgment against a principal is not a judgment against the surety, the judg- ment is conclusive against the latter of the validity and extent of the obligation assumed.* Nor is a judgment against an adminis- trator or executor conclusive at common law against an heir or devisee of the deceased.* But an administrator is in privity with his intestate in respect of the personalty ; and an executor is in privity with his testator to the extent to which, by the terms of the will, he succeeds to the position of the testator.® Whether an administrator de bonis non is in privity with his predecessor, the executor or administrator, is a point of bonflict among the author- ities. The weight of authority is probably in the negative.'^ It is an important qualification of the rule that judgments bind the parties, that they bind them only in the character in whichi they appeared in the proceedings. A judgment against a person- in his own proper character is not an estoppel against him as ad- ministrator. And the same is true of estoppels generally .» 1 Post, pp. 70-74. ' Post, p. 78. 2 Post, p. 74. * -P"«*' P- ■^9- 3 Post, p. 75. ' Ibid. 4 Post, p. 81. ' Po't, pp. 65, 243. 1 INTRODUCTION. There are some cases in which judgments in personam operate upon strangers. One of these cases is where a person is affected by a chain of title under a judgment, sale, and execution. When a judgment is introduced as a document connected with the chain of title, the other party will not be permitted to impeach it upon the ground that it is res inter alios acta.^ Another case we have just mentioned, namely, where a judgment against a principal is conclusive against the surety of the validity of the obligation ; and, generally, judgments in personam are conclusive upon third per- sons of the relationship established between the parties, and of the extent of that relationship.^ We have already remarked that judgments are only conclusive of matters essential to the decision ; ^ but it often becomes a question of difficulty to determine the proper application of the rule. It seems, however, in the case of domestic judgments, that the rule is not to be taken strictly, as applicable only to the main question in dispute, but that the judgment is conclusive also of such matters as may have become essential to the decision of the action.* It has been a point of great discussion whether a judgment is conclusive of matters which might have been adjudicated, but which in point of fact were not put in issue ; but, according to the weight of authority and the better doctrine, the judgment operates to merge only such matters &s were necessary parts of the cause of action. There is no estoppel, therefore, except in respect to such matters as the parties to the cause were bound to litigate in it ; and the parties are not bound to litigate any thing except the single cause of action tried.^ But there is a wide difference between the case where a party omits to introduce evidence of one of several demands, or of a counter-demand, and that where he fails to produce sufficient i Post, p. 8L 4 Post, pp. 89-92, note. " ^^^^ ' Post, pp. 98-108. ' Ante, p. xliii. INTRODUCTION. ll evidence to sustain his position. In the latter case, an estoppel will arise from the judgment.^ It is well settled at the present day that an action cannot be maintained to recover money paid under a judgment, by reason of evidence, subsequently discovered, showing that the judgment should never have been rendered.^ But it has been held that money obtained by extortion, under the color of legal process, may be recovered.^ It is a general principle applicable to the domestic judgments of superior courts, that there can be no impeachment of the juris- diction of the court in which the judgment in controversy was rendered, unless it appear from the face of the record that the court had not acquired jurisdiction.* In the case of superior courts proceeding according to the course of the common law, the jurisdiction will be conclusively presumed in the absence of any thing in the record showing that the court had not obtained jurisdiction.* In cases where these courts proceed otherwise than according to the common law, there is some conflict as to whether the same presumptions will be raised ; but most of the courts hold that in such cases judgments are reduced to the rank of judgments of the inferior courts, so far as any presumptions re- specting jurisdiction are concerned.^ Judgments of inferior courts may be impeached for want of jurisdiction in all cases, except where there has been an adjudi- cation of jurisdiction by the inferior court.^ According to the better opinion and weight of authority, domes- tic judgments of the superior courts are not liable to impeachment on the ground that they were obtained by fraud ; but the rule does not apply to persons who could not have intervened in the proceedings or appealed from the judgment.^ Whether judgments of inferior courts may be impeached for fraud does not appear to J Post, pp. 108, 109. 6 Ibid. 2 Post, p. 111. 6 Post, pp. 123-129. « Post, p. 112. 1 Post, pp. 129-131. i Post, pp. 122, 123. 8 Post, pp. 134-139. lii • INTRODUCTION. have been determined ; but it is probable that they may be. This is certainly the case of the judgments of inferior courts from which no appeal lies.^ Of domestic and foreign judgments in rem, the most familiar instance is found in the adjudications of the Admiralty in matters of prize. These are conclusive against all the world both of the change of property and of the fact for which the condemnation was pronounced.2 Adjudications of the Admiralty in matters of collision also belong to this class.^ So of the condemnation and acquittal of goods in the Exchequer.* So of decrees establishing pedigree,^ decrees in matters of marriage and divorce,® decrees of the Court of Probate/ orders concerning the settlement and re- moval of paupers,^ decrees appointing tutors to minors,^ and judgments confirming the reports of commissioners of boundary.^" Foreign judgments in rem have from an early perio.d been regarded with high favor by the courts ; and they are held equally conclusive with the judgments of domestic courts in respect of the merits of the matter adjudicated.^^ In respect to both foreign and domestic judgments in rem, the same rules prevail as to the extent and operation of the adjudica- tion as in the case of domestic judgments in personam, with the exception that they bind all persons, and not merely the actual parties and their privies.^^ The rules in regard to impeachment are, however, somewhat different. The jurisdiction of foreign judgments in rem may be inquired into, except, perhaps, in the case of an adjudication upon the point ; ^^ and fraud may be alleged of obtaining the judgment." • Gurnsey v. Edwards, 26 N. H. 224 ; 6 ibid. Bobbins v. Bridgewater, 6 N. H. 524; 1 Post, -a. lib. Gear v. Smith, 9 N. H. 63 ; Sanborn v. 8 Post, p. 146. Fellows, 22 N. H. 478 ; Harlow v. Pike, 9 Post, pp. 146, 147. 8 Greenl. 438. lO jbid. 2 Post, pp. 140, 151-155. n Post, p. 151. ' lb'"!- " Post, pp. 151-153. « Post, pp. 141-144. 13 Post, p. 166. » Post, p. 144. 14 Post, p. 169. INTRODUCTION. liii Foreign judgments in personam occupy a very important posi- tion in the law. Until within a comparatively recent period, the conclusiveness of judgments rendered in foreign nations was a matter of much doubt and fluctuation in the courts of England ; ^ but it was finally settled that the judgments of foreign and colonial courts, of competent jurisdiction, were conclusive and unimpeachable upon the merits.^ The doctrine is not yet alto- gether settled in America, but the tendency of the courts is in the same direction.^ As to the judgments of the sister States of the Union, the matter was made the subject of a constitutional provision, which declares that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. At first, however, this provision was quite generally con- strued as meaning merely that judgments of the sister States were to be regarded as prima facie evidence of their correctness.* But this doctrine was soon overruled by the Supreme Court of the United States ; and it was there decided that the meaning of the constitutional provision, and of the act of Congress passed to carry the same into effect, was, that the judgments of each State should be received as equally conclusive in every other State as in the State in which they were rendered.^ Judgments in personam, of foreign countries, are liable to im- peachment for want of jurisdiction in all cases, except where there has been an adjudication upon the point ; for they are not regarded, technically, as records.^ Judgments of courts of the sister Amer- ican States are regarded by most of the courts as records, and entitled to much of the high consideration due records of the domestic judgments. But it is agreed that parties and privies are not estopped to inquire into the jurisdiction, first, where the record is silent upon the subject ; or, secondly, where it recites 1 Post, p. 170. * Post, pp. 179, 180. 2 Post, p. 175. * Post, P- 181. 8 Post, p. 177. « Post, pp. 201-203. liv INTRODUCTION. simply an. appearance of the defendant by attorney ; or, thirdly, where it is ambiguous or obscure as to the matter. There has been much conflict, however, upon the question whether the same rule prevails when the record sets out facts which, if true, are sufficient to give the court jurisdiction. But the question has lately been settled by the Supreme Court of the United States to the effect that the record is not conclusive and may be con- troverted.i Jurisdiction over non-residents cannot be acquired, so as to entitle the judgment to effect beyond the State in which it was rendered, without personal notice to the defendant, within the State, or appearance by him in the suit ; and legislative acts declaring that judgments may be rendered in any other way, as in the case of foreign attachments, have no extra-territorial effect. The judgment is a nullity when proceeded upon in personam in any other State.^ It is pretty well settled that judgments of the sister States may not be impeached at law for fraud ; ^ but there is some conflict as to whether proceedings upon such judgments may be restrained in Chancery.* The question has never received an authoritative answer from the Supreme Court of the United States. It would seem that fraud is a proper ground for impeaching the judgment of a foreign country.^ The doctrine of merger is held inapplicable to judgments ren- dered in foreign nations ; and the plaintiff may, therefore, sue de novo in the domestic courts, if he desire.^ A different rule obtains in respect of the judgments of the sister American States. Having the same force and effect of domestic judgments, the law of merger prevails, and the plaintiff", if he- sue at all in another State, must bring his action upon the judgment.'^ The relation of privity does not exist between administrators 1 Post, p. 209. 6 Post, p. 218. 2 Post, pp. 209-214. 6 Post, pp. 218, 219. 8 Post, pp. 214-217. 7 Post, p. 220. * Post, pp. 215-217. INTRODUCTION. Iv appointed in different States or countries ; and therefore a judg- ment against a foreign administrator cannot be an estoppel against a co-administrator acting in the State of the forum ; but it has been said to be otherwise in tlie case of an executor in one State and a succeeding administrator de bonis nan in another. This may be doubted.^ The cases are in conflict upon the question whether judgments of the sister States of inferior jurisdiction are embraced within the language of the Constitution and act of Congress.^ The question has never gone to the Supreme Court of the United States. The jurisdiction of such courts, however, is subject to impeachment, except perhaps where there has been an adjudication upon tlie point.3 The second principal division of estoppel is denominated estoppel by matter of deed. The rule of law is, that no man shall be allowed to dispute his own solemn deed. In the form of a definition, the estoppel may be said to be the preclusion of the parties to a deed, and their privies, to deny its force and effect by any instrument of inferior rank.* The same rule prevails here as in the case of estoppels by judgments in personam, that the effect of the estoppel is limited to parties, and those claiming under them. The conclusion must be mutual ; and strangers are not bound by, and cannot take advantage of, the estoppel.^ And the rule is also to be qualified by the statement that the parties are only affected in the character in which they executed the instrument.^ The parties, however, in order to raise this estoppel, must be sui juris ; and hence there can be no estoppel by deed against a married woman or an infant.^ Of the further limitatipns of the doctrine, the following should be observed : 1. The deed must be valid ; a void deed cannot 1 Post, pp. 227, 228. ' -Pes'. P- 241. 2 Post, pp. 229-235. « Post, p. 243. 3 Post, p. 285. ' -Pes', P' 245. * Post, pp. 239, 240. Ivi INTEODUCTION. generate an estoppel, except perhaps in certain cases where its invalidity depends upon some external fact, notice of which cannot be imputed to the party alleging the estoppel.^ 2. The deed does not work an estoppel in matters collateral. 3. If the instrument be a deed-poll, the estoppel in general applies only against the party executing, except in the case of leases. 4. Estoppel against estoppel sets the matter at large ; as where the deed is encoun- tered by a later one intended to discharge or modify the first.^ 5. And there is no estoppel as to any particular allegation where the deed contains other statements at variance with it.* Recitals, strictly speaking, are the preliminary statements of such deeds, agreements, or matters of fact as are introduced to explain the reasons for the execution of the deed ; but the term is also employed to designate any allegation in the instrument.* Particular and definite recitals alone work an estoppel.^ There is no conclusion if the allegation is made in a general and indefi- nite manner.^ The subject of title by estoppel, or estates by estoppel, is the most important branch of estoppels by deed. Such a title arises, in general terms, where a grantor, without title, makes a lease or conveyance in land by deed with warranty, and sub- sequently, by descent or purchase, acquires a title to the premises. In such case, the after-acquired title enures, by way of estoppel, to the benefit of the grantee and his privies.' At the early common law, the feofiFment, fine, common re- covery, and lease possessed the efficacy of actually passing and transmitting all future estates.^ But at the present day this result is not so fully accomplished, except in the case of leases.' The rule in the case of leases by deed is that where no interest passes, by reason of the fact that the grantor possesses none, an i As to tax deeds, see Blaokwell, Tax * Ibid. Titles, 79-82, and cases cited. 6 pgst, pp. 273, 274. 2 Posl, pp. 253-266. T Post, p. 285. 8 Post, pp. 268, 264. 8 p(,jj_ pp_ 285, 286, 807-389. « Post, p. 266. 9 Ibid. INTRODUCTION. IvU estoppel arises as to any future estate acquired by him, and the estate enures to the grantee ; but if an interest passed by the lease, no estoppel will arise as to future estates, and the lessor in such cases may set up the new interest and eject the lessee.^ In modern times, the doctrine that after-acquired interests enure to the grantee of one whose actual title was not ,sufficient for his grant holds good even without a warranty, provided it appear from the deed itself that the grantor intended to convey and the grantee expected to receive a particular estate greater than the grantor possessed.^ In case a warranty is inserted, the effect upon future estates acquired by the grantor will depend upon the nature of the grant and of the warranty.^ In some States, for example, it is held that the warranty cannot enlarge the estate granted ; and hence that in a quit-claim of the grantor's right, title, and interest, with general warranty, the grantor will not be precluded from setting up against his grantee any subsequently acquired estate.* But in other States it is held that the warranty may be more extensive in operation than the grant.® If a person, having no title, execute a conveyance by deed of bargain and sale, lease and release, or quit-claim, of all his right, title, and interest in land with a simple warranty of title, he clearly will not be barred from claiming any future interest which he may acquire ; for such a warranty embraces only existing interests.® The estoppel, however, in these cases is a mere rebutter, given to prevent a circuity of action, and arising from the warranty. If it were not raised, and the grantor were allowed to recover the land from the grantee, upon acquiring the future interest, the grantee would in turn be entitled to recover the value of the land from the grantor, by an action upon the warranty.'' There has been much controversy as to whether the general war- ranty in a grant in fee operates to directly transmit future inter- 1 Post, pp. 290-294. 5 Post, p. 301. 2 Pool, pp. 295-297. « Post, pp. 298, 299. > Post, p. 297. '' Post, p. 289. 4 Post, p. 300. Iviii INTRODUCTION. ests, so as to defeat the claim of an innocent purchaser for value ■ after title acquired, in a contest with the first grantee. The true rule seems to depend on the situation of the grantor when he made the first grant : if he had possession, the title of the first grantee would prevail ; but, on the contrary, if the grantor not having pos- session when he executed the first deed had possession when" he made the second conveyance, the second grantee would prevail.^ The doctrine of title by estoppel probably does not apply to per- sonal property .2 The last rule which we notice, under estoppels by deed, is that concerning the release of dower. By this act of releasing dower, a married woman is estopped thereafter to set up any claim of dower in the premises granted.^ But this estoppel does not arise without a proper release, even though the wife unite with her husband in the granting part of the deed.* It is immaterial, however, whether the release is made in the same deed with the husband's, or in a separate deed, and at a difierent time.^ And it seems that a mar- ried woman who releases dower in a deed made without considera- tion, and in fraud of her husband's creditors, is not estopped to claim dower against a purchaser, for a valuable consideration from the grantee.^ An estoppel in pais in its typical character is the effect of an indisputable admission, arising from the fact that the party claim- ing it has been induced by the action of the party against whom it is claimed to change his position.'' The first division of the subject we have denominated Estoppel upon persons holding relations of trust to others ; the most important branch of which is the estop- pel of a tenant to deny his landlord's title. The tenant's estoppel of the present day is of modern origin, and rests upon a ground quite different from that of the estoppel as known in the time of Lord Coke. At that time, the tenant's 1 Post, pp. 807-889. 6 Ibid. ^ Post, p. 389. 6 Post, p. 841. » Post, p. 340. 1 Post, p. 846. * Ibid. INTRODUCTION. lix estoppel arose only in the case of a sealed lease, and then only against the party sealing ; so that there was no conclusion upon the tenant in the case of a deed-poll or verbal lease.^ At the pres- ent day, however, the estoppel arises by reason of permissive pos- session, and lasts until a surrender. It is, therefore, immaterial whether the lease be under seal or in parol. The seal is no longer held the foundation of the estoppel.^ As the relation of landlord and tenant is one of contract, it fol- lows that the same rules prevail in relation to the competency of parties as in the case of estoppels by deed. Like other contracts, a lease binds only parties sui juris ; and persons under disability, not being bound by the contract, cannot be estopped to deny its force.^ Tlie doctrine of privity prevails here also ; and all persons claiming under the tenant are equally estopped to deny the title of the original lessor.* But while a tenant is ordinarily estopped to deny his landlord's title, either by setting up an outstanding title or in any other way, the rule has several qualifications. One of these occurs where a person has made an acknowledgment of tenancy through mistake or the fraud of the lessor ; in such case, the estoppel is removed by proof of the facts.^ And proof may always be given of the circum- stances under which a tenancy or attornment was made.^ Another important qualification of the rule is, that the tenant may always show that his landlord's titl6 has expired.^ This may be done, for example, by showing that the tenant has been evicted by title paramount.* And, according to the more general doctrine in America, it is sufficient to show a constructive eviction.® It has been a matter of conflict among the courts whether the tenant may contest the title of his lessor by showing that he was 1 Post, pp. 346-349. 6 Post, p. 359. 2 Post, pp. 350-352. ' Post, pp. 360, 361. 8 Post, pp. 352, 353. s Post, pp. 362-364. i Post, pp. 353-355. » Post, p. 363. 6 Post, pp. 356-358. Ix INTRODUCTION. already in possession of the premises when he took the lease ; and although it has been maintained with great force that there is no estoppel in such case, the weight of authority seems to be the other way.^ The estoppel may also be removed by disclaimer brought to the notice of the landlord. By such an act, the title of the tenant becomes adverse ; and the lessor may eject him at once from the premises. And if he fail to do so before the period of limitation has expired, the tenant may then set up his title, acquired by ad- verse possession.^ The same doctrine applies to the case of mort- gagors in possession, trustees, and persons in the like situations.^ The tenant may also purchase the property of his landlord, and thus extinguish the tenancy.* But if he should be bound to pay taxes and neglect to do so, he could not buy in the title at tax sale and set it up against the lessor.^ The rule is subject to the further qualification, that the tenant may show that he was let into possession under a title from which the landlord's title was derived.^ He may also show that one to whom he has paid rent under an attornment has no derivative title from the lessor.'' When, however, none of these exceptions are available to the tenant, the estoppel will ordinarily prevail, even though the ten- ancy be created by a deed which shows that the landlord possessed no legal estate in the premises.^ And the estoppel prevails against one in possession of premises under a mere license.® It also arises where the tenancy has been created by operation of law.'" A relation similar to that of landlord and tenant is held in equity to exist between the vendor of real estate and the vendee, before the payment of the purchase-money; and in such a case the 1 Post, pp. 364-371. 1 Post, pp. 376-378. 2 Post, pp. 373, 374. 8 Pogt, pp. 378-380. Some exceptions » Post, pp. 874, note, 382. are made to this rule, as will be seea by « Post, pp. 874, 875. tlie text. » Post, p. 875. 9 Post, p. 881. ' IMd. 10 Post^ pp. 37i_ 8Y2, 331. INTRODUCTION. Ixi vendee will not be permitted to escape payment by disputing the title of the vendor .^ The relation of bailor and bailee gives rise to an estoppel like that in tenancy.^ The general rule is that one who has received property from another as his bailee, or agent, or servant, must restore the same before he will be permitted to dispute the former's title to it. But the bailee has no better title than his bailor, and, consequently, if a person entitled to the property as against the bailor, claims it, the bailee will have no defence against him ; and in such case, in an action by the bailor, the bailee may set up the jus tertii.^ The estoppel ceases when the bailment upon which it is founded is determined by what is equivalent to an eviction by title paramount.* It is not enough that the bailee has become aware of the title of a third person ; nor is it enough that an adverse claim is made, so that he may be entitled to relief under an interpleader. The bailee can only set up the title of another against his bailor, when he depends upon the asserted right, title, and authority of that person." A similar rule applies to the case of assignees and licensees of patents. If they have acted under the patent, and received profits from its use, they will not be permitted to deny the validity of the patent in an action by the patentee to obtain an account.^ The principle is like that by which an agent, having collected a debt for his principal, cannot insist on keeping the money on the ground that the debt was not legally due.'' ^ Executors and administrators also are estopped to set up adverse claims to the property of the estate which has come into their pos- session ; but in cases of mistake they may amend their inventories and leave out property which had been embraced therein and recognized as property of the estate, if no prejudice will result to the parties in interest.* 1 Post, pp. 882-384. ' Post, p. 886, note. 2 Post, pp. 384-388. « Post, p. 388. 3 Ibid. ' Ibid. * Post, p. 385, note. * Post, pp. 389, 390. Ixii INTRODUCTION. Acceptance of a bill of exchange is a conclusive admission of the genuineness of the drawer's signature, at least in favor of a bona fide holder for value, who has taken the bill after the act of accept- ance.i And the indorsement of a bill or note precludes the party from denying the genuineness of any of the prior signatures.^ Acceptance, however, does not preclude the acceptor, ordinarily, from denying the genuineness of any other signature than that of the drawer, not even that of the payee,, though it may have been upon the paper when it was accepted.^ But if the drawer put the bill into circulation, bearing a forged indorsement of the payee, or bearing the name of a fictitious payee indorsed in the drawer's hand, the acceptor will not be permitted to escape liability by alleging that his warranty extends only to the signature of the drawer.* This warranty of genuineness extends only to the signature itself, and does not embrace the handwriting of the body of the bill ; and the party may show that there has been a forgery in this part of the paper .^ But, if the drawer has contributed by his own negligence to a loss, the acceptor, it seems, upon payment, could not recover the money .^ An exception has been made to the rule that an acceptor may not dispute the handwriting of his correspondent, the drawer, where the holder has taken the bill before acceptance ; in such case, it is said that the acceptor may allege that the drawing is a forgery, if the forgery be discovered within a reasonable time.'' This doctrine rests the rule strictly upon grounds of estoppel. And the same principle is declared when the duty of inquiry rests upon the holder.^ But it is held that one who receives as genuine, from an inno- cent party, paper purporting to be his own, but which has in fact 1 Post, pp. 891, 405. 6 Post, p. 398. 2 Post, pp. 898, 394. e Post, pp. 399, 400. 3 Post, p. 394. 7 Post, p. 405. 4 Post, pp. 895, 896. 8 Post, p. 407. INTRODUCTION. Ixiii been forged, he will not be permitted, upon a late discovery of the forgery, to shift the loss upon the other party.i It has been held that a person selling commercial paper does not warrant its genuineness ; but a contrary doctrine has been main- tained with convincing force, and the weight of authority is the other way.^ The execution of a negotiable promissory note, payable to a party named, imports a warranty of the present capacity of the payee to indorse the paper ; and the same is true of the acceptance of a bill of that character.^ But the warranty extends only to the payee's capacity at the time the paper was made or accepted.* So, too, by indorsing commercial paper, the party warrants the capacity of all prior parties to the security.^ Whether the certification of a bank check as " good " by the teller or cashier of a bank operates to preclude the bank from showing that the drawer had no funds on deposit at the time, has been a matter of conflict. The doctrine held in New York and elsewhere is that the correctness of the certificate is a matter which the certifying bank has the means of knowing, and is bound to state correctly ; and that if the presenting bank relies upon its accuracy, and is caused to forego a remedy, the certifying bank will be held to its statement.^ And though the authority of the teller or cashier be expressly limited, to the knowledge of the holder of the paper, to certifying in case of funds, the existence of funds is an external fact, which the holder is not bound to ascer- tain.^ In Massachusetts, however, it has been held that the certifi- cation of checks is not within the inherent powers of the teller, so as to bind the bank to pay the amount.^ The transfer of a negotiable bill or note by an indorser, after his liability has been fixed, amounts to a representation of his liability, 1 Post, pp. 406, 407. » Post, p. 412. 2 Post, p. 408. ^ Post, pp. 412, 413. 3 Post, p. 409. ■' Post, pp. 413-116, note. * Post, p. 411. * Post, p. 413. Ixiv INTRODUCTION, and estops the party from objecting that there were no demand and notice, after the transfer.^ The general rule in respect to the estoppel of corporations to set up the defence of ultra vires to actions upon their contracts is, that private corporations will not be permitted to raise the defence in respect of matters within the appai'ent scope of their powers ; and that both public and private corporations will be precluded from setting up such defects in their establishment or organization, or in the preliminaries to the execution of their acts, as are peculiarly within their own knowledge and cannot fairly be presumed to be known by the other party .^ A partner in a firm will be estopped to deny the truth of a representation concerning the business of the firm, made by his co-partner and acted upon.^ The same principle prevails as to a note or bill fraudulently issued in the firm name, and negotiated to an innocent person. The firm will be liable thereon.* So if a party hold- himself out as a partner, he will not be permitted to deny the truth of the representation as to such persons as have acted upon it.° It is a general principle, also, that the owner of property who allows another to act or appear as the owner of it, or as having full power over it, will be estopped to dispute the authority of such person against persons who have been induced to deal with him upon his apparent authority.^ Acknowledgment of receipt is not conclusive evidence of the matter stated, even when in a deed, unless it has been acted upon by the party to whom it is given, so as to change his position.'^ Where a person, by his words or conduct, voluntarily causes another to believe in the existence of a certain state of things, and induces him to act upon that belief, so as to change his previous position, he will be estopped to aver against the latter a different 1 Post, pp. 417, 418. 8 Post, pp. 426, 427. 2 Post, p. 428. 6 Post, p. 434. 8 Post, p. 426. 7 Post, pp. 427-430. < Ibid. INTRODUCTION. Ixv state of things.^ This is called estoppel by conduct, or equitable estoppel. In order to this estoppel, all of the following elements must be present : 1. There must have been a representation con- cerning material facts. 2. The representation must have been made with knowledge of the facts. 3. The party to whom it was made must have been ignorant of the truth of the matter. 4. It must have been made with the intention that it should be acted upon. 5. It must have been acted upon.^ In all ordinary cases, the representation must have reference to a present or past state of facts only, and not to future events, or to pure matters of law.* It must have been plain and certain, and such as would naturally lead to the action taken.* In the case of estoppel by conduct, only parties and their privies are bound by the representation, and only those to whom the representation is made, and their privies, may take advantage of the representation.^ It has been said that the doctrine of estoppel in pais has no application to married women or to infants ; ^ but the weight of authority seems to favor the doctrine that both infants of years of discretion and married women may preclude themselves from denying the truth of their representations in the case of pure torts. Where, however, the conduct or representation is so connected with matter of contract that the action must sound in contract, no estoppel arises.'' This estoppel may arise from passive conduct or concealment, as well as by active conduct.^ A party who negligently stands by and allows another to contract on the faith and understanding of a fact which he can contradict, may not afterwards dispute the fact in an action between himself and the person whom he has assisted in deceiving. Or, as the principle has been forcibly stated 1 Post, p. 433, note. ' Post, p. 442. 2 Post, p. 437. * Post, p. 443. s Post, pp. 438-440. ' Post, pp. 446-448. * Post, p. 441. ' Post, p. 452. Ixvi INTEODUCTION. in the Court of Chancery, where a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to keep silent.^ If, however, the party's silence be not the result of fraud or of gross negligence, his conduct will not raise an estoppel ; ^ and forgetfulness of one's rights has sometimes been held excusable.^ But in such case it should not be the result of gross negligence.* Numerous cases of boundary have been decided upon the knowl- edge or ignorance of the facts represented. The rule in many States is, that an untrue representation concerning the location of a boundary line, in order to estop the party making it, must have been made with knowledge of the location of the real line. When ' so made to, and acted upon, by a party ignorant of the true line, the former will not be permitted to deny the truth of his statement against the objection of the latter .^ But in other States long acqui- escence in the wrong boundary line has been held sufficient.^ The former cases are more in accord with the nature of this estoppel.'^ Ignorance of the truth of the matter by the party making the representation will not, as has been intimated, remove the estoppel, if it be the result of gross negligence,^ But negligence, to work an estoppel, must be the proximate cause of the loss.^ In respect to the intention that the representation should be acted upon, the term " wilful " was at first connected with it, as though it were an essential element of the intention ; but this doc- trine was soon modified, and the principle settled that, if the repre- sentation was voluntary, it was suMcient to work an estoppel.^" In some cases, as where a contract is implied from the party's conduct, it is held that there need be no actual intention." The rule that the representation must have been acted upon, 1 Post, pp. 453, note, 459. 7 ibja. 2 Post, p. 467. 8 Post, p. 477. « Post, pp. 481, 482. 9 Post, p. 483. * P"^' P- 476. 10 Post, pp. 485-490. ' Post, pp. 467-471. u Post, p. 490. 6 Post, p. 471. , INTRODUCTION. Ixvii in order to the estoppel, is inflexible. The estoppel can never arise in the absence of this element.^ This proceeds upon the ground that the party would be unjustly put to damage Vy allow- ing the truth of the representation to be disproved. But it has been held in several recent cases that proof of express damage is not required, and that it is sufficient if it may be fairly pre- sumed that damage would result.^ A party will not be permitted to assume inconsistent positions ; and where one has an election between inconsistent courses of action, he will be confined to that course which he first adopts.* Accordingly, where a party takes a beneficial interest under a will, he will not be allowed to contest the validity of the testa- ment.* So, if a person assist in procuring the passage of an unconstitutional act by the Legislature, for his own benefit, and proceeds to act upon it, it is held that he will not after- wards be allowed to deny its constitutionality.^ So, too, if a party bring a suit upon a contract or purchase, or receive money upon the same, he will be held to have conclusively affirmed its validity.® Whether the estoppel of a deed or record should be pleaded or not to be available, has been a matter of doubt at the common law; but the prevailing and better opinion at the present time is that it is conclusive in evidence, though not pleaded. This is certainly true in case the party claiming the benefit of it has had no opportunity to plead it.'' It is well settled at common law that the facts constituting an estoppel in pais need not be pleaded ; but there have been statu- tory regulations upon this subject in some of the States.^ The proper general issue to an action upon the judgment of a court of record is nul tiel record, both in the case of domestic 1 Post, pp. 492, 493. ' Post, p. 514. 2 Post, pp. 497-500. * Post, pp. 519-521. 3 Post, p. 503. ' Post, p. 521. * Post, pp. 503, 504. ' Post, p. 522. Ixviii INTEODUCTION. judgments and of the judgments of a sister State of the Union.^ But nil debet may be pjeaded to a judgment rendered in a foreign country.2 The practice in declaring upon a judgment is to allege generally that the plaintiff, by the consideration and judgment of the court, recovered the sum mentioned ; but in pleading or replying a judgment as an estoppel to an action or allegation it should be made to appear that the precise point now in question was brought in issue in the preceding action and there determined.^ In the case of judgments of foreign countries, or of inferior courts, whether domestic or foreign, the jurisdiction of the court must be proved ; and in all cases it must appear that the judg- ment was final, and rendered upon the merits of the question.* The estoppel of a deed, as has been intimated, is ordinarily removed by proof that the instrument is not valid ; * or when it is introduced in evidence in collateral matters.^ The same is true when it is encountered by another deed, inconsistent with it, and intended to discharge or modify it ; ^ or if other matters appear in the instrument which explain, modify, or overturn the recital relied upon as an estoppel.* The facts to be proved, in order to raise an estoppel in pais, have already been referred to.® It has been held that this estop- pel, when applied to real estate, is available only in equity, and not at law ; ^'^ but a contrary rule prevails in many States.^^ A party is not permitted to take inconsistent positions in plead- ing, or in the conduct of the trial. And the principle upon which a party is estopped by his course of action in the trial of a cause seems largely to be, that a prejudice would result to the opposite party if a change were to be allowed by the court ; so that the case bears a close analogy to that of estoppel by conduct in respect to the matter in litigation.^^ 1 Post, p. 509. 7 Post, pp. 262, 263. '' Ibid. 8 Post, pp. 263-265. ' Ibid. 9 Ante, p. Ixv. See also post, p. 532. * Post, p. 528. 10 Post, pp. 534-587. 6 Post, p. 680. H Post, p. 537. " Ibid. iJ Post, pp. 589, 540. PAET I. ESTOPPEL BY MATTER OF RECORD. PAET I. ESTOPPEL BY RECORD. CHAPTEE I. PEELIMINABT VIEW OP ESTOPPEL BY RECORD. First of the three divisions of our general subject, from a histori- cal standpoint, comes Estoppel by Matter of Record. This head covers the very extensive subject of the conclusiveness of judg- ments. Strictly speaking, it embraces only judgments of the domestic courts of record ; but, in the growth of the law and the expansion of notions of comity, it has come to include all judg- ments of courts of justice, whether of inferior or of general juris- diction, of record technically or not of record, and of other states or countries. The record is a memorial or remembrance of the proceedings and acts of a court of justice ; and it imports such perfect verity as to admit no averment, plea, or proof to the contrary .^ Such is the general rule : its limits and modifications remain to be con- sidered hereafter. But it may here be observed that the effect and operation of estoppels by record depend upon the aspect in which they are con- sidered. In the character merely of a record, i. e. of an entry of the proceedings of a court of justice, they have a conclusive effect upon all persons. No one, whether party, privy, or stranger, will be permitted to dispute the fact that the proceedings recited in the record transpired, or the time at which they purport to have taken place, or that the parties there mentioned as litigants actually or 1 1 Coke, Litt. 260 a. See Glynn v. Thorpe, 1 Bam. & Aid. 153, 156 ; 3 Black. Com. 24. 4 ESTOPPEL BY RECORD. constructively conducted the case, or that judgment -was given as therein stated. In the character of an adjudication of a cause of action, or of any material fact in dispute between the parties liti- gant, the record, generally speaking, has a conclusive operation only upon the parties and those claiming under them ; as res judi- cata strangers are not bound by it.^ ' The language of some of the judges will show more clearly the exact nature of record evidence. In Willard v. Whit- ney, 49 Maine, 235, Mr. Justice Apple- ton, speaking for the court, said : " The records of the court show the proceedings in relation to a suit from its entry to its final termination. Tlie statements therein contained must be regarded as true. They are not subject to explanation or contradiction ah extra. If facts are er- roneously inserted in the record, upon sufficient proof the court may order their erasure. If material and existing facts which should appear are omitted in the narration of proceedings, the court may order their insertion. The record is a narration of the proceedings in court ; and if, through neglect, mistake, or fraud, errors occur, . . . the court may right- fully order that it be so altered as to con- form to the facts. When the record is once made up, it is conclusive upon all parties, until altered or set aside by a court of competent jurisdiction. Balch ^. Shaw, 7 Cush. 282. " The docket entries are minutes made during the progress of a cause, from which the record is made up. They are regarded as the record of the court, un- til the record is extended. Read v. Sut- ton, 2 Cush. 115. But the docket entries are not receivable to disprove or contra- dict what the record asserts. Neither the former minutes of the clerk, nor the state- ments of others, as to previously existing but now erased minutes, are to be re- ceived in contradiction of the extended record." In Sturtevant v. Randall, 53 Maine, 149, Mr. Justice Barrows says : " The rule seems to be well established, that what appears by the record is to be proved by the record only, and nothing contradictory thereto can be admitted ; but what need not, and in fact does not, appear by the record, if necessary to es- tablish the identity of the subject-matter, or of the grounds upon which the judg- ment proceeded, may be supplied by parol proof, to the extent of showing whether matters that might have been admissible under the pleadings were or were not actually presented and consid- ered in the adjudication." Chase v. Walker, 26 Maine, 555 ; Dunlap v. Glid- den, 34 Maine, 517 ; Parker v. Thompson, 3 Pick. 429, 434. EES JUDICATA. CHAPTER II. RES JUDICATA. 1. Origin of the Term, and its Meaning. Though the doctrine of res judicata — which is, that an issue once determined in a court of competent jurisdiction may be op- posed as an effectual bar to any furtlier litigation of the same matter by parties and privies — is, of course, as old as the courts them- selves ; the term is borrowed from the Roman law. In the time of Gains, the second century of the Christian era, if a judgment had been pronounced" in the judicium legitimum, — a tribunal sit- ting in Rome, or within a milestone of the city, for the trial of causes between Roman citizens,^ — the novation of the demand extinguished, ipso jure, the former right. If the suit were in judicium imperio continens, — a special judicium founded on the authority of the praetor, and sitting out of Rome, — this effect of extinguishing the prior demand, ipso facto, did not follow ; but it empowered the defendant to repel tlie plaintiff who attempted to bring his action again by the plea (^ezeeptio') rei judicatce or rei in judicium deduetoe? In the Institutes of Justinian, published in the sixth century, the rule of law is thus stated : " Item si judicio tecum actum fuerit, sive in rem, sive in personam, niliilominus obllgatio durat, et ideo ipso jure de eadem re postea adversus te agi potest ; sed debes per exceptionem rei judicatce adjuvari."^ Mr. Sandars, as just cited, after explaining the above distinc- tions mentioned by Gains, says : " In the time of Justinian these distinctions had disappeared, and therefore he says generally that the res judicata produces an exception. It was to have the same 1 Sandars, Inst. p. 573. " Again, if an action, real or personal, 2 3 Gaius, Com. § 181, Tomkins & has been brought against you, the obliga- Lemon's ed. p. 545 ; 4 Gaius, Com. § 106, tion still subsists, and in strict law an Tomkins & Lemon's ed. p. 719. action might still be brought against you 3 Inst. Lib. 4, Tit. 13, § 5. The pas- for the same object, but you are protected sage is thus translated by Mr. Sandars : by the exception rei judicata." 6 ESTOPPEL BY RECORD. force as it had formerly had in the case ofjudicia imperio continentia, and not that which it had received in judicia legitima. Wliether the action was real or personal, as the text informs us, the principal obligation still subsisted, and, no novation having taken place, a second action could only be repelled by an exception. But practi- cally speaking, under the system of judicia extraordinaria, as the judge did not receive instructions from a magistrate, and was not bound within the limits of a formula, the distinction between the res judicata operating as a bar or as an exception was a very im- material one." Immediately afterwards, the same writer thus states the requi- sites of the plea : " In order that a res judicata should be available either as a bar or an exception, it was necessary that there should have been, in the former action, the same thing as the subject- matter of the litigation, the same quantity, the same right, the same ground of action, the same persons suing in the same char- acter.-" i The doctrine finds a place also in the continental countries of modern Europe. It is thus stated in a work by Professors Tom- kins and Jencken:^ "The benefits of a judgment arc secured to the victorious party by means of the actio judicati, or by the ez- eeptio rei judieatce, ^hich may be pleaded either by the plaintiff or the defendant. The newly created obligation is enforceable by the actio judicati. The exceptio rei judieatce bars every claim which may be adverse to the matter of the judgment, quotiens inter easdem personas eadem questio revooatur. In respect to the requi- sites for the identity of a legal contention, two things are needed : 1. The exceptio falls to the ground when no identity exists, even though the subsequent action may resemble the former one ; 2. The exceptio is maintainable when the identity is actually present, though the previous point in litigation and the new one may be somewhat dissimilar.^ In personal actions, identity of right results from similarity of origin ; but, in real rights and in real actions, the mode of origin is immaterial. " 1 Dig. 44, 2, 12, Lib. 14. case, the exceptio rei judieatce comes into 2 Mod. Rom. Law, p. 94. operation." This seems to he the same 3 " For example," say the same writ- as our estoppel by verdict upon a partio- ers in a note, " a suitor has instituted the ular point, which operates, as we sh-all hereditatis petitio, and has been nonsuited, see, as a bar, without reference to the upon which he proceeds by the rei viridi- nature of the subsequent suit. catio for certain definite things. In this RES JUDICATA, 7 The term is also found in the Scotch law, and is thus defined : i " lies judicatce are those judgments of the supreme courts which have become final, and which are held conclusively to settle the question discussed, so as to prevent the parties or their represen- tatives from afterwards raising an action founded on the same medium eoncludendi, or cause of action. The judgment of an inferior court does not fall under the description of res judicata; for, in inferior courts, a eopia peritorum is not presumed, and parties ought not to suffer from employing ignorant p^ocurators when perhaps no better are to be had."^ We now proceed to notice the divisions of the, subject, as treated in the courts of England and America. In the English law, the doctrine of res judicata, by which we mean in general terms, as above stated, an adjudication of a matter by a court of competent jurisdiction, depends for its effect, first, upon the nature of the proceeding in which the matter became res judicata, whether it was an action in rem or an action in personam. This is the great and most important division of the subject, and will presently receive an explanation. Its effect depends, secondly, upon the forum in which the cause was tried, — whether in the courts of the State in which it is in- terposed as an estoppel, or in a foreign court. In strict law, the doctrine is only applicable to the judgments of domestic courts ; but from motives of policy it has been extended to the judgments of foreign courts of civilized countries,^ with certain limitations which will appear in the chapter relating to foreign judgments. The term in rem, applied to judicial proceedings, has had a fluctuating signification. In the Roman law it appears to have been received both in a literal sense, to denote a proceeding to obtain possession of a tangible thing, as a piece of land or a horse, and also in an artificial sense, to indicate a proceeding to obtain or confirm an incorporeal right, as an easement. Thus Gains says : " In rem actio est, cum aut corporalem rem intendimus 1 Bell's Diet. Law of Scotland, Res ever, is never extended to the merits of Judicatce. the decision when the jurisdiction is es- 2 This is analogous, as we shall see, tablished. to the reason given in our law why the ' In one case, the doctrine was - ex- jurisdiction of inferior courts will not be tended to a decree pronounced in Algiers, presumed ; the actual reason assigned in The Helena, 4 Ch. Kob, 3. Per Sir Wil- the English law usually being that a curia liam Scott. perita is not presumed. The reason, how- 8 ESTOPPEL BY RECORD. nostram esse, aut jus aliquod nobis competere, velut utendi, aut utendi fruendi, eundi, agendi, aquamve duceudi, vel altius tollendi, vel prospiciendi." ^ Ulpian's definition is this: "In rem actio est per quam rem nostram quae ab alio possidetur petimus ; et semper adversus eum est qui rem possidet." ^ Tlie Roman proceeding in personam arose from a right in virtue of which a certain person was bound towards another certain person to do or not to do some specified thing, in such manner that he against whom the action would be brought, in case of non-fulfilment of the obligation, was known and determined from the moment of the creation of the obligation. The proceeding in rem was founded upon a right endowed, in itself and by itself, with an independent existence, without reference to any particular person, and which every one is under the negative obligation to respect, in the person of him who possesses it, and to abstain from violating or disturbing it. In this case, he against whom the action would be eventually directed was not indicated at the out- set, as in a personal action. It was only after the attack made upon the absolute right, and in consequence of that attack, that the contestant appeared. * But the effect of an adjudication in rem is the matter of interest now ; and we are told by Professors Tomkins and Lemon that the maxim embodying the vindication, or action in rem, was res judicata inter partes jus facit. " Not, it is to be observed, inter omnes, but inter partes."* And although Mr. Sandars^ says that by an action in rem we assert a right over a thing against all the world, he states in another place® that this idea was adopted by the writers of the Middle Ages, " on the analogy of terms found in 1 Gaius, Com. 4, § 2. The passage is by Gould. The expression m rem did not thus translated in Tomkins and Lemon's therefore indicate the object of the de- edition of Gaius, p. 600 : " An action is mand, but simply its impersonal, abso- real when we maintain that a corporal, lute, and objective character; "cum eo thing is ours, or that some servitude ap- agit qui nuUo jure ei obligatus est, movet pertains to us ; as a mere use, or a usu- tamen de aliqua re controversiam." In fruct, or right of way for cattle, or of this sense there could be a pactum in rem drawing water, or of building higher, or as distinguished from pacta in personam. of prospect." Ibid. 2 See Tomkins & Lemon, Gaius, p. 601. * Tomkins & Lemon, Gaius, p. 275. See also Inst. 4, Tit. 6, § 1, Sandars's ed. ^ jnst, p sjg. ?■ 518. 6 lb., Introd. § 61. ' Goudsmit, Boman Law, pp. 247, 248, RES JUDICATA. 9 the writings of the Roman jurists," but that the doctrine had not been formally adopted either in the system of the Institutes or of the leading jurists. There -would seem then to be no difference in this respeet between a proceeding in rem and one in personam ; neither binding any but actual parties and privies to the liti- gation.^ The doctrine of the modern Roman law, however, approaches more nearly our own. In a recent work^ it is said that " the effect which results from the sentence [judgment] does not reach beyond the parties to the suit and their successors (inter paries'). It extends, however, to third parties exceptionally, as, for instance, in the case of the invalidity of a testament, in an indictment, in a judgment upon the status of a person, in judgments in cases of real servitudes, in joint ownerships, and in other similar instances." The old writers on the English law, following closely upon the divisions of actions in the Roman law, make use of the same terms in rem and in personam. Thus, according to Bracton, that only was an action in rem, the sole object of which was to obtain pos- session of the res ; and so, when the proceeding was in the dis- junctive, for possession or damages, it was not an action in rem, but in personam. Those actions only were considered as in rem, which were brought for the recovery of land. Actions in per- sonam (besides the case mentioned) arose out of contract or tort.* Whether there was any general difference between the two classes as to their effect upon third persons does not appear; probably there was not. There was a class of proceedings, how- ever, which would now be called proceedings in rem (which were probably considered by Bracton as in personam) that led to judg- ments binding inter omnes. Thus Bracton says : " Effectus vero legitimationis probatae hie est, quod cum semel probata fuerit et judicium pro tali reddatur in Curia Regis semper- quoad omnes legitimus erit, nisi in probatione intervenerit fraus."* Again, Littleton says : " Where a man is outlawed upon an action of debt or trespass, or upon any other action or indictment, the tenant or the defendant may show the whole matter of record and the out- 1 See also Sandars, Inst. p. 573, citing 2 Tomkins & Jencken, Mod. Rom. a passage from the Digest to the effect Law, p. 94. that the same persons must be suing in ' Bracton, pp. 102, 102 a. the same character, in order to constitute * Ibid., p. 420, § 17. a case of res judicata. 10 ESTOPPEL BY RECORD. lawry, and demand judgment if he [the demandant or plaintiff] shall be answered." ^ Lastly, Lord Coke says : " Where the record of the estoppel doth run to the disability or legitimation of the person, there all strangers shall take benefit of that record ; as outlawry, excommenqement,^ profession, attainder of praemunire, of felony, etc., bastardy, mulierty, and shall conclude the party, though they be strangers to the record. But of a record concern- ing the name of the person, quality, or addition, no stranger shall take advantage, because he shall not be bound by it." ^ Such judgments only as determine the status of a person or a thing are treated as judgments in rem in this sense. Such, for example, are the judgments of the Admiralty upon the question whether a vessel is proper prize of war, or of the Exchequer or District Court in a proceeding to condemn contraband goods, or of the Probate Court upon the validity of a testament. At the present day, the special significance of the term in rem is that it is used to denote, inter alia, a proceeding which leads to a judgment conclusive upon all the world. And when judgments are divided, in respect of the extent of their conclusiveness, into those in rem and those in personam, the distinction is referred to of judg- ments which are binding upon all persons and those which are binding only upon certain determinate persons. It is in this sense that we use the terms in the law of estoppel. The literal import of the term in rem sometimes creates confu- sion. The proceeding by attachment is, for instance, often spoken of as a proceeding in rem; but this is improper, except as referring to the method of acquiring jurisdiction of a cause.* Attachment is simply resorted to to take the place of notice or appearance, — in other words, merely to give the court jurisdiction ; it is a means, and not an end. The object of the litigation may simply be to declare a judgment against the person of the defendant, and not to determine the status of the property attached. The attachment would not have been made, had the process of the court reached the defend- ant. Upon this point. Sir John Jervis, in pronouncing judgment in 1 Litt. Ten. § 197 ; Coke, Litt. 128 a. speaking only of the means used to ob- 2 Excommunication. tain jurisdiction ; in wliicli respect the 3 Coke, Litt. 352 b. proceeding by attachment is in the na- * This is all that is meant by Cooper ture of the pure proceeding in rem. See V. Reynolds, 10 Wall. 308. It must be also Easterly ti. Goodwin, 35 Conn. 273. observed that the court in that case is RES JUDICATA. 11 the well-known case of The Bold Buccleugh,i said: "The foreign attachment is founded upon a plaint against the principal debtor, and must be returned nihil before any step can be tal^en against the garnishee ; the proceeding in rem, whether for wages, salvage, collision, or on bottomry, goes against the ship in the first instance. In the former case, the proceedings are in personam ; in the latter, they are in rem. The attachment, lilte a common-law distringas is merely for the purpose of compelling an appearance." It is perhaps properly said, however, that an order of sale of perishable goods levied on by attachment operates as a proceeding in rem, binding, as it does, all persons ;2 for the order is given upon a determination of the perishable nature, the status, of the property. This fact, taken with the literal import of the term may have given rise to tlie erroneous notion tliat cases of attach- ment are proceedings in rem; or, as was stated in Woodruff v. Taylor,^ proceedings in rem of a limited character. At any rate, the cases agree that such proceedings have no effect as to strangers. * We shall now proceed to an examination of some of the cases relating to the general doctrine of res judicata ; after which we shall proceed to the particular divisions of the subject. 2. Exceptional Cases. And first of the court. In order to be conclusive, a judgment relied on as res judicata must have been one of a legally consti- tuted court. A case illustrating this principle is Rogers v. Wood.' • 7 Moore P. C. 267, 282. See, to the to any other demand than that of the per- eame effect, Megee v. Beirne, 39 Penn. eon against whom the attachment was St. 50. issued, and of those claiming under him, - IMegee v. Beirne, 39 Penn. St. 50. even if it consist in an adverse claitti to 3 20 Vt. 65. the property attached, or grow out of its ^ See cases just cited. In the note of negotiation, when it is a negotiable se- Hare & Wallace to the Duchess of Kings- curity. Barber v. Hartford Bank, 9 Conn, ton's Case, 2 Smith, Lead. Cas. p. 890, 5th 407; Myers v. Beeman, 9 Ired. 116 ; Or- Am. ed., it is said: " Properly speaking, mond v. Moye, 11 Ired. 564; Keiffer v. however, proceedings by attachment are Ehler, 18 Penn. St. 388." And these re- not proceedings m rem, but against the in- marks are also applicable to proceedings terest of the defendant, and those claim- in replevin. Ibid. ; Certain Logs of Ma- ing under him, in the thing attached, hogany, 2 Sum. 589 ; Dow v. Sanborn, 3 Thus a judgment rendered on the attach- Allen, 181. ment of a debt or fund, or of specific assets * 2 Barn. & Ad. 245. of any other description, will not be a bar 12 ESTOPPEL BY RECORD. That case was a declaration in prohibition ; and the question in issue was whether an alleged usurpation of the office of mayor of Chester, by the plaintiff, had been committed within or without the jurisdiction of the Court of Session of the county of Chester. For the defendants a document was produced from the Remem- brancer's Office of the Court of Exchequer, purporting to be a decree made (after the hearing of a complaint against the citizens of Chester, and their answer) by the Lord High Treasurer of England, the Chancellor of the Exchequer, the Under Treasurer, and the Chief Baron, with the advice and assent of a sergeant of the Queen, and the Queen's Attorney and Solicitor-General, and others of the same court. The document, which recited a decree that the city of Chester was part and parcel of the county of Chester, was produced to show that the usurpation had been com- mitted within the jurisdiction of the court and county above named. The court were of opinion that the document was im- properly received. Lord Tenterden, C. J., said that one could not read the names that appeared in it without seeing that the decree was neither that of the Court of Exchequer, nor of any court of justice known at that time. The judges consisted of some persons who were mem- bers of the Court of Exchequer, joined with others who were not. He said it was therefore evident tliat it was a proceeding before persons not forming any court known to the laws of the land, and having no authority to decide the matter in issue, or to make the decree which they made. And he said that the document was not even evidence of reputation. In a case in the Supreme Court of Pennsylvania,^ the defendant, to sustain a plea of former recovery, gave in evidence the record of proceedings before a justice of the peace, by the same plaintiff against the defendant, upon the same cause of action ; in which case judgment had been given for the defendant. It appeared from the record that the summons to appear before the justice was returnable December 14. The constable returned that the plain- tiff did not want the summons served. Afterwards, and before the return day, the defendant required notice to be given the plaintiff to try the cause ; the notice was served, and judgment by default given for the defendant. The court held the proceedings no bar. 1 Fisher v. Longneoker, 8 Barr, 410. RES JUDICATA. 13 The ground was that there was a substantial discontinuance of the first suit, and that the subsequent proceedings were therefore coram non judice. "Without a due return of service upon the de- fendant, the justice had no hold upon him ; and, after the discon- tinuance, neither party could reinvigorate the action without the assent of the other, except by a new writ. The court further said that under the statute the judgment of the justice was only a non- suit ; and this also showed that it was no bar. In a recent case before the Supreme Court of Massachusetts,^ the defendant having pleaded in bar a decree rendered in the Supreme Court of the United States, the plaintiff contended that the decree was not a bar to his action by reason of the fact that it was rendered by a divided court. Chapman, J., speaking for the court, after referring to the fact that it was the early practice of the English courts that no judgment should be given when the court were equally divided,* said that it was not so in Massachu- setts. And the practice was otherwise also in New York, and in the United States courts.^ The record had all the elements of a final decree ; it purported to order, adjudge, and decree that the decree of the Circuit Court should be affirmed. Its substance would not have been different if the judges had unanimously de- cided the case. The statement that it was rendered by a divided court did not mean that they were divided as to the question whether it should be rendered, but merely as to the questions of law involved in it. Though it is commonly said that only the judgments of courts of .justice are to be held as conclusive, there are instances in which the proceedings of other bodies have been regarded with the same respect and consideration. A case of the kind* occurred before Lord Mansfield, in 1775. The defendant was indicted for an assault upon the prosecutor, in turning him out of the grounds of one of the colleges at Cambridge. The defence was, in substance, that the prosecutor had been expelled, under an order of rustica- tion signed by the master and one fellow, followed by a sentence by the master and two fellows ; which sentence had been confirmed by the master and ten fellows. This sentence of expulsion the 1 Durant v. Essex Company, 8 Allen, Morse v. Goold, 11 N. Y. 281; Etting v. 103; s. c. 7 Wall. 107. Bank of United States, 11 Wheat. 59. 2 Proctor's Case, 12 Coke, 118. * Bex v. Grundon, 1 Cowp. 315. = Bridge v. Jolinson, 5 Wend. 342 ; 14 ESTOPPEL BY RECORD. prosecutor endeavored to attack as illegal. But the court refused to allow this, for reasons stated in the note.^ Under this head belong the judgments of military courts. In the recent case of Hefferman v. Porter ,2 the defendant pleaded in bar of the plaintiff's action the judgment of a tribunal known as the Civil Commission, created by order of the commander of the Federal forces at Memphis, Tennessee, in April, 1863. The plain- tiff demurred to the plea ; but the demurrer was overruled.* The same doctrine was applied to criminal cases, of a capital nature, in United States v. Reiter.* The court, Peabody, J., said that in a country held by military power the authority of the occu- pying force was paramount, and necessarily operated to the exclu- sion of all other independent authority in it.^ 1 Lord Mansfield, after having shown that the prosecutor was only a commoner, and not a member of the college, said that he was then but a mere boarder, and had no right to continue in the college after they had given him notice to quit. " But," said he, " supposing Mr. Crawford [the prosecutor] were subject to the rules and orders of the college ; in that case it is insisted that the sentence of expulsion is illegal. And at the trial the statutes of the college were offered in evidehce to show that it should have been signed by the master and a majority of the fellows, whereas it was signed by the master and one fellow only. The answer to it is, that, even if the allegation were well founded, the merits, the justice, or the regularity of the expulsion cannot be entered into at the assizes ; but the proper mode of im- peaching it is by appeal to the visitor. Mr. Justice Willes was of that opinion at the trial, but reserved the question whether the statutes were to be admitted in evidence to impeach the sentence, and enter into the validity of it then. And we are all of opinion with Mr. Justice Willes, that they could not. So that even if Mr. Crawford was » member, and subject to the jurisdiction, rules, and orders of the college, his mode of redress is by appeal to the visitor, and not to this court." 2 6 Cold. 891. '' Mr. Justice Ellett, speaking for the court, said : " The establishment of legal tribunals for the adjudication and protec- tion of civil rights is the most favorable condition for the conquered people. There is always more or less security in a judi- cial body, organized according to the forms of law for the administration of justice according to the rules that obtain in courts of judicature. There is a dig- nity and responsibility about such a posi- tion that does not fail to command a decent regard to the ordinary rules of justice and of right, or to mitigate the rigor of military rule to some degree of harmony with the humane theories of modern warfare. " If then the power to create such civil courts exists, by the laws of war, in a place held in firm possession by a bel- ligerent military occupation, and if their judgments and decrees are held to be binding on all parties, during the period of such occupation, as the acts of a de. facto government, we are not able to see on what grounds we can refuse to them a like efiect, when pleaded as res judicata before the regular judicial tribunals of the State, since the return of peace.'' * 4 Am. Law Reg. n. s. 534. * A fortiori, the judgments of courts- martial are conclusive; but it must be made to appear that such courts acted within their jurisdiction. Dynes v. Hoo- ver, 20 How. 65 ; Wooley v. United States, 20 Law Rep. 631. EES JUDICATA. 15 The judgments of the ordinary domestic courts of inferior juris- diction are equally conclusive with the judgments of the superior courts, provided it appear from the record, th&,t the court had acquired jurisdiction of the cause.^ In the case first cited, the plaintiff, in trespass quare clausum f regit, under a lease from the defendants, offered in evidence certain proceedings instituted in a former suit by the present defendants, before justices of the peace, to recover possession of the premises, in which the justices had refused to award restitution. The evidence was held as having conclusively decided that the present defendants were not entitled to have restitution of possession, and that the plaintiff was righl>- fuUy in possession. The decisions of the commissioner of patents are also binding in collateral actions ; ^ and this is equally true of land patents and patents for inventions. In Jackson v. Lawton, just cited, a case of patent of lands, Mr. Chancellor Kent said that unless letters patent were absolutely void on their face, or their issuance was unauthorized or prohibited by statute, they could only be avoided in a regular course of pleading, in which the fraud, irregularity, or mistake is regularly put in issue. The principle had been fre- quently admitted that the fraud must appear on the face of the patent to make it void in a court of law, and that when the fraud or other defect arose on circumstances dehors the grant, the grant could only be avoided by suit in chancery, founded on a proceeding by scire facias, or by bill or information. And this language was recently adopted by the Supreme Court of the United States in a case of a patent for invention. ^ And it seems that the survey and patent of the board of land commissioners at Washington is also conclusive in collateral actions, until set aside. * In the case cited, the claimant of a Mexi- can land grant proceeded to have the same confirmed at Washing- ton, but by the survey made by the authorities a portion of the land covered by the Mexican grant was excluded ; and it was held that the claimant was bound. It seems hardly necessary to state that a judgment of a court of last resort cannot be collaterally attacked in that or in any other 1 Cumberland Coal & Iron Co. u. Jef- Rubber Co. v. Goodyear, 9 Wall. 788, 796 ; fries, 27 Md. 526 ; Burke v. Elliott, 4 Ired. Eureka Co. v. Bailey Co., 11 Wall. 488 ; 355 ; Ward v. State, 40 Miss. 108 ; Siiaver Field v. Seabury, 19 Hovt. 332. V. Shell, 24 Ark. 122 ; Flitters v. Allfrey, ' Rubber Co. v. Goodyear, ut supra. Law R. 10 C. P. 29. * Cassidy v. Carr, 48 Cal. 339. 2 Jackson v. Lawton, 10 Johns. 23; 16 ESTOPPEL BT RECORD. court ; but the point has been raised and so ruled. ^ " A judgment of a court of nisi prius," said the court in Sturgis v. Rogers, just cited, " rendered under such circumstances, could never be called in question collaterally before the same or any other court. It must be so also as to the judgments of the court of last resort, when it has jurisdiction, though it mistake the law and err in its judgment. The rule is as essential in the one case as in the other to the repose of society, and the stability of private rights. To say that a judgment of affirmance here, within the power of the Court to render, when the parties are before the court, and the case is brought within its lawful jurisdiction, is not a final end of that litigation, would be a startling doctrine, asserting that a cause can never have a final and binding determination." Next, as to the conclusiveness of agreed judgments. In a case in Kentucky, ^ the defendants pleaded that the same plaintiffs hav- ing formerly sued them upon the same cause of action, that suit was, by the judgment of the court, " dismissed agreed." The defence was held good. Chief Justice Robertson said that it had frequently been decided in that court that the legal deduction from a judgment dismissing a suit "agreed" was, that the parties had by their agreement adjusted the subject-matter of contro- versy; and that the legal effect of such a judgment was, that it would operate as a bar to any other suit between the parties, on the same cause of action, thus adjusted and merged in the judg- ment at their instance. But it is otherwise of a nonsuit on agreed facts .^ The court in Chamberlain v. Preble, * said (of judgment on the merits) that it could make no difference that the facts, or some of them, had been agreed by the parties, instead of being passed upon by the jury. Few trials before a jury were had without the agree- ment of parties or counsel to many matters thought not to be in controversy. The execution of written instruments, the testimony I of absent witnesses, and the date of the happening of particular events, were of this class. A mistake in the admission of any one such fact, if material, would be quite as fatal in its effects upon the conclusiveness of the judgment as an error in an agreed statement of facts. " Indeed," continued the court, " if the effect 1 Sturgis V. Rogers, 26 Ind. 1 ; Lucas " Bank of the Commonwealth v. Hop- V. San Francisco, 28 Cal. 591 ; Rouniltree kins, 2 Dana, 395. V. Turner, 86 Ala. 556. 3 p„st^ pp, 24, 25, note. * 11 AUen, 370. RES JUDICATA. 17 of the judgment is to be avoided in such cases, it is difficult to say that the existence of material evidence which the defendant failed to produce would not have the same effect. To come to this, it is evident, would bo to open to litigation every judgment for eviction upon which the covenantee seeks indemnity from his grantor." ^ A different rule apparently prevails in England. In a Scotch case before the House of Lords ^ it appeared tliat an action had been brought to have it declared that there existed a public right of way for foot-passengers along the right bank of the river Lossie. The land-owners appeared and defended, but a verdict went against them. The court having granted a new trial, a com- promise was effected ; and in pursuance thereof the court pro- nounced the judgment agreed upon. Subsequently the present action was brought, laying before the court the same matter which had been compromised ; and the question arose whether the mat ter was res judicata. Lord Chancellor Chelmsford said that the judgment in the former action having been the result of compromise between the parties, it could not be considered as a judicium^ nor could it be regarded as res judicata. Lord Romilly said that res judicata, by its very words, meant a matter upon which the court had exercised its judicial mind, having come to the conclusion that one side was right, and having pronounced a decision accordingly. And this was the opinion of the House of Lords. But this seems to be a dangerous doctrine. If a plaintiff, iind- ing his case weaker than he had anticipated, fear the result, he has only to obtain a compromise of the matter with the defendant upon any terms, and have judgment entered accordingly, in order to be able to bring a new suit for the same cause of action. Com- promise would thus tend to promote rather than to repress liti- gation. The award of arbitrators, under a rule of court, if final and valid, is also conclusive upon the parties.^ The case first cited was an action on a note against a prior by a subsequent indorser, ' To the same effect, Dunn v. Pipes, ^ Jenkins v. Bobertson, Law E. 1 H. 20 La. An. 276; Jarboe v. Smith, 10 B. L. Smtch, 117. Mon, 257. See also, as to agreed judg- ' Lloyd v. Barr, 11 Penn. St, 41 ; Pease ments, Fletcher v. Holmes, 25 Ind. 458; o. Whitten, 31 Maine, 117; Morse, Arbi- Brown ». Sprague, 5 Denio, 545. tration, 487. 2 18 ESTOPPEL BY BECOED. who had paid a judgment given by arbitrators, in an action by the holder against all the Indorsers; and, as no technical issue had been formed, it was contended that the judgment was not an es- toppel to the present defendant to deny demand and notice. But the court ruled otherwise.^ Judgment hy oonfession has been determined to be equally con- clusive.^ In the case first cited there was an attempt, in a collat- eral action, to impeach such a judgment, on the ground that it had not been confessed in conformity with the provisions of the statute ; and in the court below the record had been excluded for the reason mentioned. But upon appeal it was held that the judgment was not absolutely void, and therefore that it could not be collaterally impeached, and should not have been rejected when offered in evidence. In England, however, it has been held that judgment by default concludes the defendant only from denying the averments of the declaration and from alleging the facts actually put in issue ; and if he has omitted to plead a fact in confession and avoidance of the plaintiff's demand, he may afterwards plead it in another action by the same plaintiff in respect of the same subject-matter ; as for subsequently accruing rent under the same lease upon which the first action was brought.^ And the court went so far as to say that the omission to plead a good defence would in no case pre- ' The opinion of the court was thus the same legal effect as the verdict of a stated by Mr. Justice Bell : " The now jury and judgment thereon, under an defendant liad tlien a full opportunity to issue strictly made up." controvert his liability on the note in 2 Sheldon v. Stryker, 34 Barb. 116 ; question, and to cross-examine the wit- Neusbaum v. Keini, 24 N. Y. 325; Dean nesses produced by the bank to prove v. Thatcher, 3 Vroora, 470. See Snow v. it, — a privilege which constitutes one of Howard, 35 Barb. 55 ; Nortli v. Mudge, 13 the principal tests of estoppel by judg- Iowa, 496; Twogood 1;. Pence, 22 Iowa, ment. The very point, too, to establish 548 ; Sherman <;. Christy, 17 Iowa, 322 ; whicli that judgment is now pleaded, was Whitaker v. Bramson, 2 Paine, 209; Se- then in issue. Notice to the defendants crist v. Zimmerman, 55 Penn. St. 446; of the dislionorof tlie note was a material Kirby v. Fitzgerald, 31 N. Y. 417 ; Weikel alle'gationof the «arr. in that action. And u. Long, 55 Penn. St. 238. Stay of exe- though no teclinical issue was formed by cution being a judgment by confession, a formal plea, there was a substantial one the judgment is equally conclusive, and under our system of arbitration ; requir- cannot be collaterally impeached. An- ing proof of every thing necessary to derson v. Kirabrough, 5 Cold. 260. show tlie bank's right to recover. Dar- a^Howlett v. Tarte, 10 Com. B. n. 8. lington V. Gray, 5 Whart. 487. The 813.~ award of the arbitrators has therefore RES JUDICATA. 19 vent the defendant from pleading it in a second action. But it may well be doubted if this be law in America.^ The point will be considered hereafter. The consistency of this case with certain English cases, it may be here observed, is not clear. Thus, in the case of Rock v. Leigh- ton,2 the plaintiff sued the defendant, a sheriff, for a false return. The fact was that the sheriff had returned a devastavit to an exe- cution against the plaintiff as an administrator ; he having suf- ■ fered a judgment by default. The plaintiff contended that the sheriff should have returned nulla bona, instead of a devastavit. The court, however, ruled that the confession of judgment, or suf- fering judgment by default, in the case of an executor or adminis- trator, was an admission of assets, and estopped him to deny the fact. Judgment was therefore given for the defendant.^ In the more recent case of Leonard v. Simpson,* Tindal, C. J., speaking for the court, said : " The judgment by default in the for- mer action is conclusive upon the defendant that he has assets to satisfy the judgment. This is so thoroughly settled in the case of Kock v. Leighton, and in other cases which had preceded it, that it was admitted to be the law by the defendant's counsel in the case of Erving v. Peters.® The question has arisen whether a judgment by confession, be- fore an issue was raised, is an estoppel to a subsequent suit.^ The case cited was a suit to restrain an infringement of a patent, against C, S., & Co. Several years before, the plaintiff, having discovered the same firm (composed of the same persons, with two others who subsequently joined it) violating his patent, commenced an action against them for 41s. damages. They submitted, as they alleged, by arrangement, to give judgment for 40s. and costs, before any pleadings had been filed in the case. They immediately took a license from the plaintiff to use his patent for a certain 1 Loring V. Mansfi^d, 17 Mass. 394; ^ Xo the same effect, Grace o. Martin, Binck V. Wood, 43 Barb. 315, aif'd in 47 Ala. 135. And the judgment is equally Court of Appeals. See 37 How. Pr. 653. conclusive against the sureties in the ad- ^ 1 Salk. 310 ; s. c. 1 Ld. Raym. 589. ministration bond. Ibid. It would be more proper to say, in an ac- * 2 Bing. N. C. 176 ; b. c. 2 Scott, 355. tion against the sheriff, that the failure to ^ 3 T. R. 685. See also 2 Wras. Ex- plead the- previous judgment was a jus- ecutors, 1953 (7th Eng. ed.). tification of his return. The estoppel, •■ Goucher v. Clayton, 11 Jur. n. s. strictly speaking, could not avail him, a 107. stranger. 20 ESTOPPEL BY RECORD. time ; and now he alleged further infringements. The plaintiff contended that the defendants were now estopped to contest the validity of the patent, by reason of the judgment mentioned ; but the court held otherwise.* Judgment in proceedings supplementary to the main judgment is also binding in collateral actions. Thus, if a judgment debtor be examined concerning his property before a court or referee on proceedings supplementary to execution, the order made by the tribunal before which the examination takes place, concerning the subject-matter, estops the parties from relitigating the same matter.^ Final judgment hy default is also conclusive.^ But judgment by default of appearance of the defendant does not operate as a bar to anotlier action until after the damages have been determined under a writ of inquiry.* Whitaker v. Bramson involved the case of a judgment under a rule of court authorizing the plaintiff, in an action on contract, to sign judgment against the defendant upon his omission to file an affidavit of defence, leaving the amount of the judgment indeterminate ; and the court held that it was there- fore only an interlocutory judgment, and did not work an estoppel to a new suit for the same cause. 3. Universal Elements. But, in order that there should be an estoppel, the judgment pleaded must also have been a valid one!' If it was void, it will 1 Wood, V. C, said : " I do not tliink submission to the judgment, unless the that even if all the present defendants plaintiff had declared validly, and they were parties to the record in the action, had pleaded, denying the infringement." a court of common law would have held, But, further, he said that he could not in a new action by the plaintiff, that there prevent the two defendants, who were not was an estoppel. There is no evidence of parties to the former action, from setting any issue between the parties. The de- up the defence ; and he must therefore fendants are supposed to say, ' We thought hold that there was no estoppel, it not worth our while to try the question, a McCullough w. Clark, 41 Cal. 298. and we therefore did not raise the issue.' 3 Whitaker v. Bramson, 2 Paine, 209 ; They submitted, and paid 40«. damages Fagg i-. Clements, 16 Cal. 389 ; Mailhouse and costs, possibly because they might v. Inloes, 18 Md. 328 ; Green v. Hamilton, have been unwilling to give over work- 16 Md. 317, 329 ; Minor a. Walter, 17 ing, or incur the expense of litigation. Mass. 237 ; Brummagim u. Ambrose, 48 At any rate, there appear to have been Cal. 366. no pleadings in the action ; and the de- < Whitaker v. Bramson, 2 Paine, 209. fendants would not be estopped by their » Wixom v. Stephens, 17 Mich. 518. RES JUDICATA. 21 have no effect ; though it is otherwise, as we shall see, if it was only voidable. In Wixom v. Stephens, just cited, the former judg- ment (for the plaintiffs) was ineffectual by reason of a mistake in the name of one of the plaintiffs ; and the court were of opinion that they were not precluded from bringing a new suit to recover upon the original demand. Chief Justice Cooley said that if by any reason the judgment was not valid, and the plaintiffs could not enforce it, then it would seem that it could not constitute a bar to a new suit. The bar in such a case sprang from the party having already obtained a higher security ; and, where he had obtained no new security, liis remedy upon the original demand was not taken away. If, however, the judgment be merely voidable ; that is, if the court had jurisdiction to pronounce it, and the judgment be sim- ply erroneous, or the verdict wrongly found, it will be as conclu- sive in collateral actions as if it had been in all respects rightly determined. A voidable judgment is perfectly valid until set aside or reversed, as will be seen more fully in the following chapters. Further, a judgment, in order to work an estoppel to another litigation, must have been rendered upon the merits. If the cause were dismissed upon some preliminary issue, as upon a plea in ahatement, the parties are at liberty to raise the main issue again in any form they choose.^ Judgment proceeds upon the merits when the original cause of action is decided upon. Such a deci- sion concludes the parties and their privies from relitigating the claim. But for some purposes judgment on a preliminary point not touching the merits will raise an estoppel. The parties and their privies will be precluded from asserting the contrary of the fact found in such preliminary judgment. So, too, if a suit be " dis- missed for want of jurisdiction," it is the same as no suit, and will estop the plaintiff from alleging, after the expiration of the statute of limitations, that he had begun suit within the proper time.* ^ A judgment must also have been final to conclude further dis- 1 Clark V. Young, 1 Cranoh, 181 ; Ken- Dunbar, 1 Blackf. 56 ; Griffin w. Seymour, dal V. Talbot, 1 A. K. Marsh. 321 ; Birch 15 Iowa, 30. ■J. Funk, 2 Met. (Ky.) 544; iStevens v. » Gray v. Hodge, 50 Ga. 262. 22 ESTOPPEL BY RECORD. pute. As a preliminary decree or judgment or decision of a motion\ydoes not profess to decide the merits of the controversy, it cannot result, if the case go no further, in precluding the parties from drawing the matter into issue again. The case must have gone to a complete termination, so that nothing more is necessary to settle the rights of the parties, or the extent of those rights. Hence, as has already been stated, judgment for the plaintiff by default does not work an estoppel until the writ of inquiry of damages has been executed.^ In Kendal v. Talbot,^ the defendants to an action of covenant pleaded in bar a former judgment, rendered in the same court in their favor, in an action brought against them by the plaintiff upon the same covenant. Upon oyer it appeared that the judgment pleaded was rendered on the ground of the insufficiency of the plaintiffs declaration. The court held that such a judgment could not be a bar.* And the same is true of the dismissal of a bill in chancery for insufficiency.^ A decision upon a demurrer which has, however, clearly gone to the merits of the case, is an effectual bar to further litigation.® But where the demurrer presented two objections, and was sus- tained generally, one of the grounds being a preliminary defect, and the other going to the merits of the case, it is said that it will be presumed that the decision rested upon the former ground.'' In the case of an action for damages for failure to perform a contract,® declared upon in several counts, some for negligence, some for false warranty, and one in trover, it was strenuously argued, in a subsequent suit on the contract, that by judgment for the plaintiff, in a small sum, upon a demurrer to the declaration, it had been conclusively determined that the contract had been 1 Ford V. Doyle, 44 Cal. 635. Bank of New Orleans v. Welden, 1 La. 2 Whitaker v. Bramson, 2 Paine, 209. An. 46 ; Keater ». Hock, 16 Iowa, 23 ; 8 1 A. K. Marsh. 321. Coffin v. Knott, 2 G. Greene, 582 ; Per- * See also Thomas v. Hite, 5 B. Mon. kins v. Moore, 16 Ala. 17. A plaintiff in 590; Birch v. Funk, 2 Met. (Ky.) 544; a bill in equity is not concluded on de- Steveris v. Dunbar, 1 Blaokf . 56. murrer by his allegations of law. Thomp- 6 Thomas v. Hite, 5 B. Mon. 590. son v. National Bank of Eedemption, 106 6 Gray v. Gray, 34 Ga. 499 ; Wilson v. Mass. 128 ; Brown v. Newall, 2 Mylne & Ray, 24 Ind. 156 ; Estep v. Larsh, 21 Ind. C. 555, 676. 190 ; Robinson v. Howard, 5 Cal. 428 ; ' Griffln v. Seymour, 15 Iowa, 30. Terry v. Hammonds, 47 Cal. 32 ; City 8 chapin v. Curtis, 23 Conn. 888. RES JUDICATA." 23 performed, except so far as the judgment for the small sum indi- cated the contrary. But the court ruled otherwise.^ The case of Borrowscale v. Tuttle''^ involved the effect of the dismissal of a bill in chancery. The suit was to redeem a parcel of land from mortgage. The defence was this: The plaintiff's grantor of the equity of redemption had brought a suit in chan- cery against the same defendant, who appeared and answered under oath. Subsequently, on motion of the plaintiff in that cause, and without the defendant's knowledge, the bill was dis- missed, and judgment given for the defendants for cost. The time had expired within which the plaintiff might have filed a replication and taken testimony. The court held the defence per- fect. It was a judgment, they said, which, as had been settled in Foote V. Gibbs," was conclusively presumed to have been upon the merits, and was a final determination of the controversy. The question of the effect of a judgment of non-pros, as to part of the cause of action arose in Howes v. Austin,* in a subsequent suit upon the matter non-prosed. As stated in the opinion of the court, the plaintiff, in the former action, liad been called and de- faulted, for want of a replication to the defendant's plea to the first and second count of the declaration. The plaintiff had failed to reply within the time required by a rule of court ; and a judgment 1 " Did that demurrer prove," said Mr. given, and probably were given, for the Justice Ellsworth, " that the facts con- carriers destroying a portion of the ship- tained in the declaration were not true ? pars' lumber in the port of New York ; and it must be this to help the plaintiff, and so that record furnished no evidence It rather proved the contrary, if it proved at all of the performance of the voyage, any thing; and, for the purposes of that .... any more than a record of arecov- case, it certainly did prove the contrary, ery by a proprietor, who has sued his How then did it prove full performance contractor for stealing and wasting the by the plaintiff, which was flatly denied timber he furnished him to build the pro- in the declaration ? The whole effect of prietor's house, and a recovery for the the judgment on a demurrer, and the value of the lumber destroyed, proves $100 damages, is that on that deolara- that the house was built, in time and tion, on some of the counts, the defend- manner as agreed ; and there being other ant had subjected himself to pay $100 counts for not performing in due time for not performing his contract, or for bis and in proper manner makes no difference, fraudulent warranty, or his conversion of for an admission even of the whole cause the plaintiff's goods. Tlie admission by of action in such count has no tendency the demurrer is rather that the common to prove performance by the builder." carriers did nothing, than that they per- '^ 6 Allen, .377. formed any thing, much less that they had » 1 Gray, 412. done every thing, except to the amount of * 36 111. 396. $100, which damages might have been 24 ESTOPPEL BY RECORD. was entered for the defendants, as to those counts, that he go hence without day. The defendant contended that this judgment barred any subsequent action upon the demand stated in those counts. But the court decided that, though it might be final for costs,! its effect in the present case was simply to turn the plaintiff out of court on the cause of action non-prosed; leaving him at liberty to proceed for the recovery precisely as though the counts non-prosed had never been filed.^ The effect of a nonsuit on motion of the defendant came directly before the Supreme Court of the United States in Homer v. Brown.^ Wayne, J., in delivering judgment, said that a judgment of nonsuit was only given after the appearance of the defendant, when, from any delay or other fault of the plaintiff against the rules of law in any subsequent stage of the case, he had not followed the remedy which he had chosen to assert his claim as he ought to do. For Buch delinquency or mistake he might be non-prosed, and was liable to pay tlie costs. But, as nothing positive could be implied from the plaintiff's error as to the subject-matter of his suit, he might reassert it by the same remedy in another suit, if it be appropriate to his cause of action, or by any other which is so, if the first was not.* It is not, however, only for a non-appearance, or for delays or defaults, that a nonsuit may be entered. The plaintiff's proceeding in such particulars may be altogether regular, and the pleadings may be completed to an issue for a trial by the jury ; yet the parties may agree to take it from the jury with the view to submit the law of the case to the court upon an agreed statement of facts, with an agreement that the plaintiff shall be non-prosed if the facts stated are insufficient to maintain the right which he claims. The court in such case will order a nonsuit, if it shall think the law of it against the plaintiff; but it will declare it to be done in conformity with the agreement of the parties, and its effect upon the plaintiff will be precisely the same, and no more, than if he had been non- prosed for a non-appearance when called to prosecute his suit, or for one of those delays from which it may be adjudged that he is indifferent.^ 1 2 Archbold, Practice, 229. * ^nsign «. Bartholomew, 1 Met. 274. 2 See also 3 Black. Com. 296. « Homer v. Brown, 16 How. 354. ' 16 How. 354. " Judgment of nonsuit, even upon an BES JUDICATA. 25 We have, then, three elements universally necessary to con- stitute an estoppel by judgment: (1) the judgment must have agreed statement of facts, cannot be pleaded in bar to a new suit, althougli it was rendered by a court of competent jurisdiction, and was between the same parties and for the same subject-matter." Per CliflTord, J., in Derby v. Jacques, 1 Cliff. 425, 432 ; citing Homer v. Brown, supra; Morgan t.- Bliss, 2 Mass. Ill; Knox V. Waldoborough, 6 Greenl. 185; Bridge ». Sumner, 1 Pick. 371 ; Wade v. Howard, 8 Pick. 353. See also Coit vt Beard, 33 Barb. 367 ; Dexter v. Clark, 35 Barb. 271 ; Jones «. Underwood, Ibid. 211 ; Jay ti. Carthage, 48 Maine, 353. A voluntary nonsiiit taken by the plain- tiff, any time before judgment, of course, will not estop him to bring a new action ; and this though the judgment had been reversed and the cause remanded before lie dismissed his suit. Holland v. Hatch, 15 Ohio St. 464. The efiect of a, nolle prosequi is the same ; it is not a bar to another indict- ment for the same offence, even if it pre- cludes the government from suing out new process requiring the party to an- swer the same indictment, which is more doubtful. Bacon a. Towne, 4 Cush.234, per Shaw, C. J. ; Commonwealth v. Wheeler, 2 Mass. 172. If the parties to a cause agree to await the result of another trial, it is said they will be estopped by the judgment in that case, even though it was one of nonsuit. Brown v. Sprague, 5 Denio, 545. Among the many other illustrations of the doctrine that a judgment is no bar to a new suit upon the same demand, unless there was a trial on the merits, the follow- ing may be mentioned : In McFarlane v. Cushman, 21 Wis. 401, the fact that the plaintiff, obligee in a. bond sued on, had previously brought suit upon the same bond before its maturity, was decided to be no bar to the present action, instituted after the bond had become due. To the same effect. Gray v. Dougherty, 25 Cal. 266 ; Quackenbush v. Ehle, 5 Barb. 469. In Wheeler v. Ruckman, 7 Rob. 447, it was determined that a judgment of dismis- sal for want of partiA was no bar to a subsequent suit for the same demand. In Durant v. Kssex Company, 7 Wall. 107, the court say, in reference to a decree in equity : " Where words of qualification, such as ' without prejudice,' or other terms indicating a right or privilege to take further legal proceedings on the sub- ject, do not accompany the decree, it is presumed to be rendered on the merits." Walden v. Bodley, 14 Peters, 156 ; Hughes ». United States, 4 Wall. 237 ; Bigelow v. Winsor, 1 Gray, 301 ; Foote v. Gibbs, Ibid. 412. It is held in Bostwick v. Abbott, 40 Barb. 331, that after a case at law has been decided against the plaintiff on the merits, the court has no power to destroy its effect by amending it so as to give permission to the plaintiff to bring an- other suit. But see Borden Mining Co. V. Barry, 17 Md. 419. When the record of a suit showed that by the plaintiff's failing to appear to his action his writ was "abated and dis- missed," and judgment given for the de- fendant for $5 and costs, this was held no bar to a new suit. Haws v. Tiernan, 53 Penn. St. 192. So where judgment has been rendered solely for informality in a replevin bond, a new action may be brought. Wal- bridge v. Shaw, 7 Cush. 560; Morton v. Sweetser, 12 Allen, 134. So of a cause tried upon the merits, but eventually dismissed for want of juris- diction. Waddle v. Ishe, 12 Ala. 308. But it is said there is no doubt that a judgment on retraxit, being an admission of record by the plaintiff that he has no cause of action, is as perfect a bar as a judgment after verdict. Coffman v. Brown, 7 Smedes & M. 125. In this case, the court held that the following plea did not constitute a retraxit : " That a suit had been previously brought for the same cause of action, between the same parties. 26 ESTOPPEL BY EECOED. been valid, that is, not void ; (2) it must have Ijeen rendered on the merits ; (3) it must have been final. The other doctrines of the conclusiveness of judgments are less general. To those we now proceed. in which the plaintiff, in his own proper person, came into court, and confessed that he would not further prosecute his said suit against the said defendant, but from the same altogetlier withdrew him- self; whereupon it was considered by the court that the plaintiff should take noth- ing, and that defendant go without day." See Minor v. Mechanics' Bank, 1 Peters, 74. The assignee of a mortgage having sued to foreclose the same, judgment was given against him for a defect in the as- signment ; and it was decided that this was no bar to a subsequent suit brought after the assignment had been perfected. Mitchell V. Cook, 29 Barb. 243. And a decree fixing the fact that the plaintiff had no title at the time of a former suit is no bar to a suit after hav- ing acquired the proper titles. Univer- sity V. Maultsby, 2 Jones Eq. 241 ; Wood- bridge V. Banning, 14 Ohio St. 328; Taylor v. MoCrackin, 2 Blackf. 261 ; Per- kins V. Parker, 10 Allen, 22. DOMESTIC JUDGMENTS IN PERSONAM. 27 CHAPTER III. DOMESTIC JUDGMENTS IN PERSONAM. In presenting tins subject, we have adopted the following order and divisions : — 1. Estoppel by former judgment ; 2. Estoppel by former verdict ; 3. The limits and operation of judgment and verdict estoppels; 4. Under what circumstances judgments may be impeached in collateral actions. 1. Former Judgment. The peculiarity of the plea of foi-mer judgment is that it must appear that there is an identity in the present and the previous cause of action. By this plea the defendant says in effect that the plaintiff has on a previous occasion brought an action against the defendant, or against one under whom the defendant claims, in respect of the very same cause of action now alleged ; in which action judgment was given for the plaintiff or defendant, as the case may be. "We now present some of the cases which illustrate this point. The case of Arnold v. Arnold ^ is a well-considered American decision upon this subject. It was a writ of right, to which the defendant pleaded an action of trespass quare clausum fregit, brought by one under whom he claimed, and judgment against the plaintiff, in respect of the same land. The plea alleged that the only question in issue there was the same as that now in contro- versy, namely, the right of property. There was also a plea of a former writ of entry sur disseisin between the parties to the first action mentioned. Both defences were overruled, for reasons stated in the note.^ ' 17 Pick. 4. claumm, upon an issue of soil and free- ^ Mr. Justice Putnam, who delivered hold, and the same cause of action was the opinion of the court, said : " The er- tried in the writ of entry sur disseisin, ror lies at the threshold. It is in the as- upon the issue of »u/ disseisin, as is to be sumption that the same cause of action tried in the writ of right, — an assump- was tried in the action of trespass quare tiou which must strike the mind of every 28 ESTOPPEL BY RECORD. The case of Cleaton v. Cliainbliss,i decided in the Virginia Court of Appeals, is also important. The case, stripped of all that is unnecessary to the subject in hand, was this : Wessen, being indebted to Cleaton, paid him by bonds, purporting to have been executed by the defendant Cliambliss, and T. Cleaton, who had, lawyer as extraordinary. Who needs to be told that the plea of soil and freehold would be supported by a defendant who should prove an estate for his life in the locus in quo, or that in a writ of right the righV of property is in question ? Who needs to be told that the actions of tres- pass quare clausum /regit, and the various writs of entry, and the judgments upon them, affect only the right of possession and entry, and do not conclude as to the mere right 1 It will be answered that nobody doubts these general proposi- tions, but that the pleas in bar aver that the very right of property was tried in the actions of trespass and entry before brought, and that the new demandant had no legal impediment from giving in evidence, in support of the issues joined in those action, the same matters that he now has to establish his right of prop- erty. But how does that appear judi- cially? The plea avers that the fact submitted to the jury in the action of trespass, and on which the jury found a, verdict, was the mere right of property. Tlie issue to be tried was upon the soil and freehold ; and the verdict followed the issue. If the verdict had been upon the mere right of property, it could not have warranted a judgment for the pre- vailing party, on the issue of soil and freehold ; for it might be that the plain- tiff might have the right of property, and his adversary might have the right of possession. A man entitled to the herb- age for the current season might well maintain trespass quare clausum /regit against the owner of the fee. The judg- ment in such action would conclude the parties as to the rights drawn into ques- tion by the pleadings, but no further. . , . " In every action the verdict is con- clusive as to the subject-matter of tlie suit, and any matter particularly put in issue and found by tlie jury ; and it will not be competent for a party in any other action to deny or plead any thing to the contrary of what has been so found and adjudicated. Thus, if the demandant in a writ of entry has a judgment against him by the tenant in a writ of trespass quare clausum /regit, upon an issue of soil and freehold, he cannot be permitted to say that, at the time when the action of trespass was commenced, the soil and freehold was not in the tenant. So if the tenant in a writ of right had before pre- vailed against the demandant in a writ of entry, on a plea of nul disseisin, the de- mandant cannot be permitted to say, con- trary to the verdict, that the tenant had disseized him. He must go to trial upon his writ of right with the disadvan- tages arising from the former verdict against him ; and he must establish his right of property in the writ of right (which he was not called upon to estab- lish in the former action), or he cannot prevail." Eeferring to the language of Ferrer's Case, 6 Coke, 7, he said it was not per- fectly exact to say that the same right, or the same matter, was tried in the higher action, in cases of consecutive remedies, which had before been tried in the lower action. The causes of action in trespass quare clausum /regit, and in the writs of entry, related to the right of possession and of entry ; while in the writ of right the demandant counted upon* a fee sim- ple and a deforcement. It was true, in- deed, that the question was concerning the same lands ; and in this sense only was the same matter tried again, as each presented a different cause of action. 1 6 Rand. 86. DOMESTIC JUDGMENTS IN PERSONAM. 29 before the transfer, promised Wessen, the plaintiff, that he would pay them. Chambliss having failed to pay the bonds at maturity, Wessen sued him upon them ; to which action the former pleaded non est factum, and obtained judgment on his plea. Wessen then sued him on the special promise to pay the bonds. The defendant demurred 'to a count setting out the above matters; and he con- tended, inter alia, that the judgment in his favor on the bond was a complete bar to the action. But the demurrer was overruled.^ In a case in the Supreme Court of the United States,^ it ap- peared that the plaintiff had sued the defendant for salt sold and delivered. The defendant pleaded that having given tlie note of a third party, indorsed by himself, the plaintiff sued thereon, and judgment was given against him that the action could not be maintained until judgment had been obtained against tlie maker, and his insolvency made to appear. But the plea was held bad. Marshall, C. J., said it was clear that the same question was not tried in both cases. In the first case, the point decided was that the suit against the indorser would not lie until a suit had been brought against the maker ; in tlie second suit, the point to be de- cided was whether the plaintiffs had lost their remedy on the original contract by their conduct respecting the note. These were distinct points ; and the merits of the latter case were not involved in the decision of the former. In the recent case of Goodrich v. City ,3 in the Supreme Court of the United States, the appellants filed a bill to recover damages for the sinking of the steamer Huron in tlie Chicago River. The casualty had been caused by the steamer running against a sunken wreck. The libel alleged that it was the duty of the city to have the wreck removed, and that it was guilty of negligence in not having done so. It further alleged that the city entered upon the ' After having considered tlie ques- the allegation taken and found, — an alle- tions of pleading and other matters in- gation not put in issue, and which could volved, the court, Carr, J., said that the not possibly be put in issue, in the case record must also show that issue was before us. If the judgment on the bonds taken on the same allegation which was had been pleaded, the plea could not have the foundation of the second action, availed ; for, if it had stated the record " Here," to quote the language of the correctly, a demurrer would have Iain ; court, " the - foundation of the action is and, if incorrectly, the replication of nut the promise of [T.] Cleaton to Chambliss tiel record would have overthrown it." there the foundation is the bond of Clea- 3 Clark w. Young, 1 Cranch, 181. ton to Wessen. The issue there was upon 3 5 Wall. 566. non est factum ; that was the point decided, 30 ESTOPPKL BY RECORD. work of removal, but abandoned it before the work was accom- plislied. The defence, among other things, was a former judg- ment, rendered in the Supreme Court of Illinois, in an action on the case between the same parties, respecting the same injury.^ The declaration in that case had set forth that it was the duty of the city to remove and prevent obstructions in the river ; that the city assumed to discharge the duty, and entered upon the work ; that it had negligently suffered the obstruction of the wreck to re- main, though knowing its character, and had neglected to place any signal near it to indicate its position ; and that, by reason of the premises, the steamer Huron had run upon the sunken wreck. Counsel for the libellants contended that, as there was no specific allegation in the declaration that the city had undertaken to re- move the particular wreck, — the main charge in the libel, — the case made in the first action was different from that in the present; and that the State court had merely decided that an action would not lie against the city for a simple omission to act, for the mere non-assumption of the power conferred by the charter. The ques- tion of liability, in all cases where the city had elected to act and had entered upon and assumed the work, was still an open question. But the court, by Mr. Justice Swayne, said that, upon a careful examination of the declaration and the libel, they must hold that there was Mo such difference between the cases as to take the present action out of the operation of the principles of res iudicata. All important case, showing the necessity of an indentity of the two causes of action to work an estoppel, was determined in 1862, in the Irish Court of Exchequer .^ It was an action against the defendants for cutting turf upon a bog in the possession of the defendants, the turbary whereof was alleged to have been reserved to the plaintiff"'s assignor, one Taaffe. The defendants were as- signees of James and Harlow Fleming (whose ancestors claimed under the same grantor with Taaffe), made grantees by virtue of a deed made in pursuance of a decretal order, in a chancery suit below mentioned between Taaffe and the ancestors, and revived by the grantees just named. Their defence was, that the effect of the reservation of turbary, claimed by the plaintiff", had been the sub- ject of a bill for an injunction by Taaffe against the ancestors of the Flemings, and of a cross-bill by the latter against Taaffe, in 1 Goodrich v. City, 20 lU. 445. ' Beere t>. Fleming, 18 Ir. C. L. 506. DOMffiTIC JUDGMENTS IN PERSONAM. 31 which a decretal order had been pronounced — which, however, had never been made up, but was still in minutes — to this effect, that both bills be retained, with liberty to Taaffe to bring an eject- ment or other action against the Flemings for the recovery of such parts of the premises as he claimed. The defence then alleged that an ejectment was brought, in accordance with this order, which was duly tried, and judgment given for the defendants as to the turbary now in question. It further alleged that subse- quently Taaffe brought an action on the case against one of the Fleming ancestors to recover damages for having been prevented by him from cutting and carrying away large quantities of turf; that, upon issue and trial, Taaffe was nonsuited ; and that, the mat- ter coming up again in the chancery suit first referred to, Taaffe's bill was dismissed, and the Flemings were declared entitled to pos- session of the bog in question, and to a conveyance thereof; in pursuance of which order, the deed above mentioned, to James and H. Fleming, was executed. The defendants contended that the judgments at law and decree in equity, being in full force, were conclusive against the plaintiff's alleged right of turbary. The ■ question arose upon a demurrer to the plea alleging the above matters. The demurrer was sustained.^ 1 Fitzgerald, B., in pronouncing judg- [assignor 1], Taaffe, sougiit by iiis bill a ment, said : " We, are all of opinion that declaration of his exclusive right to tur- tlie demurrer must be allowed. . . . The bary, and his bill was dismi.ssed, I can defence cannot be sustained, unless the regard that dismissal as deciding nothing first decree therein stated constitutes a but liis failure to establish that equitable clear ground in equity for perpetually re- right; and to a bill seeking a declaration straining the plaintiff from asserting that of such right, the decree might be an an- exclusive right to turbary which he claims swer. I apprehend it is not correct to say in this action. Now the deed, so far as it that a party, seeking equitable relief in declares any right, declares a right only respect of an instrument on which he can to the soil of the lands comprised in the sue at law, and whose bill is dismissed, deed of 1791, (a) and that right is not ques- though without stating such dismissal to tioned in this suit ; and so far as the deed be without prejudice, is necessarily sub- of 1820 (6) is to be considered as incor- ject to be restrained from proceeding at porated in the decree, that leaves all other law on the same instrument. In the case questions in the precise state in which of bills for, the specific performance of they were left by the deed of 1791. (c) agreements, though the bill be dismissed Again, though the plaintiff's assignee without any saving of the plaintiff's right {a) Under which the Fleming ancestors claimed, who derived title by the same grantor under whom, some years later, Taaffe claimed. (6) To J. and H. Fleming, by virtue of the decretal order above mentioned, (c) The terms of the two deeds and of the reservation were almost identical. 32 ESTOPPEL BY RECORD. In another case of trespass for injuring a wall, to a plea that the plaintiff had instituted, proceedings in chancery for the very same cause, alleging that the bill had been dismissed, the plaintiff re- plied that the bill was dismissed with a reservation to the plaintiff of the right of proceeding at law. And tlie court held that both the plea and the replication were good.^ The plaintiff in Norton v. Huxley ^ brought an action for a tort, charging the defendant with having fraudulently induced him to take the assignment of an unfinished contract, which proved un- fortunate for him. In pursuance of this contract, the plaintiff had furnished labor, materials, and money, for which the assignor to proceed at law, I believe it to be well settled that the plaintiff may proceed at law ; and that, if the defendant would re- strain him, he must show by bill some substantive equity for the purpose. In this case, the court of chancery in truth appears to have passed no judgment of its own, but to have dismissed Taaffe's suit, simply on the ground of his failure to establish his right at law, in an action or actions which could not, without the aid of a court of equity, have conclusively established the right. Tlie decree in the cross-cause contains no declaration of right, except as to the soil, not now in question, and no proviso restraining TaafEe from further proceeding at law. I see nothing therefore to warrant us in holding that a decree would constitute of itself, or with the judgments at law, an equitable bar to this action. No case can better illustrate the effect of a mere dis- missal of a bill for equitable relief than Tatham v. Wright, 7 Ad. & E. 313, possi- bly one of the most pertinaciously con- tested cases in the books. Tatham filed a bill in chancery, praying that the will of his ancestor might be declared to have been obtained by fraud and jindue influ- ence, and void. An issue devimvit vet non was directed. It was tried in 1830, and there was a verdict for the will, and against Tatham. A new trial was moved for, before Sir John Leech, and he refused it ; the motion was repeated before the Lord Chancellor Brougham, who called Chief Justice Tindal and Lord Lyndhurst to his assistance, and they, in 1831, re- fused the new trial, and then the Master of the KoUs dismissed the bill, (o) There- upon Tatham brought his ejectment, not- withstanding the decree of dismissal, on an issue raising the very same questions as he sought to raise in his ejectment. The ejectment was tried in 1833, and there was a verdict for Tatham ; a bill of exceptions was taken by the defendant, and the court awarded » venire de novo. The ejectment was again tried in 1834, and there was a verdict for the defendant, against Tatham. The court, on motion, set aside that verdict ; and the case was tried again in 1836, and Tatham obtained a verdict and judgment ; there was a bill of exceptions, on the argument of which the court was equally divided. The judg- ment for Tatham was, in consequence, affirmed ; and finally there was an appeal to the House of Lords, in which that judgment was upheld ; and thus Tatham, whose bill had been dismissed after trial of an issue on the same question, finally recovered the estate." Wright v. Tat- ham, 5 Clarke & b\ 670. ' Langmead v. Maple, 18 Com. B. N. s. 256. 2 13 Gray, 285. (a) These proceedings are reported in 2 Russ. & M. 1. DOMESTIC JUDGMENTS IN PERSONAM. 33 of the contract had given him an oi'der on the defendant ; which the latter refused to accept. .The defendant offered, in bar of the suit, the record of an action by the plaintiff, against the defendant, to recover for the services, materials, and money just mentioned ; in which suit judgment had gone for the defendant. But the record was excluded. The court said that the former action was one of contract, in which a promise and a breach had been averred. This was an action for a tort, in which the plaintiff alleged that he had sustained damages by the fraudulent representations of the defendant. Proof which would fully support the one case would have no tendency to maintain the other ; ^ the questions involved being essentially unlike. A judgment, however, for the defendant in an action for a false representation, for example, of soundness on an exchange of horses, is a bar to a subsequent action of contract on the defendant's promise or warranty at the time of the exchange, that his horse was sound, and vice versa; for the two causes of action are identical.^ In Harding v. Hale,^ the facts were that the plaintiff had previously brought an action for goods sold, which was defeated by the plea of a special promise by the defendant to pay certain debts of the plaintifiF, as a partial payment of the goods. The present action being brought upon this special promise, the defendant pleaded the judgment in the action for the goods sold in bar. But the court held the plea bad. Mr. Justice Thomas said : " The first suit was not for the same cause of action, nor to be supported by the same evidence, as the second. The judgment in the first did not negative the cause of action relied upon in the second, but affirmed its existence and pointed the way to a better writ." In the case of a continuing or recun-ing liability, as in tax assessments or in debts due by instalment, a former judgment may or may not bar a subsequent action. It cannot be a bar, it would seem, when the former judgment was for the plaintiff. And in the case of taxes the same must be true when the judgment was for the defendant, if there have since been any change of law or 1 This test of identity is also given in ^ Norton v. Doherty, 3 Gray, 372 ; Kilter v. Hooper, 35 Vt. 457 ; Marsh o. Ware v. Percival, 61 Maine, 391. Pier, 4 Kawle; 273 ; and in many other ^ 2 Gray, 399. 34 ESTOPPEL BY RECORD. fact in respect of the defendant.^ If there have been no change, the judgment would doubtless operate as a bar. In the case of an ' action on a debt due by instalment, as for example on a promissory note, judgment against the validity of the main obligation itself would preclude the obligee from suing upon any of the instal- ments ; but a judgment merely against one of the instalments could not, in principle, bar an action on another of them.^ The result, then, of the cases on this branch of the subject is that a former judgment between the parties can only be pleaded as an estoppel in cases founded upon the same cause of action.^ And to this it should be added that, in the silence of the record, evidence is admissible as to the ground of the verdict.* The doctrine in criminal law, that no man shall be brought into jeopardy of his life more than once for the same offence,* or, as it is expressed in the Constitution of the United States, that no one shall be subject, for the same offence, to be twice put in jeopardy of ' Davenport v. Chicago, &o., R. Co., 38 Iowa, 634. ^ See further as to rights of action for recurring liability, Duncan v. Bancroft, 110 Mass. 267. ' In tlie recent case of Pacliet Co. v. Sickles, 5 Wall. 680, tlie question of the proof of the identity of the contract sued upon with that involved in a former judg- ment arose ; and it was determined that where the declaration in the former ac- tion, as set out in the record, alleged a special contract, without stating whether if was a, written or parol contract, and where jurors in that action are brought to testify to the identity of that contract with the present, evidence was admissi- ble, on the other side, that the contract was in parol. Mr. Justice Nelson, speaking for the majority of the court, said : " As we un- derstand the rule in respect to the conclu- siveness of the verdict and judgment in a former trial between the same parties, when the judgment is used in pleading as a technical estoppel, or is relied on by way of evidence as conclusive per se, it must appear by the record of the prior suit that the particular controversy sought to be concluded was necessarily tried and deter- mined ; that is, if the record of the former trial shows that the verdict could not have been rendered without deciding the par- ticular matter, it will be considered as having settled that matter as to all future actions between the parties; and further, in cases where the record itself does not show that the matter was necessarily and. directly found by the jury, evidence ali- unde consistent with the record may be received to prove the fact. But even where it appears from the extrinsic evi- dence that the matter was properly within the issue controverted in the former suit, if it be not shown that the verdict and judgment necessarily involved its consid- eration and determination, it will not be concluded." Wood v. Jackson, 8 Wend. 10 ; Washington, &c.. Packet Co. v. Sickles, 24 How. 333 ; Lawrence v. Hunt, 10 Wend. 80. * Packet iCo. v. Sickles, supra ; Boyn- ton V. Morrill, HI Mass. 4 ; Hood v. Hood, 110 Mass. 463. See also, as to proof of identity, Phillips v. Berick, 16 Johns. 136 ; Perkins v. Walker, 19 Vt. 144; Gardner v. Buckbee, 3 Cowen, 121 ; Burt v. Stern- burgh, 4 Cowen, 659. 5 4 Black. Com. 335. DOMESTIC JUDGMENTS IN PERSONAM. 35 life or limb,i has a very close relation to this subject of estoppel by former judgment, and may be considered as the criminal law counterpart of the same doctrine. As the subject is not one that would ordinarily be looked for in a work on estoppel, we shall not examine it with that minuteness which we have brought to the consideration of the preceding mat- ters, but shall be content with a reference to the main features of the doctrine as stated in the text-books. The doctrine of twice in jeopardy is thus epitomized by Black- stone : ^ " Tlie plea of autrefois acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence. And hence it is allowed as a consequence that, when a man is once fairly found not guilty, upon any indictment, or other prosecution, before any court having competent jurisdic- tion of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime. Therefore an acquittal on an appeal is a good bar to an indictment on tlie same offence. And so also was an acqiiittal on an indictment a good bar to an appeal, by the common law. . . . " Secondly, tlie plpa of autrefois convict, or a former conviction for the same identical crime, though no judgment was ever given, or perhaps will be (being suspended by the benefit of clergy or other causes), is a good plea in bar to an indictment. And this depends upon the same principle as the former, that no man ought to be twice brought in danger of his life for one and the same crime. Hereupon it has been held that a conviction of manslaughter, on an appeal or an indictment, is a bar even in anotlier appeal, and much' more in an indictment of murder ; for the fact prosecuted is the same in both, though the offences differ in coloring and in degree. It is to be obsex'ved that the pleas of autrefois acquit and autrefois convict, or a former acquittal and former conviction, must be upon a prosecution for the same identical act and crime." ^ The rules in relation to the application of the doctrine are some- what different from those in relation to former judgments in civil causes. The estoppel, if such it may be called, of aformer acquit- 1 Const. Amendt. art. 5. bars an indictment for the same offence '' Black. Com. 335. as a lower crime. But there are some ' It is a general principle that a con- exceptions to the rule. See Bishop, Crim, viction or an acquittal of a higher crime Law, § 887. 36 ESTOPPEL BY RECORD. tal or a former conviction, arises where the defendant was techni- cally in jeopardy on the former trial ; and this begins when the panel of the jury is fuU.^ When the jury, being full, is sworn, according to the authority just cited,^ and added to the other branch of the court, and all Ithe preliminary matters of record are in readi- ness for the trial, the prisoner, according to the better opinion, has reached the jeopardy which protects him from a second trial. Whatever is done thereafter is immaterial, so far as the question of another trial is concerned ; the.legal effect of the position of the defendant is to preclude another trial for the same offence. And this, too, though the attorney-general, by consent of the judge, enters a nol. pros., or though he withdraws a juryman, and thus puts an end to the trial.^ We shall see, in a subsequent part of this chapter, that the rules relating to the binding effect of judg- ments in civil causes are quite different in this particular. But the case is different where the trial is terminated by an ad- judication in relation to some defect in the record or proceedings, or in relation to some other preliminary or extraneous matter which prevents a trial upon the merits of the indictment. In such case, upon an adjudication, appearing of record, that such fact exists, the rule of twice in jeopardy has no application ; for in truth the defendant has not been placed in jeopardy at all.* This doctrine, as we shall see, is in strict analogy to that in relation to civil judgments. 2. Estoppel hy former Verdict. The foregoing cases show that where the cause of action is the same, parties and privies are estopped by the former recovery to relitigate a cause of action once adjudicated. We come now to the plea of estoppel by verdict, which will be seen to be closely related to the preceding, and in which a parallel principle will be found ; showing that the two classes of cases are merely detached parts of one and the same general rule. The class of cases now to be consider.ed is that in which an estoppel arises regardless of any identity in the cause of action. 1 Bishop, Crim. Law, §§ 856, 857. work for a further consideration of the 2 Ibid., § 858. subject. The question hardly comes s Ibid. There is some conflict in rela- witliin the scope of this work, and it will tion to this position, as the author cited not be further pursued, shows ; and the reader is referred to that < Bishop, Crim. Law, § 878. DOMESTIC JUDGMENTS IN PERSONAM. 37 This subject was considered in Betts v. Starr ,^ in the Supreme Court of Connecticut. The plaintiff in that case brought an action of ejectment to recover possession of certain land mort- gaged by the defendant to the plaiYitiff, for the security of a certain promissory note specified in the mortgage deed. The defendant offered to prove that the note mentioned in the mortgage was usurious and void. The plaintiff objected, on the ground that the defendant was estopped by a former judgment between the parties. From the record of the case referred to, it appeared that the pres- ent plaintiff had brought suit on the note in question ; that the defendant pleaded non assumpsit; that the issue of fact was whether the note had been given upon a usurious consideration ; and that a verdict was given for the plaintiff. The debt not hav- ing been satisfied in that case, the present action was brought. The court held the judgment conclusive of the matter. Bristol, J., having premised that in the action on the note the jury found that the defendant assumed and promised, and that the judgment further was a direct adjudication that the plaintiff should recover upon the note ; that the making of the promise, and its validity, were not drawn incidentally in question, or to be inferred from the judgment, since this was for the plaintiff to recover the very money secured by the mortgage ; he proceeded to refer to the objection that the subject-matter of the two actions was different, the former being brought to recover the debt, and the latter to recover the land mortgaged. For this objection he said the authority cited was Judge Swift's treatise on Evidence ; ^ but the authority did not support the posi- tion. When the cause or object of two actions was different, though the matter in dispute was the same in both, a prior judg- ment was no bar to a subsequent action ; but the verdict might be matter of evidence to prove such point in dispute. This was the doctrine laid down by Judge Swift ; and this was conceded. And this in no way interfered with the ground of the present decision ; for although, when the object and purpose of two actions were different, the judgment in one could not bar the other, it did not follow that in the second action either party could be permitted to contradict what had been expressly adjudicated in the first.^ Commenting upon Lee v. Hopkins,* h^ said that no one could 1 5 Conn. 550. ° Spencer v. Dearth, 43 Vt. 98. 2 Page 17. * 6 Wheat. 109. 38 ESTOPPEL BY RECORD. suppose that, whatever way the judgment or decree on the bill in chancery in the former action there had gone, it could have been pleaded in bar to the last action (covenant) between the parties. The object of the bill in chanrfery was to get money refunded, alleged by a purchaser of an estate to have been necessarily ex- pended by him to free . that estate from incumbrances, which the seller was bound to remove. The object of the suit at law was to recover damages for not conveying the military lands which were to have been taken in part payment. Nothing could have been more distinct than the object of the two suits ; and in no event could the decree have been pleaded in bar of the action at law. But the decree in chancery was held conclusive, by way of evi- dence, that Lee had discharged the incumbrances upon the estate ; that being the matter directly adjudicated in the chancery suit. Several English cases were also cited in support of the doctrine.^ Upon this branch of the subject, the Duchess of Kingston's Case ^ is the case most frequently referred to. It was an indict- ment for bigamy against the Duchess of Kingston, on the ground that at the time of her marriage with the Duke of Kingston she was the lawful wife of one Hervey, then living. She pleaded in defence a judgment obtained by her against Hervey in a suit for jactitation of marriage, whereby she was pronounced a spinster, and free from all matrimonial alliance with Hervey " as far as yet appeared." The case having gone to the House of Lords, the lords spiritual and temporal ordered this question, among others, to be put to the judges, Whether a sentence of the Spiritual Court against a marriage in a suit for jactitation of marriage was conclusive evidence so as to estop the counsel for the crown from proving the said marriage in an indictment for polygamy. As one of the preliminary steps in the opinion of the judges, De Grey, C. J., said that, from the variety of cases relative to judg- ments being given in evidence in civil suits, these two deductions seemed to follow as generally true : first, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive, between the same parties, 1 Aslin V. Parkin, 2 Burr. 665 ; Rex v. 2 20 How. St. Tr. 355 ; 1 Leach, C. C. St. Panoras, Peake, 219; Ma'rriott v. 78; 2 Smith's Lead. Cas. 679, 6th Eng. Hampton, 7 T. R. 269 ; 2 Phillipps, Evi- ed. denue, 18, 19, 4th Am. ed. DOMESTIC JUDGMENTS IN PERSONAM. 89 upon the same matter directly in question in another court ; secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter between the same ^Darties, coming incidentally in question in another court for a different purpose. Having stated that the Spiritual Court had exclusive juris- diction of questions of marriage, though the temporal courts entertained such questions incidentally, and that the latter courts were bound by the adjudications of the former courts between the same parties, he then said that the case was different when the judgments of the Spritual Courts were involved in criminal cases ; for then the parties were in all cases different. The king, he said, in whom the trust of prosecuting public offences is vested, is no party to proceedings in the Ecclesiastical Court, and cannot be admitted to defend, examine witnesses, ifltervene in any way, or appeal. He then proceeded to say that whatever might be the doctrine as to the conclusiveness of an adjudication as to mar- riage, when involved in a criminal case, still a cause of jactitation was different.^ Outram v. Morewood'^ is a leading case of high authority upon this subject. The case was this : An action of trespass was brought for digging and getting out coals from a mine alleged by the plaintiff to be within and under his close, called Cowcbse. The defendants pleaded and showed title by a regular chain in 1 " This," he said, " is ranked as a " So that, admitting the sentence In its cause of defamation only, and not as a full extent and import, it only proves matrimonial cause, unless where the de- that it did not yet appear that they were fendant pleads a marriage ; and whether married, and not that they were not mar- it continues a matrimonial cause through- ried at all ; and by the rule laid down by out, as some say, or ceases to be so on Holt, L. C. J., such sentence can be no failure of proving a. marriage, as others proof of any thing to be inferred by argu- have said, still the sentence has only a raent from it ; and therefore it is not to negative and qualified effect ; viz., that be inferred that there was no marriage the party has failed in his proof, and that at any time or place, because the court the libellant is free from all matrimonial had not then sufficient evidence to prove contract, as far as yet appears ; leaving a marriage at a particular time and place, it open to new proofs of the same mar- That sentence and this judgment may riage, in the same cause, or to any proofs stand well together, and both propositions of that or any other marriage, in another . be equally true ; it may be true that the cause ; and if such sentence is no plea to Spiritual Court had not then sufficient a new suit there, ... it cannot conclude proof of the marriage specified, and that a court which receives the sentence from your lordships may now, unfortunately, going into new proofs to make out that find sufficient proof of some marriage." or any other marriage. ^ ^ 3 East, 346. 40 ESTOPPEL BY RECORD. right of the wife from one Zouch ; and they averred that the coals in question were under the lands of Zouch, and were derived by bargain and sale to certain immediate bargainees, from them to the defendant, the wife, and were not within a certain exception named. To this plea the plaintiff replied, and relied by way of estoppel upon a former verdict obtained by him in an action of trespass, brought by him against one of the defendants, the wife of the other defendant (she being then sole), in which he declared for the same trespass as now ; to which the wife pleaded, and derived title in the same manner as now by her and her husband, and in which she alleged that the coal-mines in question, in the declaration mentioned, were at the time of making the above- mentioned bargain and sale by Zouch part and parcel of the coal- mines by that indenture bargained and sold. And that upon this point, whether the coal-mines claimed by the plaintiff, and men- tioned in his declaration, were parcel of what passed under Zouch's bargain and sale to the persons under whom the wife claimed, an issue was taken, and found for the plaintiff, and against the wife. Tlie question was, in the language of Lord EUenborough, " whether the defendants, the husband and wife, were estopped by this ver- dict and judgment thereupon from now averring (contrary to the title so then found against the wife) that the coal-mines now in question are parcel of the coal-mines bargained and sold by the indenture above mentioned." And it was held that they were.^ 1 In delivering the judgment of the heir, as privy, or by que estate.' But if court, Lord EUenborough, C. J., said : it be said that by the freehold coming in " The operation and effect of this finding, debate must be meant a question respeet- if it operate at all as a conclusive bar, ing the same, in a suit in wliich the free- must be by way of estoppel. If the wife hold is immediately recoverable, as in an were bound by this finding, as an estop- assize or writ of entry, I answer that a pel, and precluded from averring the recovery in any one suit upon issue contrary of what has been so found, the joined on matter of title is equally con- hasband, in respect of his privity, either elusive upon the subject-matter of such in estate or in law, would be equally title ; and that a finding upon title in bound. Coke, Litt. 352, a. [See Lindsey trespass not only operates as a bar to the V. Danville, 46 Vt. 144, 148]. . . . future recovery of damages for a trespass " The question then is. Is the wife founded on the same injury, but also op- herself estopped by this former finding f erates by way of estoppel to any action In Brooke, Tit. Estoppel, pi. 15 ; Ibid. Es- for an injury to the same supposed right tate, 158, it is said to be 'agreed that all of possession. In trespass for breaking the records in which the freehold comes the plaintiff's close, reported in 3 Leon, in debate shall be estopped with the 194, the . defendant pleaded ' that hereto- land, and run with the land; so that a fore he himself brought an e/cc«ione ^nn(« man may plead this, as a party, or as against the plaintiff of the same land in DOMESTIC JUDGMENTS IN PERSONAM. 41 The question arose in Eastimire v. Laws i whether a judgment, upon a plea of set-off, could be relied upon as an estoppel to a suit which the trespass is supposed to be done, and had judgment to recover, and de- manded judgment if against, &o. It was moved that the bar was not good, because that the defendant had not averred his title ; and tlie recovery in one action of trespass is no bar in another,' &c. Staple V. Spring, 10 Mass. 72. Quod curia conces- sit. But as to the matter, the court was clear that the bar was good. And by Periam: 'Whoever pleaded it, it was well pleaded ; for as by recovery in as- size the freehold is bound, so by recovery in ejectiane Jirmos the possession is bound.' And by Anderson : ' A recovery in one ejectione firmm is a bar in another, es- pecially, as Periam said, if the party relieth upon the estoppel.' And afterwards judgment was given that the plaintiff should be barred. This, it will be recol- lected, was an action of ejectione firmm, and not an ejectment moulded and regu- lated by rules of court as it is at present. The court very property distinguish there between what operates by way of bar to a future recovery for the same thing, and what by way of estoppel. That was the case of a mere recovery in ejectione firnuB, without title alleged ; and the plaintiff might, in respect of possession, or other varying circumstances of title, be well entitled to recover at one time, and not be so at another. And it is not the re- covery, but the matter alleged by the party, and upon which the recovery proceeds, which creates the estoppel. The recovery of itself, in an action of trespass, is only a bar to the future recovery of damages for the same injury ; but the estoppel precludes parties and privies from con- tending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them, or by those to whom they are privy in estate or law, has been, on such issue joined, solemnly found against them." (a) In considering the complaint of Lord Coke, Preface, 8 Eep., as to the multi- plicity of suits which " can come to no finite end," the Lord Chief Justice says : "Neither, however, would a verdict and judgment in a real action operate by way of bar to future actions of trespass, or bring the parties 'to the finite end' wished for by Lord Coke ; because there may be, notwithstanding the verdict and judgment in the real action, even in that which is most conclusive upon the right (I mean a writ of right itself), a right of possession derived under the owner of the inheritance in fee simple, or those under whom he claims ; which may enable a plaintiff in trespass to recover for an in- jury to his possession, done by the very person in whose favor the absolute right of property shall have been so afSrmed in a real action. A judgment therefore, in each species of action, is final only for its own proper purpose and object, and no further. The judgment in trespass affirms a right of possession to be, as be- tween the plaintiff and defendant, in the plaintiff at the time of he trespass com- mitted. In the real action, it affirms a. right to the freehold of the land to be in the demandant at the time of the writ brought. Each species of judgment, from one ifl an action of trespass to one upon a writ of right, is equally conclusive upon its own subject-matter by way of bar to future litigation for the thing there- by decided." After having considered several earlier cases {Ferrer's Case, 6 Coke, 7 ; Incledon 1 5 Bing. N. C. 444. (a) In other words, the mere fact of a former recovery is no bar, for the plaintiff now sues for a subsequent injury ; but the point in issue in the second suit being pre- cisely the same as that in the first, to wit, the possession of the land, the former decision upon this point precludes the parties from further contesting the question. 42 ESTOPPEL BY EECORD. upon the claim thus interposed. The action was debt, with the common counts. The plea stated that the defendant in this action had formerly sued the present plaintiff, whereupon he pleaded a set-off against the demand made ; that a verdict was given against the party pleading the set-off; and that the present action was brought to recover the identical thing specified in that set-off. The court held the plea a good estoppel. It had been urged, said Tin- dal, 0. J., that there was a hardship in concluding defendants by the result of a plea of set-off, while a plaintiff who failed in his ac- tion miglit elect to be nonsuited, and bring a fresh action when better prepared. But, he replied, it was the defendant's election to put such a plea on the record ; and if, before or at the trial, he might wish to withdraw it, he could do so, on proper terms. A recent case in the English Court of Exchequer ^ shows in a very strong light how rigidly the courts hold to the conclusiveness of judgments when involved in this indirect way. It was an action against the defendant for ma,liciously signing judgment for £28, the amount of the plaintiff's debt originally, after the pres- ent plaintiff, then defendant, had paid £10 on account of the same ; and averring that the present defendant thereupon issued a writ of ca. sa. against the plaintiff, indorsed for £32, for the debt of £28 and costs, under which the plaintiff was arrested, and com- pelled, in order to procure his discharge, to pay the full sum indorsed, and the sheriff's fees. The declaration then alleged that at the date of the judgment only £18 were due, and claimed dam- ages in respect of the £10 and extra fees incurred. The court held that the action could not be maintained while the judgment complained of remained in full force.^ V. Surges, 1 Show. 27 ; s. c. Comb, 166 ; are, in our opinion, as well as upon the Evelyn u. Haynes, Surrey, Summer As- reason and convenience of the thing, and sizes, 1782 ; Kinnersley v. Orpe, 2 Doug, the analogy to the rules of law in other 517), he closes as follows : "None of the oases, decisive that the husband and wife, cases therefore, cited on the part of the the defendants in this case, are estopped plaintiff, negative the conclusiveness of a by the former verdict and judgment on verdict found on any precise point once the same point in the action of trespass, put in issue between the same parties or to which the wife was a party, from their privies. The cases adverted to by averring that the coal-mines now in ques- Lord Holt, and which have been fully tion are parcel of the coal-mines bar- explained and enforced by the defendants' gained and sold by Sit John Zouch ; and counsel, together with the other authorl- consequently that the plaintiff ought to ties on the subject of protestation and recover." estoppel (cited from Bro. Abr. Protesta- i Huffer v. Allen, Law R. 2 Ex. 14. tion, pi. 9 ; Fitzherbert, Estoppel, pi. 20), 2 "Our judgment," said Kelly, C. B., DOMESTIC JUDGMENTS IN PERSONAM. 43 The case of Gardner v. Buckbee^ will illustrate the principle under consideration. That case was an action upon a promissory- note. The defence was, that the note was given in part payment of a vessel, and fraud was alleged in the sale ; the vessel being at the time rotten aiid unseaworthy, to the knowledge of the plaintiff. The latter admitted that the note in question was one of two notes, for the same amount, giveh as the consideration in the sale of the vessel. The defendant offered to prove, in bar of the plaintiff's demand, that the plaintiff had impleaded him in the Marine Court of New York City upon the other promissory note ; that, upon the trial of that suit, the fraud of the plaintiff in the sale was the only point in question ; and that judgment had been given for the de- fendant, on the ground that the sale was fraudulent. The evidence was objected to, on the ground that the cause of action was differ- ent in the former suit from that in the present, being upon another note. The court below ruled that the evidence was not sufficient to bar the plaintiff's demand ; but upon appeal it was held that the evidence was conclusive. Mr. Justice Wood worth, speaking for the court, said it was clear that the question of fraud was tried between the parties in the Marine Court on one of the notes given in payment of the vessel. That court had concurrent jurisdiction ; and the law was well set- tled, he said, that the judgment of a court of concurrent jurisdic- tion, directly upon the point, was as a plea, a bar, or as evidence it "must be for the defendants. I say so the judgment was signed and the execu- with regret, because no dpubt if the act tion issued wrongfully and malicioxisly, of the defendants was knowingly done, .... and on this averment founds his that is, if they knew that the debt was action against the judgment creditor, reduced below £20 at the time of signing But he cannot make this averment, and the judgment, their act was highly unjus- therefore cannot maintain this action, tifiable. Bat we must here determine the whilst the judgment, against which no legal question, which is whether the pre- averment can be admitted, stands as evi- vious judgment .... estops the plaintiff denoe that, when judgment was signed, from bringing this action, the first step in the debt which the then defendant owed which is to Impeach that record. It is was £28, and not £18." a simple and unanswerable .argument Mr. Baron Bramwell agreed, but did against its maintenance, that it is not not regret the result of their judgment, competent to either party to an action for he said the plaintiff himself had caused to aver any thing either expressing or im- the difficulty by not pursuing the proper porting a contradiction to the record; course. He should have had the judg- which, while it stands, is as between ment corrected, them an evidence of incontroUable verity. i 3 Cow. 120. .... The then defendant now avers that 44' ESTOPPEL BY RECOKD. was conclusive between the same parties, upon the same matter directly in question in another court.^ Another case which well illustrates this doctrine was tried in the Supreme Court of New York.^ The action was for medical ser- vices, and attendance of the plaintiff's intestate upon the defend- ant for a broken leg. The defence was a recovery of a judgment by the present defendant as plaintiff against the intestate in an action for negligence and unskilfulness in his treatment of the broken leg. The court, reversing the judgment below, held the record conclusive, with proof that the same injury, and the ti'eat- ment by the intestate, which constituted the present cause of action, were the subject of inquiry in the former suit. The objects of the two actions, the court said, were different: but the former judgment was conclusive, by way of evidence, upon the fact that the services were unskilfully and negligently per- formed.^ The evidence necessary to sustain the present action would have constituted a defence to the action brought by the de- fendant ; and hence the judgment in that action was conclusive in the present.* Another illustration of this branch of the subject is found in Bdgell V. Sigerson.^ That was an action upon a promissory note. The plaintiff's petition stated that he had formerly brought suit to recover an instalment of interest on the same note ; that the de- fendant then pleaded that the note had been fraudulently altered in regard to the payment of interest, but that the plaintiff recov- ered judgment. The defendant now admitted the execution of the note, but defended on the ground of the same alleged fraudulent alteration, insisting that the note had thereby become void. But the Supreme Court overruled the defence. Richardson, J., said that the integrity of the note was neces- sarily and directly in issue in the suit brought to recover the annual instalment of interest ; and the judgment in that case, having been rendered by a court of competent jurisdiction," deter- mined the question as to the alteration of the note, and was con- clusive in the present case. 1 Duchess of Kingston's Case, 20 How. ' Hopkins v. Lee, 6 Wlieat. 109. St. Tr. 855 ; 2 Smith's Lead. Cas. 679, * Marriott v. Hampton, 7 T. E. 265 ; 6th Eng. ed. Le Guen v. Gouveneur, 1 Johns. Cas. 486. 2 Edwards v. Stewart, 15 Barb. 67. 6 26 Mo. 588. DOMESTIC JUDGMENTS IN PERSONAM. 45 In a case in Kentucky ,i it appeared that the defendant, in a former action for work and labor done, had pleaded a special con- tract with the plaintiff in regard to the services, and had averred a failure by the plaintiff to comply with it ; but that, upon issue joined on the point, verdict and judgment were given for the plain- tiff. The latter now brought the present action upon the special contract which the defendant had relied upon in the former suit ; but the court held that the action could not be maintained. Mr. Justice Duvall said that on the former trial the plaintiff had not only repudiated the contract now sued upon, but he had actually denied its existence upon the record, and had only been enabled to obtain a verdict by that denial. And he thus clearly stated the doctrine of the case : " It is a well-established rule of law, sanctioned as well by policy as by precedent, that every ma- terial fact involved in an issue must be regarded as determined by the final judgment in the action, and cannot be reti'ied in any subsequent proceeding between the same parties." As to the effect of judgment for. the plaintiff in ejectment, upon an action by him for mesne profits, it was held by all the judges in the leading case of Aslin v. Parkin,^ that the tenant is concluded by the judgment, and cannot controvert the title ; and that consequently he could not controvert the plaintiff's possession, because his possession was part of his title. The plaintiff, to entitle himself to recover in an eject- ment, must show a possessory right, not barred by the Statute of Limitations. But, of course, the judgment, like all others, concluded the parties only as to .the subject-matter of it; beyond the time laid in the demise, it proved nothing at all. The rule in these cases is that a point once adjudicated by a court of competent jurisdiction, however erroneous the adjudica- tion, may be relied upon as an estoppel in any subsequent collateral suit, in the same or any other court, at law, or in chancery, or in admiralty, when either party, or the privies of either party, allege any thing inconsistent with it ; and this, too, whether the subse- quent suit is upon the same or a different cause of action. The cases upon this subject are very numerous ; we cite a few addi- tional ones in the note.^ 1 Hanley W.Foley, 18 B. Mon. 519. E. Green, 417; Baldwin v. McCrea, 38 2 2 Burr. 665. • Ga. 650 ; Tioga R. Co. u. Bloesburg & C. s See. Hendrickson v. Norcross, 4 C. R. Co., 20 Wall. 137 ; Aurora City v. 46 ESTOPPEL BY RECORD. Judgment against several defendants cannot, however, determine the rights of tlie defendants inter sese. Thus, if judgment be given against several co-contractors, and satisfacti6n is obtained by one of them, he cannot use the judgment as binding evidence against the others of their liability to him to contribute. No such point was decided in the former action ; ^ the judgment decided the ex- istence and legality merely of the demand. The parties must be adversary.^ Where, however, the respective rights of the parties are drawn in issue and adjudicated, the judgment is conclusive between them.^ We have now ascertained the nature of the pleas of former judgment and of former verdict, and the distinction between tliem ; the former operating as a bar to subsequent actions founded on the same demand ; the latter operating as a bar to the further litiga- tion of the special findings of the jury, irrespective of the nature of the cause of action. These distinctions now disappear ; and we shall have no further occasion to present the divisions separately, or by special designation. We shall now examine in detail 3. The Effect and Operation of Judgment and Verdict Estoppels. And first, as to the parties to the former litigation, and those claiming under them. It is a general principle, and one of the elements of the doctrine of res judicata, that personal judgments conclude only the parties to them and their privies. We propose now to ascertain the operation and meaning of this rule, and, as heretofore, by a reference to the cases. We take it for granted that tlie familiar definition of parties by West, 7 Wall. 82 ; Beloit v. Morgan, 7 Hughey, 9 Rich. 387 ; Stewart v. Dent, Wall. 619 ; Goodrich v. The City, 5 Wall. 24 Mo. Ill ; Walker v. Mitchell, 18 B. 566 ; Doyle v. Reilly, 18 Iowa, 108 ; Allie Mon. 541 ; Bobe v. Stickney, 86 Ala. 482. V. Schmitz, 17 Wis. 169 ; Heath v. Frack- But see Bernard o. Hoboken, 3 Dutch. elton, 20 Wis. 820; Smith v. Way, 9 Al- 412, which, if correctly reported, cannot len, 472; Jordan v. Faircloth, 34 Ga. 47; be good law. Demarest v. Darg, 82 N. Y. 281 ; Eimer i McCrory v. Parks, 18 Ohio St. 1 ; V. Richards, 25 111. 289 ; Babcock v. Camp, Duncan v. Holcomb, 26 Ind. 378 ; Buf- 12 Ohio St. 11 ; Sergeant v. Ewing, 86 flngton v. Cook, 35 Ala. 312. See Lloyd Penn, St. 156 ; Cabot u. Washington, 41 v. Barr, 11 Penn. St. 41. Vt. 168; Lynch v. Swanton, 58 Maine, '■' Ibid. 100 ; Bunker u. Tufts, 57 Maine, 417 ; 3 Graham v. Railroad Co., 3 Wall. 704 ; Garwood v. Garwood, 29 Cal. 514 ; French Torrey v. Pond, 102 Mass. 855. u. Howard, 14 Ind. 455 ; Shuttlesworth v. DOMESTIC JUDGMENTS IN PERSONAM. 47 Professor Greenleaf is present in the mind of the reader in the "outset. "Parties," says the learned writer, "in the larger legal sense, are all persons having a right to control the proceedings, to make defence, to adduce and cross-examine witnesses, and to ap- peal from the decision, if an appeal lies ; " i and it may be added, those who assume such a right.^ This rule is taken as the founda- tion of the cases to be presented in this connection. In Petrie v. Nuttall,^ the plaintiff sued in trespass for breaking and entering the plaintiff's land. The defence was that the part referred to was a public highway ; and an indictment, verdict, and judgment against the plaintiff were pleaded, by way of estoppel, for obstructing the very same piece of land, as being the Queen's highway. To this •defence the plaintiff demurred ; and his de- murrer was sustained, on the ground that the parties were not the same in the two actions.* In a case in Massachusetts,^ the defendant contracted to sell land to the plaintiff, but, instead of doing this, sold the land to a third person. The action was for the breach ; and the defendant produced in bar the record of a suit in chancery by the plaintiff against him and the party to whom he conveyed the land, for a specific performance of the contract and for relief; alleging that the whole subject-matter of the contract and the breach was inves- tigated, and the suit dismissed. But the court said that this was no bar, the suit in equity being between other parties. There is some conflict of authority as to the effect of judgments against parties under legal disability who failed to plead the defence of incapacity. Thus, in Griffith v. Clarke,^ judgment by default had been obtained against a married woman in a suit upon a ' 1 Greenleaf, Ev. § 535. fine, and after the party sues against 2 Stoddard u. Thompson, 31 Iowa, 80. him thereof by bill or writ, and he pleads 3 11 Ex. 569. not guilty, he shall have the plea, and the * Alderson, B., said that it was essen- making of fine to the king shall not estop tial to an estoppel that it should be mut- him.' That is precisely this case, and we ual, so that the same parties or privies ought to follow the same rule. No doubt might be bound and take advantage of it. the judgment in the indictment may be The crown and subject vf ere parties to the given in evidence upon the trial of the indictment ; and therefore it was not be- issue as to whether the locus in quo is a tween the two parties to this action. " The public highway ; but it cannot be pleaded distinction," he said, " is shown by the as an estoppel." See Betts v. New Hart- authority cited in Viner's Abr., Estoppel fordj 25 Conn. 180 ; Hutchinson u. Bank (F), 35, where it is said : ' If a man, in- of Wheeling, 41 Penn. St. 42. dieted of extortion or trespass, puts him- 5 Buttrick v. Holden, 8 Cush. 233. self into the grace of the king, and makes ^ ig Md. 457. 48 ESTOPPEL BY RECORD. promissory note ; and an injunction having been obtained to re- strain the former plaintiff from obtaining satisfaction of the judg- ment, the court refused to dismiss it. The feme, it was said, was not competent to employ counsel ; and, the contract sued upon being void, she was not to be prejudiced by the entry of judgment by default against her for non-appearance. In Morse v. Toppan,i which was an action of contract on a judg- ment against a married woman, obtained on a contract made by her, the court held that the coverture of the defendant at the time of the previous action was a bar to the present suit. The case, it was said, was the same as if she had entered into an obligation by bond at the same time, to which she might have pleaded non est factum. " A judgment," said the court, " is in the nature of a contract ; it is a specialty, and creates a debt ; and to have that effect it must be taken against one capable of contracting a debt." 2 On the other hand, it has been held in Pennsylvania that where a married woman had executed a mortgage in her maiden name, whereupon scire facias was executed against her in the same name, judgment recovered, and the land sold, the purchaser gets a good title,, and the feme caimot allege her coverture in ejectment for the premises against him.^ It seems difficult, however, to escape the reasoning in the above cases, especially that of Griffith V. Clarke. If the/e?Be have no power to appoint counsel to appear for her, it would be strange if she could be bound by faiUng to appoint ; and she could hardly be required to defend in person. But the case is different if the husband was joined in the previous suit. He can engage counsel, and is bound to do so or appear in person; and, if the action be ex contractu, an allegation of the coverture will be a defence to both. If the action be ex delicto, the coverture will be no defence to either ; and, if nothing else be set • up, the wife will be bound by the judgment, and cannot afterwards impeach it on the ground of coverture. This, we apprehend, is the correct solution of most of the cases, wliicli hold that the feme is bound.* Indeed, it has lately been held, even in Pennsylvania, 1 8 Gray, 411. 500 ; Gambetta v. Brook, 41 Cal. 78 ; 2 Faithorne v. Blaquire, 6 Maule & S. Patterson v. Fraser, 6 La. An. 586 ; Elson 73. V. O'Dowd, 40 Ind. 300 ; Guthrie v. How- ' Hartman v. Ogborn, 54 Fenn. St. ard, 32 Iowa, 54. 120. See also Van Metre v. Wolf, 27 * See Howard v. North, 5 Tex. 290; Iowa, 341 ; Green v. Branton, 1 Dev. Eq. Baxter v. Dear, 24 Tex. 17. The remarks DOMESTIC judgments' IN PERSONAM. 49 upon the authority of several cases iii that State, that judgment on scire facias issued on a judgment against a married woman on a bond by her and warrant to confess judgment, is void, and that a sheriff's sale thereunder passes no title. ^ As to infants, the statutes very generally give a day upon their attaining majority in which to have judgments or decrees which have been rendered against them reversed or set aside ; and, if they do not avail themselves of this immunity, the result is that the judg- ments or decrees become binding upon them.^ In cases not arising under this class of statutes, there is a like conflict with that above mentioned. In Kentucky, Indiana, North Carolina, and perhaps elsewhere, judgments against infants without guardian are held to be voidable only, and hence not impeachable in collateral actions.^ In Illinois a contrary rule prevails.* And this appears to be the better doctrine, at least where the legislature has provided a special mode of action against infants. In such case, the proceeding is not according to the course of the common law, and hence, by analogy to other cases, the presumption concerning the court's jurisdiction cannot be conclusive, if there be no express averment in the record.^ Thus, if the record should simply state that the defendant was served with process, he could in the collateral suit allege, if not too late, that he was then an infant without a guardian, and that no guardian ad litem was appointed.^ Whether he could do so in case of an appearance and neglect to plead his disability is more doubtful ; although if the view above expressed be accurate, that the judgment is a contract, it could not be material whether there had been an appearance or not ; in either case, the judgment could be impeached. But it is doubtful if a judgment for the plaintiff can be considered for all' purposes a contract. Perhaps the more consistent rule would, be that judgment against an infant without in Spalding v. "Wathen, 7 Bush, 659, Sem., 8 Met. 196; Ralston u. Laliee, 8 663, and in Case w. Ribelin, 1 J. J. Marsh. Iowa, 11. The statements of the court 29, 30, are only dicta. in the latter case are only dicta. The 1 Graham v. Long, 65 Penn. St. 383 ; proceeding was not collateral, but direct. Dorrance v. Scott, 3 Whart. 809 ; Cald- * Whitney v. I'orter, 23 111. 445. well V. Walters, 18 Penn. St. 79. See ^ Seejoosi. also Baines v. Burbridge, 15 La. An. 628. « See Whitney v. Porter, supra. But 2 Waring v. Reynolds, 8 B. Mon. 59; see Austin v. Charlestown Female Sem., Porter v. Robinson, 3 A. K. Marsh. 253. 8 Met. 196 ; Rutter v. Puckhover, 9 Bqsw. 3 Ibid. ; Blake o. Douglass, 27 Ind. 638, to the effect that even then the judg- 416; Marshall v. Fisher, 1 Jones, 111. ment would be only voidable and not See also Austin v. Charlestown Female void. 50 ESTOPPEL BY EECORD. guardian or appearance is not binding in collateral actions, but, if an appearance were entered, that the judgment cannot be thus disturbed. This subject, however, is so generally of statutory regulation that it will not be further pursued. Apart from statutory enactment, judgment against a lunatic is binding in collateral actions ; ^ and the same is true of judgment against a person deceased.^ There has been some conflict as to whether a judgment against one of several joint contractors is a bar to a suit upon the same contract against all the co-contractors, or against all except the one first sued. The question received the most thorough consideration in the English Court of Exchequer in 1844, in the case of King v. Hoare ; ^ and though that case is in apparent conflict with one of the decisions of the Supreme Court of the United States,'* by Chief Justice Marshall, it can scarcely be doubted that on principle the first-named case is correct. The English case referred to was an action of debt against Hoare, who pleaded that tlie contract alleged in the declaration was made by the plaintiff with the defendant and one Smith, jointly, and not with the defendant alone, and that subsequently the plaintiff recovered a judgment against Smith for the same debt ; and the plea was sustained.^ 1 Wood V. Bayard, 63 Penn. St. 320 ; Bayley, B., strongly intimates the opinion Poster V. Jones, 23 Ga. 168 ; Lamprey v. of the Court of Exchequer, that the judg- Nudd, 29 N. H. 299 ; Clarke v, Dunham, ment against one was a bar for both of 4 Denlo, 262. two joint debtors ; though the point was 2 Cam'. Townsend, 63 Penn. St. 202; not actually ruled, as the case did not Stortzell V. Fullerton, 44 111. 108 ; Spald- require it. In the absence of any posi- ing V. Wathen, 7 Bush, 659 ; Coleman v. tive authority upon the precise question, McAnulty, 15 Mo. 173. we must decide it upon principle, and by 1 13 Mees. & W. 494. analogy to other authorities ; and we feel * Sheehy v. Mandeville, 6 Cranch, 253. no difficulty in coming to the conclusion * " It is remarkable,'' said Parke, B., that the plea is good. " that this question should never have " If there be a breach of contract, or been actually decided in the courts of wrong done, or any other cause of action this country. There have been, appar- by one against another, and judgment ently, conflicting d!cta upon it. Lord be recovered in a court of record, the Tenterden, in the case of Walters o. judgment is a bar to the original cause of Smith, 2 Barn. & Ad. 892, is reported to action, because it is thereby reduced to a have said that a mere judgment against certainty, and the object of the suit at- one would not be a defence for another, tained, so far as it can be at that stage ; My brother Maule stated, in that of Bell and it would be useless and vexatious to V. Banks, 3 Man. & G. 267, that a security subject the defendant to another suit for by one of two joint debtors would merge the purpose of obtaining the same result, the remedy against botli. In the case of Hence the XegaX m&xim transit in rem judi- Lechmere v. Tletcher, 1 Cromp. & M. 634, ccUam, the cause of action is changed into DOMESTIC JUDGMENTS IN PEKSONAM. 51 It is in accordance with the principle in King v. Hoare, that where a vendor brought an action and recovered judgment against matter of record, which is of a higher nature, and the inferior remedy is merged in the higher. This appears to be equally true where there is but one cause of action, whether it be against a single person or many. The judgment of a court of record changes the nature of that cause of action, and prevents its being the subject of an- otiier suit ; and the cause of action, being single, cannot afterwards be divided into two. Thus it has been held that if two commit a joint tort, the judgment against one is, of itself, without execution, a suffi- cient bar to an action against the other for the same cause. Broome v. Wooton, Yelv. 67; s. c. Cro. Jac. 73; Moore, 762. (o) And though, in the report in Yelverton, expressions are used which at first sight appear to make a distinction between ac- tions for unliquidated damages and debts, yet upon a comparison of all the reports, it seems clear that the true ground of the decision was not the circumstance of the damages being unliquidated. Chief Jus- tice Popham, Cro. Jac. 74, states the true ground. He says : ' If one hath judgment to recover in trespass against one, and damages are certain ' (that is, converted into certainty by the judgment), 'al- though he be not satisfied, yet he shall not have a new action for this trespass. By the same reason, e contra, if one hath cause of action against two, and obtain judgment against one, he shall not have remedy against the other ; and the differ- ence betwixt this case and the case of debt and obligation against two is because there every of them is chargeable, and liable to the entire debt ; and therefore a recovery against one is no bar against the other, until satisfaction.' And it is quite clear that the chief justice was referring to the case of a joint and several obliga- tion, both from the argument of the coun- sel, as reported in Cro. Jac, and the statement of the case in Yelverton. " We do not think that the case of a joint contract can, in this respect, be dis- tinguished from a joint tort. There is but one cause of action in each case. The party injured may sue all the joint tort- feasors or contractors, or he may sue one, subject to the right of pleading in abate- ment in the one case, and not in the other ; but for the purpose of this deci- sion, they stand on the same footing. Whether the action is brought against one or two, it is for the same cause of action. " The distinction between a joint and several contract is very clear. It is argued that each party to a joint con- tract is severally liable, and so he is in one sense, that if sued severally, and he does not plead in abatement, he is liable to pay the entire debt; but he is not sev- erally liable in the same sense as he is on a joint and several bond; which instru- ment, though on one piece of parchment or paper, in effect comprises the joint bond of all, and the several bonds of each of the obligors, and gives different reme- dies to the obligee. Another mode of considering this case is suggested by Bayley, B., in the case of Lechmere v. Fletcher, 1 Cromp. & M. 634, and was much discussed during the argument, and leads us to the same conclusion. If there be a judgment against one of two joint contractors, and the other is sued afterwards, can he plead in abatement or not ■; If he cannot, he would be deprived of the right by the act of the plaintiff, without ills privity or concurrence, in suing and obtaining judgment against the other. If he can, then he may plead in bar the judgment against himself; and if that be not a bar, the plaintiff might go on, either to obtain a joint judgment against himself and his co-contractor, so that he would be twice troubled fur the same cause ; or the plaintiff might obtain (a) This doctrine has just been reaffirmed in England. Brinsmead v. Harrison, Law R. 6 C. P. 584 (1S71). But it is otherwise in America. Post, p. 57. 52 ESTOPPEL BY RECOftD. one of several partners, the partnership debt was held merged in the judgment, so that there could be no proof upon it against the another judgment against the co-con- tractor, so that there would be two separate judgments for the same debt. Further, the case would form another exception to the general rule, that an ac- tion on a joint debt barred against one is barred altogether; the only exception now being when one has pleaded matter of personal discharge, as bankruptcy and certificate. It is quite clear indeed, and was hardly disputed, that if there were a plea in abatement, both must be joined, and that, if they were, the judgment pleaded by one would be a bar for both ; and it is impossible to hold that the legal effect of a judgment against one or two is to depend on the contingency of both being sued, or the one against whom judgment is not obtained being sued singly, and not pleading in abatement. These considerations lead us quite satis- factorily, to our own minds, to the con- clusion that when judgment has been obtained for a debt, as well as a tort, the right given by the record merges the inferior remedy by action for the same debt or tort against another party. " During the argument, a decision of the Cliief Justice Marshall, in the Su- preme Court of the United States, was cited as being contrary to the conclusion this court has come to ; the case is that of Sheehy v. Mandeville, 6 Cranch, 253. We need not say we have the greatest respect for everj' decision of that eminent judge, but the reasoning attributed to him by that report is not satisfactory to us ; and we have since been furnished with a re- port of a subsequent case, in which that authority was cited and considered, and in which the Supreme Judicial Court of Massachusetts decided that, in an action against two on a joint note, a judgment against one was a bar." Ward v. John- sun, 18 Mass. 148. In the case referred to, Sheehy «. Man- deville, 6 Cranch, 263, decided by Chief Justice Marshall, the facts and issue were these : The plaintiff having sold goods to K. B. Jamesson, one of the defendants, took his note for the sum due. After- wards, suspecting that the other defend- ant, Mandeville, was a partner, he insti- tuted this suit on the note against the two ; charging the note to have been made by both, trading under the firm- name of R. B. Jamesson. Mandeville, among other things, pleaded that judg- ment had been rendered on the note against Jamesson; and the question arose under this plea whether that judg- ment was a bar to the present suit, as against Mandeville. Marshall, C. J., speaking for the court, said : " Were it admitted that this j udg- ment bars an action against Eobert B. Jamesson, the inquiry still remains, if Mandeville was originally bound, if a suit could originally be maintained against him, is the note, as to him, also merged in the judgment? Had the action in which judgment was obtained against Jamesson been brought against the firm, the whole note would most probably have merged in that judgment. But that ac- tion was not brought against the firm. It was brought against Robert Brown Jamesson singly, and whatever other ob- jections may be made to any subsequent proceedings on the same note, it cannot be correctly said that it is carried into judgment as respects Mandeville. If it were, the judgment ought In some man- ner to bind him, which most certainly it does not. The doctrine of merger (even admitting that a judgment against one of several joint obligors would terminate the whole obligation, so that a distinct ac- tion could not afterwards be maintained against the others, which is not admitted) can be applied only to a case in which the original declaration was on a joint covenant, not to a case in which the declaration in the first suit was on a sole contract." This decision has been criticised by DOMESTIC JUDGMENTS IN PKRSONAM. 53 joint estate in bankruptcy ; the partners having failed, and execu- tion upon the judgment having- been defeated by an adjudication in bankruptcy .1 Mr. Justice Story considers this subject in the case of Lawrence V. Vernon.2 That was an action of assumpsit by two plaintiffs, to recover money alleged to be due for widening the lower end of a certain street. The defence was that the same plaintiffs with one other had previously brought an action for widening both ends of the street, and recovered judgment ; the jury specially finding " that the defendant promised so far as to make himself liable for the damages incurred by widening the upper part" of the street. The defendant contended that this judgment concluded the plain- tiffs, as the declaration in the former suit embraced the widening of both ends of the street ; and the jui-y by their verdict had nega- tived the claim as to the widening of the lower end. But the defence was held insufficient. The learned judge said that the case was to be distinguished from Hitchin v. Campbell,^ the ruling in which was approved. The parties, he said, were not the same ; and the causes of action were not the same. The parties plaintiff's in the former case were Lawrence, Adams, and Lamb ; in the present suit, Lawrence and Adams only. In the former suit, the promise was alleged to have been made to three persons ; and unless a joint promise was proved to all three, that action was not maintainable. Nothing was better settled, said he, than that in assumpsit on a joint promise to three, a promise to all jointly must be proved. A promise to two or one of the plaintiffs would not be sufficient ; and therefore a promise to Lawrence and Adams alone, in the former suit, would other courts than those aboTe-mentioned. partnership contract, and judgment ob- See Kobertson i/. Smith, 18 Johns. 459 ; tained against him, it is no bar to a suit Trafton v. United States, 3 Story, 646 ; against tlie other, because tliis contract Brown v. Johnson, 13 Gratt. 644. But was not merged in the judgment, and be- perhaps it may be sustained on the cause the first judgment was founded on ground that the note contract was re- a several, not a joint promise." The Eng- garded as several as well as joint. In a lish doctrine in King v. Hoare may now subsequent case in the Supreme Court of be considered as well settled. See Gibbs the United States, United States v. Price, v. Bryant, 1 Pick. 118; Robertson v. Smith, 9 How. 83, Mr. Justice Grier, who was 18 Johns. 459 ; Clinton Bank o. Hart, 5 speaking for the court, said that Sheehy Ohio St. 33. V. Mandeville, "though sometimes criti- i Higgins, Ex parte, 3 De G. & J. S3, cised and doubted in other courts, goes See Peters v. SanCord, 1 Denio, 224, no further than to decide that where one ^ 3 Sum. 20. partner is sued severally on a joint or ' 2 W. Black. 779, 827. 54 ESTOPPEL BY RECORD. not have entitled the plaintiffs to a verdict. The verdict in that suit might have proceeded upon the very ground which would now entitle the plaintiffs to recover, namely, that the promise as to the lower end of the street was to Lawrence and Adams alone, and not to the three who were then suing. And that finding he con- sidered as altogether consistent with the demand now made by the two plaintiffs.^ It is thus not always a fatal objection that the parties to a former judgment were more or less ^ numerous than in the case in which it is relied upon as an estoppel. Thompson v. Roberts ^ will show the limitation of the rule. Mr. Justice Grier, speaking for the court as to a question of res judicata, said that the objection that the parties were not the same in both suits could not be sustained. Both parties to this litigation were parties in that suit ; the subject- matter was the same ; the defence now set up was the same which the pleadings and the evidence show to have been adjudicated in the Court of Chancery. It was true that Smith, who indorsed the notes to the plaintiffs below, and who was interested in the question, was joined as complainant, and the Pickell Mining Company, who had purchased the mortgaged property, were made respondents, accord- ing to the practice in the Courts of Chancery, where all parties hav- ing an interest in the question to be tried are made parties, that the decree may be final as to all matters in litigation. No good reason could be given why the parties in this case, who had litigated the same question, should not be concluded by the decree, because others having an interest in the question or subject-matter were admitted by the practice of a Court of Chancery to assist on both sides.* The defendant to a suit ^ upon a joint and several promissory ^ Judge Story also stated his acquies- fered in an action conducing to establish cence in the test as generally true, that the facts necessary to support it, with the it would determine whether the causes of evidence indispensable to support it in action were the same, if the same evidence point of law. Evidence might be offered would support each case. Martin v. Ken- in a clause conducing to prove a promise nedy, 2 Bos. & P. 71. But, even tried by to three, and yet it might only prove a this test, said he, the defence must fail, promise to two ; and the law in such case The evidence necessary to sustain the for- holds that the evidence of a promise to two mer action was the proof of a joint promise would not support an action by the three, to the three plaintiffs; evidence of a prom- 2 PoUansbee u. Walker, 74 Penn. St. ise to pay two would not suffice ; but it 306. would clearly sustain the present case. 3 24 How. 233. The infirmity of the defendants' argument * See Lawrence v. Hunt, 10 Wend. 80. was, that it confounded the evidence of- » Stingleyw. Kirkpatrick, SBlackf. 186. DOMESTIC JUDGMENTS IN PERSONAM, 55 note pleaded that in a former action the plaintiff impleaded the defendant and the other joint and several makers of the note ; and that the other defendants pleaded the general issue, and ob- tained judgment. The plaintiff replied, alleging matter to show that, though the other joint and several makers had been discharged, the present defendant was still liable. There was a demurrer to the replication, but it was overruled. The court said that the ques- tions were not identical ; that in the present action the question was whether one was liable, while in the former action the ques- tion was whether three were liable. If it had been shown that the note was void for want of consideration, or if any other reason going to show a discharge as to all existed, the defendant would not now be liable ; but the replication showed that the former, judgment had not determined the question of the liability of the present defendant. An indorsee of a bill of exchange or of a promissory note may sue all prior parties concurrently or successively ; but he is entitled to but one satisfaction.^ In Porter v. Ingraham, just cited, the indorsee had recovered judgment on a promissory note against the makers, and one of the defendants had been com- mitted to jail on default of payment ; and execution was returned unsatisfied otherwise than by the commitment. Subsequently the defendant was released from jail on the undertaking of a third person to pay the amount of the execution ; and the jailer after- wards tendered the money to an assignee of the judgment, who declined accepting it. The present action having been brought by the indorsee against an indorser, the latter contended that the matters were a bar to the suit. But the court ruled otherwise. The person of a debtor, it was said, when taken in execution, was a pledge for the debt, but not a satisfaction, at least so far as any other person was concerned besides the debtor imprisoned. As to the negotiations between the jailer and the debtor while he was in prison, they were wholly irrelevant ; the jailer acted without au- thority and beside his duty, and the plaintiff was not concluded thereby. But the rule in King v. Hoare is not applicable in case the judg- ment has been rendered in favor of a joint obligor defendant, 1 Bishop u. Hayward, 4 T. E. 470 ; v. Merrill, 4 Taunt. 468 ; Farwell v. Hil- Britten v. Webb, 2 Barn. & C. 483 ; Wind- liard, 3 N. H. 318 ; Porter v. Ingraham, 10 ham V. Wither, 1 Strange, 515; Burgess Mass. 88. 56 ESTOPPEL BY RECORD. unless it was upon a plea which would operate as a discharge to all.i In the case first cited, an attorney sued for counsel fees ; whereupon the defendants pleaded that the cause of action arose upon a joint retainer by the defendants and one J. B., and alleged by way of estoppel a suit by the plaintiff against the said J. B. for the same counsel fees now in question, in which judgment was given for J. B. The plaintiff entered a demurrer ; and the court sustained it.'^ And the rule in this last case applies to the parties to negotiable paper ; so that, if the indorsee of a bill or note fail in an action against the drawer or an indorser, by reason of a defence which belonged entirely to the defendant, as for want of demand and notice, the holder would not be precluded by the judgment from pursuing the other parties to the instrument.^ And in Neville v. Hancock this doctrine was held good in an action against the maker and indorser of a note jointly. It was ruled that the maker was not discharged by the failure of the indorsee to make a case against the indorser. The case of United States v. Price,* already referred to, is worthy of further notice, upon a kindred point. The main point determined in the case is foreign to the subject of estoppel ; but it became necessary to the determination of the case to consider whether a joint judgment was a bar and satisfaction of a joint and several bond. The court said that the law was too well settled to admit of a doubt, or to require a citation of authorities, that, if two or more are bound jointly and severally, " the obligee might elect to sue them jointly or severally ; but having once obtained a joint judgment, the bond was merged in the judgment. It was essential to an election that the party could not have both. One judgment, they continued, against all or each of the obligors, was a satisfaction and extinguishment of the bond. It no longer 1 Pliillips V. Ward, 2 Hurl. & C. 717; several joint debtors may be pleaded in Neville v. Hancock, 15 Ark. 511. an action against the others. But this 2 Bramwell, B., said : " No doubt if a plea does not show that the former action person jointly liable with others succeeds was successfully resisted on some ground in an action against him alone, by plead- common to all the joint debtors ; but only ing a release or payment, that would aiford that the court gave judgment for the de-, a good defence to an action against the fendant, which may have been on some other joint debtors; . . . for a release to ground purely personal, as infancy, bank- one is a release to all, and payment by one ruptcy, or insolvency " is a discliarge of all. Therefore, in some » Neville v. Hancock, 15 Ark. 511. cases, u judgment recovered by one of ^ 9 How. 88. DOMESTIC JUDGMBNTS IN PERSONAM. 57 t existed as a " security, being superseded, merged, and extin- guished in the judgment. The creditor had no longer any rem- edy, either at law or in equity, on his bond; but his remedy was on the judgment. By this the obligor was now bound, and not by the judgment. The creditor, having elected to obtain a joint judgment, could not therefore sue the obligors severally. 1 But some slight qualifications have been made to this rule. In Olcott V. Little,^ an action was brought against the defendant as surviving promisor of one Slyfield. The defence was a judgment against Slyfield, in a suit commenced against him and the present defendant on the same cause of action. But it appeared that the writ as to the latter was returned non est inventus; and that Sly- field having afterwards died, the present action was brought, and service obtained upon the defendant. The court held that the judgment was no defence. Mr. Justice Upham, admitting the general rule in regard to judgments upon joint contracts, said 'that it was subject to excep- tions wherever the necessity of the case required a separate suit to be brought. In the present instance, a sufficient excuse appeared for the several character of the action heretofore brought against Slyfield, so as not to manifest an election to proceed against him to the discharge of the present defendant; and the excuse arose from the fact that but one of the defendants in the former suit was within the jurisdiction.^ A tort committed by more than one person is, in America, con- trary to the English rule, regarded as joint and several in nature ; giving remedies against each of the tort-feasors separately, or against all jointly.* And hence, conversely, judgment against one will not estop another to deny the cause of action as to him. Thus, judgment in trespass quare clausum f regit against one co- tenant will not estop another, when subsequently sued as a partici- pant, from claiming the whole land.^ But satisfaction in favor of one is satisfaction in favor of all.^ It is, however, sometimes a 1 United States v. Cusliman, 2 Sura. ^ Lovejoy v. Murray, 3 Wall. 1 ; Stone 426, was directly overruled by this case. v. Dickinson, 5 Allen, 29 ; Brown v. Cara- 2 9 N. H. 259. bridge, 3 Allen, 474, and cases cited. 3 See also, to the same effect, Tappan See Lee v. West, 47 Ga. 311. V. Bruen, 6 Mass. 193; Dennett v. Chick, ^ Williams v. Sutton, 43 Cal. 65. 2 Greenl. 191. ^ Stone v. Dickinson, supra. 58 ESTOPPEL BY RECORD. point of difficulty to determine whether the parties are joint tres- passers. In the case last cited, the plaintiff had been arrested by the same officer, on nine different writs, in favor of different creditors. The writs were all served at the same time ; and the plaintiff was finally released from jail by reason of defects in all the writs. The defendant offered evidence of a discharge to others of the creditors, in bar of the action. The evidence was rejected in the court below ; but, on appeal, it was held admissible.^ 1 Mr. Chief Justice Bigelo w, speaking for the court, said : " It cannot be denied that the parties who were plaintiffs in the original actions, in suing out their writs against the present plaintiff, and causing him to he arrested and imprisoned, acted separately and independently of each other, and without any apparent concert among themselves. As a matter of first impression, it might seem that the legal inference from this fact is, that the plain- tiff might hold each of them liable for his tortious act, but that they could not be regarded as co-trespassers, in the ab- sence of proof of any intention to act together, or of knowledge that they were engaged in a common enterprise or under- taking. But a careful consideration of the nature of the action, and of the in- jury done to the plaintiff, for which he seeks redress in damages, will disclose the fallacy of this view of the case. The plaintiff alleges in his declaration that he has been unlawfully arrested and impris- oned. This is the wrong which consti- tutes the gist of the action, and for which he is entitled to an indemnity. But it is only one wrong, for which in law he can receive but one compensation. He has not in fact suffered nine separate arrests, or undergone nine separate terms of im- prisonment. . . . The alleged trespasses on the person of the plaintiff were there- fore simultaneous and contemporaneous acts, committed on him by the same per- son acting at the same time for each and all of the plaintiffs in the nine writs upon which he was arrested and imprisoned. It is then the common case of a wrongful and unlawful act, committed by a common agent acting for several and distinct prin- cipals. "It does not in any way change or affect the injury done to the plaintiff, or enhance in any degree the damages which he has suffered, that the immediate tres- passers, by whom the tortious act was done, were the agents of several differ- ent plaintiffs, who, without preconcert, had sued out separate writs against him. The measure of his indemnity cannot be made to depend on the number of prin- cipals who employed the oflScers to arrest and imprison him. We know of no rule of law, by which a single act of trespass, committed by an agent, can be multiplied by the number of principals who procured it to be done, so as to entitle the party in- jured to a compensation graduated, not according to the damages sustained, but by the number of persons through whose instrumentality the injury was inflicted. The error of the plaintiff consists in sup- posing that the several parties who sued out writs against him, and caused him to be arrested and imprisoned, cannot be regarded as co-trespassers, because it does not appear that they acted in concert, or knowingly employed a common agent. Such preconcert or knowledge is not essential to the commission of a joint trespass. It is the fact that they all united in the wrongful act, or set on foot or put in motion the agency by which it was committed, that renders them jointly liable. ... He may, it is true, have a good cause of action against several per- sons for the same wrongful act, and a right to recover damages against each and all therefor, with a privilege of electing to DOMESTIC JUDGMENTS IN PERSONAM. 59 Persons who are made parties to proceedings for foreclosure, as subsequent incumbrancers, are bound by the decree, whether their interest be rightly stated or not.^ In the case cited, the parties objecting were made such, as judgment creditors, when they were holders of a chattel mortgage. The court said that it mattered not what their liens were ; they had an opportunity to set them up and litigate them in the former action, and must abide the conse- quence of their failure to do so. In an early case,* the plaintiff, in a writ of entry sur disseisin, demanded certain lands of the defendant, by virtue of a judgment in a suit for partition. The defendant set up title under one Prye, who had entered upwards of thirty years before, and prior to the suit for partition, and who continued to hold the land until the defendant recovered possession under a mortgage made by Frye ; and mortgage had been foreclosed, since which time the defendant had been in possession. It was insisted from this that the peti- tioner for partition and the other tenants in common had been disseised by Frye ; that at the time of partition their right to enter was gone ; and that the defendant, not having appeared to defend the partition suit, and not claiming as tenant in common, was not concluded by the judgment, even as to the right of possession. But the defence was overruled. Parsons, C. J., said that in a writ of partition the plaintiff alleged that all the parties to the writ held together and undivided ; and so in the petition, where the co-tenants were not known and not named, as in this case, the petitioner, by declaring that he is seized of an undivided share of land, in effect alleges that all persons holding the land, or any part of it, are seized as co-tenants with him .3 In this case, therefore, the defendant could not be admitted to question the right of the petitioner, by showing a disseisin of all the tenants in common ; and he could not be considered a stranger to the record. He was on the land at the time of the partition, take his satisfaction de melioribus damnis. l Benjamin v. Elmira, &c., E. Co., 49 . . . But no one would contend that he Barb. 441. could recover satisfaction from each of 2 Cook v. Allen, 2 Mass. 462. the persons liable to an action. When ' In this case, the petition alleged that the damages against him had been once the petitioner was seized as tenant in corn- paid by any one of those who procured the mon, with divers persons to him unknown, commission of the trespass, he could not Notice was given, and proclamation made ; claim to recover them again from each of but no one appeared, the others." 60 ESTOPPEL BY EECOED. claiming an interest in it ; lie was notified to appear ; and it was owing to his own laches that he did not. To consider him as a stranger to the I'ecord under such circumstances would be repug- nant to all known rules of law. Other cases (not of privity) have also arisen, in which a former judgment has been held a bar, though the parties were not precisely the same in that cause as in the one to which it is invoked as a bar. Ehle w. Bingham^ was such a case. The action was brought to recover damages for the breach of warranty in the sale of sheep. The plaintiff had given his note for them, in which anotiier had joined with him as surety ; and the sheep having proved to be dis- eased, he sued on the warranty of soundness. Tlie defendant gave in evidence the record of an action by himself, in which he obtained judgment upon the note against the plaintiff and his surely; the latter not being a party to the present action. It appeared from the record that the plaintiff had then set up in defence the subject-matter of the present suit. The plaintiff ob- jected to this judgment as res inter alios acta ; but the objection was overruled.^ In an action of assumpsit^ for rent against the assignees in bankruptcy of one Evans, it appeared that in a former action of replevin by the assignees against the present plaintiff's baihff for cattle distrained for rent of the same premises, the question arose whether there was a tenancy between the assignees and the plaintiff. The issue was found against the assignees ; and the plaintiff now relied upon the judgment in that case to prove the tenancy ; the former judgment having determined that they were tenants at a time subsequent to that now alleged. The defendants contended that the record was not evidence against them, as the parties in the replevin suit were different from those in the present; the defendant in that action being the bailiff. But Lord EUenborough held the judgment conclusive.* ' 7 Barb. 494. and the mere fact that another person was 2 Upon this point Mr. Justice Edwards sued with him ought not to deprive tlie said: "It will be remembered that the defendant in this suit of the benefit of tlie former suit was upon a promissory note former judgment." which grew out of a transaction to which 3 Hancock v. Welch, 1 Stark. 347. the plaintiff and defendant in this suit i This must have been on the ground alone were parties, and that the plaintiff that the parties were substantially the in this suit put in a separate plea, and same. Starkie, Ev. 329 ; 2 Taylor, Et. notice of a matter personal to himself; § 1500 ; Simpson v. Pickering, 1 Cromp. DOMESTIC JUDGMENTS IN PERSONAM. 61 The case of Tate v. Hunter i involved a similar question. The facts in brief were these : The complainant's testator had brought an action of assumpsit against a sheriff for a sum of money col- lected by him under process of a court of law, and retained to be applied to an execution which had been assigned to the defendant. After a revivor by the complainants, as executors, and a closely contested litigation, judgment had gone for the defendant. The complainants then filed the present bill, praying that the execution and judgment in question (the one assigned to the defendant) might be postponed to the subsequent judgment in favor of their testator against the party whose funds the sheriff had collected and retained. But the bill was dismissed. Dargan, Ch., said that the only question to be considered was whether the present suit was between the same parties as were be- fore the court in the prior suit against the sheriff; .and lie was of opinion that they were the same. The sheriff in the former action was only a nominal party ; tlie defendant in the present case being the real party in interest. The sheriff, was simply a stakeholder, without a particle of interest ; it mattered not to him which of the claimants recovered the money in his hands. The battle was fought over his shoulders by the real parties. The defendant was not only the real party, adverse in interest to the complainants, but he had notice of the suit, and defended it by counsel. In another case where an action was brought against a servant for a trespass, a defence was held good, that the plaintiff had brought an action against the principal, for the same trespass, alleging that he (the plaintiff) had claimed for a trespass com- mitted by the servant, defendant in the present suit, and that judg. ment had gone against the plaintiff.^ The ground was that the principal and servant were substantially one in interest.^ M. & R. 527 ; Kinnersley v. Orpe, 2 Doug, rely upon the same acts as a trespass, ia 917 ; Care v. Reeve, 14 Johns. 79. to allow him to have two trials for the 1 3 Strob. Eq. 136. _ same cause of action, to be proved by 2 Emery v. Fowler, 39 Maine, 326. the same testimony. In such cases, the "• " To permit a person,'' said Shepley, technical rule that a judgment can only C. J., " to commence an action against be admitted between the parties to the the principal, and to prove the acts, al- record, or their privies, expands so as to leged to be trespasses, to have been com- admit it yvheo the same question has been mitted by his servant, acting by his order, decided and judgment rendered between and to fail upon the merits to recover, parties responsible for the acts of others, and subsequently to commence an action A familiar example is presented in suits against that servant and to prove and against a sheriff or his deputy, which 62 ESTOPPEL BY EECOED. The point last stated by the court, by way of illustration, that a judgment for or against a sheriif or his deputy bars an action against tlie one not sued, is not altogether settled. The point arose in Massachusetts iu the case of Campbell v. Plielps.^ The action was trespass de bonis asportatis against the sheriff of Hamp- den. The defence was that the taking complained of was done by the deputy-sheriff; and that tlie plaintiff had sued him for it, obtained judgment, and that execution had been sued out. The plaintiff replied that the deputy was talcen in custody by reason of want of goods, whence he was afterwards discharged by law ; and iliat the judgment had not been satisfied. There was a demurrer to the replication ; and a majority of the Supreme Court sustained it, and adjudged the replication bad. The majority held that the sheriff and his deputy were not to be considered as joint tres- passers in any tort done by the latter alone, so as to subject them either to a joint action, or to give the party injured a right to bring his action against one, after having recovered judgment and sued out execution against the .other.'^ The same doctrine seems to prevail in New Hampshire.^ But Campbell v. Phelps has lately been overruled in Massachu- setts;* and the Supreme Court of Connecticut have also Ifeld the contrary in a case similar in its state of facts. Without a real satisfaction, they said there was no estoppel.^ As a question of principle, there seems to be much difficulty in holding that a judgment against the deputy, in a suit without fao- tice to the sheriff, should conclude the principal. Judgments are conclusive only upon parties and those claiming under them. The sheriff is neither the same party as his deputy, nor is he in privity with him. The relation between them seems analogous to that between joint and several promisors and joint trespassers ; ^ in which case the judgment against one does not extinguish the right of action against the rest. Tiie doctrine upon which the opposite view rests, in part, that the judgment in such cases as Campbell v. Phelps operates to vest the property in the defendant, is perhaps a more formidable being determined upon the merits, against ^ King v. Chase, 15 N. H. 9, 19. or in favor. of one, will be conclusive ■• Elliott ». Hayden, 104 Mass. 180. upon the other." 6 Morgan v. Chester, 4 Conn. 887 ; 1 1 Pick. 62. Sheldon v. Kibbe, 3 -Conn. 214. 2 See Clapp v. Thomas, 5 Allen, 158. 6 Morgan v. Chester, 4 Conn. 887. DOMESTIC JUDGMENTS IN PERSONAM. 63 barrier ; but the defence then rests. upon payment and satisfaction, and not upon the doctrine of estoppel. And it may be worthy of note that this idea has lately been overturned in England, and has been generally repudiated in America.^ In cases of principal and agent, or of bailment, if the principal or bailor bring an action and proceed to judgment on the merits, the agent cannot sue for the same demand, even though he could have done so originally in his own name.^ In the case first cited, it appeared that the owners of a cargo of salt had brought suit against certain carriers (who had agreed to forward it) for negligence in failing to deliver it at the place agreed, with a count in trover foi* a conversion of the salt. Judg- ment had gone for the defendant. Subsequently, in the present case, the bailee of the owners brought an action based on the same grounds ; but the court held the former judgment a bar. The court said that, as a general rule, a bailee, having a special prop- erty, and the general owner, might either of them sustain an action for the conversion of, or an injui-y to, property in which they are interested; The right to sue was indispensable to enable each to protect his particular interest ; but, as the law would not suffer a defendant to be twice harassed for the same cause, only one suit could be brought, and it would be a bar to every other. It seems to us, however, that the proper ground upon which the cases of this class rest is that the parties are substantially the same. The subsequent suit of the agent must be in right of the principal, and this right has passed in rem judicatam. Tlie so-called " special property " of the agent gives him no rights distinct from those of the principal, as to third persons. His rights as to all persons except the principal are the rights of the principal. But, on the other hand, judgment obtained by or against the agent or bailee cannot be used for or against the principal or bailor, except in case of an action brought at his instance, or when he has received the fruits of the judgment. Thus, in the case of Pico V. Webster ,s an action had been brought by an agent, in his own name, for a trespass^ in taking gold coin from the possession of 1 See Brinsmead v. Harrison, Law R. 2 Green v. Clarke, 12 N. Y. 343 ; Kent 6 C. V. 584 ; Lovejoy v. Murray, 3 Wall. v. Hudson River Railroad Co., 22 Barb. 1. See also the note of Messrs. Bennett 278. and Smith to Buckland v. .Tohnson, 26 ^ 12 Cal. 140. Bng. Law & E. 328, 334. 64 ESTOPPEL BY EECORD. the agent, and converting it ; in which action the jury had found that the coin belonged to the principal, and had given nominal damages. The principal now sued the same defendant for the same trespass ; and the former judgment was relied upon as a bar. But the court overruled the objection. " There was," they said, " no evidence, certainly no conclusive proof, that the . suit of Brodie [the agent] was brought at the instance or for the use of Pico." The question as to the conclusiveness of a former judgment in ejectment came before the Supreme Court of the United States, in the recent case of Miles v. Caldwell.' The complainant sought to evade the force of the defence, on the ground that the vei-dict and judgment in ejectment had not that conclusive effect which they had in other proceedings. But the court held otherwise.^ And cases have arisen where the former judgment invoked as a bar was rendered in an action in which the parties were nominally the same, though the real parties were different. In such case, the 1 2 Wall. 35. 2 Mr. Justice Miller, in delivering judgment, said : " It must be conceded that sucli is the general doctrine on the subject as applicable to cases tried under the common-law form of the action of ejectment. " One reason why the verdict cannot be made conclusive in those cases is obviously due to the fictitious character of the action. If a question is tried and determined between John Doe, plaintiff, and A B, who comes in and is substi- tuted defendant in place of Richard Roe, the casual ejector, it is plain that A B cannot plead the verdict and judgment in bar of another suit brought by John Den against Richard Fen, though the demise may be laid from the same lessor, for there is no privity between John Doe and Jolin Den. Hence, technically, an estoppel could not be successfully pleaded so long as a new fictitious plaintiff could be used. It was this difficulty of enforc- ing at law the estoppel of former verdicts and judgments in ejectment that induced courts of equity (which, unrestrained by the technicality, could look past the nom- inal parties to the real ones) to interfere, after a sufficient number of trials had taken place, to determine fairly the va- lidity of the title ; and by injunction, di- rected to tlie unsuccessful litigant, compel him to cease from harassing his oppo- nent by useless litigation. " Tliere was perhaps another reason why the English common law refused to concede to the action of ejectment, which is a personal action, that conclusive effect which it gave to all other actions, namely, the peculiar respect, almost sancti'ty, which tlie feudal system attached to the tenure by which real estate was held. So peculiarly sacred was the title to land with our ancestors, that they were not willing that the claim to it should, like all other claims, be settled for ever by one trial in any ordinary personal action, but permitted the unsuccessful party to have other opportunity of establishing his title. They however did concede to those sol- emn actions, the writ of right and the writ of assize, the same force as estop- pels which they did to personal actions in other cases.'' See, however, Union Petroleum Co. u. Bliven Petroleum Co., 72 Penn. St. 173. DOMESTIC JUDGMENTS IN PERSONAM. 65 judgment has been held no bar.^ The case cited was an action in the name of the president of the Orphans' Court for the use of Eshelman and his wife, to recover a distributive share of the estate of the wife's father. To this suit the defendant pleaded in bar a former judgment against himself for the same matter, recovered in the name of the then sitting president of the Orphans' Court, for the use of one Herr, trustee of Eshelman, the present plajntifF. In the court below, the plea was held good ; but on appeal judg- ment was reversed. Gibson, C. J., said that it was true the former suit, like the present, was brought nominally by the president of the Orphans' Court ; but for the use of Eshelman's assignees. He said that it was only by virtue of the maxim communis error facit jus that the president of the Orphans' Court could sue at all, in such a case ; but thought it would be mischievous now to doubt the validity of it, it would be as much so to let it stand in the way of substantial justice, for the sake of technical congruity. Judgments, as a general rule, conclude the parties only in the character in which they sue or are sued.^ And therefore a judg- ment for or against an executor, administrator, assignee, or trus- tee, as such, does not ordinarily preclude him, in an action affecting his own proper person, from disputing the matters decided, or vice versa.^ But there are exceptions to this rule. Thus, as we have already seen, a judgment by default of plea against an administrator is a conclusive admission against him personally in an action by the ^creditor for a devastavit.* This, however, is only an apparent exception. The former judgment in this case (and so of similar cases) affects the administrator personally, since it is a conclusive admission that he has in hand assets of the deceased unadminis- tered at the time.^ Under certain circumstances, interested persons are held bound by judgments when they were not in point of fact parties to the 1 Eshelman v. Sliuman, 13 Penu. St. 51. See Smith v. Morgan, 2 Moody & 561. • R. 257, explained in Metters v. Brown, 1 2 Stoops V. Woods, 45 Cal. 439 ; Bath- Hurl. & C. 686, 691. bone V. Hooney, 58 N. Y. 463. * Leonard v. Simpson, 2 Bing. N. C. 3 Coke, Litt. 128 a ; Robinson's Case, 176 ; Roclc v. Leighton, 1 . Salk. 310 ; 5 Coke, 82 b ; Middleton's Case, lb. ante, p. 19. 28 b ; Legge v. Edmonds, 25 L. J. Ch. ' lb. 125; Fen wick v. Thornton, Moody & M. 66 5ST0PPEL BY RECORD. proceedings, by the giving them due notice of the suit. In Love V. Gibson,! the plaintiff sued the defendant for contribution as co- surety in a bond. It appeared that the obligees had sued the plaintiff alone on the bond ; and that he thereupon gave notice to the present defendant, his co-surety, of the pendency of the suit. The defendant denied his liability upon the bond ; contending that as he was not a party to the former suit, the judgment did not bind him. But the court held him estopped.^ The rule as to the effect of notice to third persons to appear and defend suits, the result of which may affect them, is thus stated by Bell, J., in Littleton v. Richardson:^ When a person is respon- sible over to another, either by operation of law, or by express contract, and he is duly notified of the pendency of the suit, and requested to take upon himself the defence of it, he is no longer regarded as a stranger, because he has the right to appear and defend the action, and has the same means and advantages of con- troverting the claim as if he was the real and nominal party upoii the record. In every such case, if due notice is given to such person, the judgment, if obtained without fraud or collusion, will be conclusive against him, whether he has appeared or not. That was the case of a party who had placed obstructions in a 1 2 Fla. 598. honestly obtained. See also Milford ». 2 The court referred with approbation Holbrook, 9 Allen, 17 ; Annett v. Terry, 35 to the language of Mr. Justice Buller in N. Y. 256 ; Thomas v. Hubbell, 15 N. Y. Duffield V. Scott, 3 T. E. 374, where he 405 ; s. c. 85 N. Y. 120 ; Chicago v. Rob- said : " Tlie purpose of giving notice is bins, 2 Black, 418 ; Huzzard v. Nagle, 40 not in order to give a ground of action ; Penn. St. 178 ; Carlton v. Davis, 8 Allen, but if a demand be made, which the per- 94 ; Tracy v. Goodvein, 5 Allen, 409 ; State son indemnifying is bound to pay, and v- Roswell, 14 Ohio St. 73 ; Lipscomb ». notice be given to him, and he refuse to Postell, 38 Miss. 476 ; Lyon u. Northrup, defend the action, in consequence of 17 Iowa, 314; McNaraee !/. Moorland, 26 which the person to be indemnified is Iowa, 96; Dane a. Gilmore, 51 Maine, 544; obliged to pay tlie demand, that is eguiv- Brown v. Bradford, 30 Ga. 927 ; Knapp v. alent to a judgment, and estops the other Marlboro, 34 Vt. 235. The court then party from saying that the defendant In stated the rule as follows : " If the surety the first action is not bound to pay the has notice of the suit, and he does not money." Several otlier leading authorl- choose to defend it, he thereby waives all ties were also cited, showing that the the defences he might otherwise have to doctrine was well settled. See Smith v. the introduction of the instrument to be Crompton, 3 Barn. & Ad. 407 ; Kip v. Brig- introduced in evidence ; and his right is ham, 6 Johns. 158; Swarthoutw. Payne, 19 gone to contest its validity in a collateral Johns. 294 ; People v. Judges of Monroe way in a suit brought by the cosurety Co., 1 Wend. 19 ; Clark v. Carrington, 7 for contribution, for it must be deemed Cranch, 308, adding the qualification that res judicata.'' Love «. Gibson, 2 Fla. 598. the judgment must have been fairly and ' 34 N. H. 179, 187. DOMESTIC JUDGMENTS IN PERSONAM. 67 highway ; who, being answerable to the town, was held bound by a judgment in favor of a traveller against the town, which had given him notice of the suit. • The rule in this case is cited with approbation in Boston v. Worthington,^ and in Chamberlain v. Preble.^ In the latter case the plaintiff sued upon a breach of warranty in a conveyance of real estate in fee simple ; the breach being that one Comer had recovered judgment against the plaintiff as tenant by the curtesy of the premises. In support of his action, and to .show para- mount title in Comer in the land conveyed with warranty by the defendant to one Baldwin, under whom the plaintiff claimed by warranty deed, he produced the judgment mentioned, recovered by Comer in a writ of entry. It appeared that, when that suit was brought, the present plaintiff notified Baldwin, who assumed the defence, employed counsel, and notified the present defendant, Preble (Baldwin's grantor), of the pendency of the action, and requested him to assume the defence. It did not appear that Preble took any part in the defence. The judgment was held conclusive upon him, though entered upon an agi'eed statement of facts, and though there was an erroneous recital as to somie of the facts ; provided the facts were agreed to in good faith.^ In some cases, parties liable over, by way of indemnity, are bound by judgment against the person to whom they are so liable even without notice, as where they have so stipulated with the latter.* Such cases will of course depend upon the construction to be placed on the contract of indemnity. In other cases the rule is different where parties thus interested are not notified.^ In Jones v. Oswald, in the Court of Appeals of South Carolina, the plaintiff brought an action against the sureties of Oswald, a sheriff, on their official bond, alleging non-payment of money collected on execution. The defendants pleaded in bar a former judgment against Oswald for the same money. The plea was overruled in the court below ,; and the decision was sustained 1 10 Gray, 496. CoUingwood v. Irvin, 3 Watts, 306 ; Paul 2 11 Allen, 370. See also Lee v. Clark, v. Witraan, 3 Watts & S. 407. 1 Hill, 56; Rapelye v. Prince, 4 Hill, 119; * Thomas v. Hubbell, 15 N. Y. 405; Bridgeport Ins. Co. v. Wilson, 34 N.Y. s. c. 30 N. Y. 120; Fay v. Ames, 44 275. Barb. 327 ; Bridgeport v. Wilson, 34 N. Y. ° See also as to tlie matter of notice to 275. warrantors, Blasdale v. Babcock, 1 Johns. ' Jones v. Oswald, 2 Bail. 214 ; Eramph 517 ; Kelly v. Dutch Church, 2 HiU, 105 ; v. Hatz, 52 Penn. St. 525. 68 ESTOPPEL BY EECOED. on appeal. Mr. Justice Johnson said that a judgment against one of a number of joint and several obligors, without satisfaction, was no bar to % recovery against the others. Whatever might have been the effect of the recovery as to Oswald in this case, the liability of the sureties remained precisely as it was before the former trial. They were not parties to the suit, and would not have been liable in that form of action ; if liable at all, it was upon the bond. The question whether one who appeared as a witness in a former action is estopped by the judgment in a subsequent suit between one of the parties and the witness has arisen, and has been de- cided in the negative.^ Yorks v. Steele, just cited, was an action to recover possession of a horse. The plaintiff was nonsuited at the trial on the ground that he was estopped from prosecuting the defendant for the recovery of the horse, by having appeared as a witness for the present defendant, in an action brought by the defendant against a sheriff who had taken the horse in execution in favor of another against himself, the present plaintiff.^ A question arose in a recent case^ in the English Court of Exchequer, which involved the nature of the relation between the master of a vessel and the owner. The plaintiff sued the owner of a ship on a bill of lading ; and he pleaded a judgment on the same bill of lading against the master of the vessel, obtained by the same plaintiff. The question was finally raised by demurrer whether the judgment pleaded was a bar to the present action. It was held that it was not.* 1 Yorks V. Steele, 50 Barb. 397. But call other witnesses, who might hare see Barney v. Dewey, 13 Johns. 224. n better knowledge of the facts than 2 In delivering judgment, Mr. .Justice himself. In short, as a mere witness, he •Tohnson said; "It is a general, if not had no charge or control of the case what- universal principle, that an action and ever. And, supposing tliat judgment was judgment between two persons shall not erroneous, for any reason, he had no right bind or affect a third person, who could of appeal, and no standing by which he not be admitted to make a defence, to could be heard to correct the error." examine witnesses, or to appeal from the ' Priestly v. Fernie, 3 Hurl. & C. 977. judgment. Case v. Reeve, 14 Jolins. 79; * The case is a leading one of consid- Castle V. Noyes, 14 N. Y. 329, 332 ; erable importance ; and we quote at length Greenl. Ev. § 523 It is of no con- from the opinion of the court pronounced sequence, prima facie, that the plaintiff by Mr. Baron Bramwell. He said : " We was a witness for the defendant in the are of opinion our judgment should be for action brought by this defendant. He the defendant. If this were an ordinary had no right, as a witness, to examine case of principal and agent, where the or cross-examine other witnesses, or to agent, having made a contract in his own DOMESTIC JUDGMENTS IN PERSONAM. 69 In equity it is generally necessary to join the cestui que trust with the trustee, in order to obtain a decree which shall bind the former ; i but in some cases it is allowed the trustee to represent the beneficiary. And the result of course is, that in the absence of fraud the cestuis que trust will be bound by the decree and the proceedings thereunder.^ Thus it is well settled that the cestuis que trust of a mortgagee are not necessary parties to a bill of fore- closure.^ So, too, when the beneficiaries are so numerous that it would be very inconvenient to bring them all before the court, it has been considered sufficient for part of them to sue as plaintiffs name, has been sued on it to judgment, there can be no doubt that no second ac- tion would be maintainable against the principal. The very expression that wliere a contract is so made the contrac- tee has an election to sue agent or princi- pal, supposes he can only sue one of them, that is to say, sue to judgment. For it may be that an action against one might be discontinued and fresh proceed- ings be well taken against the other. Further, there is abundance of autliority to show that where the situation of the principal is altered by dealings with the agent as principal, the former is no longer subject to an action. But this is the case here " If this, then, were the ordinary case we have mentioned, there could be no doubt on the subject. But it is said that the liability of the master of a vessel act- ing for his owners, and their liability where he acts for them, is different from the liabilities in ordinary cases of princi- pal and agent, and that first one and then the other may be sued. The plaintiff's argument then, namely, that the present case is anomalous, is exceptional. When that Is contended for, strong reason ought to be given for it. What is given here ? It is certain that the master's liability is founded on the same considerations as that of an ordinary agent, namely, he makes tlie contract in his own name. Rich V. Coe, 2 Cowp. 636 ; Story, Agen- cy, § 296. But it is said that for pur- poses of commerce it is convenient both master and owner should be suable. So it is, but why to the extent contended for more than in any other case of principal and agent t It might be hard to make a person who deals with the master run after the owner to sue him ; but wliy, if he sues the master, should he afterwards sue the owner, merely because it is very right he should be able to sue the captain or owner f In reality, no reason can be given for the distinction attempted be- tween this and other cases of principal and agent. It is not said none could be given why in all cases of principal and agent both should be suable, but that tliere is no particular reason applicable to the masters and captains of ships." The learned baron then says that the only authority for the position of the plaintiff is a passage in one of the works of Mr. Justice Story (Story, Agency, § 295), given on the authority of Mr. Liver- more (2 Livermore, Agency, 267). He shows that the former misunderstands the latter ; and that though the case cited of Rich V. Coe, 2 Cowp. 636, which he pronounces of questionable authority, supports the proposition stated by Mr. Livermore, it does not support that main- tained by Judge Story. 1 Collins V. Lofflus, 10 Leigh, 5. 2 Johnson v. Robertson, 31 Md. 476. ' Willink V. Morris Canal Co., 8 Green's Ch. 377 ; Van Vechten v. Terry, 2 John's Ch. 197 ; New Jersey Franklin- ite Co. V. Ames, 1 Beasl. Ch. 507 ; John- son V. Robertson, 31 Md. 476. 70 * ESTOPPEL BY RECORD. on behalf of all.i But this rule applies only to cases where there is one general right in all the parties ; that is, where the character of all parlies, so far as the right is concerned, is homogeneous.^ In other cases, notwithstanding the inconvenience arising from a great number of parties, they must all be before the court in order to be bound by the adjudication. ^ This was said of a case of cred- itors in a question of priority of charging real estate ; but the prin- ciple is probably general, and equally applicable to similar questions affecting cestuis que trust. It has been a matter of doubt whether a judgment obtained against a corporation could be used against a stockholder thereof, .uifder statutes imposing a personal liability on the members of the corpo- ration for the corporation debts. Chancellor Kent had held the negative ; but his judgment was reversed by the Court of Errors.* The doctrine held on the appeal is generally understood as decid- ing that the judgment establishes & prima facie, but not conclusive, liability on the part of the stockholder.^ But it has been doubted whether the Court of Errors intended to go even so far as this;® and later still, in Belmont v. Coleman,^ a majority of the Court of Appeals were unwilling to concur in the dictum of one of their number that such judgment was prima facie evidence against a stockholder.* It is clear that the corporation cannot be estopped by judgment against the stockholders individually.^ The effect of a judgment upon garnishment or trustee process has frequently arisen in suits by the original creditor of the gar- nishee or trustee against the latter. Such a case was Wetter v. Rucker ; ^° but it appeared in that case, as matter of law, that the payment by the garnishees to the judgment creditor of their own creditor was not a compulsory, but a voluntary, payment. The court therefore held that the garnishees were not discharged. 1 Adairu. New RiverCo., 11 Ves. 429; Pr. 35; Miller v. White, 59 Barb. 434; Cockburn v. Thompson, 16 Ves. 321; s. c. rev. 13 Abb. Pr. n. s. 185, note; Harrison v. Stewardson, 2 Hare, 530. Hall v. Sigel, 13 Abb. Pr. n. a. 178; Low- 2 Newton v. Egmont, 5 Sim. 130, 137. ry v. Inman, 2 Sweeny, 117; o. u. 46 * Ibid. N. Y. 119; Brooks v. Hill, 1 Mich. 124; * Slee V. Bloom, 5 Johns. Ch. 866 ; re- Berger v. Williams, 4 McLean, 577 ; Mer- versed, 19 Johns. 456; 8. o. 20 Johns, chants' Bank ». Chandler, 19 Wis.' 434. 669. ■ 9 Covington & L. R. Co. v. Bowler, 9 5 Moss V. Oakley, 2 Hill, 265. Bush, 468. 6 Moss ... McCullough, 5 Hill, 131 ; lo i Brod. & B. 491 ; s. o. 4 B. Moore, 8. c. 7 Barb. 279 ; 5 Denio, 567. 172. This point is well settled. See ' 21 N. Y. 96. Drake, Attachment, § 674, and cases ^ See also Squires v. Brown, 22 How, cited. DOMESTIC JUDGMENTS IN PERSONAM. 71 But, according to the custom of London, execution must be exe- cuted before the garnishee is discharged from liability to his own creditor. In a case before the Common Pleas,^ the defendant to an action for money had and received pleaded a recovery by foreign attachment, at the suit of a creditor of the plaintifiF, and that the creditor had had execution. The plaintiff replied that the execu- tion had not been executed; upon which the defendant joined issue. Verdict was found for the plaintiff, subject to the opinion of the court upon the points of law and facts involved ; and the court ruled that the replication was good. They said that, if the execution in the garnishment process had not been executed, the garnishee was not discharged.^ But, if the execution was levied and satisfied, the garnishee is protected and discharged, to the extent of the amount paid, though the judgment be erroneous ; * provided he availed himself of all defences against the attaching creditor.* And this too though the proceeding be in a foreign jurisdiction.^ The original creditor of the garnishee is not, however, estopped to prove that his claim is greater than that admitted by the garnishee ; otherwise it would be in the power of the latter to practise an irreparable fraud upon the former.® ' Magrath v. Hardy, 4 Bing. N. C. lor v. Phelps, 1 Har. & G. 492; Drake, 782. Attachment, supra, ^ See Home Mutual Ins. Co. v. Gam- <> Robeson v. Carpenter, 7 Mart. N. s. ble, 14 Mo. 407; Eurnap v. Campbell, 30; Brown „. Dudley, 33 N. H. 511; 6 Gray, 241 ; Brown v. Summerville, Tarns v. Bullitt, 35 Penn. St. 808 ; Bax- 8 Md. 444. ter v. Vincent, 6 Vt. 614. 3 Brown ». Dudley, 83 N. H. 511 ; Without pursuing this matter into de- Stearns v. Wrisley, 30 Vt. 661; Stevens tail, (a) we give the concise statement V. Fisher, 30 Vt. 200 ; Dole v. Boutwell, of Mr. Drake of the rules upon the sub- 1 Allen, 286; Wise ». Hilton, 4 Greenl. ject (Attachment, § 711): " 1. Thejudg- 435 ; Killsa v. Lermond, 6 Greenl. 116 ; ment against the garnishee, under which Anderson v. Young, 21 Penn. St. 443 ; he alleges he made the payment, must be Drake, Attachment, § 706, and cases proved. Barton v. Smith, 7 Iowa, 85. cited. " 2. It must have been a valid judg- * Funkhouser v. How, 24 Mo. 44 ; ment. No payment made under a void Gates V. Kerby, 13 Mo. 157 ; Dobbins v. judgment, however apparently regular Hyde, 37 Mo. 114; Newton ti. Walters, the proceedings may have been, can pro- 16 Ark. 216. tect the garnishee against a subsequent " Barrow v. West, 23 Pick. 270; Tay- payment to the defendant [i. e. the gar- (n) The reader is referred, for a full consideration of the subject, to the excellent work on Attachment, by Mr. Drake, now Chief Justice of the United States Court of Claims. 72 ESTOPPEL BY RECORD. A more difficult point is presented by the question whether judgment against the garnishee without satisfaction bars an action nishee's creditor] or his representatives. Thus where an attachment was obtained against one supposed to be living in a foreign country, but who was dead when the suit was commenced, it was held that a payment made by a garnishee, under execution, was no defence against an action by the defendant's administrator ; the whole proceedings in the suit being a mere nullity. Loring v. Folger, 7 Gray, 505; Matthey v. Wiseman, 18 Cora. B. N. s. 657. See Westoby v. Day, 2 El. & B. 605. Nor will a judgment against a garnishee protect him against a subse- quent recovery in favor of one who had previously to the garnishment taken an assignment of the debt from the defen- dant in the attachment, the garnishee having notice of the assignment. Dob- bins V. Hyde, 87 Mo. 114. " 3. The payment must not have been voluntary. Any payment not made under execution will be regarded as voluntary, and therefore no protection to the gar- nishee. Wetter v. Rucker, 1 Brod. & B. 491, and cases cited supra. " 4. The payment must be actual, and not simulated or contrived. Thus, when certain persons were charged as gar- nishees, and credited the plaintiff on their books with the amount of the judgment, and debited the defendant with the same amount, but did not in fact pay the money, it was held to be no payment. Wetter v. Bucker, supra. "5. The judgment under which the payment was made must have been rendered by a court having jurisdic- tion of the subject-matter and the par- ties.(a) If there be a defect in this respect, the payment will be regarded as voluntary, and therefore unavailing. Harmon v. Birchard, 8 Blackf 418; Ford ^. Hurd, 4 Smedes & M. 683; Robertson v. Roberts, 1 A. K. Marsh. 247 ; Richardson v. Hickman, 22 Ind. 244. If, however, the court have jurisdiction of the subject-matter and the parties, a payment on execution under its judg- ment will protect the garnishee, though the judgment may have been irregular, and reversible on error (Lomerson v. Hoffman, 4 Zabr. 674; Pierce v. Carle- ton, 12 111. 858 ; Gunn v. HoweU, 85 Ala. 144 ; Webster v. Lowell, 2 Allen, 123) ; and a reversal of it by the defendant, for irregularity, after payment by the gar- nishee, will not invalidate the payment. Duncan v. Ware, 5 Stewt. & P. 119. But if the garnishee contest the jurisdic- tion of the court, and his objection is overruled, and judgment rendered against him, a payment made by him under that judgment cannot be collaterally im- peached elsewhere, on the ground that the court had no jurisdiction. Its de- cision on that point is conclusive in favor of the garnishee. Gunn v. Howell, 35 Ala. 144 ; Wyatt v. Rambo, 29 Ala. 510 ; Thayer v. Tyler, 10 Gray, 164 ; Pratt v. Cunliff, 9 Allen, 90. " 6. Though the court have jurisdic- tion of the parties, and its judgment be valid against the garnishee, yet if the law require the plaintiff, as a condition prece- dent to obtaining execution, to do a par- ticular act, and without performing the condition he obtain execution, and the garnishee make payment under it, the payment will be no protection ; for it is in the garnishee's power to resist the payment until the condition be fulfilled ; (a) When the defendant was personally before the court, the garnishee is not interested in the matter of jurisdiction as against the defendant; but, if he is not personally before the court, the garnishee is concerned in the question of jurisdiction both as to the defendant and as to himself Drake, Attachment, § 693. See Wheeler V. Aldrich, 13 Gray, 51 ; Morrison . Par- 2 McAllister v. Brooks, 22 Maine, 80; ker, 3 Mason, 247. Norris v. Hall, 18 Maine, 332 ; Matthews « Whipple v. Robbins, 97 Mass. 107 ; V. Houghton, 11 Maine, 377. Wilkinson v. Hall, 6 Gray, 568 ; Hall v. 3 Sargeant v. Andrews, 3 Greenl. 199. Blake, 13 Mass. 153 ; 2 Kent, Com. (6th In Florida, Sessions v. Stevens, 1 Fla. ed.) 119. 233. In Massachusetts execution must 74 ESTOPPEL BY RECORD. view of this fact, which would have been sufficient to abate the trustee process,^ he must pay again. In Wilkinson v. Hall, above cited, the defendant, maker of a negotiable promissory note, had been served with trustee process in Vermont, after the negotiation. of the note, and charged as trustee of the payee. The indorsee and plaintiff offered to prove that the defendant had knowledge of the transfer of the paper before the service in Vermont ; which fact, had it there been disclosed, would have defeated the garnishment.^ The court said that the fact of negotiation before the service of the trustee process was most material to the right determination of the cause ; and if the defendant had knowledge of the transfer, he was bound to dis- close it. A judgment discharging the garnishee for holding personal property of the principal defendant under a fraudulent and void conveyance will bar an action on the case directly against the gar- nishee for aiding in the same alleged fraudulent transfer of prop- erty to secure it from the creditors of the former defendant.^ The court in the case cited said that the validity or invalidity of the sale from the former to the present defendant was an issue be- tween the plaintiff and the garnishee in that suit precisely as in the present. The plaintiff had failed in the contest against the garnishee ; and the judgment of the court had been that the sale was valid, and consequently that the garnishee must be discharged. If the court had regarded the sale as fraudulent, the garnishee must have been charged. Having ascertained tlie effect of judgment estoppel as to the actual parties to the record, let us now inquire as to the effect and operation of personal judgment against those who were not strictly or nominally parties to the former suit, but whose interests were in some way affected by it. And first of privity ; which by -Lord Coke is divided into privity in law, i. e. by operation of law, as tenant by the curtesy ; privity in blood, as in the case of ancestor and heir ; and privity in estate, i. e. by the action of the parties, as in tlie case of feofibr and feoffee. These divisions are only im- portant, as far as this work is concerned, in defining the extent of 1 SeeWallaceu.MoConnell, 13 Peters, Kimball v. Gay, 16 Vt. 131; Chase v. 1365; Embree v. Hanna, 5 Johns. 100. Haughton, Ibid. 594. 2 Barney v. Douglass, 19 Vt. 98 ; 3 Bunker v. Tufts, 67 Maine, 417. DOMESTIC JUDGMENTS IN PERSONAM. 75 the doctrine of privity ; and as the rules of law are not different iu questions of estoppel in these divisions, it will not be necessary to present them separately. The rule of law is, that a judgment is conclusive, not only against the actual parties to the particular litigation, but also against all persons who claim under them as privies. The doctrine is illustrated in Regina v. Blakemore.^ The de- fendant was indicted for the non-repair of a highway, which it was alleged he was bound to do, raiione tenurce, in respect of certain lands called Saw-pit. To prove this liability, the record of the conviction of one under whom the defendant claimed was pro- duced, in an indictment for the non-repair of the same premises, alleging his liability to repair, ratione tenurce. And the record was held conclusive. In Pritchai'd v. Hitchcock,^ the plaintiff sued the defendant as guarantor of the acceptor of a bill of exchange ; and the latter pleaded payment by the acceptor. The facts were, that the ac- ceptor, when in a state of complete insolvency, had paid the amount to the plaintiff; but the money was subsequently recovered from him in an action by the acceptor's assignees in bankruptcy. The guarantor now sued contended that the payment by the acceptor to the plaintiff was a satisfaction. The plaintiff, on the other hand, urged that the recovery by the assignees was conclusive evidence against the guarantor that they were entitled to the money ; and, tliis being the case, that the debt had not been satis- fied. The court held the judgment to be evidence, but ruled that it was not conclusive. The decision shows that in the relation of guarantor and principal no privity of estoppel arises : and the same is true of the relation of surety and principal, co-sureties, sheriff and deputy, and the like cases, where parties are answerable over.^ The plaintiff in Adams v. Barnes * brought an action to recover certain lands, in which the following facts appeared : The defend- ant, Barnes, had lent money to one IngersoU on a mortgage of the premises in question. Subsequently he brought an action against IngersoU to recover possession ; in which suit the latter pleaded usury. But judgment was given for Barnes, the present defendant ; and he was put into possession by the sheriff. Afterwards IngersoU sold and conveyed all his right, title, and interest in the premises 1 2 Den. Cr. C. 410. ' See ante, pp. 66-68. 2 6 Man. & G. 151 ; 6 Scott N. E. 851. * 17 Mass. 365. 76 ESTOPPEL BY RECORD. to the present plaintiff, who brought this action to recover the premises. He offered evidence to prove usury in the original con- tract between Barnes and Ingersoll, his grantor ; but the defend- ant contended that he was estopped by the former judgment; and the court sustained the objection. Jackson, J., said that In- gersoll would have been estopped ; and it was clear that the plain- tiff was also estopped. It was such an estoppel as ran with the land, and extended to all who were privy in estate to either of the parties to the former judgment. Such an estoppel made part of the title to the laud, and extended to all who claimed under either of the parties. According to the statement sometimes made, that estoppels are odious, he said that when they constituted part of the assurance and title to land, as in the present case, they were founded in the strongest equity and justice. By the former judgment, Ingersoll had lost his title to the land, and Barnes had acquired a right which was indefeasible as between him and Ingersoll to hold pos- session of the land until the debt was paid; And he said it would be highly inequitable if Ingersoll could convey to a stranger the right to bring Barnes's title again into controversy. , Ingersoll, after the judgment, Jiad no estate left in him, except the right to redeem ; and his grantee could not claim any greater estate. He stated further that the present estoppel was also founded on those principles of law which were intended to repress litigation. If the plaintiff could now contest Barnes's title under the mort- gage, Ingersoll must have assigned him a mere right of action, which was prohibited by law. And again, if the plaintiff could purchase that right of action, he could sell it ; and therefore, jf he should try this action on its merits and fail to recover, he might assign the right to another, and the assignee might, after suit, assign to a third, and so on. In Winslow v. Grindal,i the demandant claimed certain real estate, which he had conveyed by warranty deed in 1788 to one Fairfield , who the next year conveyed to one Herrick, who conveyed to the defendant's grantor. To show that no property had passed to the defendant, the plaintiff relied upon a judgment obtained by Fairfield against himself (the plaintiff) in 1801, eleven years after Fairfield conveyed to Herrick, on the covenants of warranty ; in which case the jury found that the defendant, now plaintiff, had 1 2 Greenl. 64. DOMESTIC JUDGMENTS IN PERSONAM. 77 not been seised as he had covenanted in the deed. It was held that the action could not be maintained. The court said that if Fairfield himself had continued in posses- sion of the premises, and had been defendant to this action, the plaintiff might have recovered ; for, by reason of Fairfield's judg- ment, the plaintiff would no longer be estopped to deny that any thing had passed by his deed ; and Fairfield, having recovered a full indemnity, would be estopped to claim any thing under the deed.^ And the same rule would apply to all persons claiming title in the premises under Fairfield, mediately or immediately, derived subsequently to such recovery. But in this case the con- veyance under which the defendant claimed had preceded the suit and recovery ; and it was one of the first principles of law that when a man has granted an unconditional estate to another, it shall not be in his power, without the concurrence of his grantee, to resume or defeat the estate thus granted. Fairfield could not, ten or more years after his conveyance, defeat it by an act merely his own. Herrick's right could not be affected by the proceedings mentioned, as he was not a party or a privy to them ; and there- fore the defendant could not be affected by them.^ In Brewer v. Hardy ,^ the defendant in a writ of entry claimed through a judgment against Charles B. and his son, Calvin B. The demandant claimed under a deed from Susan B., to whom Charles B., her father, had, before the judgment, conveyed the land in question, reserving the use to himself and wife during life. But the court held that the judgment could not prejudice the claim of the demandant, as Susan B. was not a party to it, and could not be considered a privy in estate. In Calkins v. Allerton,^ the plaintiff brought trover for a pair of steers. The defendant justified the taking as having been done under the orders of a third person, and under the title of the latter. The plaintiff, then, to prove his title to the cattle and his riglit of possession, produced the record of a judgment in his favor in an action of trover brought by him against the person under whom the defendant now justified. The defendant objected, on the ground that the parties to that suit were different from # > Porter v. Hill, 9 Mass. 34. See also « 22 Pick. 376. Stinson v. Sumner, Ibid. 143. * 8 Barb. 171. " See Perkins v. Pitts, 11 Mass. 125 ; Hamilton v. Cutts, 4 Mass. 849. 78 ESTOPPEL BY RECORD. those to the present ; but the record was received, and held con- clusive ; and the Supreme Court sustained the ruling. Mr. Justice Paige said that, if the defendant sustained the rela- tion of co-trespasser with the defendant in the former action, the record would be inadmissible ; but the defendaiit could not be so regarded. He did not claim the cattle in his own right ; he acted under the orders and as agent or servant of the former defendant. He justified under him, and under his title. The case, he said, did not authorize the inference that the present defendant knew he was a trespasser in taking the cattle. He must therefore be regarded as a privy of the defendant in the former suit ; and there- fore the judgment in that case must be admissible against him, and conclusive of the plaintiff's title and right of possession. But in another action of trover,^ to which the defendant pro- duced a record of a judgment in his favor, in a replevin suit by him against the plaintiff's servant, for the same property, it was held inadmissible in evidence ; the ground being that the plaintiff was neither party nor privy to the former suit. The line of distinction between the two cases is plain. In Cal- kins V. Allerton the defendant justified under the title of one against whom the plaintiff had recovered judgment for the very property in question; his very justification therefore, being under one who was estopped to contest the title and right of possession, worked an estoppel against him. Had he justified under another, or claimed the property himself, this result could not have followed. In the other case, the defendant claimed the property under a judg- ment of his own against the plaintiff's servant, in a suit in which the plaintiff had no part. The relationship of privity does not exist at common law ^ be- tween administrator or executor and heir or devisee ; ^ though it ' Alexander v. Taylor, 4 Denio, 302. personal representative of George Brooks '■^ It is otherwise by statute in Call- is conclusive evidence against the devisee fornia. Cunningham i-. Ashley, 45 Cal. of the existence of the debt. The cases 485. cited by counsel in support of this propo- ' Garnett v. Macon, 6 Call, 308 ; Stone sition do not decide the very point. Not V. Wood, 16 III. 177 ; Dorr v. Stockdale, one of them brings directly into question 19 Iowa, 269; Moss v. McCuUough, 5 the conclusiveness of a judgment against Hill, 131; Alston v. Munford, 1 Brock, the executor in a suit against the heir 266. In the case first cited, Marshall, C. or devisee. They undoubtedly show that J., in the 'Circuit Court of the United the executor completely represents the States for Virginia, said : " The defend- testator as the legal owner of his personal ants insist that the decree against the property for the payment of his debts in DOMESTIC JUDGMENTS IN PERSONAM. 79 is held that judgment against the executor is prima facie evidence of the extent of the testator's liability in a scire facias against the heir to subject the land in the hands of the heir.^ An administrator is of course in privity with his intestate in respect of the personalty ; ^ and an executor is in privity with the deceased to the extent to which, by the terms of the will, he suc- ceeds to the position of his testator.* So, too, the heir and the devisee are in privity with the ancestor or devisor. It might also be supposed that an administrator de bonis non would be in privity with his predecessor, the executor or administrator ; and so ai'e some of the authorities.* But, historically considered, it seems that this is not correct. An executor of an executor is bound as a privy by that which binds his predecessor. The power of an executor being founded on the special confidence reposed in him by the deceased, he is allowed to transmit that power to another.^ But an administrator, being merely the officer of the ordinary, prescribed by law, in whom the deceased cannot be said to have reposed any confidence, cannot transmit his office ; and, if he died the first instance, and is consequently the proper person to contest the claims of his creditors. Yet there are strong reasons for denying tlie conclusiveness of a judg- ment against an executor in an action against the heir. He is not a party to the suit, cannot controvert the testimony, adduce evidence in opposition to the claim, or appeal from the judgment. In case of a deficiency of assets, the execu- tor may feel no interest in defending the suit, and may not choose to incur the trouble or expense attendant on a labori- ous investigation of the claim. It would seem unreasonable that the heir who does not claim under the executor should be estopped by a judgment against him. . . . " In this case, the creditor is bound to proceed against the executor, and to ex- haust the personal estate before the lands become liable to his claim. The heir, as devisee, may indeed, in a court of chan- cery, be united with the executor in the same action ; but the decree against him would be dependent on the insufficiency of the personal estate. Since then the proceeding against the executor is in substance the foundation of the proceed- ing against the heir as devisee, the argu- ment for considering it as prima facie evi- dence may be irresistible ; but I cannot consider it as an estoppel. The judgment not being against the person representing the land ought, I think, on the general principle which applies to give records in evidence, to be re-examinable when brought to bear upon the proprietor of the land." ' Sergeant v. Ewing, 36 Penn. St. 156. 2 Steele v. Lineberger, 59 Penn. St. 308. s Manigault v. Deas, 1 Bailey Eq. 283. * lb. ; Stacy v. Thrasher, 6 How. 44. The latter case, however, is but a dictum, and even thus is only tu tlie effect that a scire facias or action upon a judgment ob- tained by the predecessor may be main- tained by the administrator de bonis non. Dykes v. Woodhouse, 3 Rand. 287. There was some dispute even on this point in the old cases. Ibid. 6 Contrary, however, to the analogous case of agency. 80 ESTOPPEL BY RECOED. before closing his administration, the office would result back to the ordinary for the appointment of a successor. So, when an executor died intestate, his administrator did not represent the testator ; and it now devolved upon the ordinary, as in the other case,, to commit administration afresh, with the will annexed.^ There is ground in principle also for this position ; for an admin- istrator might be removed for misconduct, or resign to escape removal, and it would be hard if, under such circumstances, the estate unadministered could be concluded in the hands of his successor by a judgment against him. But of course the adminis- trator de bonis non is in privity with the original intestate or testator. It is well settled that there is no privity between executors or administrators appointed in different states or countries.^ A strik- ing illustration of this rule is found in Pond v. Makepeace.^ The case in substance was this: The plaintiff", as administrator of Oliver Capi'on, under the laws of Massachusetts, brought suit in that State against the defendants on a note given to the intestate j and the defence was that an administrator, appointed under the laws of Rhode Island, but not under those of l^assachusetts, had brought suit in the latter State upon the same note, obtained judg- ment upon default, and had execution satisfied. But the court held that the second suit was proper. Mr. Justice Dewey, speaking for the court, said that the pro- ceedings in the suit by the Rhode Island administrator were wholly without authority, and might have been defeated by an appearance and the filing of a proper plea ; and the defendants, having neg- lected to contest the right of the plaintiff" in the former suit, could not now plead it in bar of the present action, notwithstanding the satisfaction. Tiie doctrine of all these cases is, that judgments are only con- clusive evidence upon the parties and those claiming under them ; and that strangers may avoid them whenever they would otherwise be injuriously affiected by them.* 1 Coleman v. McMurdo, 5 Rand. 51 ; chapter on Foreign Judgments In Per- Thomas v. Sterns, 33 Ala. 137. See At- sonam. torney-General v. Hooker, 2 P. Wms. 338, » 2 Met. 114. 340; Rutland v. Rutland, Ibid. 210. 4 This rule in regard to privity does 2 McLean v. Meek, 18 How. 16. The not apply to the case of persons who point will be fully considered in the might possibly have claimed through a DOMESTIC JUDGMENTS IN PERSONAM. 81 But a distinction has been made between cases where the only fact to be established is the right of a creditor against the judg- ment debtor himself, and cases where such a right may incidentally aifect third persons, as when a person is affected by a chain of title under a judgment, sale, and conveyance. In this case, it is held that third persons cannot impeach the judgment.^ There is still another important exception to the rule that judgments in personam bind only parties and privies. They are conclusive against third persons (in the absence of fraud) of the relationship established between the parties, and of the extent of the relationship. The relation of debtor and creditor, for instance, established by a judgment in favor of A against B, cannot be dis- puted by C ; nor can the amount of the judgment debt be contra- dicted.2 So, too, judgment on a bond against the principal is conclusive of the legality and extent of his obligation in an action by the obligee against the guarantors or sureties.^ Third persons cannot object when those who have the exclusive right to settle a question have done so without fraud. In Candee v. Lord, just cited, the plaintiff having filed a bill against certain parties to set aside several alleged fraudulent judg- ments, which stood in the way of a judgment recovered by him against one of the defendants in the bill, the other defendants, not party to the former litigation, and whose binding per se upon the rights of the ap- interests were almost identical with those pellant, but only as a document connected of such party, if in fact they do not claim with the chain of the appellee's title, and through him. Spencer v. Williams, Law is no more obnoxious to objection than E. 2 P. & D. 230. a deed from Brown, or any other title 1 Baylor v. Dejarnette, 13 Gratt. 152, papers, equally res inter alios acta, would 172; Barney v. Patterson, 6 Har. & J. be." 182, 203; Taylor v. Phelps, 1 Har. & G. 2 Candee v. Lord, 2 Comst,269 ; Voor- 492. See Inraan v. Mead, 97 Mass. 310 ; hees v. Seymour, 26 Barb. 569, 685 ; Sid- Seerist v. Green, 3 Wall. 744; Casler v. ensparker k. Sidensparker, 52 Maine, 481. Shipman, 35 N. Y. 533. ^ Drummond v. Prestman, 12 Wheat. In Barney v. Patterson, just cited, 516 ; Douglass v. Howland, 24 Wend. 35 ; Buchanan, C. J., said: "The judgment King w. Norman, 4 Com. B. 884; Stovall is also objected to on the ground that it o. Banks, 10 Wall. 583; JBergen u. Wil- is res inter alios acta; the appellant not liams, 4 McLean, 125; Grace v. Martin, being a party to the proceedings. But 47 Ala. 135 ; Watts v. Gayle, 20 Ala. 825 ; the doctrine that judgments and decrees HoUey v. Acre, 23 Ala. 603. Though the are only evidence in suits between parties judgment against the principal does not and privies, though generally true, is not of course establish the nature of the rights applicable to this case; the judgment of of the sureties tnier sese. See a«fc, p. 46. the Circuit Court being introduced, not as 6 82 ESTOPPEL BY RECORD. having been parties to judgment last mentioned, sought to impeach it. But they were not allowed to do so.^ The following illustration will also explain the doctrine. A ob- tains a judgment against B, which becomes a lien upon B's real estate, a house and lot. C then sues and obtains judgment against B, and levies upon the house and lot. Finding the same insufi&- cient to satisfy the two judgments, C cannot impeach A's judgment by denying the relationship of creditor and debtor established by it between A and B ; nor can he dispute the amount of the indebt- edness.^ Having considered the effect and operation of judgments upon parties and privies, we call attention next to the effect of incidental matters passed upon in former judgments ; that is, matters which were not essential to the determination of the case. The general rule of law is, that a judgment is conclusive by way of estoppel only as to facts without the existence and proof or admission of which it could not have been rendered.^ The recent case of Dickinson v. Hayes* contains a clear state- ment of the doctrine. The action was ejectment for certain land, to which the defendant claimed title under the will of a minor between seventeen and twenty-one years of age. The will had included -both personal and real estate, and the probate ran thus : " An instrument purporting to be the last will of F. H., late of M., in this district, deceased, was presented in court for probate, and, 1 In delivering judgment, Mr. justice itors and all others. Consequently, neither Gardner said : " In creating debts, or es- a creditor nor a stranger can interfere in tablishing the relation of debtor and cred- the bona fide litigation of the debtor, or re- itor, the debtor is accountable to no one, try his cause for hira, or question the effect unless he acts mala fide. A judgment of the judgment as a legal claim upon his therefore, obtained against the latter estate. A creditor's right, in a word, to without collusion, is conclusive evidence impeach the act of his debtor, does not of the relation of debtor and creditor arise until the latter has violated the tacit against others : first, because it is con- condition annexed to the debt, that he has elusive between the parties to the record, done and will do nothing to defraud his who in the given case have the exclusive creditors." But see Hills v. Sherwood, right to establish it; and, secondly, be- 48 Cal. 386. cause the claims of other creditors upon ^ gge also Chamberlain v. Carlisle, 26 the debtor's property are through him, N. H. 540, 653, and authorities cited, and subject to all previous liens, prefer- 3 Leonard v. Whitney, 109 Mass. 265, ences, or conveyances made by him in 268 ; Woodgate v. Fleet, 44 N. Y. 1 ; Peo- good faith. Any deed, judgment, or as- pie v. Jolmson, 38 N. Y. 63; Hardy i>. Burance of the debtor, so far at least as Mills, 35 Wis. 141. they conclude him, must estop his cred- * 31 Conn. 417. DOMESTIC JUDGMENTS IN PERSONAM. 83 having been duly proved, was approved and ordered to be re- corded." It was contended that this decree was conclusive evi- dence of the competency of the testatrix to dispose of her real estate by will ; the law requiring a party to be twenty-one years of age to do so, but only requiring him to be of the age of seventeen years to make a will of personalty. But the court decided the point otherwise.^ The case of Hibshman v. Dulleban ^ is a leading and well-con- sidered case upon this point. The plaintiff in that suit brought his action for a legacy ; the defendants pleaded a release ; the plaintiff replied per fraudem ; and the defendants rejoined, by way of estoppel, that on the exhibition of the administration account by themselves, the plaintiff then excepted to the same, and that the release pleaded was exhibited to tlie Orphans' Court as a full answer and a satisfactory bar to the exception ; and that it was held a good and valid release. The question was finally raised by demurrer whether the validity of the release had passed in rem judicatam ; and the Supreme Court of Pennsylvania held that it had not.^ 1 "The general question," said Mr. Jus- tice Sanford, in delivering the judgment, " before that court was, whether the in- strument was the last will and testament of Frances E. Hubbard, and as such enti- tled to probate. This question necessarily involved an inquiry into her testamentary capacity. If she was seventeen years of age, and was of sound and disposing mind and memory, then she was legally com- petent to make a will, and if the instru- ment in question was executed, published, and attested as the law required, it was a valid will, and it was the duty of the court of probate to approve, accept, and estab- lish it accordingly. . . . "The record demonstrates that the Court of Probate passed upon and found all facts necessary to uphold its judgment and justify its approval of the instruinent as a will ; to wit, the legal capacity and mental competency of the testatrix to make a will, that she had made one in fact, and in due form of law, and that it was duly attested as her will. Without all these facts found, the judgment had no legal basis to stand upon. Standing on them, it could not be overthrown. . . . This record says in substance that the Court of Probate found that the testa- mentary paper in question was the will of Frances E. Hubbard, and consequently that she had one degree at least of testa- mentary capacity ; but whether she was found to have had both or not the record does not, with conclusive certainty, dis- close. The will must therefore operate upon something, on one kind of property or on both ; otherwise it would not be a will. But to concede to it the efficacy of a will in its operation upon the personal property is all that is necessary to uphold the judgment of approval by the court." 3 4 Watts, 183. ' Mr. Chief Justice Gibson, in speak- ing for the court, said: "The validity of the release was drawn into contest inci- dentally ; and the point, being thus inci- dentally decided against him, can no more prejudice his title in another coui;t than can the decision of a surrogate or regis- ter prejudice the title of an unsuccessful 84 ESTOPPEL BY KECORD. A similar question arose in Dunckle v. Wiles.^ That was an action of ejectment for seven acres of land ; in which the defend- ant gave in evidence the record of a judgment in favor of his grantor against the present plaintiflF, in an action of trespass quare clausum fregit ; the close being a large one, and embracing the one in question. The defendant to that action, now plaintiff, pleaded that the close in question was his own soil and freehold. Issue was joined, and judgment given in favor of the grantor of the present defendant. In the court below, the record of this judgment was held a bar to the plaintiff's action ; but on appeal the Supreme Court reversed the ruling.^ claimant of administration to the estate of a decedent. Again, the point was not actually, or at least necessarily, decided. The plaintiff's exceptions to the adminis- tration account were also the exceptions of Henry DuUeban's trustees ; and whether the release were good or bad was a ques- tion whose decision could not supplant a decision of them on the merits. It did not supplant it ; and the gratuitous determina- tion of a point involving the question of fraud, which had no effect there, ought to have no effect here, especially to deprive the plaintiff of a trial by jury." 1 5 Denio, 296. 2 Beardsley, C. J., speaking for the court, said that the verdict and judgment would create an estoppel on the question of title to the entire close in question, if title to that extent was shown to have been in controversy on the trial of the first suit. But no evidence out of the rec- ord had been produced to show whether the whole, or a part only, of the close, was in question before ; so that the point would have to be determined from the record. If a close was to be regarded, said he, like a horse or an ox, as entire and indi- visible, it would follow that judgment on the question of title must be conclusive as to all the land of which it was constituted. Assuming this principle as correct, a plain- tiff in trespass quare clausum freffit, the close having been described in the dec- laration, and liberum tenementum pleaded, could only recover by proving a trespass coextensive territorially with the close as described. There would be no difficulty, however, in doing this, since upon the principle assumed the close was one and indivisible, so that a trespass upon any part would necessarily be a trespass upon the whole. But such, he said, was not the law. In trespass quare clausum fregit, the plaintiff might recover on proof of a trespass done to a part only of the close, although he had no right whatever to the residue ; and the plea of liberum tenemen- tum would be sustained by showing that the defendant had title to the place where the alleged trespass was committed, al- though such place was but part of the entire close to which the plea had refer- ence. This principle was well settled. King V. Dunn, 21 Wend. 253; Rich v. Rich, 16 Wend. 663 ; Stevens v. Whistler, 11 East, 61 ; Tapley v. Wainwright, 5 Barn. & Ad. 395. He said that it must follow that as the plaintiff in the action of trespass, of which evidence had been given in the present case, might have re- covered without showing an injury coex- tensive with the whole close described in the declaration ; and, as the defendant might have maintained his plea by prov- ing title to that part of the close on which the supposed trespass had been committed, it was no necessary consequence of the issue that the title to the entire close was in question. The record was therefore no bar. The judgment was undoubtedly conclusive of every thing necessarily in- DOMESTIC JUDGMENTS IN PERSONAM. 85 An instructive case upon this branch of the subject was decided in 1850 in the Court of Appeals of New York.^ It was an eject- ment for a certain lot of land in New York City, taken by the municipal corporation for widening a street. The corporation had applied to the Supreme Court, according to the statute, to appoint commissioners to examine and report upon the subject. They did so ; the Supreme Court confirmed the report ; the land was taken, and conveyed to parties under whom the defendants claimed. The plaintiffs desired to show that these proceedings were void, on the ground that the legislature had assumed unconstitutional powers in passing the statute under which the property was taken ; but the defendants, inter alia, contended that the plaintiffs were estopped by the adjudication of the Supreme Court confirming the report of the commissioners ; that court having had jurisdiction to adjudicate between the corporation and the plaintiffs, and the question now before the court having then been put in issue and determined. It was held, however, that there was no estoppel.^ Tolved in the issue, or of that which, fall- ing within its limits, had come directly in qaestioo. But the title to the entire lot had not necessarily been drawn in issue, and no extrinsic evidence had been offered to show that the title to the seyen acres now in question had been directly tried. The injury complained of in the former suit might hare been done to another and distinct part of the close, to which part alone the plea might have had reference. In order to render the record in that case an estoppel in this, it was necessary to prove by extrinsic evidence that the title to the seven acres was directly in con- troversy in the former suit. To the same effect he cited the language of Lord Ten- terden, C. J., in Bassett a. Mitchell, 2 Bam. & Ad. 99. 1 Embury v. Conner, 3 Comat. 511. 2 Mr. Justice Jewett, who delivered the judgment of the court, first premised that the Supreme Court, under the street law, exercised its powers as a court, and not as commissioners appointed by the legislature ; and that its decisions in such matters were judgments of the court, and subject to review on appeal ; though in this particular it was a court of limited juris - diction. Striker v. Kelly, 7 Hill, 9 ; s. c. in Error, 2 Denio, 323 ; 2 Cow. &' H. notes, 946. He then proceeded to say that, to de- termine the question involved by this point, it became necessary to see what matters were referred to the Supreme Court, in street cases, for adjudication, and what were the issues between the parties ; " because," to quote his lan- guage, " ordinarily the parties or their privies are only concluded by a judgment of a court upon such matters as are in issue between them in the cause or pro- ceeding referred to it for determination." Under the statutes there was nothing submitted to the court, he said, but the appointment of the commissioners, and the confirmation of their report. This involved only the question of the fitness of the persons named as commissioners, and the regularity of the proceedings of the corporation and the commissioners, and the justness of the estimate and as- sessment made and reported by the latter. The question whether the statute had the legal effect to transfer to the corporation 86 ESTOPPEL BY RECORD. The effect of a statutory pardon for acts of trespass committed in a time of rebellion, in cases of conviction pleaded as an estoppel, arose in Benson v. Idle.^ The plaintiff in that case brought an audita querela, upon the following facts, as appeared by demurrer. Before the restoration of Charles 2, the defendant in the audita querela brought an action of trespass against the present plaintiff for taking cloth ; to which the present plaintiff pleaded that he was a soldier and compelled by 'the military ; his fellow-soldiers threatening to hang him " as high as the bells in the belfry " if he refused. The plaintiff replied de injuria sua propria; and judgment was given for him, and execution of the defendant's lands. Then came the act of indemnity,^ which pardoned all acts of hostility done in the time of rebellion, and from thenceforth discharged all personal actions for any trespass committed during the wars, and all judgments and executions thereon, but Without restoring property already taken by execution, or directing any account to be given of the same. This act, called The Convention, had been followed by another of confirmation ; ^ and upon these two acts of Parliament the plaintiff brought this audita querela. The defendant pleaded, by way of estoppel, the former verdict, to show that the taking was not an act of hostility.* But the court were all of opinion that judgment should be given for the present plaintiff ; for his remedy was very proper in the acts of Parliament. And they said that it was immaterial whether the legal title of the owner of the lands ceedings. The order of confirmation proposed to be taken, was not, and could merely concluded the parties in respect not be, from the nature of the case, de- to the regularity of the preliminary pro- termined by the court. And although ceedings, and did not conclude either the statute declared that the report, when party as to their effect. And whether confirmed by the court, should be final the statute was or was not constitutional, and conclusive upon all persons, and that had not been, and could not properly the-title to the land should be vested in the have been, determined by the court, so city government in fee simple ; still this as to estop the owners from making the was by force of the statute, and not as an question in the action brought for the re- adjudication upon the question by the covery of the premises. Supreme Court. The whole proceeding l 2 Mod. 37. was but a mode adopted by the State to 2 12 Car. 2, c. 11. exercise its right of eminent domain, " 13 Car. 2, c. 7. through a power confided to the corpora- < He also added a traverse on this tion of New York, or its officers. The point ; so the court held that even if confirmation of the proceeding under the there had been an estoppel he had set it statute could in no sense be deemed an at large, adjudication upon the effect of these pro- DOMESTIC JUDGMENTS IN PERSONAM. 87 the taking was an act of hostility or not, and there was no estop- pel in the case. The case of Carter v. James i was an action of debt on an in- denture of mortgage, whereby the defendant covenanted to pay the plaintiff £600, with interest, on a certain day. The defendant pleaded, by way of estoppel, that tlie plaintiff had brought suit against him in a former action of debt on bond, conditioned in the penal sum of £1200, for the payment of £600 and interest ; al- leging it to be the same principal sum and interest as were secured to the plaintiff by a mortgaged deed of even date with the bond. The present plea further stated that the defendant in the former action pleaded an usurious agreement made between the plaintiff and himself, and averred that the bond sued upon was given in pur- suance of this agreement. The plaintiff traversed the allegation in italics ; whereupon issue was joined, and verdict found for the de- fendant. The question in the present action was whether the plea was a good estoppel against the plaintiff to deny the alleged usury. The court were of opinion that it was not.^ In a case in Pennsylvania,^ it appeared that a judgment debtor, owning two lots, sold one of them without discharging the lien i 13 Mees. & W. 137. issue by the plaintiff, but admitted by 2 Alderson, B., said that the usurious him for the purposes of that suit, and for agreement, set out in the plea in the the purposes of that suit only. "If there- former action, went on to state that it fore," said he, " the plaintiff were to be was agreed that a bond should be given deemed estopped now, when the point in to secure this usurious interest, and that issue was not raised at all in the former in pursuance of that agreement the bond suit, he would be deemed estopped by the in question was executed for the principal finding of a, matter which he never dis- and interest named in it. This latter al- pnted, and on which the jury gave no legation alone being traversed, the only verdict, and the court no judgment.(a) issue the jury had to try, he continued, I take it that the party is only estopped was whether the bond was given for the by the form of the record in that action sum mentioned, of £600. The jury found from recovering on the bond, or disput- that It had been so given ; and incidentally ing that any of the issues then determined it was taken for granted that, if the bond by the jury were wrongfully decided ; but was given as a security for that debt and that he is not estopped by any of the other the amount of interest alleged in the facts which were taken in that case to be former plea, the interest so secured was true merely for the purpose of deciding usurious, according to the previous aver- the question at issue." menta in the plea, which were not put in ^ McCormick's Appeal, 57Penn. St. 54. (a) Parke, B., also says that the material facts alleged by one party which are indi^ rectly adpiitted by taking a traverse on some other fact are only conclusive in case the traverse is found against the party making it. Boileau v. Rutlin, 2 Ex. 665. And of course there is no estoppel as to an immaterial allegation. Sweet v. Tuttle, 14 N. Y. 465. 88 ESTOPPEL BY RECORD. upon it ; and this lien was subsequently revived generally. But the court held that the vendee of the lot sold was not concluded by the judgment from asking that satisfaction be exacted from other lands of the vendor. Questions of this character have arisen in actions for nuisance. In the case of Eichardson v. Boston,^ in the Supreme Court of the United States, the plaintiff sued in trespass for the erection and maintenance of a drain as a nuisance to his property. The de- fendant pleaded the general issue ; whereupon the plaintiff offered in evidence the record of a former verdict and judgment in his favor for the same nuisance, the continuance of which was the subject of the present action. The record was held inconclusive.^ There is a dictum by Lord Chelmsford ^ to the effect that a dis- tinction exists between the judgments of courts of concurrent and courts of exclusive jurisdiction, in respect to the effect of matters incidentally involved in a case. " The judgments," he says, " of courts of concurrent jurisdiction are evidence only where the very same matter comes distinctly [i. e. directly] in issue between the same parties. The judgments of courts of exclusive jurisdiction are evidence whether the matter arises incidentally or is the matter directly in issue." But it may be doubted whether any such dis- tinction can properly be drawn. The ground for it is not apparent. The reason why, in the one case, parties are not estopped as to incidental matters, that such matters are not presumed to be examined with great care and thoroughness, is equally applicable in the other case, and seems decisive against the distinction. The above cases are perhaps sufficiently various to fully illustrate the rule that a judgment works an estoppel only as to matters essential to the decision of the case. Other authorities are also cited in the note.* 1 19 How. 263. them." And this is the doctrine of the 2 Mr. Justice Grier, who delivered the courts of Oliio and Massachusetts. Court- judgment, said: "The plea of the gen- land w, Willis, 19 Ohio, 142; Standish i;. eral issue, in actions of trespass or case, Parker, 2 Pick. 20 j s. c. 3 Pick. 288. does not necessarily put the title in issue ; 3 Mackintosh v. Smith, 4 Macq. 913, and, although the judgment is conclusive 924. as a bar to future litigation for the thing * People v. San Francisco, 27 Cal. 655 ; thereby decided, it is not necessarily an People v. Johnson, 38 N. Y.-63; Hadley estoppel in another action for a different v. Albany, 33 N. Y. 603 ; Tarns v. Lewis, trespass. The judgment can only give 42 Penn. St. 402. the plaintiff an ascertained right to his See also Rogers v. Ratcliff, 3 Jones, damages, and the means of obtaining 225, in which it was held tliat a verdict DOMESTIC JUDGMENTS IN PEBSONAM. 89 We come now to the consideration of matters not passed upon in the former judgment. Such a point arose in an action in the upon a fact put in issue by a special plea was not conclusively determined, when there was, by the same verdict, a finding for the defendant, upon the general issue ; the reason stated being that the finding for the defendant, upon the general issue, fixed the fact that the plaintiff had no cause of action, and consequently it was unnecessary to investigate the matter of the special plea. See Burwell v. Canna- day, 3 Jones, 165. But the question, what is to be consid- ered the point in issue, within the meaning of the rule, is one of some difficulty. Does the rule mean that the j udgment is conclu- sive upon every point which by the evi- dence in the action became necessary to the decision of the case ? Or does it mean that it is conclusive only of such matters as in themselves were necessary to the deci- sion, — that is, only of the main question and its consequences, — in contrast with such matters as in themselves alone involved questions foreign to the cause of action, but which in the position of the case be- came necessary to its decision. There is some conflict upon the subject. Without attempting to follow the trackless and conflicting course of the many cases upon this point, we shall be content with the presentation of one clearly stated deci- sion, and the addition of our own view of the question. Chief Justice Parker, after quoting the rule from the Duchess of Kingston's Case, in the case of King v. Chase, 15 N. H. 9, which involved this question, said : " Any fact attempted to be established by evi- dence, and controverted ^by the adverse party, may be said to be in issue, in one sense. As, for instance, in an action of trespass, if the defendant alleges and at- tempts to prove that he was in another place than that where the plaintiff's evi- dence would show him to have been at a certain time, it may be said that this con- troverted fact is a matter in issue between the parties. This may be tried, and may be the only matter put in controversy by the evidence of t' e parties. But this is not the matter in issue within the mean- ing of the rule. It is that matter upon which the plaintiff proceeds by his action, and which the defendant controverts by liis pleadings, which is in issue. The declaration and pleadings may show spe- cifically what this is, or they may not. If they do not, the party may adduce other evidence to show what was in issue, and thereby make the pleadings as if they were special. " But facts offered in evidence to es- tablish the matters in issue are not them- selves in issue, within the meaning of the rule, although they may be controverted on the trial. Deeds which are merely offered in evidence are not in issue, even if their authenticity be denied. When a deed is merely offered as evidence to show a title, whether in a real or personal ac- tion, there is no non est factum involved in the matters put in issue by the plea of nul disseisin, or not guilty, which makes the execution of that deed a matter in issue in the case, notwithstanding the jury may be required to pass upon the fact of its execution. The verdict and judgment do not establish that fact the one way or the other, so that the finding is evidence. The title is in issue. The deed comes in controversy directly, in one sense; that is, in the course taken by the evidence it is direct and essential. But in another sense it is incidental and col- lateral. It is not a matter necessary, of itself, to the finding of the issue. It may be made so by the parties. " This may be illustrated by the case before us. Laying out of consideration the question whether this is a case be- tween the same parties, the former action was for taking certain oats. The matter in issue was the title to the oats, and the conversion by the defendant in that case. Upon that tlie jury passed. They found that the plaintiff had no title, or that the 90 ESTOPPEL BY RECORD. King's Bench, to recover the proceeds of certain bags of clo- ver.i The defendant pleaded an award ; to which the plaintiff defendant did not convert them, which may be involved in the first. It may be shown by parol evidence, if necessary, upon which ground the verdict proceeded ; and it appears in this case that tliey found the plaintiff had no title. The conversion by the defendant iu that case was not de- nied if the plaintiff had title. That mat- ter is settled. The verdict and judgment may be given in evidence in another ac- tion for the oats, between those parties, and is conclusive ; but that is the extent of what was in issue. " It appears that the title set up in that case was by a mortgage. In finding that the plaintiff had no title, the jury must have been of opinion that the mort- gage was fraudulent. It is contended that this was in issue, and the only matter in issue. But this was only a controversy about a particular matter of evidence, upon which the plaintiff then relied to show title. If that was the only matter in issue, the plaintiff might bring another suit for those oats, against the same de- fendant, and, relying upon some other title than that mortgage, try the title to the oats over again. Can he do so ? Clearly not ; and the reason is, that it is his title which has been tried, and he is concluded. . . . The question whether the mortgage was fraudulent came up only incidentally, by reason of bis relying on that as his title ; but the mortgage was not in issue. . . . Towns v. Nims, 5 N. H. 263. " There are cases which conflict to some extent with the principle we have thus stated ; some of them holding that, in order to make a record evidence to conclude any matter, it should appear from the record itself that tlie matter was in issue, and that evidence cannot be admitted that under such a record any particular matter came in question ; while others maintain that a former judgment may be given in evidence, accompanied with such parol proof as is necessary to show the grounds upon which it pro- ceeded, where such grounds, from the form of the issue, do not appear by the record itself; provided that the matters alleged to have been passed upon be such as might legitimately have been given in evidence under the issue joined, and such that, when proved to have been given in evidence, it is manifest by the verdict and judgment that they must have been directly and necessarily in question and passed upon by the jury. Jackson u. Wood, 3 Wend. 27 ; s. c. in error, 8 Wend. 9. "While, on the one hand, we do not, with the Supreme Court [of New York, in the case just cited], deem it essential that the record should of itself show that the matter was in issue, in order to make the determination of it conclusive, we are of opinion, on the other, that the general principle laid down in the Court of Errors is too broad, in holding the judgment to be conclusive upon all matters which might legitimately have been given in evidence under the issue joined, and such that, when proved to have been given in evidence, it is manifest by the verdict and judgment that they must have been directly and necessarily in question, and passed upon by the jury; as this must include all matters which came in ques- tion collaterally, by the evidence offered, if they were of such a nature as that it appears that the jury must or should have passed upon them." We have given Chief Justice Parker's opinion thus fully, that the reader may get the full force of perhaps the most ably considered case upon that side of the question. We are not, however, convinced by the learned judge's reason- ing. The decision is not only contrary to the doctrine of other cases (Bissell ij. Kellogg, 60 Barb 617 ; Wood «. Jack- 1 Eavee v. Farmer, 4 T. E. 146. DOMESTIC JUDGMENTS IN PERSONAM. 91 replied that the subject-matter of the present suit was not included in the reference ; and issue was joined on the replication. The eon, 8 Wend. 9), (o) but an examination of the rule of res judicata will show its infirmity. This rule is based on the ground that there has already been a fair and full trial of the matter, which one or the other party is endeavoring to litigate again ; and the reason why there is no estoppel as to matters not necessarily involved in the decision of the case is that, from the very fact that they were not of the essence of the ac- tion, they would not require, and in all probability did not receive, that search- ing examination and scrutiny that would be given to a matter in issue, the deci- sion of which would determine the case. But just so soon as any matter, though in itself alone foreign to the cause of action, lias become vital to the determi- nation of the case, and the pivot on which the case turns, at that moment it absorbs within itself the entire case ; the ground of action is lost in it for the time ; and the whole force of evidence, examination, analysis, and argument is directed to the solution of the issue made by it. The main question in the cause, if it had distinctly arisen alone, could not have received a more thorough investiga- tion ; and the matter itself, thus in issue, would command as careful a consideration as if it had been the main and only ques- tion in controversy. In the case of the mortgage in King v. Chase, supra, the validity of the instrument would undoubt- edly be as thoroughly considered in the action of trover as if a direct action had been brought between the parties to it to cancel it. If this is true, we see no rea- son why the decision in the action of tro- ver should not be conclusive u^on the validity of the mortgage in all subsequent actions between the parties, (i) But we should make it a criterion of the conclu- siveness of the verdict upon such a mat- ter, that it clearly appear that the whole case turned exclusively upon its decision, so that it must have received as thorough an investigation as in a suit brought for the specific purpose of deciding the point ; for, if it should appear that it might have been determined the same way upon other grounds also, there could then be no certainty that the decision of the point relied on as an estoppel had received a full examination, such as an estoppel is presumed to rest upon. And such a case would be presented upon a general ver- dict, unexplained, involving several di- verse issues. That we may not be misapprehended, let us take for illustra- tion an action in ejectment, and suppose, first, that the defendant relies solelyupon a mortgage from the plaintiff, letting him into possession, and verdict for the plain- tiff; secondly, that the defendant relies both upon the mortgage and a deed from the plaintiff's ancestor, and general ver- (a) But see Leutz v. Wallace, 17 Penn. St. 412, — an action for necessaries fur- nished a wife and child. To prove that the wife had been turned out of doors, the plaintiff offered in evidence the record of a former action by himself for necessaries against the same defendant, which suit had turned upon the very same point, that the wife had teen turned out of doors, and which point had been decided in the plaintiff's favor. But the record was excluded, on the alleged ground that the question had not been directly in issue in tbe former suit. Compare also the New York cases as to judgments of the Admiralty, in rem, which are held not conclusive of the ground of the decree. Ocean Ins. Co. o. Francis, 2 Wend, 64 ; s. o. 6 Cowen, 404 ; Radeliff v. United States Ins. Co.> 9 Johns. 277 ; post. Foreign Judgments, In Rem. (6) The Supreme Court of the United States seem to have gone still further than this in the recent case of Aurora City v. West, 7 Wall. 82 ; deciding that a judgment is conclusive of all matters which might properly have been considered in the case. See 2 Taylor, Evidefioe, § 1518. 92 ESTOPPEL BY RECORD. plaintiff was allowed, in the court below, to prove that the matter of the present action had not been laid before the arbitrators ; upon which he obtained a verdict. Motion was then made by the defendant to set aside the verdict, and for a new trial, on the ground that the terms of reference, being " all matters in differ- ence," were conclusive on the parties as to all causes of action subsisting between them prior to the submission ; of which the subject-matter now in question was one. But the motion was re- fused ; the court assigning no ground for the decision. In the court below, a case was alluded to precisely similar.^ In that case, the defendant, among other things, pleaded that an action had been brought by the plaintiff for some other matter, in which all matters in difference had been referred ; that the arbitrator ordered several sums to be paid, and that the parties should give general releases ; and that the defendant did pay the money, and that the releases were given. The plaintiff replied that the present matters were not before the arbitrator, to which the defendant demurred. Lord Mansfield said that the only question was whether a submission of all matters in difference was a submission of mat- ters not in difference ; and judgment was given for the plaintiff. A similar principle decided Seddon v. Tutop.^ The action was for goods sold and delivered ; to which there was a plea of former recovery. The plaintiff replied that he was now suing on differ- ent promises ; and from the evidence it appeared that the plaintiff in the former suit had declared on a promissory note, and for goods sold ; but that on executing a writ of inquiry he gave no evidence on the count for goods sold, taking his damages for the amount of diet for the defendant. In the case first- wanting. But if it is once established, put, we should say that the validity of the beyond all doubt, that the whole case mortgage had received as exhaustive an turned upon the validity either of the examination as it was capable of; and we mortgage or of the deed exclusively and can see no good reason why the verdict independently, this should end the con- should not be conclusive in a suit in troversy for ever. See Bissell v. Kellogg, chancery between the parties to have the 60 Barb. 617. Of course, if the verdict mortgage cancelled as a cloud upon the is special, the same conclusion follows, plaintiff's title. But the second case is We make no mention here of the ques- entirely different. The decision may have tion of the conclusiveness of a judgment rested on the ground of the validity of upon a point passed over in the pleadings, either the deed or the mortgage ; and we which might have been put in issue ; the cannot see how, in a suit to cancel either subject will be considered in the following or both, this verdict, unexplained, could pages. be an estoppel. The eertainty upon i Golightly v. JoUicoe, Ibid., note, which alone an estoppel can exist is ii 6 T. R. 607. DOMESTIC JUDGMENTS IN PERSONAM. 93 the promissory note only. It was held that the judgment was not a bar to the present suit.^ In Webster v. Lee,^ the question arose whether a promissory note not due must have passed under consideration in the case of a sub- mission of " all demands between the parties." The court allowed the fact to be proved that the note was not laid before the arbitra- tor. Parsons, C. J., said that either party might prove what de- mands then existed. That a promissory note was a demand to certain purposes, he said, could not be denied. Yet it might well be questioned whether a submission of all demands to arbitrators included an acknowledged debt not in controversy, and concerning which there was no difference or dispute. If, he continued, it was a fair construction of such a submission, that it included all matters in difference, then either party might prove that a particular demand was not laid before the arbitrators, and so was not a matter in dif- ference between the parties. But, as either party might submit to the arbitrators all demands, the presumption was that all .demands were in fact submitted ; but the presumption might be disproved. But, without deciding that an agreement to refer " all demands " was subject to the same construction as a submission of " all mat- ters in difference," the Chief Justice said that it was manifest that ' Lord Kenyon, C. J., said : " There that verdict if it had stood. But in this cannot be two opinions respecting the case there were two distinct demands, not justice of this case. It is admitted that in the least blended together; and though the plaintiff had two demands against the the plaintiffs might in the first action have defendant, the one on a promissory note, proved this demand, owing to inadvert- tlie other for goods sold; that, on execut- ence they did not; and the recovery on ing the writ of inquiry in the former ac- the note in that action is no bar to their tion, evidence was only given on the first demand in this, which is for goods. In demand ; that the plaintiff recovered dam- truth, this is a question of great delicacy ; ages adapted to that demand; and that we must take care not to tempt persons the other demand for the goods still re- to try experiments in one action, and, mains unsatisfied. . . . The issue was, when they fail, suffer them to bring other whether the damages demanded in this actions for the same demand. The plain- action have been already satisfied by the tiff who brings a second action ought not recovery in the former action ; and most to leave it to nice investigation to see clearly they have not. The case of Mark- whether the two causes of action be the ham V. Middleton, 2 Strange, 1259, is ex- same ; he ought to show beyond all con- treraely different from the present. There troversy that the second is a^ different the plaintiff had but one demand ; and, cause of action from the first, in which he though the jury gave inadequate damages failed. In this case, it is clearly shown for that demand on account of the plain- that the demand was not inquired into in tiff's not being prepared with proof of his the former action." whole bill, he would have been barred by 25 Mass. 334. 94 ESTOPPEL BY RECORD. an agreement to refer might not be executed ; and he said that evidence might be received to show the fact. And where, to an action upon a note, the defendant pleaded a former judgment thereon, and the fact was that in the former action the plaintiff sued upon this note and another, but he with- drew the note in question before judgment, it was held that the action was sustainable ; though in fact the court, acting as a jury, in the former suit, expressed an opinion in favor of the plaintiff on both notes.^ The same principle is illiistrated in White v. Moseley.^ That was an action of trespass qUare clausum fregit, for tearing down a mill-dam. The defendants pleaded a former recovery ; to which the plaintiffs replied that that was for a different cause of action. Issue was joined on the replication. It was admitted that the act complained of in tlie former suit was the passing over the mill-lot by the defendants, after they had returned from the opposite side of the river, where they had torn down the dam. They contended that the trespass now sued for was one and the same, or at least a part of the same trespass, as that sued for before. The defence was overruled in the court below ; and that decision was sustained on appeal. The ground taken was that the trespasses were distinct and independent. The court said that, if the defendants had gone upon the mill-lot in order to complete their design of destroying the dam, there would have been but one trespass ; and the circum- stance, in such case, that they had passed over the land of a stranger (which was the fact) in going from one close to the other would have been immaterial. But they said the object of the de- fendants seemed to have been to destroy the dam ; and this was effected before they recrossed the stream. In Loring v. Mansfield,^ the plaintiff sued to recover the amount of a partial payment which he alleged he had made upon a note of his held by the defendant, and which had not been allowed in a 1 Wood V. Cofl, 4 Met. 203. So the 34 Ga. 355 ; Maghee t. Collins, 27 Ind. maker of two notes, having a common 83. . See also Hooker i^. Hubbard, 102 defence to each, but having failed to plead Mass. 239. Judgment for interest on a it in an action upon one of the notes, is note is no bar to a subsequent action for not estopped thereby from pleading it the principal. Morgan v. Eowlands, Law when sued upon the other note. Hughes R. 7 Q. B. 493. V. Alexander, 5 Duer, 488. See Tread- 2 8 Pick. 356. well V. Stebbins, 6 B0sw.-538; Clark v. s 17 Mass. 394. Sammons, 12 Iowa, 868 ; Freeman ».Bass, DOMESTIC JUDGMENTS IN PERSONAM. 96 former suit by the defendant upon the note. The present plaintiff appeared and defended that suit, but then said nothing of the alleged partial payment now in question. The court held that the action could not be maintained ; distinguishing the case from the prior cases of Rowe v. Smith ^ and Fowler v. Shearer.^ The point of distinction was that in those cases the judgment was ob- tained by default ; that there was a trust and confidence between the parties ; and that the defendant had a right to expect that the plaintiff in taking judgment would make the allowance of the payment. But in the present case the plaintiff was present and defended the former action, and should have alleged and proved the payment in question. The case of Moses v. Macferlan ^ was also distinguished by the fact that the defendant could not avail himself, by way of defence against the judgment, of the matter now sued upon ; whereas, in the present case, the plaintiff had a remedy by review. Marriott v. Hampton * was also referred to as a much stronger case than the present; in which case it appeared that the evidence of payment had not been voluntarily withheld. The receipt had been mislaid, and there was no other proof of the payment ; so that the defendant could not have defended himself at the former trial. But the court thought the rule inflexible, and refused to sustain the action. In a recent case in the Supreme Court of New York, affirmed by the Court of Appeals,^ it is said that this case of Loring v. Mansfield overrules Rowe v. Smith, above cited. In Binck v. Wood, the case referred to, the maker of a promissory note had made a partial payment upon it, which had not been indorsed. The payee sued upon the note, and recovered judgment for the full amount ; the maker not defending. A surety in the note, having paid the judgment, took an assignment of it, and brought an action to recover the amount of the partial payment ; but the court held the action not sustainable. The case of Smith v. Weeks " was overruled. The court said that this case found no support in New York or in England, or in any of the States to whose au- thorities they had been referred, except in Rowe v. Smith, which, 1 16 Mass. 806. How. Pr. 653, where it Is stated that the 2 7 Mass. 14. ' judgment of the Supreme Court was 3 2 Burr. 1005. affirmed in June, 1869. So in 1 Abb . < 7 T. R. 269. N. Y. Dig. p. xxxir., 2d ed. 6 Binck V. Wood, 43 Barb. 315; 37 « 26 Barb. 463. 96 ESTOPPEL BY RECORD. as has been said, was considered as overruled.^ " The law," said they, " cannot uphold the trust and faith that allow a man to lie by, as the plaintiff here did in the first suit, and rest upon the belief that the plaintiff there would not do what in the summons or complaint he had expressly notified this plaintiff he would do, namely, take judgment for the whole amount of the note, and then maintain an action to recover back part of the judgment on the ground that his just confidence had been betrayed." And this seems to be the better opinion.^ In Burwell v. Knight,^ however, the plaintiff sued upon a de- mand which he had alleged as a defence in a former action by the defendant. The plaintiff, then defendant, did not appear upon the trial, and judgment was given upon the testimony alone of the opposite party. The court held the judgment no bar. In declaring a rule, they said, though the pleadings presented the same claim, still, if no testimony was given in support of it and it was not submitted to the court or jury, it would not be barred unless it was a claim which the party was bound to present and liti- gate in the former suit.* The better opinion and the tendency of the courts, however, favor the action of Binck v. Wood, which has overruled Burwell v. Knight.^ ' The following cases were cited : Til- plead in the first action. Howlett v. Tarte, ton V. Gordon, 1 N. H. 33 [orerruled by 10 Com. B. n. s. 813. Tliis is on the Snow V. Prescott, 12 N. H. 535] ; Brough- ground tliat such a plea is consistent ton o. Mcintosh, 1 Ala. 103 ; Mitchell v. with the declaration in the first action. Sanford, 11 Ala. CS5; Loomis v. Pulver, But, qucere, if it be consistent with the 9 Johns. 244; White u. Ward, lb. 232; judgment? That declares the plaintiff en- Battey v. Button, 13 Johns. 187 ; Walker titled to recover of the defendant; and V. Ames, 2 Cowen, 428; Dey «. Dox, 9 how can he be entitled to recover if there Wend. 129 ; Le Guen v. Gouveueur, 1 existed a good defence of any kind (short Johns. Cas. 436 ; Marriott v. Hampton, 7 of a right of cross suit) to the action 1 T. R. 269 ; Kist v. Atkinson, 2 Camp. 63. The reason why a plea not pleaded to the ^ To the same effect, Corey v. Gale, 13 original action is or may be consistent Vt. 639. witli the plaintiff's declaration is that 2 51 Barb. 267. the plaintiff is not bound in his declara- * See Snow v. Prescott, 12 N. H. 535. tion to negative every fact which can be 5 It has, however, been held in Eng- set up in defence. It is enough for him land that a judgment hy default is con- to set out a prima facie cause of action ; elusive only of the facts actually in issue ; but the judgment in his favor establishes and, hence, that if a defendant suffer judg- an absolute right of recovery. The con- ment by default he will not be precluded, sistency of this case with other English in a subsequent action between the par- doctrines is not clea'r ; such as that a judg- ties, in respect of the same matter, from ment by default against an administrator pleading to the plaintiff's claim by way of is a conclusive admission of assets, so as confession and avoidance, if he did not so to estop him from afterwards setting up a DOMESTIC JUDGMENTS IN PERSONAM. 97 Florence v. Jenings^ was another and a recent case upon this subject. The action was for a certain sum of money, stipulated to have been given as interest, at the rate of ,£20 per month, in case of default in paying a certain bill of exchange. The facts were that the plaintiff discounted for the defendant a bill for £250, drawn by the latter on one D' Arcy, and accepted by him ; he and the defend- ant at the same time signing the following memorandum, addressed to the plaintiff : " Sir, In consideration of your discounting the under-mentioned bill, we do jointly and severally undertake, if the same is not wholly paid at maturity, to pay, as interest thereon, £20 for each month, any portion of which shall have elapsed after maturity of the said bill, and until the same is wholly paid and satisfied." At the foot of this memorandum was written, " £250. Jenings on D'Arcy at three months." This bill not having been paid at maturity, the plaintiff sued the defendant thereon, claiming interest at the rate of £20 per month, according to the above agreement; but declaring only upon the bill; upon which he obtained judgment. Afterwards he brought the present action for the sum of interest due according to the memorandum. Issue was finally joined upon demurrer by the defendant ; the ground of the demurrer being, that as the plaintiff had recovered damages for the non-payment of the bill, and had voluntarily forborne to take judgment for the stipulated interest, he could not bring a second action for such interest. The court allowed the plaintiff interest to the date of the judg- ment, but denied it to him after that time. Cockburn, C. J., in pronouncing judgment, said that the interest due under the con- tract, though constituting a distinct debt, and properly declared for in a count upon the agreement, or for interest, was only a sub- stitute for the interest ordinarily recoverable as damages upon a bill. Therefore when judgment had been recovered, and the claim upon the bill had become res judicata (so that any further interest payable would be upon the judgment, under the statute, and not upon the bill), the right to interest upon the agreement ceased. But, as to the interest which accrued prior to the judgment, the previous judgment which had exhausted mury, Law E. 8 C. P. 56, Ex. Ch., in which the assets of the estate. Bock v. Leighton, a failure to plead a justification of a, de- 1 Lord Kaym. 589 ; Leonard v. Simpson, vastavit was held fatal in an action on the 2 Bing. N. C. 176 ; s. c. 2 Scott, 355 ; ante, judgment. p. 19. Compare also Jewsbury v. Mum- i 2 Com. B. n. s. 454. 7 98 ESTOPPEL BY EECORD. case, he said, was different. It was clear that the- plaintiff had not recovered the interest now claimed; and looking at the declaration, which determined the scope of the former action, the plaintiff could not have recovered such interest in that action, for want of a count upon the agreement, or for interest.^ In a case in Maine,^ it appeared that the plaintiff had some years before erected buildings on his wife's land. Upon her death, her heir at law recovered judgment for the land in a real action against the plaintiff, and entered into possession under the judgment. The plaintiff subsequently brought the present suit against the heir to recover the value of the buildings. But the action -was not sustained. Tenney, J., said it was the plaintiff's duty, in the former action, to defend and protect all his rights. Whether he had then set up his rights by betterment claim or otherwise did not appear, and was of no importance. The judgment and posses- sion were a bar to the present suit. Upon the principle in the above cases,. a debtor cannot bring an action to recover illegal interest, after judgment on a note for the full amount.^ So where one brings an action for the rent of a certain period, and obtains judgment for only part of the time, this will bar an action for the residue.* In the case cited, Mr. Justice Wilde thus epitomized the law upon this point : " The law is per- fectly settled, that when a party brings an action for a part only of an entire and indivisible demand, and obtains judgment, he cannot subsequently maintain an action for another part of the same de- mand." ^ And it is immaterial whether this was done intentionally or by mistake.^ There has been some conflict as to the question whether a cross- action can be maintained by an employer for the negligent or im- proper performance of services after an action by, and judgment in favor of, the person performing, in which the defendant omitted to rely upon the ill performance ; and the same question arises in the case of the sale of goods which fail to correspond' with the warranty. Can the vendee, after suit by, and judgment in favor 1 See Florence v. Drayson, 1 Com. B. Berick, 16 Johns. 186 ; Miller v. Covert, 1 »■ s. 584. Wend. 487. See also Gibbs v. Cruikshank, 2 Doak V. Wiswell, 38 Maine, 855. Law R, 8 C. P. 454 ; Thompson v, McKay, ' Footman v. Stetson, 82 Maine, 17. 41 Cal. 221 ; Wetmore t>. San Francisco, * Warren v. Comings, 6 Cush. 103. 44 Cal. 294. » Smith V. Jones, 15 Johns. 229 ; Wll- 6 Wickersham v. Whedon, 33 Mo. 561. lard V. Sperry, 16 Johns. 121 ; Phillips v. DOMESTIC JUDGMENTS IN PERSONAM. 99 of, tlie vendor, in -which the inferiority of the goods was not set up, maintain a cross-action for the breach of warranty ? The question in the form first suggested arose in the recent case of Gates v. Preston.^ The plaintiff in that case sued a surgeon for negligent perform- ance o£ professional service ; and the defendant relied upon a judgment in his "o*n favor in an action for the value of his ser- vices, in which case the defendant, now plaintiff, had confessed judgment without trial. The Court of Appeals ruled that the judgment was a bar. In such a case, it was said, the right of action (there being no denial thereof) was by implication ad- mitted ; and when there was, in the answer of the defendant, an express and direct admission by him of the plaintiff's right to recover, and a consent to the entry of a judgment for a certain amount, it was an admission on the record of all the facts which the plaintiff would have been bound to prove on a denial of the cause of action alleged by him in his complaint. The court rested the doctrine on the decisions of the same court in White v. Merritt^ and in Davis v. Tallcot.^ In the first of these cases, the plaintiff sued the defendants far damages for a violation of duty in the collection of a bill, and for false and fraudulent representations concerning their connection with it, whereby the plaintiff had been drawn into an unfortunate litigation. The de- fendants relied upon a judgment in their favor in an action by them to recover for an advance made in behalf of the very trans- action in which the bill was given. In this action, the plaintiff, then defendant, had been prevented from making his defence of violation of duty by the false representations of the present defend- ants, and had allowed judgment to go against him, and had paid the same. There was a demurrer to this defence ; but the de- murrer was overruled, and the defence held good.* 1 41 u. T. 113. 2 7 N. Y. 352. that the plaintiff should pay the defend- 3 12 N. Y. 184. ants the amount of their advance with the * Mr. Justice Welles, in delivering interest and commissions, which is utterly judgment, said : " By the judgment it is inconsistent with the plaintiff's claim to established that it was legal and proper recover it back, (a) No averment is to be (o) This, it would seem, was not the object of the present suit ; the purpose, as it would seem from the reporter's statement, was to recover damages for the violation of duty in occasioning the loss of the bill, and in getting the plaintiff into a bad suit. Indeed, the learned judge himself so states the nature of the proceeding on the next page. 100 ESTOPPEL BY RECORD. The case of Davis v. Tallcot, above cited,i belongs to the second class mentioned at the beginning of the subject under consideration. It was an action for breach of contract to furnish machinery of a specified kind and quality. The defendants, as in the preceding case, relied upon a judgment in their favor in an action for the price of the machinery. In that action, the present plaintiffs had at first pleaded the breach now sued for ; but before the trial they withdrew the defence, and confessed judgment. The court held the judgment a bar to the present action.* In Massachusetts, a contrary doctrine is held in case of judg- ment by default,^ In Bodurtha v. Phelon, an action had been brought before a justice of tbe peace, on a note given for the price of a horse, and tbe defendant pleaded a breach of warranty and ob- tained a reduction therefor from tbe amount of the plaintiff's demand. The plaintiff thereupon appealed to tbe Common Pleas, and the defendant was then defaulted. The latter now brought an action for tbe breacb of warranty ; and the court held the former judgment no bar to tbe suit. It was said, however, that, if the judgment given by the justice of tbe peace had been allowed to stand, the case would have been otherwise ; which is very clear.* The court of New Hampshire have lately followed tbe above decision in a like case, with the New York cases before them.^ And the latter decisions were distinguished on the ground that admitted to contradict a judgment or to rather the necessity for introducing evi- dispute any legitimate inference deduci- dence to sustain the action was super- ble therefrom. ... To sustain this action seded by the admission of the then de- to recover back the advance would be to fendants in open court, ' that they were open the judgment and inquire into its indebted to the manufacturers for the propriety and legality. That cannot be causes of action mentioned in their com- done collaterally." plaint.' As the cause of action and the 1 12 N. Y. 184. indebtedness of the defendants were, by 2 Gardner, C. J., speaking for the court, the complaint, made dependent on a full observed : " It is obvious that, by with- performance of the contract by the parties drawing their claim to damages, the then who instituted the suit, the concession of defendants did not waive their right the defendants was equivalent to an ad- to insist upon their defence. The plain- mission on the record to that effect ; and tiffs, notwithstanding, must have estab- the report of the referee, followed by the lished their title to the price stipulated, judgment of the court, consequently estops by proof that the machinery was made thepartiestothatsuitfromeverafterques- within the time and in the manner called tioning that fact in any controversy aris- for by the agreement ; and the vendees ing upon the same agreement." were at liberty to meet and combat these ' Bodurtha v. Phelon, 13 Gray, 413. proofs by counter-evidence on their part. * Burnett v. Smith, 4 Gray, 60. Now this is precisely what was done ; or ' Bascom v. Manning, 62 N. H. 132. DOMESTIC JUDGMENTS IN PERSONAM. 101 judgment had in them been given by confession after answer ; which was an adjudication against the existence of a right of cross-action.^ The doctrine of the New York cases has been denied in a case in the Superior Court of Cincinnati.^ Tlie plaintiff in that case sued the defendant, a physician and surgeon, for " carelessly, neg- ligently, and improperly " treating her arm ; to which action the defendant pleaded a judgment in his favor before a justice of the peace, in an action against the present plaintiff to recover for his services in attending the plaintiff for her arm. To that action, the plaintiff, then defendant, did not appear, though duly served with notice. A demurrer was entered to the plea ; and the de- murrer was sustained.* 1 QucBre if judgment by default after plea would not be in effect the same thing; and, quaere, if judgment by confession with- out plea would even in New York bar a cross-action? There can be little differ- ence between judgment by default and on confession under the same circum- stances. ^ Sykes v. Bonner, Cin. Sup. Ct. Eep. 464. ' Mr. Justice Hagans, for the court, said : " In looking into the justice's record, it appears that the judgment against the plaintiff for the professional services of the defendant was taken by default, and on the testimony of the defendant himself only. It was certainly not necessary, in order to entitle the plaintiff in that case to recover, that he should prove that he was not guilty of any negligence in his professional treatment. It was enough to show simply that he performed the ser- vices at the defendant's request, and their value, and the fact that the amount was due. There were no pleadings and no issues. There is nothing in the record to show that the question of negligence was involved. Now it is argued on the author- ity of Gates v. Preston, 41 N. Y. 113 ; and of Bellinger o. Craigue, 31 Barb. 534 ; Davis I'. Tallcot, 12 N. Y. 184 ; White v. Merritt, 7 N. Y. 352 (which is a case ex- actly like the present, except that there the defendant, before the magistrate, con- sented in writing to a judgment), that the judgment recovered for the services before the magistrate is a direct admission on the record by the plaintiff in this case of all the facts which the plaintiff before the magistrate would have been bound to prove on a denial of the cause of action alleged there ; and that the recovery by the plaintiff there was dependent on a full performance of his duties in the treatment of his patient ; and that the plaintiff here is estopped from questioning that fact in any controversy on the same agreement for services. - " We do not see how the plaintifl^ in the case before the magistrate, was bound to prove that he was guilty of no negli- gence in his treatment of the arm before he could recover for his services therein. It was enough to prove the services -and their value. We are inclined to think with Judge Daniels, who dissented in Gates V. Preston, that the question of malpractice was not necessarily in issue before the justice. . . . The merits of this case, under the^circumstances, could not necessarily be involved without an issue on the question of negligence ; and, so far as the record and the pleadings show, the evidence adduced before the justice was for a different purpose. The effect of that judgment cannot be extended or enlarged by argument or implication to matters, so far as the record shows, which were not 102 ESTOPPEL BY EECOED. ^ The English courts maintain the same rule as that declared in the case just under consideration.^ In Mondel v. Steel , the plaintiff sued for the breach of a contract in not building a ship according to specification. The defendant pleaded that he had previously brought an action for a balance due him by the contract, to which action the now plaintiff had pleaded the same breach of contract which was the subject of the present suit ; and that the jury found that there had been such a breach, and had deducted the value thereof from the amount which the then plaintiff would otherwise have been entitled to receive. The plea was held bad on demurrer, on the ground that the verdict of the jury barred the plaintiff only as to such damages as he had at that time suffered, and could not bar a claim for further damages, since suffered by reason of the breach of contract. The legal effect of the verdict in the former action was, that the present plaintiff had obtained satisfaction of the breach of contract now sued upon to the extent of the abate- ment allowed on the facts then provable, and no further. In Davis v. Hedges, the plaintiff brought an action for the non- performance and improper performance of certain work ; in bar of which the defendant relied upon a judgment in his own favor in an action for the price of the work. In that action, as in Sykes v. Bonner, supra, the defendant had not alleged the improper per- formance. The court held the action maintainable on grounds stated in the note.^ actually heard and determined." Ihrasen work done as any consequential damage V. Oritisby, 32 Penn. St. 198; Mallett v. might hare beeo recovered But Foxcroft, 1 Story, 474; Spooner v. Davis, after the case of Basten v. Butter, 7 East, 7 Pick. 147. 479, a different practice, which had been 1 Mondel v. Steel, 8 Mees. & W. 858 ; partially adopted before, in the case of Davis V. Hedges, Law E. 6 Q. B. 687. King ». Boston, 7 East, 481, n., began to 2 The court, Hannen, J., began by prevail, and, being attended with much quoting the language of Parke, B., in practical convenience, has been since Mondel v. Steel, just cited, which was as generally followed; and the defendant is follows: " Formerly it was the practice, now permitted to show that the chattel, where an action was brought for an by reason of the noh-eompliance with the agreed price of a specific chattel, sold warranty in the ease, and the work, in with a warranty, or of work wliich was consequence of the non-performance of to be performed according to contract, to the contract, in the other, were dimin- allow the plaintiff to recover the stipu- ished in value. ... In all these cases of lated sum, leaving the defendant to a goods sold and delivered with a warranty cross-action for the breach of warranty or and work and labor, as well as tlie case contract ; in which action, as well the dif- of goods agreed to be supplied according ference between the price contracted for to a contract, the rule which has been and the real value of the articles or of the found so convenient is established ; and DOMESTIC JUDGMENTS IN PERSONAM. 103 Mr. Justice Lush, who concurred in all except the dictum con- cerning allowing a division .of the action, drew the distinction it is competent for the defendant in all of those not to set off, by a proceeding in the nature of a cross-action, the amount of damages which he has sustained by breach of the contract, but simply to defend himself by showing how much less the subject-matter of the action was worth by reason of the breach of con- tract ; and to the extent that he obtains, or is capable of obtaining, an abatement of price on that account, he must be con- sidered as having received satisfaction for the breach of contract, and is precluded ii-om recovering in another action to that extent, but no more." Mr. Justice Hannen then proceeds to say that the particular point decided in Mondel v. Steel was, that one who has fairly obtained an abatement of the price of work done, in an action against him, by reason of a breach of contract in its execution, was not precluded from suing for special damage resulting from the breach of contract. " But," continued the learned justice, " it leaves undecided the question whether he was hound to obtain the abatement in the action in which he was a defendant, or might re- cover it in a cross-action. The expres- sion of Parke, B., which was a good deal relied on in the argument, that ' to the extent that he obtains, or is capable of obtaining, an abatement of price, he must be considered as having received satisfac- tion for the breach of contract,' has refer- ence to the facts of the case in which the plaintiff did claim and did obtain an abatement. It is clear that before any action is brought for the price of an arti- cle sold with a warranty, or of work to be performed according to contract, the person to whom the article is sold, or for whom the work is done, may pay the full price without prejudice to his right to sue for the breach of warranty or contract, and to recover as damages the difference between the real value of the chattels or work, and what it would have been If the warranty or contract had not been broken. Is there any reason why he should be deprived of this right by the mere fact of his opponent having com- menced an action for the price? We think that there is none, and that there are some strong reasons why be should not. " It appears from the passages above cited trom the judgment in Mondel v. Steel that the present practice of allow- ing the defence of the inferiority of the thing done to that contracted for to be applied in reduction of damages was in- troduced (on the same principle that the statutes of set-off were passed) for the benefit of defendants. It would greatly diminish the benefit, and in some cases altogether neutralize it, if the defendant was not allowed an option in the matter. The hypothesis is, that the plaintiff for the price is in default. The conditions on which he can bring his action are usually simple and immediate. The war- ranted chattel has been delivered, or the work contracted for has been done ; and the right to bring an action for the price, unless there is some stipulation to the contrary, arises. On the other hand, the extent to which the breach of warranty or breach of contract may afford a defence is usually uncertain; it may take some time to ascertain to what amount the value of the article or work is diminished by the plaintiff's default. It is unreason- able, therefore, that he should be able to fix the time at which the money value of his default shall be ascertained. In many cases, the extent to which the value of works may be diminished by defect in their execution may be altogether inca- pable of discovery until some time after the day of payment has arrived. Surely the right to redress for the diminution of value, when discovered, ought not to depend on the accident whether the con- 104 ESTOPPEL BY RECORD. very clearly between the case before the court and the cases of Marriott v. Hampton,^ Hamlet v. Richardson,^ and Brown v. Mc- Kinally,^ — cases in which the defendants had been compelled to pay money under judgments which subsequent evidence, then in- accessible, showed should never have been recovered. " In these cases," said he, " the sole ground of action was the payment ; and what the plaintiffs sought by the action was to undo that payment [^eoUaterally'] and to place themselves in statu quo. In the present case, the cause of action is the breach of contract ; that cause of action existed before and was independent of the payment." It seems to us that the conclusion at which the court arrived, as to the case before them, is inevitable, if Ihe last sentence quoted be correct. If there is a separate and independent cause of action given to each party upon a breach of the contract by the other, neither can be compelled to allege his defence of a breach in a suit by the other. This must be quite clear from the cases already considered. Every cause of action carries with it the right to put it into judgment ; and that there is a separate and independent cause of action given to each party results necessarily from this fact, that either party may sue the other for a breach. No suit can be maintained except upon a legal ground of action. Now, as one cause of action cannot in itself alone, when merged in judg- ment, carry another and independent cause of action with it, it is difficult to understand how a judgment for the plaintiff without plea can extinguish a counter right of action by the defendant, however closely connected the two claims may be. Every one has the right to try his own case. The defendant in the first action may not then be able to prove the facts which he relies upon in tracting party in the wrong had or had The court came to the conclusion also not issued a writ for the price." that the better rule was that the defend- The judge proceeds to mention an- ant had the option to divide the cause of other inconvenience that would result action, and use it in diminution of dam- from a different rule from the one de- ages ; and that he would then be oon- clared ; to wit, that it would tend to com- eluded to the extent to which he obtained, plicate and increase litigation, from the or was capable of obtaining, a reduction ; fact that defective performance of work , or he might, as in the present case, claim generally involves consequential and re- no reduction at all, and afterwards sue curring damages by reason of the neces- for his entire cause. sity of repairing the work. And lie cited ^ 7 T. R. 269. Mondel v. Steel as an express authority 2 9 Bing. 644. for a separate action in such case. s 2 Esp. 278. DOMESTIC JUDGMENTS IN PERSONAM. 105 tlie second suit ; and he is justified in reason in not raising an issue upon them. The contrary doctrine would often work mani- fest injustice. A man who had by fraud obtained a note on de- mand of another could bring suit upon it at once, before the maker had had time to hear the facts, and the judgment would bar the just rights of the defendant. It has been in effect adjudged in a well-considered case ^ that 1 Barker v. Cleveland, 19 Mich. 230. The case was an action by Cleveland against Barker to recover the price of a quantity of cranberries; as a bar to which a verdict and judgment in favor of Barker against Cleveland were pleaded in an action for breach of the contract in re- spect to the purchase of the cranberries. The court below found that there had been n valid contract of sale; and that the judgment interposed was not a bar. Chief Justice Cooley, in delivering judgment, opened the subject by saying that whatever fact became the subject of judicial controversy in the suit for the breach of warranty, and was relied on by the plaintiffs therein in support of their action, was necessarily comprehended within the judgment rendered, and was thereby, by legal inference, conclusively settled between the parties to the adjudi- cation. Jennison v. W. Springfield, 13 Gray, 644. " When a party," continued the learn- ed judge, "declares upon a contract of warranty contained in a sale of chattels, he necessarily affirms the validity of the contract. The warrant, does not stand independent of the sale, but is inseparably connected with and forms a part of it. It is only one of the stipulations in the main contract ; and it can neither be alleged, or proved, or judicially found, except as a part of the sale. It is evident therefore that the judgment in Wayne County, in affirming the warranty, also affirmed, of necessity, the contract of sale ; and that the existence and validity of that contract were therefore necessarily within the issue in that case, and are now res adjudicata. " To constitute the judgment in one case a bar to another action, it is not es- sential that the object of the two suits should be the same, or that the parties should stand in the same relative position to each other. It would not be claimed by the plaintiffs in error, that because they were plaintiffs in one suit and de!- fendants in the other, therefore their judgment should not conclude them, if the point in controversy were the same in both cases. Nor is it important that in one case it was one stipulation of a contract which was sought to be enforced, while the other suit involved a different stipulation ; the validity or invalidity of the contract being adjudged in the one case, it is settled for the other also. Belts V. Starr, 5 Conn. 550 ; Doty v. Brown, 4 N. Y. 71: Williams v. Fitz- hugh, 44 Barb. 321 ; Walker v. Chase, , 53 Maine, 258 ; Sawyer v. Woodbury, 7 Gray, 502 ; Birckhead v. Brown, 5 Sandf. 134; Castle v. Noyes, 14 N. Y. 329. And it is immaterial whether the point was actually litigated in the first suit or not, if its determination was necessarily in- cluded in the judgment. Bellinger v. Craigue, 31 Barb. 537. " As we understand counsel, they claim that the question of the payment of the purchase price was necessarily covered by the issue in their suit upon the war- ranty; that the court was required to pass upon it in order to determine the amount of damages they had sustained ; and that the sum of $100 actually found to have been paid was taken into account in the judgment rendered. If the plain- tiffs in error are correct in these positions, then, unquestionably, the judgment in he case before us is erroneous. " We have no doubt that, had Barker and Bewick proceeded in that case upon 106 ESTOPPEL BT RECORD. the vendor of goods is not bound to set off their value in an action by the vendee for damages by reason of the failure of the goods to correspond with the warranty ; but that the vendor, after judg- ment in such action in favor of the vendee, may maintain an action on the contract for the price of the goods. The cases seem to be parallel. There can be no better reason why the vendee, the first suit being by the vendor, should be required to allege the inferior- ity of the goods, than for requiring the vendor to rely upon the contract price in a suit by the vendee. Indeed, the excuse for omitting the defence by the .vendee is stronger in many cases than the theory of the total rescission of the contract and recovered a judgment, such judgment must have been held conclusive. "When a vendee puts an end to the con- tract of sale, for thfe failure of the -vendor to perform, and brings suit for the recov- ery of damages, the object of the suit is to place the plaintiff, so far as the law can accomplish that result, in statu quo. It is obvious that in such a case the inquiry is of the first importance, how much has been paid on the contract, since such pay- ment constitutes usually the first and leading item of damages. The purpose of such a suit is to recover back the sums which the plaintiff has paid out upon and in consequence of a contract, the benefit of which he has lost through the non-per- formance by the other party. Freeman V. Clute, 3 Barb. 424. The issue there- fore necessarily covers, and the trial ad- justs, all questions of payment of the pur- chase price; and the vendor is for ever precluded from maintaining a suit for the same or any unpaid portion thereof. " But we do not understand .that an in- quiry concerning the amount of damages sustained by a breach of warranty neces- sarily involves the question of the pay- ment of the purchase price. If the con- tract is a valid one, it is immaterial to the plaintiff's action, in such a case, whether he bought for cash, or upon a credit not yet expired. The object of the suit is foreign to the question qf payment. He sues to recover the difference between the actual value of the articles received on the contract, and what their value would have been had they answered the warran- ty ; and, unless the vendor defends on the ground of non-payment of the piirchase price, the court does not concern itself with that question. The parties in such a case are at liberty to settle their contro- versies in one suit or by cross-action ; but, whether one suit is brought or two, the damages are measured in the same way. If the vendee, instead of bringing a cross- action, sets up the breach of warranty, by way of recoupment, the vendor is en- titled to recover the purchase price ; while the vendee will have awarded to him, by way of reduction, such damages as he can show he has sustained by a breach of the promise of warranty. Thornton v. Thompson, 4 Gratt. 121 If, how- ever, the vendee thinks proper to bring an independent suit upon the warranty, the damages of the respective parties are not measured by any different standard. If the vendee recovers in that suit, he is conclusively presumed to recover the full difference between the value of the arti- cles delivered, and their value as it would have been had they complied with the warranty. If the only issue in the case is upon the warranty, the court will not concern itself with the inquiry how much of the purchase price has been paid. Perrine u. Serrell, 1 Vroom, 458. And the vendee, having recovered his damages in that suit, is supposed to be fully com- pensated for any deficiency in the articles bought, and to be legally bound afterward to pay any balance of the purchase price, without deduction or controversy." DOMESTIC JUDGMENTS IN PEESONAM. 107 any which the vendor can present ; for, as was suggested in the English case under consideration, it often happens that the vendee is not able at the time of the vendor's suit to ascertain the precise degree of inferiority of the goods. The argument seems to us conclusive against the soundness of the New York cases, unless the distinction taken in New Hampshire, between a judgment by confession and one by default or on trial without alleging the defence, be correct. In the case of White v. Merritt, the court seems to have confused the case of an action to recover money paid under a judgment, and that of an action for breach of contract and fraud- ulent representations. The distinction has already been pointed out between the cases ; the former is a direct attempt to impeach a judgment collaterally, while the latter involves a suit on a cause of action separate from and independent of the one merged in the judgment. There is another view of this question which leads to the same conclusion. A judgment is conclusive only in respect of matters necessarily inconsistent with it. Now, the fact of the ill perform- ance of a contract is not inconsistent with a judgment upon the contract by the other party. Such facts usually go only to the reduction of damages ; and the other party has thus a riglit of action. If the counter right should go further and entitle the defendant himself to damages, this would perhaps be inconsistent with any right of action in the plaintiif ; but that cannot appear until tlie defendant's proof is all in, and the verdict of the jury obtained. And hence as it cannot be known in advance whether the right of action of the plaintiff in the first suit will be dis- proved, he cannot say that the second suit is necessarily incon- sistent with the first judgment. This seems to be true of all cases of cross rights ; that is, all cases where each party to a transaction has a clear right of action before suit by the other. ^ Judgments in such cases cannot be necessarily inconsistent with each other. Even in the case of an action upon a contract to which fraud might have been set up, a judgment upon the contract is not necessarily inconsistent with the existence of fraud. Fraud does not make a contract voidj but only voidable ; ^ .and a person may elect to treat the contract as binding and sue for the fraud. This is not perhaps inconsistent with holding that fraud may not be a ground of impeaching judg- 1 See O'Connor «. Varney, 10 Gray, " White o. Garden, 10 Com. B. 927. 231, per Shaw, C. J. 108 ESTOPPEL BY RECORD. ments in collateral proceedings ; since, in the first case supposed, there is no impeachment of the judgment.^ The plea of fraud in respect of a judgment will be considered hereafter.^ But, if the fraud or unskilful performance be pleaded to the first suit, it can- not afterwards be made ground of an action by the defendant, though judgment in the former trial had gone in his favor, and he now claims greater damages than the sum for which he had himself been sued.^ He must abide by his election. These remarks have reference merely to the general proposition ihat the vendee or employer is not estopped to sue for the breach of contract by his failure to allege the inferiority of the goods or the negligent performance. We are not so confident of the sound- ness of the further doctrine of Davis v. Hedges,* that the vendee or employer may also divide his action, using first the part ascer- tainable at the time of the plaintiff's action, and subsequently suing for any further damages since ascertained. Indeed, the doctrine seems in direct conflict with the well-settled rule that but one suit can be maintained on one cause of action, and that one judgment merges for ever all demands passed upon. The defendant's cross- demand for the plaintiff's breach of contract is single, and not con- tinuous or recurring. The ill performance of the work, or the inferiority of the goods, was but one fact and ground of action, however and whenever it may have manifested itself. If it were otherwise, the demand might be divided when it had not been relied upon in defence, and separate actions might be brought ; and this seems sufficient to show the unsoundness of the doctrine. But a careful distinction must also be noticed between the case where the plaintiff, suing upon several distinct demands, omits- to introduce evidence as to some of them, and thus saves the right of suing again as to such demands, and the case where he fails to produce sufficient evidence to sustain his action. In the latter case, he will be barred.^ 1 See Jackson w. Somerville, 13 Penn. ' Miller v. Manice, 6 Hill, 114, 121. In St. 859. But see Homer v. Fish, 1 Pick, the case cited, Chancellor Walworth said 436. that the question, whether a verdict and 2 Under Collateral Impeachment of judgment for the defendant in a former Judgments, post. action was a bar to a second suit for the 3 O'Connor v. Varney,' 10 Gray, 231 ; same cause, did not depend upon the fact Bennett v. Smith, 4 Gray, 50 ; Sargent v. that the proof in the former suit was suffl- Fitzpatrick, 4 Gray, 611; Sawyer «. cient to sustain that action. "Fpr," he Woodbury, 7 Gray, 499. continued, "when the same matter was * Ante, p. 104, note. in issue and submitted to the jury in the DOMESTIC JUDGMENTS IN PERSONAM. 109 The point is well illustrated by the recent case of the People v. Smith.i The action 'in this case was upon a recognizance, which in point of fact had been duly filed in the office of the county clerk. But a former action on the recognizance had been brought, in which the plaintiff had failed to prove the fact of filing, or that it had ever become a record of the court. In that case, the court, sitting without a jury, decided that " the recognizance was never filled up, or made a record of any court ; that no record of such recognizance had been made in any court ; that, to maintain an action upon a recognizance, it must appear that it was filed or made a record of in the court in which it is returnable ; and that the complaint of the plaintiff be dismissed with costs." It was held that this judgment was conclusive upon the plaintiff in the second action, and that, since he could "not now recover without establishing the converse of the above findings, his suit must fail. But the case has been said to be otherwise where there has been a fraudulent concealment of the cause of action by the opposite party .2 In the case cited, the facts were that an insurance com- pany had taken a bond from their agent for the faithful perform- ance of his duties. Judgment having been recovered upon the bond for money unaccounted for, a scire facias was issued, assign- ing as a further breach that the agent had, before the judgment, received a further sum for which he failed to account, and the receipt of which he fraudulently concealed. Upon demurrer, the court held that this concealment justified the company in not pre- former suit, without sufficient proof, the he attempts to give evidence as to all the decision of the jury upon the matter in causes of action, and suhmits the ques- issue, and thus submitted to them, fol- tion to the jury without withdrawing any lowed by the judgment of the court upon part of his claim, and he fails as to the their verdict, will be a bar to another ac- whole or a part, for want of sufficient tion for the same cause or matter, when proof, the defendant may insist upon the the same evidence which is necessary to first judgment as a bar, if the same evi- sustain the second suit, if it had been dence which is sufficient to sustain the given in the former action, would have second suit would have authorized a re- authorized a recovery therein. Where covery in the first action, in case it had a general declaration embraces several been produced upon the trial thereof." causes of action, the plaintiff in a second Stafford v. Clark, 1 Car. & P. 403 ; s. c. suit may show that he offered no evidence 9 J. B. Moore, 724 ; Ehle v. Bingham, 7 as to one or more of those causes of ac- Barb. 494 ; Jones v. Weathersbee, 4 Strob. tion, and that the cause went to the jury 50. upon a different part of his claim from i 51 Barb. 860. that for which the second suit is brought. ^ Johnson v. Provincial Ins. Co., 12 And then the judgment in the first action Mich. 216 ; Spencer v. Vigueux, 20 Cal. will be no bar to the second. But where 442. IIQ ESTOPPEL BY RECORD, sentiflg the sum in the originaV proceeding. It would seem, how- ever, that tliis decision should rest on the ground that the scire facias was a mere continuance of the original action, and not an independent collateral proceeding.^ In the case of a writ of entry ,2 ifis held that, where it appears that a judgment has been rendered against the demandant, he may show that this judgment was rendered on the sole ground that his grantor was disseised at the time of delivering the deed to him, and that he has since fortified his title in this respect ; and this though there was another ground of defence, and evidence con- cerning it produced by both sides.^ But suppose evidence upon a certain count was rejected as inad- missible ; may a subsequent suit be brought with a proper count ? The question was considered in the case of Smith v. Whiting.* The plaintiff there brought an action for money had and received, and the defendant pleaded a judgment in favor of the plaintiff in a former action between the same parties for the same demand. The plaintiff replied that the count upon which he recovered before was for money laid out and expended, and did not embrace the demand now sued upon ; that upon that count he endeavored to introduce in evidence a receipt for the money now claimed, but that the evidence was rejected as inadmissible, upon the count for money laid out and expended, without proof that the sum 1 Eldred v. Hazlett, 38 Penn. St. 16. grantor." After adding that the court 2 Perkins v. Parlter, 10 Allen, 22. had applied the rule recognized in Mc- 3 Mr. Justice Dewey said : " The fur- Dowell v. Langden, 3 Gray, 513, the ther fact that another distinct ground of learned judge said : " We cannot suppose defence was also taken, involving the that any different rule was intended to be question of notice of an unrecorded deed, sanctioned by the case of Woodbury v. . . . and in reference to which evidence Sawyer, 7 Gray, 499. There is nothing was offered, does not make such former contradictory to it in the opinion in that judgment a bar to the present action, if case, upon the exceptions taken at the it shall appear that the question of notice first trial. The final disposition of it was not passed upon, or that, if passed must be assumed to have been intended upon, it was found that such notice was to be in harmony with the opinion which given, and that the judgment for the ten- had been previously announced, and ants was rendered solely upon the ground which had recognized the case of Button that the grantor of the demandant was v. Woodman, 9 Gush. 255, and McDowell disseised when he executed the deed. In u. Langden, supra, as authorities." See such case, the present demandant may also Mitchell v. Cook, 29 Barb. 248 ; Uni- introduce evidence of a newly acquired versity v. Maultsby, 2 Jones Eq. 241 ; title by deed duly delivered since the Woodbridge v. Banning, 14 Ohio St. 328 ; commencement of the former suit, and Taylor v. McCrackin, 2 Blackf. 261. then proceed to establish title in his * 11 Mass. 445. DOMESTIC JUDGMENTS IN PERSONAM. Ill was paid at the defendant's request ; which fact was not in evi- dence. The replication was demurred to, and the demurrer was sustained. The Chief Justice said that it was apparent from the pleadings that this very demand had been tried and determined ; and that, though the court may have erred in rejecting the evidence offered, this was no way to remedy the case. Exceptions might have been filed, or a new trial had, or a continuance ; but as this was not done, and as the plaintiff had permitted a general verdict to go against him, without striking out the count to -which the evidence was applicable, the court must presume that the very matter now in dispute had been tried. He said that the cases of Ravee v. Farmer ^ and Golightly v. Jellicoe ^ had established the principle recognized here in Webster v. Lee,^ namely, that where a demand had not been submitted, it should not be barred by an award or report on a rule or submission of all demands. The case of an in- quiry of damages went upon the same principles.* In all of these cases, no evidence was offered to support the demands, which were the subject of the second suit ; while in the present case the very evidence now relied upon was offered, and an adjudication had upon it. That an action cannot be maintained to recover money paid under a judgment, by reason of the subsequent discovery of evi- dence showing that the judgment should never have been obtained, was decided as long ago as in 1797, in the well-known case of Marriott v. Hampton.* Though the contrary doctrine 'of Moses v. Macferlan, just cited, has been followed in one or two cases,^ the rule above stated in 1 4 T. R. 146. to grant a rule to show cause, lest it should 2 Ibid, in note. seem to imply a doubt. It often happens 3 5 Mass. 334. that new trials are applied for on the * Seddon v. Tutop, 6 T. E. 607. ground of evidence supposed to have s 7 T. R. 269, overruling Moses v. Mao- been discovered after the trial, and they ferlan, 2 Burr. 1005. " I am afraid," said are as often refused ; but this goes much Lord Kenyon, " of such a precedent. If further." this action could be maintained, I know 6 Lazell !!..Miller, 15 Mass. 207 ; Smith not what cause of action could ever be at v. McCluskey, 45 Barb. 610. The plain- rest. After a recovery by process of law, tifE is not estopped in an action tor money there must be an end of litigation ; other- had and received from collections made wise there would be no security for any by the defendant, by a judgment for the person. I cannot therefore consent even defendant in a former suit upon a special 112 ESTOPPEL BY RECORD. Marriott v. Hampton is now considered as well settled.^ But a distinction has been made in the case of money obtained by extor- tion, under color o'f legal process. In such a case it has been held that the money may be recovered.^ The ground of the decision was thus stated by Lord Denman : " Is or is not the money sought to be recovered the money of the plaintiff? It is. How did the defendant obtain the money ? By fraud This state of things differs the case entirely from those cited.^ In all the cases cited there was nothing to negative the bona fides ; and there was the absence of knowledge by the party who received the money, that he had no claim to it." A former judgment or verdict is also conclusive of all necessary inferences arising from it, as well as of the matters actually in is- sue. Thus in, the case of Perkins v. Walker,* the plaintiff brought an action of slander. The defendant gave evidence tending to prove the truth of the words spoken. The plaintiff then produced the record of a judgment in his favor, in an action of trover, brought by the defendant against him to recover for the alleged taking and conver- sion of certain cloth ; and it was admitted that the cloth sued for in that action was the same cloth in reference to which the words charged as slanderous were spoken by the defendant. The court held that the judgment was conclusive against the defendant both as to the title to the cloth, and as to the defence alleged in justi- fication to this action. In an action of trespass for mesne profits,^ the plaintiff gave in evidence the record of a judgment against the defendant, in an ejectment begun in 1843. The 'defendant showed an ejectment contract to recover the same sum, if the and cents; the amount of the only question submitted in the former damages and costs being left blank. For action was concerning the special con- this cause there was a demurrer to the tract. Gage v. Holmes, 12 Gray, 428. plea ; but the plea was held good. In a suit for partition of lands, a legatee l Kirklan v. Brown, 4 Humph. 174 is estopped to dispute the amounts of ad- Flint v. Bodge, 10 Allen, 128. vancements and of his distributive share, ^ Cadaval v. Collins, 6 Nev. & M. 330 fixed in a former suit between the parties s. c. 2 Harr. & W. 54. to determine this very matter. Torfey v. 3 Marriott v. Hampton, 7 T. R. 269 Pond, 102 Mass. 355. Snowdon v. Davis, 1 Taunt. 869 ; Knibba In Wells V. Deneh, 1 Mass. 232, the de- v. Hall, 1 Esp. 84 ; Brown v. McKinally, fendant in a suit upon a promissory note Ibid. 279. for $100, pleaded a judgment recovered on * 19 Vt. 144. the note for the sum of dollars * Man t>. Drexel, 2 Barr, 202. DOMESTIC JUDGMENTS IN PERSONAM. 113 against the vendor of the plaintiff, begun in 1841, and a judgment followed by a habere facias possessionem, executed. The court be- low held the defence-good ; but a contrary decision was given on an appeal. Mr. Justice Kennedy said that it had ever been held in action of trespass, brought for the mesne profits of premises pre- viously recovered of the defendant, in ejectment, that the judgment in ejectment was conclusive evidence of the plaintiff's title to the possession and right to receive the mesne profits from the date of the demise in the declaration.' And no defence could be alleged against the action for mesne profits which would have been a bar to the action of ejectment. Our next inquiry is, whether the form of the two actions, as well as the cause or point decided, must be the same, in order that a former judgment or verdict may be pleaded in bar. In general, the question may be answered in the negative.^ In Slade's Case, though this precise question was not in issue, it was resolved by all the justices and barons of England, " after many conferences," in the language of Lord Coke, that the plain- tiff in that action on the case, in assumpsit, should recover not only damages for the special loss which he might have sustained, but also for the whole debt, " so that a recovery or bar in this action would be a good bar in an action of debt brought upon the same contract ; so, vice versa, a recovery or bar in an action of debt is a good bar in an action on the case, on assumpsit." But a judgment in trover for the defendant is no bar to an action for money had and received by the defendant for the plaintiff's use, in respect to the same matter for which the action of trover was brought.^ And this shows that the form of action may in some instances be changed where the cause of action remains substantially the same, without the fear of a plea in bar. And the circumstances under which this may be done would seem to be, where it cannot be certainly known that the verdict and judgment 1 Aslin V. Parkin, 2 Burr. 668; Van ^ Slade's Case, 4 Coke, 92 b, 94 b ; Tay- Alen V. Rogers, 1 Johns. Cas. 281 ; Ben- lor v. Castle, 42 Cal. 367 ; Ware v. Peroi- son V. Matsdorf, 2 Johns. 369 ; Jackson v. val, 61 Maine, 391. BandaU, 11 Johns. 405. In some of the = Hitchin v. Campbell, 3 Wils. 240 ; States the action of ejectment is consid- Buckland v. Johnson, 15 Com. B. 145 ; ered as more than a mere possessory ac- a. c. 26 Eng. L. & E. 328. tion, and is conclusive of title. See Payne V. Payne, 29 Vt. 172. 8 114 ESTOPPEL BY RECORD. in the forttier and different form of action were based upon matters which would negative those alleged in the subsequent suit. But the mere change of the form of action, where it is certain that the former judgment negatives the claim or matter alleged, will have no effect, and a plea of the former trial will be an absolute bar ; ^ otherwise the doctrine of res judicata would be a mere delusion. It is in accordance with the principle in the foregoing cases that, where a party has presented a claim before a court of justice, and judgment has been pronounced against its validity, he cannot escape the effect of the adjudication by filing the same matter in set-off in a subsequent action against him by the defendant.^ Nor will it change the effect of the former judgment that an- other matter has been added to the ground of complaint, if the original ground is presented also.^ In the case cited, a former suit for judicial separation had been dismissed, in which the ground of complaint alleged was cruelty. In order to avoid the effect of the decree, the petitioner now added a charge of adultery to that of cruelty, and prayed for a dissolution of the bonds of matrimony. But the court held the former decree a bar as to the charge of cruelty. It is a general principle, too, that a party or privy cannot reliti- gate a matter adjudicated in a court of law, in a collateral action in chancery. The point has been frequently so decided.* The case first cited was this, in brief: The defendant's testator had bought laiid, at sheriff's sale, under an execution at law against the complainant's grantor. Subsequently to the levy on the land, the defendant in the original suit at law had conveyed it to the complainant. The executors of the purchaser at the execution sale being about to dispose of the land, the complainant sought to restrain the sale in chancery, and compel the executors to convey the land to hira ; the ground being that the levy on the land and the sale were unauthorized. But the suit was dismissed. The court said it was possible that the plaintiffs in the suit at law were not entitled to a levy on the land ; but the defendant, the ' Eoutledge v. Hislop, 2 El. & E. 549. * Hendrickson v. Norcross, 4 C. E. " Jones V. Richardson, 5 Met. 247. Green (N J.), 417 ; Baldwin v. McCrea, 3 Finney v. Finney, Law R. 1 P. & D. 38 Ga. 650. 483. DOMESTIC JUDGMENTS IN PERSONAM. 115 complainant's grantor, was duly served with notice in that action, and, liaving allowed judgment to go against the land, he could not now disturb the sale in this collateral way in chancery. But where a prior action had been brought at law by the party holding the legal title to real estate, to recover possession, and the defendant sought to impeach the patent under which the plaintiff claimed, and judgment went against the defendant, on the ground that his defence was equitable, and could not be considered in that action ; and the defendant thereupon brought his action in chancery to have the patent set aside, the court held the suit maintainable.^ But this, it will be at once perceived, was on the ground that there had been no adjudication in the suit at law as to the validity of tlie patent. So where evidence of a set-off is excluded in a suit at law, and judgment given for the plaintiff, this is not an adjudication of the matter of set-off, so as to prevent the party from enforcing it in chancery; though it would be otherwise if the law court had actually passed upon the merits of the set-off.^ The effect of judgments upon cumulative remedies was consid- ered in Butler v. Miller.^ That was an action of trover for prop- erty conveyed to the plaintiffs by chattel mortgage. The defence was a judgment confessed by the mortgagor to the mortgagee for the debt secured by the chattel mortgage. But it appeared in evi- dence that it had been agreed that the judgment should be taken as callateral to the mortgage. The court below held that if it was satisfactorily shown that the judgment was taken as collateral to the mortgage, there was no merger of the plaintiff's right of action on the latter. Oji appeal this ruling was affirmed ; but Mr. Justice Johnson, in speaking for the court, thought that there would have been no merger even without the agreement mentioned. It would scarcely be contended, he said, that in case the notes in question had been secured by a mortgage upon real estate, a judgment upon them would have extinguished the mortgage. And a mortgage upon real estate was only a security and an incumbrance upon the land ; whereas a mortgage of personal property was more than a security. It was a sale of the thing mortgaged, and operated as a transfer of the whole legal title to the mortgagee, subject only to be defeated 1 Arnold v. Grimeg, 2 Iowa, 1. '1 Comst. 496 ; s. c. 1 Denio, 407. 2 Hobbs V. DufE, 23 Cal. 596. 116 ESTOPPEL BY RECORD. by a performance of the condition. If then a judgment upon the original debt would not extinguish a collateral security for its pay- ment upon real estate, he could not see how it could divest a title to personal property acquired by purchase. Although it was clear, he continued, that the notes were merged in the judgment, it did not follow that all collateral remedies were extinguished. The debt was not yet satisfied ; and, until that was done, he thought that all collateral remedies remained. The rule that a security of a higher nature ex'tinguished inferior securities would be found to apply only to the state of the debt itself, and meant no more than this, that when an account was settled by a note, a note changed to a bond, or a judgment taken upon either, the debt as to its original or inferior condition was extinguished or swallowed up in the higher security ; and that all the memoranda by which' such inferior condition was evidenced lost their vitality. It had never been applied, he said, and never should be, to the ex- tinguishment of distinct collateral securities, whether superior or inferior in degree. These were only to be cancelled by satisfaction or voluntary surrender.^ In Storer v. Stoiier,^ the plaintiff, as administrator de bonis non^ sued the defendants in debt as administrators of the person to whom the plaintiff had succeeded in administration. The defend- ants pleaded in bar a decree of the court of probate on their administration bond, giving the plaintiff judgment for the very demand now sued for ; but as to which no execution had iseued. But the court held the action proper ; the ground being that the two remedies were merely cumulative. A judgment in a suit where the action is given as a remedy merely cumulative was no bar, it was said, without satisfaction. The case of Drake v. Mitchell^ involved this question. The action arose in this way : Three joint covenantors were sued for the rent of certain premises ; and among other things they pleaded that one of their number had given his promissory note and bill of exchange in part satisfaction of the rent, and that this, not hav- ing been paid at maturity, was sued upon by the plaintiff, and judgment obtained against the maker. The plea alleged that the note had been given for the payment and in satisfaction of the debt, but did not aver that it had been so accepted ; nor did it 1 See also Butler v. Miller, 6 Denio, ^^ 6 Mass. 890. 159. s 8 East, 251. DOMESTIC JUDGMENTS IN PERSONAM. 117 allege that the note had produced a satisfaction in point of fact. The plaintiff demurred to the plea ; and the demurrer was sustained.^ The law will not permit a party who has recovered in one action a portion of an entire demand, to make the residue of it the sub- ject of another suit.^ In Bancroft v. Winspear it is held that this is true even where the demands sued upon are different, if they are both created by the same indivisible cause.^ 1 Lord Ellenborough said : " I have always understood the principle of transit in rem judicatam to relate only to the particular cause of action in which the judgment is recovered, operating as a change of remedy from its being of a higher nature than before. But a judg- ment recovered in any form of action is still but a security for the original cause of action, until it be made productive in satisfaction to the party ; and therefore till then it cannot operate to change any other collateral concurrent remedy which the party may have. If indeed one who is indebted upon simple contract give a bond or have judgment against him upon it, the simple contract is merged in the higher security. So one may agree to accept of a different security in satisfac- tion of his debt ; but it is not stated here that the note and bill were accepted in satisfaction, and in themselves they can- not operate as such until the party has received the fruits- of them. And then, although they were not originally given in satisfaction of the higher demand, yet, ultimately producing satisfaction, it would be a bar to so much of the demand." Le Blanc, J., said : " The giving of another security, which in itself would not operate as an extinguishment of the original one, cannot operate as such by being pursued to judgment, unless it pro- duce the fruit of a judgment.'' Lawrence, J. . " The judgment recov- ered on the bill is in itself no satisfaction until payment be obtained upon it." 2 Bancroft v. Winspear, 44 Barb. 209 ; Guernsey v. Carver, 8 Wend. 492 ; Ben- dernagle v. Cocks, 19 Wend. 207 ; Fish v. FoUey, 6 Hill, 54; Marble v. Keyes, 9 Gray, 221 ; Stein v. Prairie Rose, 17 Ohio St. 471 ; Erwin v. Lynn, 16 Ohio St. 539. It is said this is not true in the case of contracts for services where the employer prevents performance ; the injured party being permitted to sue for his wages as they become due, from time to time, in separate actions. Thompson v. Wood, 1 Hilt. 93. See Goodman v. Pocock, 15 Q. B. 576 ; Planchfe v. Colburn, 8 Bing. 14 ; Derby v. Johnson, 21 Vt. 17 ; Moulton v. Trask, 9 Met. 577 ; Wilhelm v. Caul, 2 Watts & S. 26. A party, it is also said, may make a, voluntary compromise or satisfaction of his claim in tlie course of an action embracing only part of an entire demand, without mei-ging the whqle. O'Beirne v. Lloyd, 43 N. Y. 248. 8 This subject is considered with force and ability by Mr. Justice Dewey, in delivering the opinion of the court in Goodrich v. Yale, 8 Allen, 454; and the importance of the subject will justify a quotation at large from the opinion. "In what cases," he says, " a former judg- ment in a suit between the same parties shall operate as a bar to further litigation by a new action is a question of much nicety. The diflBculty arises, not so much for want of certain general rules upon the subject, as from the doubt as to which class of cases the one which is the sub- ject of inquiry belongs. " A suit and judgment thereon for the same cause of action are said to be abso- lutely conclusive, as a bar to a second ac- tion. But it is equally true that the mere fact that the plaintiff has in his former 118 ESTOPPEL B¥ RECORD. An action was brought ^ for failing to accept a residue of cer- tain goods under an entire contract ; and the defence was that the action declared for the same causes of action does not necessarily present , a, case where the judgment in such action shall be a bar to a subsequent suit fop: one of the causes set forth in the former. Thus in Seddon v. Tutpp, 6 T. R., 607, where the plaintiff in the former action had in different counts declared on a promissory note, and for goods sold, ^nd the defend- ant being defaulted, the plaintiff, upon executing his writ pf inquiry, gave no evidence on the count for goods sold, and took his damages for the promissory note only, it was held that the judgment was no bar to his recovering in a subsequent action for the goods sold. But in that case there were two distinct demands set forth, in distinct counts, and not in the least blended together. It is also true, as held in the case of White v, Moseley, 8 Pick. 36S, that where there are distinct torts, committed cons^utively, but in different localities, and the plaintiff insti- tutes his action for one only, such former suit and judgment thereon, although the action might properly have embraced both the torts, yet constitutes no bar to a second action for the other act. On the other hand, the case of Trask v. Hartford and New Haven Railroad, 2 Allen, 331, strongly asserts and applies the principle that a judgment ift a civil suit, upon a certain alleged cause of action, is cpnclu- sive upon the parties in relation to it, and that another suit for the same cause can- not be maintained for any purpose wliat- ever. In that case the subjects of dam- ages in the different actions were wholly distinct ; the pne being the loss of a shop, and the second the loss of a dwelling- house. No damages had been claimed or recovered in the first action for the loss pf , the house ; but the loss of each was caused by the same tortipji^, act, and pne recovery for any part of the damages caused by such act was l)elil a bar to a second action. It was said by the court in that case : ' It would be unjust, as well as in violation of the fixed rule of law, to allow the plaintiff to subject the defeii4- ants to the hazard and expense of another suit to obtain an advantage which he lost either by his own carelessness and neg- lect,' or by an intentional withholding of a part of his prpof.' "The inquiry is, under which, if either, of these classes does the present case fall ? It certainly differs from the case of Sed- don V. Tutop, 6 T. R. 607, in the fact that there the causes of action were on the face of them distinct and independent, and were sought to be enforced as such by separate counts. That case only shows that a party may omit to assess his dam- ages on one of several distinct counts for acknowledged distinct causes of action ; a,nd,if he does so, a judgment for dam- ages upon the other causes of action will not bar a second suit for the causes of action for which no damages were as- " The case before us differs from White V. Moseley, 8 Pick. 356, in the fact tliat there the particular tort, the subject of the second action, was not embraced in the declaration, or set forth as the cause of complaint in, the first action. It differs also in the fact that there the torts were cpmmitted on different localities, the one on the premises pf the plaintiff, and the pther not. That case came before the court under very peculiar circumstances. The plaintiff had, in the trial of his for- mer suit, insisted upon his right to recover damages for the cause of action set up in the second suit ; but, the defendant oppos- ing it upon the ground that the alleged trespass quare dtmsum did not embrace the close where the second injury was done, the court ruled that the evidence to support this claim of the plaintiff was nqt admissible, it being a distinct cause of '' CarviU, v. Garrigues, 5 Barr, 152. DOMESTIC JUDGMENTS IN PERSONAM. 119 plaintiff had brought an action for the other portion of the goods, and recovered judgment, and receivfed full satisfaction. This was action. White v. Moseley, 5 Pick. 2S0. In the trial of the- second action, the rul- ing maintaining it was based entirely upon the assumption that the acts of the de- fendants were separate tortSj and there- fore constituted more than one cause of action. The inquiry therefore will be, whether the present case, differing as it does from Seddqn u. Tutop in having only a single count, charging combinedly a tort by raising and then shutting down the gate of the plaintiffs, instead of two distinct counts for separate causes of ac- tion, comes within the principle there decided. The like inquiry will also arise as to the effect of the difference in the circumstances we have alluded to, in the case of White v. Moseley, in distinguish- ing that case from this. " If this shall be taken to have been but one cause of action, although damages might probably have been assessed for various distinct acts, then the case we have cited of Trast v. Hartford and New Haven Railroad, which is abundantly sus- tained t>y other authorities, would be de- cisive upon the point that the former judgment is a bar to this action. " The case is barren of all evidence as to the nature of the grievance complained of, except as shown by the record of the proceedings in the two actions. We turn, therefore, to the declaration in the first action. We find there that the tort com- plained of was, that on divers days the defendant entered upon the real estate of the plaintiffs, without right, and raised the gates of their dam, and caused the water to flow down and waste their res- ervoir, and at times to flood their mill, and then; by shutting the gate, took away the water from their mill. Here the acts causing the damages are stated as a series of connected acts, occurring while the defendant was a trespasser, by entering without right upon the real estate of the plaintiffs, and the answers of the defend- ant so treated the same, denying the allegation that he had entered upon the plaintiff's real estate without right, and denying all the acts alleged as wrongs connected with the trespass. "Upon the issues thus joined, that case, as appeared by the copy of the rec- ord, was referred to the assessors, 'to assess the damages occasioned to the plaintiffs by the raising of the gate in the reservoir dam, and make report thereof to the court.' They did subsequently report that the damages sustained by the plaintiffs in this case amounted to the sum of $125, and judgment was there- upon entered for that sum. It is now said that this judgment is not a bar to the present action, because the court did not submit to the assessors this specific ground of damage, and did not direct them to assess damages for shutting down the plaintiff's gate. This is true ; but it Is equally true that they did not direct the assessors to assess damages for causing the water to flow down and waste th^i* reservoir, and at times flood their mill, all of which were alleged as injuries. The order seems to have first declared a refer- ence of the case. Then follows an imper- fect description of the alleged causes of damages. " There is no apparent reason for nam- ing one portion of the case rather than another as the subject for the assessment of damages. It was certainly not a full recital of the plaititiffs' alleged grievances. But, if it were to be taken that the as- sessors only reported upon one of the alleged fact?, it is quite clear that it was open to the plaintiffs to ask for a recom- mittal for that cause, and under an en- larged rule. But the plaintiffs were content to take these damages as the damages for the entire trespasses that were set forth in their declaration. " But, however this may be, we are of opinion that the judgment in the former action must be a bar to the present one, inasmuch as the cause of action, as pre- 120 ESTOPPEL BY RECORD. held a good defence ; the ground being that, as the contract was entire, the plaintiff could not separate it into parts, and bring an action for one part at one time, and for another at another time.^ In an action of trespass on the case ^ to recover for loss of ser- vices sustained subsequently to February 28, 1840, in consequence of injuries to the plaintiff's son by the breaking of a bridge, the defence was that the plaintiff had obtained a judgment for similar damages sustained prior to the date mentioned, by reason of the same injury. And the court held that the judgment was a bar to the present action. The ground taken by the majority was that the injury inflicted by the fall of the bridge was one and entire, though there might be a continuation of the damages ; and that the plaintiff might have recovered prospective damages in a former suit.* Several impor- tant cases were considered and distinguished;* and one case was admitted to bear against the doctrine.^ In concluding, they said that to maintain a second suit for a fresh damage, in a case in which there was no new injury, would* be novel in principle and not warranted by authority. The Chief Justice, dissenting, denied the doctrine of prospective damages where they were uncertain, and thought they could only be recovered to the commencement of the writ, but that they might be the subject of another action when they accrued.^ To an action of trespass "^ for illegal imprisonment, the defend- ant pleaded a recovery before a justice of tlie peace for the same trespass. The plaintiff replied, assigning other trespasses ; to which the defendant rejoined, not guilty ; and issue was joined thereon. In respect to the matter of former recovery, that was Bented by the plaintiffs on the record, is causes of action, or to allege them to have One and the same. The grievance com- occurred at different times." plained of was an illegal entry upon the ' Snaith v. Jones, 15 Johns. 229 ; Far- plaintiffs' land, and by various acts . . . rington v. Payne, Ibid. 431. rendering their mill valueless. The par- 2 Whitney v. Clarendon, 18 Vt. 252. ticular acts causing the damage to the ' HodsoU w. Strallebrasse, 11 Ad. & E. mill are not set forth, as connected with 801. a separate entry, but as a series of acts, * Hambleton o. Veere, 2 Saund. 169; all of which are combined as causing Ward v. Rich, 1 Ventr. 103 ; Brasfield v. the injury to the mill. It is true that the Lee, 1 Ld. Raym. 329; Roberts v. Read, declaration does not restrict them to the 16 East, 215. proof of a single entry ; but it does con- 6 Malachy v. Soper, 3 Bing. N. C. 371 ; neet all these acts with each and every s. c. 8 Scott, 723. entry. It fails to state them as separate 6 ^„(e^ p. io3, note. ' Leland v. Marsh, 16 Mass. 389. DOMESTIC JUDGMENTS IN PERSONAM. 121 for an imprisonment on the 3d of December, the original writ being dated December 5th ; but the imprisonment newly assigned was from the 6th of the same month to the 10th of the next. It was a continuing imprisonment from the 30th of December ; and the defendant insisted that the whole constituted but one injury, for which the plaintiff had already recovered. But the defence was overruled. The court said that the imprisonment was the gist of the action, and that every continuation of it was a new trespass ; so that the plaintiff might well have brought his action for an assault com- mitted on the day after the date of his former writ ; and, if so, he might well assign that anew. But the plaintiff in a judgment by default cannot prevent the defendant from bringing suit by allowing him a partial credit for a separate claim.^ In the case cited, the plaintiff sued in assumpsit for goods sold and delivered ; and the defence was that the goods in question had been credited by the present defendant in an ac- count annexed to a writ su6d by him against the present plaintiff, before the commencement of this action, in which former suit judgment had been rendered by' default. The plaintiff desired to prove, in the court below, that the amount thus credited was not equal to the value of the goods ; but the court refused to hear the evidence, on the ground that the former judgment was conclusive of the value of the goods. The case was appealed, and the judg- ment reversed. Mr. Justice Wilde, referring to the argument that the evidence offered would tend to impeach the former judgment, said that, if this were true, it would clearly be inadmissible ; but he said that the maxim judicium semper pro veritate acdpitur applied only to mat- ters directly adjudicated, not to matters arising incidentally. The defendant in the former suit was not bound to avail himself of the plaintiff's admission or confession of payment. He was not bound to prove the value of the goods at his own expense, when by bringing suit for them the expense would be thrown upon the opposite party. Such a rule as the present defendant contends for, he said, would be often productive of injustice. He then added this illustration : " Suppose a case of mutual demands between A and B ; A's demand against B being |20, and B's demahd against A 130. If A sues B, and credits B's demand of $30 at only $15, 1 Minor v. Walter, 17 Mass. 237. 122 ESTOPPEL BY EECORD. liow, upon the principles advanced hj the defendant's counsel, can B recover his balance of A ? He can recover no balance in A's suit ; and, if judgment in that suit is conclusive, he can have no remedy." And he added that, though the party might file his account, and claim a set-off, still the statute did not compel him to do so. 4. Collateral Impeachment of Judgments. Having completed the consideration of the first three divisions of domestic judgment, we come now to the fourth, in which it is intended to show under what circumstances and in what particu- lars a domestic judgment is liable to impeachment in a collateral action. We have already seen that strangers may impeach judg- ments in collateral actions ; we are now to ascertain if parties, or those who might have been parties, ever have the like pri-vilege. And, first, of contesting the jurisdiction. In the case of domestic judgments, parties and privies are in general estopped in collateral actions to deny the jurisdiction of the court in which the former judgment was recovered, unless it appear from the face of the record that the court had not acquired jurisdiction.! That is, in such cases there is a conclusive presump- tion of law that the steps required by the plaintifi" to obtain jurisdic- tion were taken ; as, for instance, that due service or publication was made, or appearance entered. But there is authority for the position that this presumption is not conclusive, if the plaintifi" has brought suit against one personally who is under legal disability ; though there is conflict on the point. The weight of authority appears to be that (while such party cannot deny service, publication, or appearance) he or she may show the disability in a collateral action, at least if the former judgment was by default.'^ Perhaps, however, this is on the ground that the court in such case is not 1 Hahn u. Kelly, 34 Cal. 391 ; Morse 586 ; MeCormick v. Sullivant, 10 Wheat. V. Presby, 26 N. H. 299 ; Carleton u. 192, holding the same to be true of the Washington Ins. Co., 85 N. H. 162 ; Pen- United States courts, as not being courts obscot Railroad Co. v. Weeks, 52 Maine, of inferior jurisdiction. 456 ; Mercier v. Chaoe, 9 Allen, 242 ; Wi- 2 Griffith v: Clarke, 18 Md. 457 ; Moore ley V. Pratt, 23 Ind. 628 ; Coit v. Haven, ii. Toppan, 3 Gray, 411 ; Whitney v. Por- 30 Conn. 190, and cases cited ; Pardon v. ter, 23 111. 445 ; Graliam v. Long, 65 Penn. Dwire, 23 111. 672 ; Wingate v. Haywood, St. 883. Contra, Hortman v. Osgood, 54 40 N. H. 437 ; Clark u. Bryan, 16 Md. Penn. St. 120 ; Simmons v. McKay, 6 171 ; Callen a. Ellison, 13 Ohio St. 446 ; Bush, 25 ; Blake v. Douglass, 27 Ind. 416. Kennedy v. Georgia State Bank, 8 How. This point is considered ante, p. 49. DOMESTIC JUDGMENTS IN PERSONAM. 123 proceeding according to the course of the common law, a point now to be considered ; and, if so, it forms no exception to the gen- eral rule. The above rule of presumption prevails as to judgments of the superior courts when proceeding according to the course of the common law. When the jurisdiction of the court is not according to the common law, a different doctrine is generally held to pre- vail. One of the most instructive cases upon this subject is Hahn V. Kelly, above cited. In that case, the record of the former judg- ment recited " that the summons and complaint in this case have been duly served on the defendants according to law and the order of the judge of this court." It was a case of publication under the statute, and service without the jurisdiction of the court, which matters also appeared in the record; and it was claimed that the court must presume a legal service, notwithstanding the fact that the proof failed to show it, or tended to show the contrary ; in other words, that, though the affidavits as to publication and ser- vice failed to state all the facts which were made essential by the statute to that mode of proceeding, the court must presume that some other affidavit was actually made, in view of which the court entertained jurisdiction, and which for some reason had not been made part of the judgment roll by the clerk. This position was with some qualification upheld. The aver- ments of the record could not be contradicted, restricted, or en- larged; but, if the record were silent, the same presumption of conclusiveness would be raised as in the case of a judgment ren- dered by a court proceeding according to the course of the common law.^ 1 Mr. Justice Sanderson, speaking for obtaining service in the record, we will the court, said : " Within certain limits, presume that legal service was in fact this is undoubtedly true ; but thus broadly made ; but when the record shows what stated does it not go too far, and invoke was done for the purpose of obtaining presumption where none may exist ? Is service, how can we presume that some- it according absolute verity to the record thing different was in fact done % Would under all circumstances, or is it impeach- that not be to join issue with the record, ing the record under possible circum- and dispute what it says, — which we stances, upon the ground that it misrep- have agreed cannot be done f When the resents what actually took place? Un- record speaks at all, it must be under- doubtedly, if the record' is silent as to stood to speak the truth as to the particu- what was done in respect to some mate- lar fact of which it speaks ; for by the rial matter, we will presume that what law of its creation it can tell no lies, ought to have been done was done. If neither direct nor circumstantial. This there is no proof of what was done in is so, not only when the record speaks iii 124 ESTOPPEL BY RECORD. But the weight of authority is opposed to this doctrine ; ^ un- less there be ground for a distinction between the case of a supe- favor of the jurisdiction, but when it "Pushed to its logical results, this speaks against it. doctrine, without some qualification, be- 1 Morse v. Presby, 25 N. H. 299; Carle- ton V. Washington Ins. Co., 35 N. H. 162; Embury v. Conner, 3 Comst. 322 ; Hunt- ington V. Charlotte, 15 Vt. 46; Clark v. Bryan, 16 Md. 171 ; Bumstead v. Eead, 31 Barb. 661 ; Arthur v. State, 22 Ala. 61 ; Harris v. Hardeman, 14 How. 334. The case of Tibbs v. Allen, 27 H. 119, perhaps supports the doctrine of the Cali- fornia case. It was there adjudged, in an appeal instead of in a collateral action, that the absence of an affidavit of the non- residence of the defendants from the record was not sufficient ground for reversal; the proceeding being one of notice by publi- cation. So Falkner v. Guild, 10 Wis. 563, also a case of statutory proceedings, but involved in a collateral action. Paine, J., speaking for the court, said : " The gen- eral rule in respect to such courts (supe- rior courts) is, at all events where juris- diction appears, that, though the record does not show every thing necessary to regularity, it is to be presumed unless the contrary expressly appears. And, even if irregularity or gross error do appear, the judgment cannot be questioned collater- ally. It is true that proceedings under special statutes have sometimes been made an exception to this general rule as to presumption, even in courts of gen- eral jurisdiction. But, without entering into the inextricable labyrinth of cases on the subject, we will only say that we can see upon principle no reason for the dis- tinction. The general presumption in favor of the regularity of the proceedings of such courts is founded on the character of the court itself. And that character is the same, whether it act under a special statute or under the common law. I can- not see that a difference in the source of its authority to act can make any rational distinction as to the presumption in favor of the regularity of its action." See also Langworthy v. Baker, 23 111. 484. Hahn v. Kelly came under consideration in the recent case of Galpin v. Page, U. S. Circuit Court, Cal. i874 (see s. c. 1873, 18 Wall. 350). Mr. Justice Field of the Supreme Court of the United States there said : " The tribunals of one State have no jurisdiction, and can have none, over persons or property without its territorial limits. Their authority is necessarily cir- cumscribed by the limits of the sover- eignty creating them. Any exertion of authority beyond those limits would be deemed, as stated in D'Arcy v. Ketehum, 11 How. 174, in every other forum an illegitimate assumption of power, and be resisted as mere abuse. " But over property and persons within those limits the authority of the State is supreme, except as restrained by the Federal Constitution. When, therefore, property thus situated is held by parties resident without the State, or absent from it, and thus beyond the reach of the pro- cess of Its courts, the admitted jurisdiction of the State over the property would be defeated, if a substituted service upon the parties were not permitted. Accord- ingly, under special circumstances, upon the presentation of particular proofs, sub- stituted service, in lieu of personal ser- vice, is allowed by statute in nearly all the States, so as to subject the property of a non-resident or absent party to such disposition by their tribunals as may be necessary to protect the rights of their own citizens. In this State, tlie statute, in terms, allows a constructive or substi- tuted service in all cases, whether upon contract or for torts, where the person on whom the service is to be made is a non- resident of the State or is absent from it, whether the action be directed against DOMESTIC JUDGMENTS IN PERSONAM. 125 rior court acting according to the common law, and wlien acting upon a matter as to which its powers, not merely its mode of comes equivalent to a rule that the judg- cannot be attacked at all in a collateral ment of a court of superior jurisdiction action, notwithstanding a want of juris- property within the State, or merely for the recovery of a personal judgment against the defendant. But except so far as the statute authorizes, upon such substituted service, a personal judgment against a nonresident as a means of reach- ing property situated at the time within the State, or affecting some interest therein, or determining the status of the plaintiff with respect to such non-resi- dent, it cannot be sustained as a legiti- mate exercise of legislative power. A pure personal judgment, not used as a means of reaching property at the time in the State or affecting some interest therein, or determining the status of the plaintiff, rAidered against a non-resident of the State, not having been personally served within its limits and not appearing to the action, would not be a judicial de- termination of the rights of the parties, but an arbitrary declaration by the tribu- nals of the State as to the liability of a party over whose person and property they had no control. The validity of the statute can only be sustained by restrict- ing its application to cases where, in connection with the process against the person, property in the State is brought under the control of the court and sub- jected to its judgment, or where the judgment is sought simply as a means of reaching such property or affecting some interest therein, or to cases where the action relates to the personal status of the plaintiff in the State. " Ahens at peace with the United States are allowed access to the courts of the States, and unless the statute be limited in its application as stated, we must accept the conclusion that personal judgments for torts by one alien against another, neither of whom has ever been within our borders, may be recovered without personal service, by publication, and subsequently enforced against any property belonging to the defendant, that may by chance be brought into the coun- try. It would certainly be a strange ap- plication of the statute if an inhabitant of Asia could recover in that way in our courts a personal judgment for an alleged tort committed against him in his own country by one of his countrymen. ' ' An attachment of the property of a non-resident is allowed by the law of this State in all actions upon contracts, express or implied. This remedy, with the ordinary power of a court of equity to enforce mort- gages and other liens, and to take property into its custody where there is danger of its removal beyond the State or of being wasted, and the information imparted to third parties by filing a notice of lis pendens where an interest in real property is the subject of the litigation, affords sufficient protection to citizens of the State without the assumption of any territorial jurisdic- tion over non-residents. Be this as it may, any such assumption can find no support in any principle of natural justice or constitutional law. ' Where a party is within a territory,' says Mr. Justice Story in Picquet v. Swan, 5 Mason, 43, ' he may justly be subjected to its process, and bound personally by the judgment pro- nounced on such process against him. Where he is not within such territory, and is not personally subject to its laws, if on account of his supposed or actual property being within the territory pro- cess by the local laws may by attachment go to compel his appearance, and for his default to appear judgment may be pro- nounced against him, such a judgment must, upon general principles, be deemed only to bind him to the extent of such property, and cannot have the effect of a 126 ESTOPPEL BY RECORD. acquiring jurisdiction, are limited by statute. But it is very doubtful if any such distinction can be properly made ; for the diction may appear upon the face of the saying that no judgment can he attacked record. ... At least, it is equivalent to collaterally, unless the record shows af- conclusiye judgment in personam, for the plain reason that, except so far ae the property is concerned, it is a judgment coram non judice. . . . The principles of the common law (which are never to he lost sight of in the construction of our own statutes) proceed yet further. In gen- eral, it may be said that they authorize no judgment against a party, until after his appearance in court. He may be taken on a capias and brought into court, or distrained by attachment and other process against his property to compel his appearance ; and for non-appearance 'be outlawed. But still, even though a subject, and within the kingdom, the judgment against him can take place only after such appearance. So anxious was the common law to guard the rights of private persons from judgments ob- tained without notice and regular per- sonal appearance in court.' ' Jurisdiction is acquired,' says the Supreme Court in Boswell's Lessee v. Otis, 9 Howard, 348, ' in one of two modes : first, as against the person of the defendant by the service of process ; or, secondly, by a procedure against the property of the defendant within the jurisdiction of the court. In the latter case, the defendant is not per- sonally bound by the judgment beyond tlie property in question. And it is im- material whether the proceeding against the property be by attachment or a bill in chancery. It must be substantially a proceeding in rem.' " A substituted service is usually made in the form of a notice published in the public journals, as in this State. ' But such notice,' says Cooley (p. 404) in his treatise on Constitutional Limitations, ' is restricted in its legal effect, and cannot be made available for all purposes. It will enable the court to give effect to the pro- ceeding so far as it is one in rem, but when the res is disposed of the authority of the court ceases. The statute may give it effect so far as the subject-matter of the proceeding is within the limits, and there- fore under the control, of the State ; but the notice cannot be made to stand in the place of process, so as to subject the de- fendant to a valid judgment against him personally. In attachment proceedings, the published notice may be sufficient to enable the plaintiff to obtain a judgment which he can enforce by sale of the prop- erty attached, but for any other purpose such judgment would be ineffectual. The defendant could not be followed into an- other State or country, and 'there have recovery against him upon the judgment as an established demand. The fact that process was not personally served is a conclusive objection to the judgment as a personal claim, unless the defendant caused his appearance to be entered in the attachment proceedings. Where a party has property in a Stale, and resides elsewhere, his property is justly subject to all valid claims that may exist against him there ; but, beyond this, due process of law would require appearance or per- sonal service before the defendant could be personally bound by any judgment rendered.' " In Cooper v. Reynolds, 10 Wall. 308, similar doctrines are laid down by the Supreme Court of the United States. In that case, the plaintiff had sued the defendants in Tennessee for false im- prisonment, and, upon affidavit that none of them were to be found in his county, sued out a writ of attachment against their property. Publication was ordered by the court, notifying them to appear and plead, answer or demur, or that the suit would be taken as confessed, and DOMESTIC JUDGMENTS IN PERSONAM. 127 court is still presided over by men skilled in the law ; and its pro- ceedings are still had with deliberation and solemnity. And Mr. firmatively, upon its face, that this is or summons was had upon the defendant, — that was not done, or that no service of language which, we venture to say, had proceeded in ex parte as to them. Publi- cation was had, and the defendants liav- iug made default, judgment was entered against them, and the attached property was sold under it. The purchaser having been put into possession, the original owner brought ejectment for the prem- ises. In considering the character of the attachment suit, the court, speaking through Mr. Justice Miller, said : " Its essential purpose or nature is to establish, by the judgment of the court, a demand against the defendant, and to subject his property, lying within the territorial juris- diction of the court, to the payment of that demand. But the plaintiff is met at the commencement of his proceedings by the fact that the defendant is not witliin that territorial jurisdiction, and cannot be served with any process by which he can be brought personally within the power of the court. For this difficulty the stat- ute has provided a remedy. It says that, upon affidavit being made of that fact, a writ of attachment may be issued and levied on any of the defendant's property, and a publication may be made warning him to appear, and that thereafter the court may proceed in the case, whether he appears or not. If the defendant ap- pears, the cause becomes mainly a suit itt personam, with the added incident that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. But, if there is no appearance of the defendant, and no service of pro- cess on him, the case becomes, in its es- sential nature, a proceeding in rem, the only effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff. That such is the nature of this proceeding in this latter class of cases, is clearly evinced by two well-established propositions : first, the judgment of the court, though in form a personal judgment against the defendant, has no effect beyond the prop- erty attached in that suit. No general execution can be issued for any balance unpaid after the attached property is ex- hausted. No suit can be maintained on such a judgment in the same court or in any other ; nor can it be used as evidence in any other proceeding not affecting the attached property ; nor could the costs in that proceeding be collected of defendant out of any other property than that at- tached in the suit. Second, the court, in such a, suit, cannot proceed unless the officer finds some property of defendant on which to levy the writ of attachment. A return, that none can be found, is the end of the case, and deprives the court of further jurisdiction, though the publica- tion may have been duly made and proven in court." " The writer of the present opinion thought some of the objections taken to the preliminary proceedings in the attach- ment suit referred to were well founded, and dissented from the judgment of the court ; but, in the doctrine laid down in tlie above cj^ation, he always has con- curred. It is, in our judgment, the true doctrine, and the only doctrine which is consistent with any just protection to the citizens of ottier States. Such is the con- stant intercourse between citizens of dif- ferent States at the present time that the greatest insecurity to property would ex- ist, if purely personal judgments obtained . ex parte, without personal citation, upon mere publication of notice, which, in the great majority of cases, would never be seen by the parties interested, could be 128 ESTOPPEL BY RECORD. Justice Fowler states tlie doctrine as well settled, that the judg- ments of courts of general jurisdiction while thus acting within never yet been found in any record. What do the cases mean when they speak of a want of jurisdiction appearing upon the face of the record ? Do they mean a positive and direct statement to tlie effect that something which must haye been done, in order to give the court jurisdic- tion, was not done ? Or do they mean that a want of jurisdiction appears when- ever what was done is stated, and which, having been done, was not sufficient in law to give the court jurisdiction ■? H the former, they are a delusion. . . . For we venture to say that no case can be found, or will arise hereafter, where the conditions contemplated by such a rule will be found to exist. No court has ev«r yet so far stultified itself as to render a judgment against a defendant, and at the same time deliberately state that it had not acquired jurisdiction over his person. " Suppose in a case of attempted per- gonal service, the officer should return that he had served the summons upon A B, the son of the defendant, by de- livering to him personally a copy, and also a copy of the complaint, and the remainder of the record is silent upon the question of service. Could we pre- sume, in the face of such a record, that he served it on the defendant also ? Un- made available for the seizure of property afterwards brought within the State. That law would be intolerable, if valid, which would permit citizens of another State to come into this State and recover personal judgments for all sorts of torts and con- tracts, upon mere service by publication against citizens of different States who have never been within the State or pos- sessed any property therein. If such judg- ments could be upheld, they would become the frequent instruments of fraud in the hands of the unscrupulous, and be sprung on the property of the unsuspecting de- fendants when the transactions giving rise doubtedly not. There would be a want of jurisdiction upon the face pf the record within the rule in hand ; and the judg- ment would be declared a nullity when- ever and wherever in support of a legal claim or right. " We consider the true rule to be that legal presumptions do not come to the aid of the record, except as to acts or facts touching which the record is silent. Where the record is silent as to what was done, it will be presumed that what ought to have been done was not only done, but rightly done ; but when the record states what was done, it will not be presumed that something different was done. If the record merely shows that the sum- mons was served on the son of the de- fendant, it win not be presumed that it was served on the defendant. If the affidavit of the printer shows that the summons was publislied one month, it will not be presumed that it was published three. " To avoid any misapprehension, we deem it proper to add that, so far, we have assumed, for the purposes of the argument, that the record, aside from that portion of it which is denominated the proof of ser- vice, is silent upon the question of service. But it may happen that other portions of to the judgments have passed from their iliemory, or the evidence respecting the transactions has perished. We do not think it within the competency of the Legislature to invest its tribunals with authority having any such reach and force ; certainly no presumption in favor of their jurisdiction can arise when a judg- ment of this character is produced against a non-resident who has never been within the State, and did not appear to the ac- tion. Hare & Wallace's Notes to Smith's Leading Cases, vol. 1, p. 838 ; Picquet v. Swan, 5 Mason, 535 ; Monroe v. Douglass, 4 Sand. Ch. 182." DOMESTIC JUDGMENTS IN PERSONAM. 129 statutory limits are open to examination, where all things neces- sary to the jurisdiction do not appear on the record ; and that every thing which does not distinctly appear by the record to be within the jurisdiction will be presumed to be without it.^ In the case, then, of inferior courts, and, according to the weight of authority, of superior courts when acting under limited powers, or not proceeding according to the course of the common law, the jurisdiction may be collaterally impeached in case all the facts necessary to give jurisdiction are not spread upon the record, or proved to exist.^ And the English Court of Admiralty is an infe- rior court in this respect.^ But the Federal courts of the United States do not belong to this class.* And in all cases where the record, taken together, shows affirm- atively that the court had not jurisdiction of the cause, that is, where the record contains express averments respecting jurisdic- tional facts, which show that in law jurisdiction was not acquired, in such case the judgment is null and void.^ And this is true, though the party impeaching the judgment for want of jurisdiction the record may also speak upon that question. K so, what they say is not to be disregarded. On the contrary, in de- termining the question whether a want of j urisdiction is apparent upon the face of the record, we must look to the whole of it, and report the responses of all its parts. To Illustrate : Suppose that por- tion of the judgment roll denominated the ' affidavit or proof of service ' shows that personal service was made upon the son of the defendant, and the remainder of the roll says nothing about service. We then have a want of jurisdiction ap- pearing upon the face of the record. But suppose that the judgment states that the defendant appeared, or that personal ser- vice was made upon him, or something else that is e(iuivalent, as it frequently does, the opposite result follows ; for the record cannot lie, and it appears that the father as well as the son had been served, which may well have been the case. So in the case of a service by pubUcation, if the affidavit of the printer states that the summons was pubhshed one month, and yet the court in its judgment states that it was published three, or that ser- vice has been had upon the defendant, it will be presumed that other proof than that contained in the judgment roll was made ; for not to so presume would be to deny the record that absolute verity which must be accorded to it." 1 Carleton u. Washington Ins. Co., 35 N. H. 162, 167 ; Morse v. Presby, 26 N. H. 299, 302, and cases there cited. 2 Eowleyw. Howard, 23 Cal. 401; Clark V. Bryan, 16 Md. 171 ; Simons v. De Bare, 4 Bosw. 547 ; Steen v. Steen, 25 Miss. 513 ; Gray v. McNeal, 12 Ga. 424; Crawford i>. Howard, 30 Maine, 422. 3 Harris v. Willis, 15 Com. B. 709. In this case, it was held that a plea of a judg- ment in admiralty, " after due proceedings had," and " in due form of law," was in- sufficient to show that the court had juris- diction. * McCorraick v. Sullivant, 10 Wheat. 192. 6 Penobscot Railroad Co. u. Weeks, 52 Maine, 456 ; Parish v. Parish, 32 Ga. 653 ; Mayo V. Ah Loy, 32 Cal. 477 ; Mereier v. Chace, 9 Allen, 242 ; Bruce v. Cloutman, 45 N. H. 37 ; Gay v. Smith, 38 N. H. 171. 9 130 ESTOPPEL BY RECORD. be the one who instituted the proceedings alleged to be void.i And when the original proceedings were properly commenced,' and jurisdiction obtained by the attachment of property in the hands of a trustee (garnishee), a defect in the notice that should subse- quently be given to the principal defendant is an irregularity that will not render the judgment a nullity, though the defect may be sufficient cause for reversal in a court of error .^ But the rule that the jurisdiction of inferior courts is open to inquiry is subject to the following important qualification : if the inferior court has passed upon the jurisdictional facts, and found them sufficient, the parties and their privies are estopped in col- lateral actions to litigate the matter again.^ This question was directly decided by the Court of Appeals of New York, in both of the cases cited. In Sheldon v. Wright the question arose as to the jurisdiction of a surrogate, under publication of an order for persons interested to show cause against the sale of certain prop- erty. The surrogate had decided that the publication was regular ; and his judgment appeared on the record of the proceedings.* 1 Mercier v. Chace, 9 Allen, 242. 2 Carleton v. Washington Ins. Co., 36 N. H. 162, explained in Bruce v. Clout- man, 45 N. H. 37. 3 Slieldon u. Wright, 5 N. Y. 497; Dyckman u. New York, Ibid. 484. * Mr. Justice Foot, in delivering judg- ment, said that the case differed in one particular from that of Dyckman v. New York, just cited. In that case, a summary proceeding, Dyckman had appeared and litigated the merits of the question; while in the present case the appellant had not appeared. " The question tlien arises," said he, " does his omission to appear place him in a more favorable condition for liti- gating the jurisdictional fact; or, in other words, can a party to a judicial proceed- ing, by lying by and omitting to appear, acquire a right to open the proceeding at any time, and litigate in a collateral action a jurisdictional fact "i It will be perceived at once that if the right depends on ap- pearance or non-appearance, the fact that the party claiming it has been served with personal or statutory notice makes no dif- ference. If there is any difference, it is in favor of him who has been served with personal notice ; for such a notice is in general more difficult to prove after a considerable lapse of time, than a notice by publication. ... It cannot be tliere- fore that the acknowledgment or denial of the right of a party to a summary or other judicial proceeding, to disregard the record of it, and litigate collaterally a juris- dictional fact, depends on his appearance or non-appearance." He then proceeded to state that the surrogate's decision as to the regularity of the publication conclusively deter- mined the question of jurisdiction. Re- ferring to the language upon the question of jurisdiction used in tlie cases of Bor- den V. Kitch, 15 Johns. 121, 141, Mills v. Martin, 19 Johns. 7, 33, and Latham v. Edgerton, 9 Cowen, 227, 229, that " the want of jurisdiction is a matter that al- ways may be set up against a judgment," he said that the judges only intended to say that the want of jurisdiction miglit always be set up against a judgment when that fact appeared on the record, or was presented in some other unexcep- DOMESTIC JUDGMENTS IN PERSONAM. 131 In the case of Porter v. Purdy,i there had not been, in point of fact, an adjudication. The proceedings in the case sought to be impeached were had under the statute authorizing the appointment of a certain number of freeholders to assess the expense of a cer- tain improvement. One of tlie persons so appointed was not a freeholder ; and it was contended that the proceedings were there- fore void, by reason of a want of jurisdiction. But the court held otherwise. Mr. Justice MuUin, who delivered the judgment, said that the principle to be applied was this : When, in special proceedings in courts or before officers of limited jurisdiction, they are required to ascertain a particular fact, or to appoint persons to act, having particular qualifications, or occupying some peculiar relations to the parties or the subject-matter, such acts, when done, are in the nature of adjudications, which, if erroneous, must be corrected by a direct proceeding for that purpose ; and, if not so corrected, the subsequent proceedings which rest upon them are not affected, however erroneous such adjudications may be.^ It was indeed sometimes said tliat the entertaining cognizance of a cause is a conclusive finding of the facts constituting jurisdiction ; ^ but this might be doubted ; and it was not such an adjudication as was here intended. In case of appearance by attorney, the question has arisen whether the parties are estopped to deny the attorney's authority. The question was recently brought before the Supreme Court of tionable manner. The principle in Bor- Isett, 14 Iowa, 309 ; Segee v. Tliomas, 3 den V. Ktcii was opposed by no case Blatchf. 11 ; Hungerford v. Gushing, 8 within his knowledge, and it was simply Wis. 324 ; Bridgeport Savings Bank v. this : that when a form or mode of notice Eldredge, 28 Conn. 556 ; Bolton v. Brews- of a judicial proceeding is prescribed by ter, 32 Barb. 389 ; Porter v. Purdy, 29 N. statute, and the party resides iviihin the Y. 106 ; Kipp v. Fullerton, 4 Minn. 478 ; territorial jurisdiction of the . State and Galena and Chicago R. Co. v. Pound, 22 court, a notice in the mode designated is 111. 399. But see Goudy v. Hall, 30 111. sufficient to give the court jurisdiction. 109, holding that such adjudication is These vfere the facts in this case, but prima facie evidence, and referred to in he refused to place his opinion on this Secrist v. Grunn, 3 Wall. 744, as declar- ground, as that would recognize the right ing the law of Illinois, of the party to institute an inquiry re- ' 29 N. Y. 106. specting the jurisdictional fact. He rested ^ gge also Van Steenbergh v. Bigelow, his opinion " solely on the conclusiveness 3 Wend. 42. of the judgment of the surrogate." This 3 Cox v. Thomas, 9 Gratt. 323 ; Clary doctrine is well established. See Shaw- v. Hoggland, 6 Cal. 685; Washington han u. Loffer, 24 Iowa, 217 ; Bonsall v. Bridge Co. v. Stewart, 3 How. 413. 132 ESTOPPEL BY RECORD. Indiana.! The plaintiffs in the case cited brought an action to have certain conveyances set aside, which had been made by virtue of a judgment against them in favor of the present defendants. They alleged that no notice had been given them of the former proceedings, and that certain attorneys had appeared and filed an answer for them without their knowledge or authority ; and the court allowed them to disprove the authority. Chief Justice Ray stated the rule thus : Where a judgment is recovered in a court of general jurisdiction against a defendant, and the record shows that an attorney of the court appeared for the defendant, and filed an answer, the jurisdiction of the court cannot be controverted, unless it be by proof of fraud, which we are not in this case required to decide, or that the defendant was not a citizen of the State, nor during the pendency of the pro- ceedings within the jurisdiction of the court in which the judgment was rendered, and neither had been notified of the pendency of the suit, nor had given authority to the attorney to enter an ap- pearance for him.2 But the contrary has been held, and in one case even as to the judgment of a sister State.^ And, considered on principle, this seems to be the better opinion. We have already seen that, in the absence of any thing in the record affirmatively showing that the court had not acquired jurisdiction, the jurisdiction of the superior courts will be conclusively presumed, at least when acting accord- ing to the course of the common law. And this principle shows that the parties and those claiming under them are estopped, in collateral actions, to dispute the authority of an attorney to appear. As to the question in the cases of judgments of the sister States, under the Constitution and act of Congress, the con- clusion seems irresistible that, in holding a diffei'ent rule from that which must prevail in relation to judgments of the domestic courts, the plain language of the Legislature has been disre- garded.* 1 Wiley V. Pratt, 23 Ind. 628. 3 Warren v. Lusk, 16 Mo. 102; Baker 2 He proceeds to fortify his position by v. Stonebraker, 34 Mo. 172 ; Finneran v. showing that the rule has been so deter- Leonard, 7 Allen, 54 ; Watson v. Hopkins, mined as to judgments of the sister 27 Texas, 637; Brown v. Nichols, 42 States. Shelton v. Tiffin, -6 How. 168; N. Y. 26. Sherrard v. Nevius, 2 Ind. 241 ; Bodurtha * The case of Warren v. Lusk, 16 Mo. V. Goodrich, 3 Gray, 508. See also White 102, above ' cited, is one of the Very few V. Jones, 38 HI. 169. cases in which the constitutional provi- DOMESTIC JUDGMENTS IN PERSONAM. 133 Our next inquiry is in relation to the collateral impeachment of a judgment ior fraud. Does the right exist? and, if so, when ? The early case of Meadows v. Duchess of Kingston ^ presented tlie question of the conclusiveness of a sentence in a suit for jac- titation of marriage, involving the same marriage in question in tlie celebrated case of the Duchess of Kingston.^ In the case first referred to, the sister and heir of the Duke of Kingston brought an action in chancery against the Duchess of Kingston, praying that a will made by the Duke might be declared void by reason of fraud and imposition on the part of his pretended wife, the Duchess. The will had given her all his property, under the description of his wife. The fraud and imposition alleged were that the defendant had deceived the Duke, before their marriage, into the belief that she was single, whereas she was declared at that time and still to be the lawful wife of one Hervey. The bill then charged that the quality of wife was an essential part of the will, and that it expressed the cause of the bequest ; and it in- sisted that the cause and motive, by reason of the imposition, did not exist, and that therefore the bequest could not take effect. It then prayed an account, and that the defendant might be held a trustee for the plaintiff. The plea alleged a suit for jactitation of marriage against the said Hervey ; and that upon a fair trial, upon cross-allegations by Hervey insisting that she was his wife, the court declared that she, the present defendant, was a spinster, and free from all matrimonial alliance, " so far as appeared," with the said Hervey. The imposition was then denied generally. As against this judgment the plaintiff contended that it was not conclusive ; that the words " as far as it appears " showed that it was not definitive, and therefore not conclusive ; also that it might be avoided at the hearing by evidence of fraud and collusion. But the court decided the matter the other way.^ sion and act of Congress, in relation to I understand that the court will not re- the judgments of the sister States, have ceive evidence to contradict it. I lay it been strictly and faithfully followed, down as a general rule, that, wherever a The court there denied the right to dis- matter comes to be tried in a, collateral pute the attorney's authority to appear, way, the decree, sentence, or judgment The point will be fully presented in the shall be received as conclusive evidence chapter on Foreign Judgments in Per- of the matter so determined. In Noell v, sonam. Wells, Lev. 235, the court would not re- 1 Amb. 756. ceive evidence to prove that the will was 2 20 How. St. Tr. 358. forged, in contradiction to the probate. ' Apsly, Ch., said : " By ' conclusive ' All the cases cited import the same rule. 134 ESTOPPEL BY RECORD. The question of the right of impeaching judgments for fraud was directly before tlie court in the Duchess of Kingston's Case. Lord Cliief Justice De Grey, in pronouncing tlie opinion of the court, said : " In civil suits all strangers may falsify for covin, either fines or real or feigned recoveries ; and even a recovery by a just title, if collusion was practised to prevent a fair defence ; and this whether the covin is apparent upon the record, as not assoining, or not demanding the view, or by suffering judgment by confession or default ; or extrinsic, as not pleading a release, collateral security, or other advantageous pleas." ^ Temporal courts must take notice of the forms of sentence in ecclesiastical courts. .... The only exception to the rule is, where the sentence is not ex directo, ac- cording to the distinction in Blackliam's Case, 1 Salk. 290. In the case of Rob- ins V. Crutchley, 2 Wils. 122, the sen- tence was not ex directo; here the ques- tion was direct, ' married or not.' " It was said that fraud in obtaining the sentence might be given in evidence. In Barnesley v. Powell, Amb. 102, Lord Hardwick took a distinction between fraud upon the testator and fraud after his death. ' In the former case,' he said, ' this court would not meddle.' .... Fraud upon a court in obtaining judg- ment or sentence can only be examined by the court where the fraud was com- mitted, or another court having concur- rentjurisdiction in questions of marriage.'' On a subsequent day the chancellor mentioned another case (Rex v. Vincent, 1 Strange, 481) upon the subject. It was a case of an indictment for forging a will ; and on the trial the forgery was proved. But on the defendant's produc- ing a probate of it, that was held to be conclusive evidence in support of the will. He also referred to another case, Prudam u. Philips, 2 Strange, 961, note, in which a question of marriage arose. Tlie defendant gave in evidence her mar- riage with M. ; and the plaintiff showed a sentence annulling the same, which was relied on as conclusive. And so it was agreed, as the report in Ambler states, un- less the defendant might be permitted to show fraud in obtaining it. But Willes, C. J., after much debate, took a distinc- tion between the ease of a stranger who cannot come in and reverse the judgment, and therefore must of necessity be per- mitted to allege fraud, and the case of one who, like the defendant, was a party to the proceedings. Such a person could not prove that the judgment had been fraudulently obtained. In regard to the principal case above presented (Meadows v. Duchess of Kings- ton), it is plain that the " general rule " declared by the chancellor must be re- stricted to cases of judgments in rem ; for it needs not the citation of authorities to show that judgments in personam do not bind third persons. Indeed, if the case above cited by the chancellor as decided by Chief Justice Willes be correct, the reason why the plaintiif could not allege that the judgment in question had been obtained by fraud must have been that she, as a party in interest, might have directly attacked it. 1 "In criminal proceedings," he con- tinued, " if an offender is convicted of felony on confession, or is outlawed, not only the time of the felony, but the felony itself, may be traversed by a purchaser whose conveyance would be affected as it stands ; and, even after a conviction by verdict, he may traverse the time. " In the proceedings of the Ecclesiasti- cal Court the same rule holds. In Dyer there is an instance of a second adminis- tration, fraudulently obtained, to defeat an execution at law against the first ; and DOMESTIC JUDGMENTS IN PERSONAM. 135 The doctrine of these cases then is, that no one who was a party to the former proceedings, or who might have intervened in or appealed from them, can, in a collateral proceeding, allege that the judgment was obtained by fraud ; while the contrary is true as to persons who could not have thus intervened or appealed. There are other cases which support this doctrine.^ The case first cited was a suit in chancery, and came before the court upon exceptions to the master's report. The question was, how far a sentence of the Ecclesiastical Court of nullity of marriage was binding in chancery on a child of the alleged marriage, who was en ventre de sa mere at the time of the sentence. The facts were, in substance, that a marriage which had been solemnized between A and B was declared void by the Ecclesiastical Court. Some time afterwards a child of A and B, en ventre de sa mere at the time of the sentence, and who could not therefore have been a party to the proceedings, claimed property as descendant of A. He attempted to impeach the sentence for fraud ; but the court held that the matters alleged were insufficient to constitute fraud. The opinion, however, was expressed that the complainant was not estopped to prove fraud if he could. In the American courts there have been many contrary dicta upon this point. In a recent case,^ the complainants in a bill in equity sought to prove collaterally that a certain judgment h&d been obtained by fraud, and, although it did not seem to be doubted that this could be done, no question was raided on the point, and the fact being admitted by demurrer, the i Perry v. Meadowcroft, 10 Beav. 122 ; court pronounced against the fraudulent Meadowcroft v. Huguenin, 4 Moore, P. C. administration. In another instance, an C. 386. But see Bandon v. Becher, 3 administration had been fraudulently re- Clarke & F. 479, holding that a judgment Toked; and the fact being denied, issue of the Court of Exchequer may be at- was joined upon it ; and the collusion tacked for fraud, when set up as a defence being found by a jury, the court gave in chancery, between the parties or priv- judgment against it. ies. But this was the common case of " In the modern cases, the question one not a party to the proceedings, whose seems to have been whether the. parties interests had been affected by the fraud should be permitted to prove collusion, of the parties. and not seeming to doubt but that stran- By a recent English statute (2.3 & 24 gers might. So that collusion, being a Vict. ch. 144, § 7) it is provided that any matter extrinsic of the cause, may be im- person may intervene in a, divorce case, puted by a stranger, and tried by a jury, before the decree is made absolute. See and determined by the court of temporal Bowen v. Bowen, 3 Swab. & T. 530. jurisdiction." '■' Field v. Flanders, 40 III. 470. 136 ESTOPPEL BY EBCORD. no decision of it made. The court only held the evidence in- sufficient to constitute fraud. i They do however say, in the course of their opinion, that " while a judgment is conclusive upon parties and privies, and cannot be impeached, still, in equity, it may be vacated and set aside where it has been procured by collusion." But- this language refers to a direct and not to a collateral pro- ceeding. In Great Falls Manufacturing Company v. Worster,^ the defend- ants were allowed to impeach a judgment for costs obtained by the plaintiffs ; but they were sureties, and not parties to the former action. The court say there is no doubt that a judgment may be collaterally impeached by a third "person, not party or privy to it, upon the ground of collusion with intent to defraud him. This case is therefore in strict accord with the English cases above pre- sented.^ In Edgell v. Sigerson,* the court plainly state that, if the judg- ment there relied on as an estoppel were obtained by fraud, it was void; but this was a dictum. The question actually before the court was, whether in pleading under the new practice, to avoid the estoppel of a judgment, it was sufficient to allege that it was obtained by fraud, without stating the facts constituting the fraud. Counsel did not deny that fraud was a proper ground of impeach- ment ; the question rather went by default. In the case of Jackson v. Summerville,^ the judgment was founded on a forged deed ; and the question was whether the judg- ment could be overturned on this ground. The court admitted that a judgment rendered by a court of competent jurisdiction, upon the point in issue, could not be overturned in a collateral proceeding; but they said there never had been a judgment as to whether the deed was obtained hy fraud. " That decree," said they, " was rendered upon the faith of the fact that the Summer- villes were legally and honestly represented by Jackson. But, if the deed were fraudulent and void, the title never passed out of the Summervilles, but still resides in their legal representatives. 1 See People v. Phoenix Bank, 7 Bosw. zer, 5 Barr, 216 ; Callahan v. Griswold, 9 20 ; People v. Townsend, 37 Barb. 520 ; Mo. 775 ; Atkinson u. Allen, 12 Vt. 619 ; Fisk V. Miller, 20 Tex. 579 ; Carr v. Miner, De Armond v. Adams, 25 Ind. 455. 42 111. 179. * 20 Mo. 494. 2 45 N. H. 110. 6 13 Penn. St. 369. ' To the same effect, Mitchell v. Kint- DOMRSTIC JUDGMENTS IN PERSONAM. 137 While therefore the decree is good as against the interest honestly represented before the court, it is void as against the interests not represented [at] all ; that is, not represented in the eye of the law As to that interest, the decree of the court was-, as it were, coram nonjudice." The only cases which we have been able to find in which it has been directly decided that a judgment may be collaterally attacked for fraud, by the parties or their privies, are Hall v. Hamlin ^ and State V. Little.^ There have been dieta to the same effect by other cases not already cited. ^ There have been several decisions to the contrary. The point was directly raised in a recent case in the Supreme Court of Iowa.* The offer to prove that the judgment had been procured by fraud was rejected in the court below ; exceptions were taken, and the ruling was sustained on appeal. The court said : " If a judgment can be attacked for fraud in any case, it can only be by a direct proceeding." ^ And in a late case in Tennessee the same doctrine was held even as to a judgment rendered by a justice of the peace.® The attempt there was to rectify a judgment obtained by fraud, by bringing a new action for the same cause ; but the court held the former judgment a bar. It is clear by most of the cases that the plea of fraud in obtaining the judgment relied upon by the opposite party is good in favor of third persons whose rights were affected by the judgment ; ^ and this is sometimes true, as appears from Perry v. Meadowcroft, supra, even in favor of privies. But it is certainly true of the case of creditors.^ > 2 Watts, 354. Penn. St. 175. But see Mason v. Messen- 2 1 N. H. 257. ger, 17 Iowa, 261 ; Smith u. Smith, 22 3 See Smith v. Keen, 26 Maine, 411; Iowa, 516. Thouvenin v. Rodriques, 24 Texas, 468 ; * In Thompson's Appeal, supra, the Hartman v. Ogborn, 54 Penn. St. 120. court say : " Where a collusive judgment * Smith V. Smith, 22 Iowa, 516. comes into collision with the interests of 5 Mason v. Messenger, 17 Iowa, 261. creditors, they may avoid the effeet of it 6 Kelley v. Mize, 3 Sneed, 59. See by showing it to be a nullity as to them- also Van Doren v. Horton, 1 Dutch, selves, and, in doing so, they do not impair 205. its obligation between the original parties, ' See, besides the cases above cited, upon whom it is undoubtedly binding ; a Gaines w. Eelf, 12 How. 472 ; Hall w. Ham- fraudulent judgment, like a fraudulent lin, 2 Watts, 354 ; Dougherty's Estate, 9 deed, being good against all but the inter- Watts & S. 189 ; Thompson's Appeal, 57 ests intended to be defrauded by it. But 138 ESTOPPEL BY RECORD. As between the parties to the former judgment, it is not easy to determine what is the true rule of law. The language of the House of Lords in Bandon v. Becher ^ is broad enough to cover such a case ; but the contest there was between third persons. In this case, the court say that " a sentence is a judicial determination of a cause agitated between real parties, upon which a real interest has been settled ; in order to make a sentence, there must be a real interest, a real argument [where there was any at all], a real prosecution, 'a real defence, a real decision. Of all these requisites, not one takes place in the case of a fraudulent and collusive suit." On the other hand, there is force in the position taken by the court of Iowa, that while the judgment is valid upon its face, nothing should be heard against it in a collateral proceeding. The weight of authority in this country is probably this way. The point has been thus decided as to the judgments of the sister States.^ And the strongest case upon the subject is one of this class, recently determined in the Supreme Court of the United States.^ The rule, however, is otherwise as to judgments rendered in foreign countries.* We shall refer to this point fully in its appropriate place. But the estoppel only precludes an impeachment of the judgment, even in those cases where fraud and collusion cannot be alleged ; and there is ground for a distinction between the case of a judg- ment obtained by fraudulent practices and the case of a judgment regularly obtained, but based upon a cause of action to which fraud might have been pleaded. If, for example, judgment by default of plea were obtained upon a contract, it might well be that the defendant could afterwards sue for the fraud ; for this would not be inconsistent with the judgment, as we have elsewhere suggested. they cannot call upon the court to vacate judgment collaterally only for collusion.'' it on the record, which would annul it as Gibson, C. J. to the whole world." It follows, as a '3 Clarke & F. 479. matter of course, that if the judgment 2 Anderson i>. Anderson, 8 Ohio, 108 ; creditors cannot vacate the judgment, McRae v. Mattoon, 13 Pick. 53. they cannot collaterally impeach it merely ^ Christmas t;. Russell, 5 Wall. 290. because it was a fraud upon the debtor. See also Boston & W. K. Co. v. Sparhawk, To enable them to do so, it must have 1 Allen, 448 ; Kirby v. Fitzgerald, 31 N. been a fraud upon themselves; and this Y. 417; Hammon u. Wilder, 25 Vt. 342, proposition the learned judge so states in 346. his opinion. See also Lewis v. Rogers, 16 * Cammell v. Sewell, 3 Hurl. & N. 617. Penn. St. 18 : " Creditors, can attack a DOMESTIC JUDGMENTS IN PERSONAM. 139 The judgment affirms the contract, indeed ; but so may the party defrauded do, and still sue for the deceit practised upon him.^ But of course this would be otherwise if an issue on the question of fraud had been presented in the former action. 1 See Jackson v. Summerville, 13 Penn. trine of Hewlett v. Tarte, 10 Com . B. n. 8. St. 359. Contra, Homer v. Fish, 1 Pick. 813, also supports the above view ; but that 435. See ante, pp. 107, 108. The doc- case goes too far. See ante, pp. 18, 19. 140 ESTOPPEL BY BECORD. CHAPTER IV. DOMESTIC JUDGMENTS IN EBM. We proceed now to the consideration of judgments which avail against all persons, to wit, judgments in rem. The general dis- tinction between this class and the class just under consideration was pointed out on a preceding page.^ Most of the questions relating to this division of res judicata, so far as the subject of this work is concerned, are common with those relating to judgments in personam of the domestic courts, the subject of the preceding chapter, and to foreign judgments in rem. The latter, as we shall see, stand substantially upon the same footing with the present class of judgments, with certain excep- tions to be noticed hereafter. In this connection, we shall there- fore consider only some of the general features of this class of estoppels ; referring the reader to the chapters mentioned for fur- ther details. The most familiar instance, perhaps, of the operations of judg- ments in rem, is in the case of adjudications of prize in the Admiralty ; and it has been often determined that such adjudica- tions are conclusive upon all persons, not only of the change of property, but also of the fact for which the condemnation was pro- nounced.2 Questions of the conclusiveness of sentences of this character have, however, generally arisen in relation to the adjudi- cations of foreign courts ; and the subject will be fully considered in its appropriate place.^ Cases of adjudication in the Court of Admiralty in matters of collision afford also a familiar illustration of the operation of judg- ments in rem. In a recent case,* it was held, in an action upon a policy of insurance for a loss by collision at sea, that a decree of the Admiralty that the collision had been caused by the negligence 1 Ante, p. 7 et seg. Bradstreet v. Neptune Ins. Co., 3 Sum. 2 Hughes V. Cornelius, 2 Show. 232; 600. B. c. Ld. Raym. 478 ; Skin. 59 ; Carth. » Under Foreign Judgments in Bern. &2; Croudson v. Leonard, 4 Cranch, 434 ; 4 street v. Augusta Ins. Co., 12 Rich. 18. DOMESTIC JUDGMENTS IN REM. 141 of the vessel insured was conclusive of the fact ; and the insurers were exonerated from indemnification for the damages which the owners of the vessel insured had been compelled to pay, by reason of their negligence, to the owners of the other vessel.* The court, Wardlaw, J., said that the only evidence they had of the collision, and of its attendant circumstances, was the tran- script of the proceedings of the District Court; but this was sufficient. It showed the judgment of a court of competent juris- diction proceeding in rem ; and such judgment was binding on all persons interested in the thing upon which the process was served. Insurers, as persons having an interest in the thing arrested and made the subject of adjudication, were bound, even by the sentence of a foreign prize court, and much more so by the decree of the Admiralty at home. The court further said that the case was not changed by reason of the fact that the vessel had been delivered to the present plaintiifs, claiming as owners, under their stipulation. This fact did not convert the case into a proceeding in personam. The stipulation was a substitute for the vessel ; and the decree was made, not against the persons, but against the vessel. The case of Hart v. M'Namara ^ shows the line of distinction between judgments in rem and in personam, in municipal causes before the Court of Exchequer. It was an action for the price of liquor sold by the plaintiff. The defence was that the liquor was adulterated. To prove the adulteration, the record of condemnation of tlie rum was offered in evidence; and, to connect the plaintiffs with the cause of condemnation, a record was offered in evidence of proceedings by the crown against the defendant for penalties, in which the defendant was convicted. Gibbs, C. J., held that the record of condemnation was admissible, being in rem; but he refused to admit the record of conviction for penalties, stating that, as it was in personam, it was not evidence in any case where the parties were different. That the record of condemnation of goods in the Exchequer is conclusive upon all persons was determined as long ago as in 1775, in Scott V. Shearman.^ This case was an action of trespass against custom-house officers for entering the plaintiff's house and seizing his goods. The defendants justified under a record of condemna- 1 They were not, of course, excused ^ Reported in note, 4 Price, 154. firom paying for the direct damage to the ' 2 W. Black. 977. vessel insured. 142 ESTOPPEL BY RECORD. tion in the Exchequer. The cause was twice argued, and under- went groat examination. Counsel contended that the condemnation was only conclusive of the right of the crown to the goods, but not conclusive in case the owner could prove that in point of fact they were not seizable, and should choose to bring an action against the person seizing for damages, by way of collateral remedy. And Mr. Justice Blackstone was at first disposed to adopt the distinc- tion ; but upon the second argument he and all the other judges decided that the action could not be maintained.^ ' " The only possible ground," said the learned judge just referred to, " that the plaintiff can rely on in the present case, which is unaccompanied with mis- hehavior or any unwarrantable violence, is that the goods were not in truth liable to be seized by the laws of the customs ; although by the plaintiff's default they have been condemned in the Exchequer. But I take this condemnation to be con- clusive evidence to all the world that the goods were liable to be seized, and that therefore this action will not lie. "1. Because of the implicit credit which the law gives to any judgment in a court of record having competent jurisdiction of the subject-matter ; the jurisdiction in this case of the Court of Exchequer is not only competent, but sole and exclusive. And though it be said that no notice is given to the owner in person, and .that therefore he is not bound by the condemnation, not being a party to the suit, yet the seizure itself is notice to the owner, who is pre- sumed to know whatever becomes of his own goods. He knew they were seized by a revenue oiEcer; he knew they were carried to the king's warehouse ; he knew, or might have known, that by the course of law the validity of that seizure would come on to be examined in the Court of Ex- chequer, and could be examined nowhere else. He had notice by the two procla- mations, according to the course of that court. He had notice by the writ of ap- praisement, which must be publicly exe- cuted on the spot where the goods were detained. And having neglected this op- portunity of putting in his claim, and try- ing the point of forfeiture, it was his own laches, and he shall be for ever concluded by it, not only with respect to the goods themselves, but every other collateral remedy for taking them. For it would be nugatory to debar him from recover- ing directly the identical goods that are condemned, if he is allowed to recover obliquely damages equivalent to their value. " 2. Because, the property of the goods being changed, and irrevocably vested in the crown by the judgment of condemna- tion (as is clear beyond any dispute, and conceded on the part of the plaintiff), it follows, as a necessary consequence, that neither trespass nor trover can be main- tained for taking them in an orderly manner. For the condemnation has a retrospect and relation backwards to the time of the seizure, (a) The spirituous liquors that were seized were, therefore, at the time of the seizure, the goods and chattels of his Majesty, and not of the plaintiff, as in his declaration he has nec- essarily declared them to be ; since neither trespass nor trover will lie for taking of goods, unless, at the time of the taking, the property was in the plaintiff." (a) The record of condemnation is conclusive, not only that the goods were liable to seizure at the time of the sentence, but also that they were so liable at the time they were imported. Whitney v. Walsh, 1 Cush. 29. DOMESTIC JUDGMENTS IN REM. 143 Chancellor Kent, in Gelston v. Hoyt,^ referring to this case, says that the law is settled clearly, uniformly, and definitely, that if goods be seized by a custom-house officer, and are libelled, tried, and condemned in tlie Exchequer, District, or other court having cognizance of the forfeiture, trespass will not lie against the officer •who seized the goods. But the great question in the case before Chancellor Kent was, whether, in case of an acquittal of the goods, the officer, wlien sued for the seizure, could contest the legality of the seizure again. And he held that he could not, for reasons stated in the note.^ The foregoing case of Gelston v. Hoyt was taken to the Supreme Court of the [Jnited States, and the judgment was there affirmed.^ Mr. Justice Story, who delivered the opinion, referring to the pas- sage from Buller, said that, though it might be good law in re- 1 13 Johns. 561, 583. ^ " I entertain no doubt," said the Chancellor, " it is equally well settled as the other, and that If the condemnation is a bar to the action on the one hand, the acquittal is a bar to the defence on the other. It would be monstrously unjust, and repugnant to all principles, if the rule were not so. Ought not the parties to be placed upon equal ground ■? and, if the sentence of condemnation be conclusive in favor of the seizing officer, ought not the sentence of acquittal to be conclusive against him 1 The most obvious dictates of justice will teach every man of com- mon understanding that the rule, to be just, should be equal and impartial in its operation." He then proceeds to state that the authorities are on the same side (12 Viner, 95, A. b. 22, 1; Cook v. Shell, 5 T. R. 255), with one exception. Buller, N. P. 245. " The reason," he goes on to say, " as- signed in BuUer's N. P. why an • acquittal is not conclusive in a collateral action, as well as a condemnation, is that an acquit- tal ascertains no fact, as a conviction does. This is the reason assigned. Thus, it is said, if a party be indicted for bigamy and convicted, it must have been a full proof that he was twice married, and could not have been on any other ground ; but, if he was acquitted, it might have been because he had reason to believe his first wife was dead, though she was not dead ; or it might have been for many other reasons, without supposing the second to have been a. lawful marriage. All this may be true in that and like cases ; but in a case in the Exchequer, where the goods are themselves seized and libelled as forfeited to the government, and which is termed a proceeding in rem, the ques- tion of forfeiture is the only question that can be made ; and a, decree of acquittal does ascertain the fact that they were not forfeited. Indeed, in the next preceding page in Buller, an adjudged case is given which completely overturns his distinc- tion. It is the case of Lane v. Degberg, Buller, N. P. 244, decided in 11 W. 3, prior to the decision before Baron Price. 12 Viner, 95 A. b. 22, 1, supra. It was an action by a soldier against liis officer for an assault and battery. The officer justi- fied the act as done in the army for dis- obedience, and gave in evidence the sentence of a council of war, founded on a petition of the plaintiff against him ; and the acquittal, being the sentence of a court of exclusive jurisdiction, in a case arising under martial law, was held to be conclu- sive evidence for the officer in the action for the assault and battery." 3 3 Wheat. 246. ' See also Slocum u. May berry, 2 Wheat. 1. 144 ' ESTOPPEL BY BECOED. spect to criminal suits, it had no application to proceedings in rem. Where property, he observed, was seized and libelled as forfeited to the government, the sole object of the suit was to ascertain whether the seizure were rightful, and the forfeiture incurred or not. The decree of the court in such case acted upon the thing itself, and bound the interest of all the world, whether any party actually appears or not. If it was condemned, the title of the property was completely changed, and the new title acquired by the forfeiture travelled with the thing in all its future progress. If, on the other hand, it was acquitted, the taint of forfeiture was completely removed, and could not be reannexed to it. The orig- inal owner stood upon his title discharged of any latent claims with which the supposed forfeiture might have previously infected it. A sentence of acquittal in rem therefore ascertained a fact as much as a sentence of condemnation ; it ascertained and fixed the fact that the property was not liable to the asserted claim of forfeiture. The effect of a decree establishing a pedigree was presented in the case of Ennis v. Smith.^ The action was brought against the administrator of the estate of General Kosciusko, by persons claim- ing to be his heirs. To prove their relationship, they produced decrees of their family pedigree by the Court of Nobility of Grodno, and another of the Court of Kobryn, in the Russian province of Lithuania. The jurisdiction of these courts having been proved, the Supreme Court of the United States held that the proceedings were in rem, and evidence against all the world of the matters of pedigree adjudicated. But a decree upon the legitimacy of a child cannot, under the laws of Maryland (even if it could by the common law anywhere), be used to establish the question of the legitimacy of other chil- dren by the same connection ; and this, too, though the decree was entered only after an issue directed to ascertain whether the father was ever lawfully married to the admitted mother of the children.^ But the decree as to the particular child would probably be conclu- sive against all the world. That proceedings in marriage and divorce cases also belong to this class is well settled. ^ The application of the doctrine, how- ever, needs some examination. 1 14 How. 400. 3 Hood v. Hood, 110 Mass. 463; Bur- 2 Kearneyt). Dean, 15 Wall. 51; Black- len v. Shannon, 3 Gray, 387; Smith v. burn V. Crawfords, 3 Wall. 175. Smith, 18 Gray, 209. See Bishop, Mar- DOMESTIC JUDGMENTS IN REM. 145 In order that proceedings in divorce cases should estop third persons, it is not sufficient that the jury have given a verdict that the complainant's charges are true, if the verdict has not been fol- lowed by judgment of dissolution of marriage.^ The case cited for this proposition was an action to recover the value of necessaries supplied by the plaintiff to the wife of the defendant, whilst living apart from him. The defence was that the agency of the wife had been destroyed by the fact that she had been found guilty, in the Divorce Court, of having committed adultery. The proceedings in that suit showed that the adultery of the wife had been established, but that there was no decree of dissolution of marriage, by reason of the finding of the jury that the husband had also been guilty of adultery. The present cause of action accrued subsequently to the suit for divoi'ce. The court, by Erie, C. J., said that the judgment of the Divorce Court had not altered the status of the parties. The woman still continued to be the wife of the defendant. The case, he continued, did not fall within the class of cases where the sentence put an end to tlie relation of husband and wife. There was nothing here but the mere verdict of a jury, binding as between the parties, but not afe against other persons who came to litigate the same question.^ The decrees of the Court of Probate are also conclusive, when acting within its jurisdiction, upon all persons.^ Tlie case first cited was a petition for appointment as administrator as matter of right ; alleging that the respondent claimed to be administrator of the same estate, but that he had not been legally appointed, that lie was not entitled to the position, and tliat he was an improper per- son for it. In reply, the defendant set forth his appointment by a Court of Probate, at the request of certain heirs and next of kin of the intestate, and that no appeal had been taken from the order. The defence was held good. The Supreme Court said they could not in a collateral way riage, and Divorce, § 754. (4th ed.), and foreign decrees ; and the reader is referred cases cited. But see Gill v. Read, 5 K. I. to tlie chapter on Foreign Judgments in 343. Bern for further information. 1 Needham II. Bremner, Law B. 1 Com. » Lawrence v. Englesby, 24 Vt. 42; P. 583. Farrar v. Olmstead, Ibid. 123 ; Steen v. 2 Questions relating to the conclusive- Bennett, Ibid. 303 ; Loring v. Steineman, ness of decrees as to marriage and divorce 1 Met. 204. have more frequently arisen in cases of 10 146 ESTOPPEL BY RECORD. review the correctness or propriety of a decree of a Court of Probate acting within its jurisdiction. Whether the defendant were a proper person to be appointed administrator, and whether a request by only a part of the next of kin was sufficient to warrant the grant of letters, were questions properly arising before the court ; and, if the petitioner felt aggrieved, he should have appealed.^ A confirmation of an order of removal of a pauper concludes the appellant in favor of all the world.^ In West Buffalo v. Walker, just cited, Gibson, C. J., says that there are three modes of disposing of an order of removal, each having a different effect as to conclusiveness. The first is by confirmation, which, as has been stated, is conclusive in favor of strangers ; the sec- ond is by discharging the order, in which case the adjudication is conclusive only between the parties litigant; the third is by quashing it, in which case the order is not conclusive upon any one. An order of removal, the learned chief justice said, was con- firmed after an unsuccessful objection to it, for want of merits, or for want of form, or for want of regularity ; it was discharged, or vacated, after a successful objection to it on the merits ; and it was quashed for informality or irregularity of proceeding. The order to quash was like a reversal on a writ of error, leaving the parties where they began. ^ So, too, in the case of a decree in Louisiana appointing a tutor 1 In the case of Loring ». Steineman, persons are entitled, and is necessarily just cited, Shaw, C. J., had occasion to conclusive, because nothing further re- say : " In many cases, courts of pecjiliar mains to be distributed." See also Litch- jurisdiction hare jurisdiction of the sub- field w. Cudworth, 15 Pick. 23 ; Vanderpoel ject-matter absolutely, and persons are v. Van Valkenburgh, 6 N. T. 190 ; Bogar- concerned incidentally only, according to dus v. Clark, 4 Paige, 623; Fry v. Taylor, their respective rights and interests ; as in 1 Head, 694 ; Cecil v. Cecil, 19 Md. 72. a question of prize, the jurisdiction of the And the same doctrine and reasons apply Court of Admiralty extends to the ques- to proceedings in insolvency. Merriam tion whether prize or not, and, by adju- v. Sewall, 8 Gray, 316, 327. dicating upon that question, settles it 2 Eex v. Cirencester, Burr. Sett. Cas. definitively, in regard to all persons inter- 18 ; Rex v. Bentley, Ibid. 426 ; West ested in that question, whether they have Buffalo v. Walker, 8 Barr, 177. See notice or not. And we think the distri- Cabot v. Washington, 41 Vt. 168. bution of an intestate estate is analogous. s gee Rex v. Bradenham, Burr. Sett. The subject-matter, the property, is within Cas. 394, as to which Chief Justice Gib- the jurisdiction of the court, and the judg- son says that the expression "quashed ment, by determining who are entitled to on the merits " was inadvertently used distributive shares, and extending to the for " discharged." entire estate, determines that no other DOMESTIC JUDGMENTS IN REM. 147 to a minor, if rendered by a court of competent jurisdiction, the judgment cannot be impeached in any collateral action by a debtor of the minor.i " So long," said Mr. Justice Buchanan, " as that judgment stands unreversed, it constitutes a full warrant for the demand and collection, by the person therein named as tutor, of debts due to the minor." A judgment confirming the report of commissioners appointed to establish the boundary line between adjoining towns, under a statute of New Hampshire, also concludes all persons. ^ In the case cited, Sawyer, J. , said that it was manifest that great mischief would result if the question, when any doubt arose, should be left in a precarious and fluctuating condition, so that one jury should be permitted to find one way, and another another way, as to the boundary. Public interest and the rights of individuals re- quired that the matter be settled by an adjudication directly upon the matter that should be final and conclusive upon all the world. But the court further decided that the judgment was equally conclusive as to where the boundary had previously been. Tlie learned judge said that to determine what the effect of the adjudi- cation since the commencement of the suit was to be, as to the rights of the parties involved in it, it was only necessary to under- stand the character of the proceeding, under the provisions of the statute which declared it final. It was not a proceeding relating to private transactions, or a controversy between individuals or particular parties. The adjudication was not directly for the pur- pose of determining private rights, or deciding a controversy between party and party. It related to a subject of a public nature, beyond the rights of litigants, and was strictly a proceeding in rem. Its ob- ject was to declare the state, condition, or situation of the subject- matter, the true location of the boundary, in a preceeding instituted under the provisions of the law for that object only. In this ad- judication, it was not merely declared what was to be the recognized and established boundary thereafter. The judgment pronounced where the true boundary was, as established by the only competent authority to limit and define it, — the legislative act. In decreeing where the boundary was, as thus established, it was necessarily 1 Succession of Gorrisson, 15 La. An. 2 Pitman v. Albany, 34 N. H. 577. 27. See also Cailleteau v. Ingouf, 14 La. • An. 623. 148 ESTOPPEL BY RECORD. declared also where it always had been, since the proper power was exercised in establishing it by the legislative act, or the grant from the king, if established during the colonial history ; and also where it always would be until altered- by like competent au- thority. We have already sufficiently adverted to the fact that proceed- ings in attachment, replevin, and the like, are not properly pro- ceedings in rem; though they are sometimes spoken of as such.^ The point has been judicially determined in several cases, as we have seen, that those proceedings affect only the actual parties to the litigation, and those who claim through them.^ A distinction is taken and must be noticed between those cases which incidentally establish reputation, custom, a public ferry, and matters of the like character, and judgments strictly in rem. The latter bind third persons ; or, in plainer terms, they are conclusive evidence against all the world. The former may in certain cases be evidence, but they are not conclusive.^ Arid the distinction is this: In the case of proceedings purely in rem, the direct object of the action is to determine the status of the thing involved ; and its binding force depends on the scope of the proceedings. This is usually so wide as to estop all persons in the world ; but it is con- ceivable that the scope of an action stricfly in rem might be limited in its effects. For instance, in an action under a local statute to determine the status of a thing, the scope of the proceedings might be limited in its binding force to persons within the juris- diction of the local law ; while an adjudication of status, under the law of nations, may be, and usually is, sufficiently comprehensive to embrace and bind all the world. Two things then seem neces- sary to make an adjudication binding as an estoppel upon third persons : 1. The direct object of the action must be to determine the status of the thing ; 2. The scope of the action must be suffi- ciently broad to embrace third persons. Neither of these elements exists in the cases first mentioned. The quasi status there established is not tlie direct object of the litigation, but is a mere incident, necessary perhaps, in a limited 1 Ante, pp. 10, 11. 65 ; The JBold Buccleugh, 7 Moore P. C. 2 Mankin v. Chandler, 2 Brock. 125, 267, 282. Marshall, C. J. ; Megee v. Beirne, 39 3 Piiu v. Curell, 6 Mees. & W. 234 ; Ppnti. St. 50; Woodruff u. Taylor, 20 Vt. Carnarvon u. Villebois, 13 Mees. & W.' 313. DOMESTIC JUDGMENTS IN BEM. 149 sense, to the determination of the particular question in hand, but still incidental. In the case of Pim v. Curell, above cited, the direct object of the suit was to recover tolls ; and though it was necessary to the recovery to establish the existence of a ferry, still it was not necessary to establish a ferry in general. In other words, the scope of the suit was to determine the right to tolls as between the plaintiff and the defendant, and not as between the plaintiff and all the world. It was not necessary, therefore, to examine the question of the existence of the ferry in all possible bearings, but only in its relations to two persons. Had the object of the suit been to establish the fact of a ferry against all the world, the question would have required a more thorough and a wider examination. Moreover, a general status could not be de- termined in an action for tolls, though there were a hundred de- fendants ; for the scope of such a suit could only be broad enough to bind those very parties. The object of such a suit would be to establish the plaintiff's right to tolls against a certain number of persons ; and the existence of the ferry would be proved merely to establish the right as against them. The point of distinction then, in a word, is, that in the cases first mentioned the quasi status has been determined only incidentally and with reference to a few per- sons ; and it has not received that exhaustive examination required in the case of pure proceedings in rem. And these remarks apply to all those cases determining a similar .sort of limited status, which are suggested in the books, such as that found in judgments in ejectment, writs of right, &c. ; ^ and they show that such adjudica- tions cannot estop third persons, even if evidence at all against or for them. It has been held, under a statutory provision, that an unsatisfied judgment against a vessel is no bar to a suit in personam against tlie owners for the same cause of action.^ The court, in the case cited, said that, if the action were strictly in rem, it was clear that no judgment could be rendered that could be enforced against any other property belonging to the owner. It was therefore evident ' Outram v. Morewood, 3 East, 346, Johns. 79 ; Outram u. Morewood, supra ; 357 ; Hancock v. Welsh, 1 Stark. 347 ; Simpson v. Pickering, 1 Cromp. M. & R. Strutt V. Bovingdon, 5' Esp. 56 ; Kinners- 529, note ; 2 Taylor, Ev. § 1499. ley V. Orpe, 2 Doug. 517. This case has 2 Xoby v. Brown, 6 Eng. 308. been criticised. See Case v. Eeeve, 14 150 ESTOPPEL BY RECORD. that a judgment against tlie vessel was not even substantially a judgment against the owners, and that consequently the former recovery relied on was no bar to the present action. Dr. Lushing- ton has, however, expressed a contrary view, even as to foreign decrees, in a dictum in a recent case.^ 1 The Griefswald, Swab. 430. FOREIGN JUDGMENTS IN REM. 151 CHAPTER V. FOREIGN JUDGMENTS IN REM. We come now to the consideration of the interesting division, Foreign Judgments ; under which general term we include the judgments of foreign countries, of English colonies, and of the sister American States. We shall reverse the order adopted in the consideration of the judgments of the domestic courts, and enter first into an examination of the cases relating to foreign judgments in rem, and then of those upon the other and more extensive division. The same reason has prevailed for the order mentioned which led to the order adopted in the preceding chapters, namely, the fact that, in an historical point of view, the division first presented in each case first appeared in the conclusive character of an estop- pel. It is quite probable that, merely as adjudications, judgments in personam appeared first in both cases ; but, as conclusive evi- dence, it was otherwise in the case of foreign judgments, as will presently be seen. First, then, as to foreign judgments in rem. Such judgments have from early times been received with great respect both in the courts of England and in those of America, in strong contrast, in many instances, to the consideration shown to foreign judgments in personam. As long ago as in 1781, Lord Mansfield declared that the sentence of condemnation of a vessel, by a French Court of Admiralty, was conclusive, if the court had jurisdiction, and could not be collaterally impeached ; that it could only be called in question by a proceeding in appeal ; ^ or, he might have added, by a direct proceeding instituted for the purpose of setting it aside. Only three years before this the same eminent commercial lawyer had said that a judgment in personam of a court sitting in an English colony was hnt prima facie evidence of debt, and liable to impeachment in England, in a suit upon the same.^ 1 Bemardi v. Motteux, 2 Doug. 574. 2 Walker v. Witter, 1 Doug. 1. 162 ESTOPPEL BY RECORD. Let US now seek the precise meaning and limits of the rule thus stated, in general terms, by Lord Mansfield. Among the most familiar illustrations of the subject are the adjudications of foreign courts of admiralty in matters of prize ; and Hughes v. Cornelius ^ is the leading case on the subject. It was an action of trover for a ship and goods. Upon a special verdict it was found that the owner of the ship in question, and the master, were denizens of England, and that the mate and nearly all the crew were Englishmen ; that the vessel was taken during a war between Prance and Holland, and condemned as a Butch prize in a French Court of Admiralty, and sold to the plain- tiff Hughes under the sentence ; that on the arrival of the vessel in England the defendant Cornelius and others, the servants of the former master, took and converted her to their own use. Upon the production of the sentence of the Admiralty, the court refused to allow the verdict to be argued, but ordered judgment to be entered for the plaintiff; for it was said, the sentence of a Court of Admiralty ought to bind generally, according to the law of nations, notwithstanding the fact that the verdict had falsified the sentence in respect to the nationality of the vessel. The language of the court was, that " as we are to take notice of a sentence of the Admiralty here, so ought we of those abroad, in other nations ; and we must not let them at large again, for otherwise the mer- chants would be in a pleasant condition. For suppose a decree here in the Exchequer, and the goods happen to be carried into another nation, should the courts abroad unravel- this ? It is but agreeable with the law of nations that we should take notice and approve of the laws of their countries in such particulars. If you are aggrieved, you must apply yourself to the king and council ; it being a matter of government, he will recommend it to his liege ambassador if he see cause ; and, if not remedied, he may grant letters of marque and reprisal." It is often said that the courts of England in adopting the rule in Hughes v. Cornelius, and the courts of America in following the same, have been actuated by large motives of comity. But it is apparent from the language of the court above quoted that the real motive to the adoption of the rule was one of policy, arising from a fear that any other rule would work disaster to English 1 2 Show. 232; a. o. Carth. 32; Skin. 59; 2 Ld. Raym. 893, 936; T. Raym. 473. FOREIGN JUDGMENTS IN REM. 153 commerce, rather than from any high respect for foreign adjudica- tions in themselves considered. And we shall find, as we proceed, that the prime motive leading to the conclusive effect given to foreign judgments has always sprung from policy, or from the great difficulty of" pursuing any other course ; and that international comity lias in fact played a very insignificant part in the matter.^ It may be said with some propriety that it is through comity that the courts of one country allow parties to sue upon judgments rendered in another ; but the effect given to such judgments will be found to depend on other considerations, in no small degree. But the rule is a most salutary one, and has been implicitly fol- lowed. It is to be noticed that the only point decided in the case of Hughes «>. Cornelius was respecting the change of property. And this conclusive effect of the judgments of foreign tribunals, proceeding in rem, has been extended to cases of capture and sale in Algiers.^ The case cited was of a British ship, which had been captured by an Algerine corsair, and sold by the Dey of Algiers to a merchant of Minorca, and by him sold to the present holder. Upon the arrival of the ship in English waters, a warrant was ap- plied for, by the former owner, to arrest the ship ; but the court, refusing the warrant, directed a monition to issue, calling upon the possessor to show cause why the ship should not be restored to the former owner. It was contended in his behalf that the seizure by the Algerine corsair was not a lawful capture, so as to convert the property. But the court held the contrary.^ 1 See Godard v. Gray, Law E. 6 Q. B. judgments of foreign and colonial courts 139, 152; Bank of Australasia v. Nias, 16 are supported and enforced." Q. B. 717. It surely cannot be from mo- " The Helena, 4 Ch. Rob. 3, tives of comity that the courts of Eng- 3 gir W. Scott, in delivering judg- land enforce the judgments of French ment, said : " This ship appears to have courts, when the latter refuse to do like- been taken by the Algerines, and it is wise with the judgments of English courts, argued that the Algerines are to be con- See Godard v. Gray, Law. R. 6 Q. B. 139, sidered in this act as pirates, and that no 148, where it said that foreign judgments legal conversion of property can be de- are enforced in England upon the princi- rived from their piratical seizure. Cer- ple thus stated by Parke, B., in Williams tain it is, that the African States were so v. Jones, 13 Mees. & W. 628, 633 : " Where considered many years ago ; but they a court of competent jurisdiction has ad- have long acquired the character of estab- judicated a certain sum to be due from lished governments, with whom we have one person to another, a legal obligation regular treaties, acknowledging and con- arises to pay that sum, on which an action firming to them the relation of legal of debt to enforce the judgment may be states. So long ago as the time of Charles maintained. It is in this way that the 2, MoUoy speaks of them in language 154 ESTOPPEL BT KECOED. Sales of wrecks and derelicts, under municipal regulations, seem proper to be embraced in the class of proceedings under con- sideration. which, though sufficiently quaint, ex- presses the true character in wliich they were considered in his time.'' He then quotes Molloy as follows : ' ' Pirates that have reduced themselves into a government or state, as those of Algier, Sally, Tripoli, Tunis, and the like, some do conceive ought not to ob- tain the rights or solemnities of war, as other towns or places; for though they acknowledge the supremacy of the Port, yet all the powers of it cannot improve on them more than their own wills volun- tarily consent to. The famous Carthage, having yielded to the victorious Scipio, did in some respect continue, and began to raise up her drooping towers, till the knowing Cato gave council for the total extirpation ; out of the ruins of which arose Tunis, the revenging ghost of that famous city, and now what open hostility denied, by thieving and piracy continues ; as stinking elders spring from those places where noble oaks have been felled ; and in their art are become such masters, and to that degree, as to disturb the mightiest nations on the western empire; and though the same is small in bigness, yet it is great in mischief; the consideration of which put fire into the breast of the aged Louis 9, to burn up this nest of wasps, who having equipt out a fleet in his way for Palestine, resolved to besiege it ; whereupon a council of war being called, the question was, whether the same should be summoned, and carried, it should not ; for it was not fit the solemn ceremonies of war should be lavished away on a company of thieves and pirates. Not- withstanding this, Tunis and Tripoli, and their sister.Algier, do at this day (though nests of pirates) obtain the right of lega- tion. So that now (though indeed pi- rates), yet having acquired the reputation of a government, they cannot properly be esteemed pirates, but enemies." Mol- loy, p. 88, § i. Sir William then proceeds : "Although their notions of justice, to be observed between nations, differ from those which we entertain, we do not, on that account, venture to call in question their public acts. As to the mode of confiscation which has taken place on this vessel, whether by formal sentence or not, we must pre- sume it was regularly done in their way and according to the established custom of that part of the world. That the act of capture and condemnation was not a mere private act of depredation is evident from this circumstance, that the Dey him- self appears to have been the owner of the capturing vessel; at least he inter- venes to guarantee the transfer of the ship in question to the Spanish purchaser. There might perhaps be cause of confisca- tion, according to their notions, for some infringement of the regulations of treaty ; as it is by the law of treaty only that these nations hold themselves bound, con- ceiving (as some other people have fool- ishly imagined) that there is no other law of nations but that which is derived from positive compact and conventtion. Had there been any demand for justice in that country, on the part of the owners, and the Dey had refused to hear their com- plaints, there might perhaps have been something more like a reasonable ground to induce this court to look into the trans- action, but no such application appears to have been made. The Dey intervened in the transaction, as legalizing the act. The transfer appears besides to have been passed in a solemn manner before the public officer of the Spanish government, the Spanish consul ; and, in the subse- quent instance, the property is again trans- ferred to the present possessor, under the public sanction of the judge of the Vice- Admiralty Court of Minorca." But in the case of a vessel seized and confiscated in Mexico, by the record of the proceed- ings of which it appeared that there was FOREIGN JUDGMENTS IN REM. 155 In the case of Grant v. McLachlin,^ an American vessel was captured by a French privateer and carried into a Spanish port ; but it appeared that the Spanish authorities refused to take any steps for the condemnation of the vessel.. It was subsequently put in requisition by the French government, sent to Baracoa, in Spain, and there dismantled and abandoned. The defendant pur- chased the wreck some six months later, under a sale by the Spanish commissary at Baracoa, raised and repaired it, and took the ship to New York, when the original owner brought the present action of trover to recover it. The court held that as the vessel had been abandoned as a wreck, and as it had been sold according to the laws of Spain, the property was transferred to the purchaser, and his title became good against the world. Mr. Justice Thompson said that the capture was no doubt illegal, and that, as the captors had not obtained any judicial condemnation, the plaintiffs' title was not lost by the piratical proceedings, thus far. But the sub- sequent proceedings, he said, were fair, and according to law ; and whether the property had been previously acquired by piracy or not, he did not deem material.^ But the condemnations of foreign Admiralty Courts are also con- clusive of the fact for which the property was condemned, or, to speak with more precision, of the fact which was the ground of the condemnation. no suitable allegation of an offence, in the from comity, but on strong grounds of nature of a libel, and that there was no public utility, to recognize This statement of facts, ex directo, upon which is not a case of prize, or title founded on the sentence professed to be founded, it capture. Such cases are governed by was held that the sentence was not con- different rules, and must be tested by the elusive of the cause of seizure and con- law of nations. The sale in this case demnation. Bradstreet v. Neptune Ins. was a proceeding under a municipal reg- Co., 3 Sum. 600 ; Sawyer v. Maine F. & ulatlon, and every government prescribes M. Ins. Co., 12 Mass. 291. its own rules relative to wrecks, and ' 4 Johns. 34. property left derelict. By the English ^ " Goods taken from pirates," he con- law, vessels cast on shore and abandoned, tinued, " and belonging to others, will, and not reclaimed within a year, are to be under the English law, be taken and sold sold by a public officer, and the proceeds by government, if the owner comes placed in the hands of the government, not within a reasonable time to vindicate We have a similar statute in this State ; his property. What that reasonable time and I believe it was never doubted but shall be, every government will deter- that the purchaser would obtain a valid mine for itself. A sale, according to the title, which would be everywhere re- law of the place where the property is, spected." See The Tilton, 6 Mason, must vest a title in the purchaser which 465. all foreign courts are bound, not only 156 ESTOPPEL BY RECORD. The leading American case of Croudson v. Leonard ^ affords a good illustration of this rule. It was held in that case that the sentence of condemnation of a foreign Court of Admiralty, for breach of blockade, was conclusive, not merely of the change of property, but also of the breach. ' It was an action upon a policy of insurance containing a warranty that the vessel was neutral property, and therefore bound to conduct not inconsistent with neutrality.^ Mr. Justice Washington stated it to be the well-established, law, both of this country and of England, that the sentence of a foreign court of competent jurisdiction, condemning property on the ground that it was not neutral, is so conclusive of the breach of neutrality that it can never be controverted in any other court of concurrent jurisdiction.^ The courts of England have from an early period adopted this extension of the rule in Hughes v. Cornelius, with the qualification 1 4 Cranch, 434. '^ See also Bradstreet v. Neptune Ins. Co., 3 Sum. 600 ; Peters v. Warren Ina. Co., 3 Sum. 389 ; Baxter v. New Eng. M. Ins. Co., 6 Mass. 277. 3 " All the world," he said, " are parties in an admiralty cause. The proceedings are in rem, but any person having an in- terest in the property may interpose a claim, or may prosecute an appeal from the sentence. The insured is emphati- cally a party, and in every instance has an opportunity to controvert the alleged grounds of condemnation, by proving, if he can, the neutrality of the property." Remarking on the case of Hughes v. Cornelius, already cited, he said ; " The authority of the case of Hughes v. Corne- lius, the earliest we meet with as to the conclusiveness of a foreign sentence, is admitted ; but its application to a ques- tion arising under a warranty of neutrality between the insurer and the insured is denied. It is true that in that case the only point expressly decided was, that the sentence was conclusive as to the change of property effected by the condemnation. But it is obvious that the point decided in that case depended, not upon some new principle peculiar to the sentences of for- eign courts, but upon the application of a general rule of law to such sentences. " The case, so far as it goes, places a foreign sentence upon the same founda- tion as the sentence or decree of an Eng- lish court acting upon the same subject ; and we have seen that, by the general rule of law, the latter, if conclusive at all, is so as to the fact directly decided, as well as to the change of property pro- duced by the establishment of the fact. Hence it would seem to follow that, if the sentence of a foreign Court of Admiralty be conclusive as to the property* it is equally conclusive of the matter or fact directly decided. What is the matter decided in the case under consideration ? That the vessel was seized whilst attempt- ing to break a blockade, in -consequence of which she lost her neutral character ; and the change of property produced by the sentence of condemnation is a conse- quence of the matter decided, that she was, in effect, enemy property. Can the parties to that sentence be bound by so much of it as works a loss of the prop- erty and yet be left free to litigate anew, in some other form, the very point decided, from which this consequence flowed t " FOREIGN JUDGMENTS IN REM. 157 that the record should show clearly the ground of the condemna- tion. ' And the rule is so held with much unanimity in America ; ^ but in New York the doctrine of the Court of Errors is, that the sentence of a foreign Court of Admiralty, condemning property as good and lawful prize, is conclusive, indeed, to change the property, but is only prima fade evidence of the facts on which the condem- nation purports to have been founded ; and that these matters may be disproved in a collateral action.^ It is furthermore immaterial that the sentence of condemnation was erroneous, or made under a decree subversive of the law of nations, — one, for instance, like the Milan decree, which had been repudiated by the United States government. An erroneous judg- ment is binding in collateral actions, though the error is apparent from the record. Advantage of the error can only be taken in an appellate court.* But, if the decree was contrary to the natural principles of justice, it will be held void, as we shall see.^ 1 Lothian v. Henderson, 3 Bos. & P. 499 ; Baring t'. Clagett, Ibid. 201 ; Fer- nandez V. Da Costa, Park, Ins. 170 ; Ber- nardi v. Motteux, 2 Doug 574 ; Bolton v. Gladstone, 5 East, 155; Hobbs v. Henning, 17 Com. B. N. s. 791 ; Dalgleish . Aicken, 1 Caines, 460; Penn. (N. J.) 399; Green u. Sarmiento, Pawling I'. Bird, 13 Johns. 192 ; Winches- Peters, C. C. 74 ; Blount v. Darrach, 4 ter V. Evans, Cooke, 420 ; and other cases Wash. C. C. 657 ; Turner v. Waddington, cited ante, pp. 176, 177. 8 Wash. C. C. 126. < Noble V. Gold, 1 Mass. 410, note ; Bis- FOREIGN JUDGMENTS IN PERSONAM. 181 of Columbia. The defendant pleaded nil debet, which upon gen- eral demurrer was held bad. On appeal to the Supreme Court of the United States, counsel for the plea contended that the true construction of the constitutional provision and acts of Congress confined their operation to evidence only, and did not alter the rules of pleading. The " effect " to be given to the copies of rec- ords was their effect as evidence ; for it was not contended that an execution could issue there upon such a record. Counsel further argued that nul tiel record could not be pleaded, because there was no way of procuring and inspecting the original record. This could not be pleaded upon a copy, because that would give it greater credit than it would receive in New York. The counsel on the other side admitted that tlie record was to have effect only as evidence ; but it was evidence of the highest nature, namely, record evidence, as to which nil debet was a bad plea. To the argument that a copy was not of the same dignity with the original, he referred to the act of Congress as making the authenticated exemplification equivalent to, the original record in its proper state, and as communicating to it the same effect as evidence, making it capable of sustaining the same averments in pleading, and of abiding the same tests as the original record. It therefore could not be denied or controverted by any plea, such as nil debet, which put in issue the matters averred by the record ; but the defendant should have either distinctly denied 'the record, or avoided it by pleading satisfaction, &c. He contended that it was immaterial that the ministerial officers of the law in the district could not issue an execution upon the authenticated record, for that objection would be equally valid against the record when used in its proper state', but out of the jurisdiction of its proper court ; and also against the sentences of foreign courts of admiralty under the law of nations. Mr. Justice Story delivered the opinion of the court, sustaining the decision below in overruling the plea. He adopted the view of the plaintiff's counsel, that the effect of the Constitution and acts of Congress was to give the authenticated exemplification the conclusiveness of tlie highest or record evidence ; as to which the proper plea was nul tiel record} 1 " Congress," he said, " hare declared As to the defendant's second point, he the effect of the record by declaring what said that the record might " be proved in faith and credit shall be given to it." the manner prescribed by the act, and 182 ESTOPPEL BY RECORD. It will be observed that the court base their decision of the con- clusiveness of the judgment rendered in New York upon the doc- trine that, under the Constitution and act of Congress, it was' record evidence ; and that nil debet, by the common-law system of pleading, was ah' inadmissible plea in such a case. Mr. Justice Johnson seemed to understand the court as holding that nul tiel record was the only plea to be pleaded to an action of this kind ; and as such plea, at common law, would only put in issue the existence of the record, no inquiry could be made, under any cir- cumstances,, even into the jurisdiction of the court of the sister State. He was not in favor of so sweeping a rule. Though- not opposed to holding the judgments in question conclusive ■ of the merits, i. e. of the subject-matter and ground of the original action, he objected to a rule which (he supposed) would preclude all in- quiry into the jurisdiction. The learned judge was not alone in thus construing the opinion of the majority of the court. Otlier courts of high character at first supposed that the Supreme Court of the United States had pronounced the same sweeping rule.^ But, if this was the inten- tion, the rule has been modified by later decisions of the same court, which hold that, subject perhaps to some exceptions, as, in Buch proof is of as high a nature as an have full effect, independent of the right inspection by the court of its own record, to issue execution." or as an exemplification would be in any In conclusion, the learned judge says : other court of the same State. Had this "Were the construction contended for by judgment been sued in any other court of the plaintiff in error to prevail, that judg- New York, there is no doubt that nil debet mepts of the State courts ought to be would have been an inadmissible plea, considered prmayucie evidence only, this Yet the same objection might be urged, clausein the Constitution would be utterly that the record could not be inspected, unimportant and illusory. The common The law, however, is undoubted, that law would give such judgments {irecisely an exemplification would in such case be the same effect. It is manifest, however, decisive. The original need not be pro- that the Constitution contemplated a duced." To the argument that execu- power in Congress to give a conclusive tion could not issue directly on the judg- effect to such judgments. And we can ment of a sister State, he said : " This perceive no rational interpretation of the objection, if it were valid, would equally act of Congress, unless it declares a judg- apply to every other court of the same ment conclusive when a court of the par- State where the judgment was rendered, ticular State where it is rendered would But it has no foundation. The right of a pronounce the same decision." court to issue execution depends upon its ^ Commonwealth v. Green, 17 Mass. own powers and organization. Its judg- 515,546; Hall v. Williams, 6 Pick. 232, meuts may be complete and perfect, and 24S. See Carletou v. Bickford, 13 Gray, 591. FOREIGN JUDGMENTS IN PERSONAM. 183 respect to the effect of statutory provisions upon residents, there is no estoppel to deny the jurisdiction of the court which rendered the judgment sued upon.^ It has been maintained, with great force, that the court in Mills v. Duryee only intended to declare that nul tiel record was the proper general issue, and did hot mean to pre- clude parties from pleading special pleas to the jurisdiction.^ But we will not further anticipate this question. At all events, the court were unanimous in the opinion that the merits of the judgment sued upon were not open to inquiry ; and this is all that we care to notice at present. Precisely the same question involved in Mills v. Duryee arose a few years later in Hampton v. McConnel, ^ in an action in South Carolina upon a judgment of the Supreme Court of New York. The same plea of nit debet was entered, overruled in the court be- low, and the decision of that court sustained by the Supreme Court of the United States ; Marshall, C. J., delivering the opinion, and declaring that only such pleas could be pleaded as would be good to an action upon the judgment in the domestic courts.* In a subsequent case before the same court,^ the question arose whether, under the Constitution and act of Congress, the statute of limitations of Georgia could be pleaded to an action in that State, founded on a judgment rendered in South/Carolina. It was the opinion of the court that the provisions upon the subject were intended only to preclude all inquiry into the subject-matter of the judgment ; and that therefore the statute of limitations, not being a plea to merits, was an admissible plea.^ 1 D'Arcy v. Ketchum, 11 How. 165 ; the court of a State is not to be regarded Christmas v. Kussell, 5 Wall. 290 ; in the courts of her sister States as a Cheever v. Wilson, 9 Wall. 108. foreign judgment, or as merely prima facie 2 Shumway v. Stillman, 4 Cow. 292 ; evidence of a debt to sustain an action s. o. 6 Wend. 447. upon the judgment, it is to be considered 3 3 Wheat. 234. only distinguishable from a foreign judg- * See Griffin v. Eaton, 27 111. 379, ment in this, that by the first section of holding that, if technicalities have been the fourth article of the Constitution, and abolished in the sister State, they must by the act of May 26, 1790, § 1 (1 Stat, at not be used to defeat the judgment else- Large, 122), the judgment is a record, con- ^here. elusive upon the merits, to which full « McElmoyle v. Cohen, 13 Peters, 312. faith and credit shall be given, when See Matoon v. Clapp, 8 Ohio, 248. authenticated as the act of Congress « The learned judge who delivered the has prescribed. It must be obvious, opinion, Mr. Justice Wayne, presents a when the Constitution declared that full clear exposition and history of the law, faith and credit shall be given in each which cannot fail to be of interest. He State to the public acts, records, and said : "Though a judgment obtained in judicial proceedings of every other Stale 184 ESTOPPEL BY RECORD. It is also held that the Constitution refers only to judgments in civi,l actions, and does not extend to crinainal cases.^ But a con- trary view has been maintained in North Carolina, where it is held that a witness incompetent by conviction for a prime in a sister and provides that Congress may, by gen- eral laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and tlie effect thereof, that the latter clause, as it relates to judgments, was intended to provide the means of giving to them the conclusiveness of judgments upon the merits, when it is sought to carry them into judgments by suits in the tribunals of another State. The authenticity of a judgment, and its effect, depend upon the law made in pur- suance of the Constitution ; the faith and credit due to it as the judicial proceeding of a State is given by the Constitution, independently of all legislation. By the law of 26th of May, 1790, the judgment Is made a debt of record, not examinable upon its merits ; but it does not carry with it into another State the eflScacy of a judgment upon property or persons to be enforced by execution. To give it tlie force of a judgment in another State, it must be made a judgment there, and can only be executed in the latter as its laws may permit. It must be conceded that the judgment of a State court cannot be enforced out of the State by an execution issued within it. This concession admits the conclusion that .... judgments out of the State in which they are rendered are only evidence in a sister State that the subject-matter of tlie suit has become a debt of record, which cannot be avoided, but by the plea of nul tiel record. But we need not doubt what tlie framers of the Constitution intended to accomplish by that section, if we reflect how unsettled the doctrine was upon the effect of foreign judgments, or the effect, rei judicutm, throughout Europe, in England, and in these States, when our first Con- federation was formed. On the Continent it was then, and continues to be, a vexed question, determined by each nation ac- cording to its estimate of the weight of authority to which different civilians and writers upon the laws of nations are en- titled " In these States, when Colonies, the same uncertainty existed. When our Revolution began, and independence was declared, and the Confederation was be- ing formed. It was seen by the wise men of that day that the powers necessary to be given to the Confederacy, and the rights t^ be given to the citizens of each State in all the States, would produce such intimate relations between the States and persons, that the former would no longer be foreign to each other in the sense that they had been as dependent Provinces ; and that, for the prosecution of rights in courts, it was proper to put an end to the uncertainty upon the sub- ject of the effect of judgments obtained in the different States " What faith and credit, then, is given in the States to the judgments of their courts ? They are record evidence of a debt, or judgments of record, to be con- tested only in such way as judgments of record may be ; and, consequently, are conclusive upon the defendant in every State, except for such causes as would be sufficient to set aside the judgment in the courts of the State in which it was rendered. In other words, as has been said by a commentator upon the Con- stitution: 'If a judgment is conclusive in a State where it is pronounced, it is equally conclusive everywhere in the States of the Union.' Story, Const., § 183. It is therefore put upon the footing of a domestic judgment; by which is meant, not having the operation and force of a domestic judgment, but a domestic judg- ment as to the merits of the claim or subject-matter of the suit." See also Green v. Sarmiento, Peters, C. C. 74. 1 Commonwealth v. Green, 17 Mass. 614. FOREIGN JUDGMENTS IN PERSONAM. 185 State is incompetent to testify in the Courts of North Carolina.^ Nor under the Constitution does a judgment rendered in a sister State rank as a domestic judgment in marshalling assets. It has no effect in this direction.^ It has also been held in a late case that the courts of one State may restrain a party from proceeding to enforce a judgment obtained in another State, where the de- fendant had been fraudulently led to believe that the suit in the sister State had been abandoned ;^ but the doctrine is not settled.* Nor does the Constitution require any State to enforce the police regulations of another, or qui tarn actions and the like. But when the courts of another State have taken cognizance of a matter of local police regulation, the judgment is entitled to full faith and credit throughout the Union, and will entitle the plaintiff to main- tain an action thereon, though such regulations could not be en- forced out of the State by an original action. And the courts of the State in which the judgment is sued upon will hold the same conclusive of the merits.* And it is held that the Constitution has no reference to matters 1 State V. Candler, 3 Hawks, 393. 2 McElmoyle v. Cohen, 13 Peters, 312; Cameron v. Wurtz, 4 McCord, 278; Brengle v. MeClellan, 7 Gill & J. 434; Harness v. Green, 20 Mo. 316. ' Engel u. Scheuerman, 40 Ga. 206. So Pearce v. Olney, 20 Conn. 544. 4 Post. ' Indiana v. Helmer, 21 Iowa, 370; Healy v. Root, 11 Pick. 389. In the case flrst cited for this proposition, the action was based upon a judgment ren- dered in another State, in accordance with a statute of that State prescrib- ing proceedings to enforce the support of bastard children by the father. To the objection that this was a proceeding to enforce a. mere police regulation of an- other State, the court said : " There is much truth in the legal proposition upon which this claim rests ; but the error is in its application. If the mother of a bastard child, begotten and born in the State of Indiana, had come to Iowa and sought legal proceedings to compel the de- fendant, its father, to support it, and to give bond therefor, and otherwise comply with the requirements of the statutes of Indiana, the answer of the defendant, that the subject-matter of such action was one of merely local police regulation of Indi- ana, not enforceable in this State, would have been conclusive, and amounted to a complete defence. Graham v. Monsergh, 22 Vt. 543. Such an action can no more be sustained beyond the limits of the sovereignty within which it arose than can an action for any other penalty pro- vided by statute of such sovereignty for the wrongful act of a defendant therein. Both are alike matters of local, internal police, and enforceable alone by the sov- ereignty making the regulation and pro- viding the penalty. But where the local jurisdiction has attached, and the courts of that State or sovereignty have properly taken cognizance of the matter, and rendered judgment for such penalty, such judgment is entitled to 'full faith and credit ' in every other State And the courts of such other State will not in- quire into the facta upon which it was based, nor whether the cause of action would have been enforced by them." 186 ESTOPPEL BY RECORD. subsequent to the judgment, such as issuing and returning execu- tion thereon, and that the same faith is not due to these as to the judgments of sister States.^ We shall now present several important cases to illustrate more fully the conclusiveness of judgments of the sister States. In a recent case in the Supreme Court of the United States, it appeared from the record that the plaintiff had recovered a valid judgment in Kentucky upon a promissory note, and had sued sub- sequently upon this judgment in Mississippi. The defendant relied upon an act of the Legislature of the latter State, whereby it was declared that no action should be maintained on any judgment rendered without the State against a resident of the State, in any case where the cause of action would have been barred had the suit been brought in Mississippi. The case in question came within the language of this act ; and the Supreme Court of Washington declared the same unconstitutional and void. "Beyond all doubt," the court observed, " the judgment was valid in Kentucky, and conclusive between the parties in all her tribunals. Such was the decision of the highest court of the State, and it was undoubtedly correct ; and, if so, it was not competent for any State to authorize its courts to open the merits and review the case, much less to enact that such a judgment shall not receive the same faith and credit that by law it had in the State courts from which it was taken." 2 In a late case in Maine, it appeared that the indorsee of a note had sued the maker in Massachusetts. The defendant pleaded payment and the statute of limitations, and obtained a general verdict in his favor. After this judgment, the payee in some way obtained possession of the note, and brought suit against the maker in Maine. The latter pleaded the judgment rendered in Massachusetts ; whereupon the plaintiff offered evidence to show that that judgment had been rendered upon the plea of the statute of limitations. The court decided the evidence inadmissible, say- ing that it was immaterial whether the verdict was given upon that ground or upon the plea of payment. The judgment was conclusive in Massachusetts, and must therefore be conclusive in Maine. The note had also ceased to be negotiable by the judg- ment, having passed into the custody of the court.^ 1 Carter v. Bennett, 6 Fla. 214. 3 Sweet v. Braokley, 53 Maine, 346. 2 Christmas v. Eussell, 6 "Wall. 290. FOREIGN JUDGMENTS IN PERSONAM. 187 In an action in the Superior Court of New York City, upon a judgment rendered in Wisconsin, the defendant alleged in his answer that the judgment was recovered upon a transaction which happened in the State of New York, and upon which, by the laws of that State, no cause of action accrued ; that the plaintiff owed the defendant $360.70, for merchandise and liquors ; and that the plaintiff owed him |110, upon a judgment recovered in Wisconsin. From the testimony it appeared that the plaintiff had bought the merchandise and liquors on four months' time, and that having paid all but about flOO of the amount due for the same, the present defendant sued the present plaintiff for the balance due, and recovered the judgment above mentioned. It further ap- peared that the plaintiffs, about a month prior to this suit, brought the action which terminated in the judgment now sued upon ; in which action they alleged the sale by defendant to them of the liquors and merchandise, upon " a representation and warranty," upon which the plaintiff relied, and then averred that the quality of the goods had been misrepresented, that they were poor, worth- less, and of no use to the plaintiffs, whereupon the judgment in question was rendered. Defendant then moved to dismiss the complaint on the ground that the supposed cause of action was not enforceable by the laws of New York ; and that the plaintiffs were precluded from recovering by reason of the judgment ob- tained by the defendant for the balance of the account. The court, upon the first point, ruled that though jurisdiction could only be entertained of causes of action recognized by the laws of New York, still, among these, was a judgment rendered in a sister State ; and that the judgment pronounced in Wisconsin must be received as conclusive, regardless of the nature of the original cause of action, which could not now be inquired into. As to the second objection, it was held that the judgment obtained by the defendant for the balance due for the goods concluded the plain- tiffs on nothing, except that they owed the price of the goods ; and that this was perfectly consistent with the liability of the defendant for damages for misrepresenting their quality. The plaintiffs were not bound to recoup, but might avail themselves of the right of suing for this wrong.^ A case of considerable interest and importance was decided in the Supreme Court of Louisiana in 1858, involving this question of 1 Phillips V. Godfrey, 7 Bosw. 150. See ante, pp. 98-108. 188 ESTOPPEL BY RECORD. the conclusiveness of judgments rendered in the sister States. A brought suit against an estate represented by B, as administrator. The defendant, after alleging several special defences and cross- claims, prayed for judgment on the latter, and obtained it, to the amount of |3,000 and upwards. He thereupon brought the present action in Louisiana, upon tlie judgment in his favor as defendant in Texas. A, tlie former plaintiff, now defendant, set up, by way of defence, substantially the same demands as those for which he had brought his action in Texas. He averred in his answer that lie was not in any manner indebted to the said estate ; that if he had been advised that such demands would be made, he could and ■would have proved that they were totally unfounded ; and that the attorney whom he had employed to attend to the case was sick and confined to his bed at the time the trial was had. At the present trial he offered to prove that, subsequent to the time when it was averred that he was indebted to B's intestate, the latter had stated that he, A, owed him, B's intestate, nothing, but that he, the latter, would be owing A the avails of two judgments, filed in evidence in the present suit. Judgment was given for the administrator in the sum recovered in Texas, but against this the court below allowed the demands of A to the amount of about $1,400. The latter appealed, and B prayed an amendment of the judgment, striking out this amount of offset. A claimed a reversal of the judgment on the grounds named, that he had no notice of the demands of B, that they were unfounded, and that his attorney was sick, and the case tried with- out counsel in his behalf. All the objections were overruled, and B's prayer granted for judgment in the original sum awarded in Texas. The court said that A was in court, in that action, and bound to take notice of all adverse proceedings and defences ; that the judgment, when rendered, became conclusive upon the parties until reversed on appeal, or in some other way set aside ; that the sickness of A's counsel, and his inability to attend to the case when tried, might have been a good ground for a continuance by the court in Texas, but that it was not a ground in Louisiana to annul a judgment rendered in the former State, and otherwise valid ; and that that judgment was equally conclusive against the cross- demands now set up by A, and that he should not have been allowed the credits mentioned.^ 1 McFarland v. White, 13 La. An. 394. FOREIGN JUDGMENTS IN PERSONAM. 189 In an action npon a judgment for costs, rendered in another State, tlie defendant attempted to impeacli the judgment by show- ing that the counsel who brought the suit in his name, and con- ducted it to its termination, did not file his warrant of attorney. The Supreme Court of Pennsylvania ruled that though this might have been ground for an application to open the judgment in the State where it was declared, or for a writ of error, or for an action against the attorney, it was no ground whatever for impeaching the judgment in a collateral action.^ A decree in favor of the complainant, rendered in Virginia, was offered in evidence between the same parties, in a suit as to the same matter, in Louisiana, and its admission strenuously contested on grounds of irregularity and fraud. The court below rejected the decree, but that ruling was reversed on appeal, and judgment given in accordance with the Virginia decree. This judgment having been but partly satisfied in Louisiana, suit was again instituted in Virginia, when the defendants again attempted to impeach the first degree. But the court, relying upon the judg- ment pronounced in Louisiana, refused to consider the attack upon it.2 It seems to result from the cases cited, that where the validity of a judgment or decree of one State is passed upon in another, and the judgment rendered in the latter State is sued upon or pleaded in the former, in an action between the same parties, or their privies, it will make no difference whether the first decree or judgment was wrongly upheld or overthrown, or not; and the court cannot inquire whether the judgment rendered in their own State, and perhaps by themselves, was right or wrong, but, under the Constitution and act of Congress, must accept the decision of a court of another, and perhaps distant, State, £^s to their own domestic law.^ Some strange results follow from this position. Suppose a judgment to have been rendered in Oregon in favor of A, in a suit against B. Afterwards A sues B upon the judgment in Maine ; and the court in that State pronounces the judgment void, upon a misconstruction of the law of Oregon. The case then J Rogers v. Burns, 27 Penn. St. 525 ; " De Ende u. Wilkinson, 2 Pat. & H. Cyphert v. McClune, 22 Penn. St. 195 ; 663 ; Rogers v. Rogers, 15 B. Mon. 364. Coxe V. Nioholls, 2 Yeates, 546 ; Denton 3 Dobson v. Pearce, 12 N. Y. 156. V. Noyes, 6 Johns. 296 ; Compher v. Ana- wait, 2 Watts, 490. 190 ESTOPPEL BY RECORD. comes up again in Oregon, in some collateral action, between the same parties ; the judgment of the court in Maine, which has erroneously construed the law of Oregon, must be accepted as con- clusive upon the parties ; and the very court which may have pro- nounced the original judgment must submit, practically, to have its decision overruled by a court of a sister State, and one, perhaps of inferior grade. To take another, and perhaps more forcible illustration, suppose an action of debt to be brought in New York upon the judgment rendered in Massachusetts in the case of Polger v. Columbian Ins. Co. ^ The report of that case shows that the Supreme Court of New York had two years before declared the dissolution of the defendant insurance company, under and by virtue of certain statutes of New York ; and that the court in Massachusetts pro- nounced the decree void, as being in excess of the jurisdiction of the New York court, and allowed the plaintiff to recover on certain policies of insurance issued by the company. In an action of debt upon this judgment, would not the court of New York be apt to say : " We passed upon this question of jurisdiction, and, as it in- volves the consti'uction of our own local law, our decision should carry greater weight than that of the court of Massachusetts ; we will therefore not stultify ourselves, but, having regard to our own dignity, must dismiss the suit?" Would they not also say that their own decree of dissolution was still in full force and effect, and that other courts were bound to recognize the fact, under the Constitution and act of Congress, until it had been reversed or annulled ? We do not question the judgment of the Massachu- setts court, for there is another ground, which, acknowledging the decree of dissolution, may justify the decision ; and even the ground above mentioned may be just if there was a palpa- ble usurpation of authority by the New York court. But the cases which allow the judgments of courts of sister States to be attacked when in full force, for reasons that could not be alleged in collateral suits in the domestic courts, seem like declaring judicial amendments to " the supreme law of the land." The fact that a decree of divorce merely has been pronounced will not estop the wife from suing for alimony in another State, if that matter has not been litigated in the first suit, though this » 99 Mass. 267. See Taylor w. Columbian Ins. Co., 14 Allen, 353; Coburn v. Bos- ton, &c., Manuf. Co., 10 Gray, 243. FOREIGN JUDGMENTS IN PERSONAM. 191 second suit by the wife be one for divorce, as -well as alimony, based upon an allegation that the former decree, obtained by the husband, was illegal. And this too, though the bill is dismissed so far as it prays for divorce. But a decree for alimony, in this second suit, will preclude the husband from contesting the claim in a third suit, an action by the wife, in another State, based upon the decree for alimony.^ In the case cited for this proposition, a husband had sued for a divorce from his wife, in Kentucky. She appeared and defended, but the court decreed in favor of the hus- band. Afterwards, the wife sued the husband, in the courts of Ohio, where the parties then resided, for a divorce and alimony ; alleging that the decree in Kentucky was void by reason of want of jurisdiction in that the husband was not a resident of Kentucky at the time of the decree ; also that the decree had been obtained by fraud. These allegations were traversed, and the Kentucky decree set up as an estoppel. The court in Ohio, however, decided that the decree had been legally rendered, and by a court of com- petent jurisdiction ; but that, inasmuch as the Ohio court had made no provision out of the estate of the husband for the support and maintenance of the wife, and as the propi-iety of so doing had not been adjudicated upon in that case, the husband should pay the wife the sum of |3,000 alimony. Tlie money not having been collected in Oliio, the wife sued upon the decree in Kentucky, to subject certain property of the husband to the payment of the alimony. The defendant again relied upon the first decree, ren- dered at his own suit in Kentucky, and insisted that the Ohio court had no jurisdiction over the subject-matter, and that its decree was therefore void. In regard to this question, it was held, in accordance with a familiar doctrine, that as the husband had appeared in the Ohio suit and contested the claim of the wife, the court had jurisdiction both of the person and subject-matter.^ 1 Rogers v. Rogers, 15 B. Men. 364. this State, was thus comprehensiye, and See McCall v. Carpenter, 18 How. 297. had the legal effect attributed to it in this ^ It was also contended that the Ohio argument, then it would seem to follow decree had been pronounced in utter dis- that, so far as the court in Ohio undertook regard of the previous decree in Kentucky to modify or change it, its action was re- between the parties Upon this point, visory ; it was exercising an appellate the court, speaking by Mr. Justice Simp- jurisdiction which did not belong to it; son, said : " If the decree which had been and consequently its decree was void for pronounced in the suit between these want of jurisdiction, parties, in the Kenton Circuit Court, in " We suppose the position will not be 192 ESTOPPEL BY RECORD. The record of a judgment in a sister State in favor of the plaintiff establishes conclusively, not only the right of action, but also the controverted, that so far as the courts of any of the States might attempt to change or alter the judgments or decrees of .an- other State, upon the ground that the decision of the case was erroneous, they would be assuming the exercise of a jurisdiction that does not belong to them, and their action in the premises would be wholly invalid. " In illustration of this principle, we will suppose that an issue had been made, and fairly tried in a court of competent jurisdiction in this State, and a final judg- ment rendered between the parties on the matters involved in the issue, and that afterwards one of the parties had at- tempted to relitigate the same matters, between the same parties, in one of the courts of a sister State having j urisdiction in similar cases, aud the court there should permit it to be done, and should render a •judgment in conflict with the one which had been previously rendered by the court in this State. Would such a judg- ment he valid in either State? Would not the court that rendered it have virtu- ally assumed, in sustaining the right of one of the parties to retry the same mat- ters which had been previously decided, a revisory jurisdiction over the judgment of a court of another State t The power to relitigate the same matters might not be expressly put upon this ground ; but a court that undertakes to do it does, in effect, assume an authority which can only be legitimately exercised by a court hav- ing some jurisdiction over the judgment first rendered. As no such jurisdiction is vested in the courts of any of the States, over tlie judgments rendered by the courts of other States, it follows that its assumption would be unauthorized, and the action of the court in its exercise utterly void and unlawful. " But, while the correctness of this doctrine is conceded, its applicability in the present case is the point to be de- termined. . . . Nothing was alleged [in the first suit] by either party in relation to the husband's estate, nor was there any claim for a portion thereof presented by the wife, in the event that the husband should succeed in obtaining a divorce. Her right to it in that event was not therefore put in issue, nor decided by the court, unless the decree which was ren- dered, granting a divorce to the husband, had the legal effect attributed to it of ab- solving the husband and his estate from all liability to contribute any thing towards the support of the wife." After showing that the statute upon the subject did not have this effect, he . proceeds : " Whether the wife, having failed to present her claim for a portion of the husband's estate to the court granting the divorce, would be thereby precluded from asserting it, in a, subse- quent "action against the husband, it is unnecessajy to determine. It is sufficient for the purposes of the present inquiry that the matter was not res judicata, and consequently that the court in Ohio, in the decree which it rendered, did not un- dertake to retry an issue which had been previously decided by a court of compe- tent jurisdiction in this State. If it were conceded that the wife, by her failure to present her claim to a portion of the es- tate of the husband, in the suit in which the divorce was granted, ought to be thereby precluded from asserting it in another action, it would not follow that the decree, rendered by the court in Ohio, would for that reason be invalid, or be void for want of jurisdiction. The most that could be urged against it on that ground would be that it was erroneous ; until reversed, however, or if it be irre- versible, it is entitled to the same consid- eration, and has the same legal force and effect, of any other valid decree." The latter point, we apprehend, was the main one relied upon for the decision ; and whatever may be correct as to the first position, that the court in Ohio had FOREIGN JUDGMENTS IN PERSONAM. 193 right of the plaintiff to sue in the capacity in which he broiight the original suit,. For only such pleas as would be good to an action upon the judgment in the sister State may be pleaded elsewhere. A plea to the capacity of the plaintiff to sue, for example, as a lunatic, by next friend, would be a plea in abatement, proper only in the original action ; and, if not then pleaded, it could not be pleaded to a suit upon the judgment in that State, or, consequently, in any other.^ So a judgment for a party, rendered in another State, is conclusive evidence of the existence of that party at the time of the rendition of the judgment.^ And it has been held that the omission -by the plaintiff in a suit in another State, upon a penal bond, to assign breaches and have the damages assessed by a jury, in a judgment by default, cannot be alleged as a defence to a suit upon the judgment rendered in the case.^ So, too, it is said that, where it appears that the plain- tiff might have insisted upon his right to recover upon all grounds relied upon in a new suit by him in another State, the former judg- ment against him will be conclusive.* He cannot withhold his evidence, and then sue again upon the same demand.^ It is not a good plea to, an action against executors, founded on a judgment in a sister State, that there were never any assets of the testator in that State ; for as the judgment there would have been effectual to authorize execution against any assets which the defendants might at any time 4;hereafter have possessed, so it would be sufficient to authorize judgment against them when sued upon elsewhere, and execution upon any assets to be found by virtue of the judgment in the second action.^ In a suit for an injunction by a principal against a surety, to restrain the latter from selling certain property of the former, which the surety claimed had been forfeited by the failure of the principal to carry out an agreement for the rent of a hotel, the prin- cipal offered evidence, received on a former trial between the par- rightly entertained the prayer for alimony, ^ Cook v. Steuben Co. Bank, 1 G. it cannot be doubted that, having passed Greene (Iowa), 447. upon the question, it must have been » Goodrich v. Jenkins, Wright, 348 ; considered as conclusive in all other courts s. o. 6 Ohio, 44. of the Union, in accordance with the pro- * Baker v. Rand, 13 Barb. 152. visions of the Constitution and act of ' Ibid. Congress. * Davis v. Connelly, 4 B. Mon. 136. 1 Cooku. Thornhill, 13 Tex. 293 ; Way- land V. Porterfield, 1 Met. (Ky.) 638. 13 194 ESTOPPEL BY RECORD. ties, to the effect that the hotel property had become untenant- able, contrary to the agreement with the lessor, whereby he had been compelled to abandon the property before the lease expired, and without rendering himself liable to the lessor for the reason named. The surety, thinking him liable, had effected a settlement with the lessor, by paying him several thousand dollars, on account of which he was proceeding to sell the property in question. To rebut the testimony offered by the complainant, that he had in- curred no liability in abandoning the hotel, the defendant surety introduced the record of a judgment rendered in another State, in a suit between the present complainant and the lessor of the hotel property, wherein it was decided that the former was not justified in abandoning the property, and that he was liable on the lease for the rent of the unexpired term. The court held that this concluded the principal as to his liability, that the settlement between the surety and lessor was therefore proper, and denied the injunction to restrain the surety from selling the property in question. 1 A similar case is reported from the Supreme Court of New York.^ In that case the owner of a v^sel in New York became indebted to another, who seized his vessel in Ohio, under a statute of that State. The present plaintiff became surety in a bond for the release of the vessel. The principal debtor defended the suit, but judgment was rendered against him, and the plaintiff, his bondsman, was compelled to pay the amount. In the present suit by the latter against his principal for reimbursement, the record of the judgment in Ohio was held conclusive of the validity of the claim, and of the seizure and proceedings. An interesting but somewhat novel case is reported from the Richmond Superior Court of Georgia.^ It was a motion to enter satisfaction of a judgment rendered in that court under tlie fol- lowing circumstances : The plaintiff, after obtaining the judgment just mentioned, sued thereon in Edgefield, Soutli Carolina; to which the defendant pleaded nul tiel record, the statute of limita- tions, and set-off; and judgment was rendered for the defend- ant. The plaintiff afterwards levied execution upon the first judg- ment ; whereupon the defendant made the present motion to enter satisfaction, on the ground that the judgment in South Carolina 1 Destrehan v. Scudder, 11 Mo. 484. s Harris . Still- of the doctrine, by Dillon, J. But see man, 6 Wend. 447 ; Kerr v. Kerr, 41 N. Y. Warren v. Lusk, 16 Mo. 102. FOREIGN JUDGMENTS IN PERSONAM. 207 for the jurisdiction in such cases, it would seem, would be conclu- sively presumed in the domestic courts.^ But, as we shall pres- ently see, it has been considered by the courts that the provisions of the Constitution and act of Congress do not extend to matters of jurisdiction. And it seems to be doubtful now, in the silence of the record as to the facts constituting jurisdiction, whether there would be even a. prima facie presumption of the court's jurisdiction ; and this, too, though the court were one of record, proceeding according to the course of the common law.^ Perhaps the courts would not require the plaintiff in the judgment to prove the juris- diction (in the silence of the record) where there was nothing to show that the defendant was a non-resident. But in Downer v. Shaw, above cited, it was held that where the record showed that the defendant was a non-resident, and then recited that it appeared to the court that he had notice of tlie pendency of the suit, the recital was not even prima facie evidence that the defendant was served with notice in the State in which the original suit was brought. The court said that the record stated a conclusion only, and not the fact upon which it was based. In view of the non- residence of the defendant, it could be held to mean no more than that such notice had been given, actual or constructive, as, accord- ing to the law of the State, would warrant a judgment in rem. But there are some apparent exceptions to this rule, as in the case of scire facias against bail. In suits upon judgments rendered upon scire facias, without an allegation of personal notice of this proceeding, it has been held that the defendant cannot allege the want of notice as a defence. This, however, is no exception in fact, for in the case of special bail the ground taken was that he would be presumed to be acquainted with the original suit, as he has come into court and there undertaken his peculiar liability.^ But there have been decisions to the contrary on this point.* In the case of Adams ■;;. Howe, cited in the note, it appeared that the plantiff in a suit upon a judgment of another State had ob- tained the same against one Benson, and against the present defend- ant as his trustee. Personal service had been returned as to 1 Ante, pp. 122-130. ' Delano v. Jopling, 1 Litt. 117 ; Ibid. 2 Downer v. Shaw, 22 N. H. 277 ; Bar- 417 ; Adams v. Eowe, 2 Fairf. 89 ; Poor- ringer V. King, 5 Gray, 9, 11. So held in man v. Crane, Wright, 347. a divorce case. Commonwealth v. Blood, * Robinson v. Ward, 8 Johns. 86 ; Holt 97 Mass. 538. " v. Alloway, 2 Blackf. 108. 208 ESTOPPEL BY EECORD. both. Execution was issued and returned unsatisfied. About a year afterwards a scire facias was sued out against the present defendant, who had in the mean time removed from the State ; and the officer returned that he had summoned the defendant by leaving an attested copy of the writ at the last and usual place of abode of the defendant. Judgment was finally rendered against him by default ; and this was the judgment sued upon. The court held that the scire facias was not the commencement of a new suit, but only a continuance of the original action : that the court of the sister State, having acquired jurisdiction over the defendant, at first retained the same throughout, notwithstanding the fact that there was no personal service of the scire facias, or appearance ; and the judgment was conclusive. But where a party dies and an administrator is appointed, this fact alone does not constitute the latter a party to the suit, so as to dispense with personal notice. He must appear and make him- self a party to the record ; otherwise the court, though having had personal jurisdiction over his intestate, will not acquire it over him. And he may show this fact in a suit in another State upon the judgment, though the record contain a recital that he came in.^ ' Gleason v. Dodd, 4 Met. 333. In that suit, appeared and made himself a the case just cited, a suit upon a judg- party to it, in order to prosecute the same nient for costs, rendered against a plain- to judgment. If tliis were so in fact, the tifE in another State, the record recited court clearly had jurisdiction of the same that the plaintiflf's administrator, de- and of the person of the administrator, fendant in the suit for costs, "came in," as such plaintiff, with power to render upon a suggestion of the death of his judgment against him, on failure to prose- intestate. In the present suit upon the cute according to his undertaking. Nor judgment he denied any appearance, could he defend himself by showing that either personally or by attorney ; and the he has never been appointed adminis- question was whether he were concluded trator in Maine. ... Is the record con- by the allegation "in the record. Mr. elusive of that fact [of appearance] 'i Chief Justice Shaw said : " By the laws The answer to this question we think de- of Maine, as well as those of Massachu- pends on this, whether such appearance setts, when a plaintiff dies, his adminis- or coming in, by himself personally, or trator, being appointed under the laws of by his authorized attorney, is necessary the same State, without commencing a to give the court jurisdiction; and we new suit, may come in and prosecute the think that it is. The administrator Is a existing suit in the same manner as if he distinct party from the original plaintiff, had commenced a new one. We under- He is not de facto a party on the fact of stand the record to state that, in pursu- the death of the testator or intestate be- ance of these provisions of law, Dodd, ing suggested, and cannot be made such claiming to be administrator, with a right unless by his own voluntary act, or when and power as administrator to prosecute he is compellable to appear, on summons FOREIGN JUDGMENTS IN PERSONAM. 209 Parties and privies then will not be precluded from inquiring into the jurisdiction, — 1. When the record is silent upon the subject ; 2. When it recites simply an appearance of the defendant by- attorney ; 3. When it is ambiguous or obscure. Since the first edition of this work, it has been established by the Supreme Court of the United States that the same rule pre- vails even though the record of the judgment sets out facts suffi- cient, if true, to show that the court which pronounced it had jurisdiction. The recital, however specific, affords at most but prima facie evidence of jurisdiction ; and the defendant is nOw permitted to overturn it.^ This of course is a final authority for the State courts ; tliough we believe the position taken to be opposed to the best reasoning of the cases on the subject.* It is a universal rule of law, that a judgment of one State or country can have no effect upon the residents of another, unless they were personally notified by service of process, or afterwards and has in fact been summoned. By the death of the original plaintiff the suit is suspended, and must remain so unless an administrator, qualified to act in the State where the suit is pending, shall thus come in. Until this is done, the court have no jurisdiction of the person of such admin- istrator. We think then it is clear that, as to this fact, thus necessary to give the court jurisdiction, the judgment is not conclusive." In commenting upon the concluding remark of the court in a case already re- ferred to (Hall V. Williams, 6 Pick. 232), that " the full faith and credit required to he given in each State to the judicial pro- ceedings of other States will prevent the admission of any evidence to contradict the facts which show a jurisdiction, if such appear on the record," the learned judge said : " This last remark we consider, taken in connection with the subject-mat- ter, as applying to all such facts as tend to show jurisdiction of the court over the person ; such as that he was arrested and gave bail, or was personally summoned ; indicating his actual presence in the State at the time of the commencement of the action, and of course subject to its juris- diction, or other facts of the like nature. .... It therefore follows that the con- clusiveness of judgments, as to matters tending to show that the court had juris- diction, does not extend to such recitals, but only to specific averments of fact, such as an arrest, personal service, or per- sonal appearance." 1 Thompson v. Whitman, 18 Wall. 4-57 ; Knowles v. Gaslight Co., 19 Wall. 58. Ace. Kerr o. Kerr, 41 N. Y. 272; Starbuck u. Murray, 3 Wend. 148 ; Car- leton V. Bickford, 13 Gray, 591 ; Bodurtha u. Goodrich, 3 Gray, 508; Rape v. Heaton, 9 Wis. 328. 2 Wilcox V. Kassiek, 2 Mich. 165 ; Lin- coln V. Tower, 2 McLean, 473 ; Wilson v. Jackson, 10 Mo. 330 ; Bradstreet v. Nep- tune Ins. Co., 3 Sum. 600 ; Westcott v. Brown, 13 Jnd. 83; Lawrence k. Jarvis, 32 111. 304 ; Lapham v. Briggs, 27 Vt. 26 ; Hall V. Williams, 6 Pick. 232; Shelton v. Tiffin, 6 How. 163. 14 210 ESTOPPEL BY EECOED. appeared and defended the action ; and this, too, regardless of any statute making publication or other notice not personal a substitute for the service of process. And under the decisions of the Supreme Court of the United States above referred to, the fact of non-resi- dence and want of personal notice by service within the State in which the judgment was rendered may now be shown, whatever may be the averments of the record. So, too, where part of the defendants were residents and part were non-residents not notified, the latter are not bound.^ But the statutes of a State are binding upon its own citizens ; and whatever provision is made as to bring- ing suits against them will be held obligatory in other States. We give some illustrations of these rules. In an action in Missouri upon a replevin bond, made in Indiana, it appeared that a statute was in force in the latter State which declared that, when given for the stay of execution, such bond, from the date of its execution, " shall be taken as, and have the same force and effect of, a judgment confessed in a court of record against the person or persons executing the same, and against their estates, and execution may issue thereon." But the court in Missouri held that the act could have no extra-territorial effect ; that it could not be sued upon as a judgment rendered in a sister State ; and that it was not within the Constitution and act of Congress, so as to be entitled to the same faith and effect which it would receive in Indiana.^ An action of debt, under the following circumstances, was brought in South Carolina^ upon a judgment rendered in New York. The judgment sued upon was founded upon a joint note, and rendered against the makers jointly. Only one of the defend- ants was served or appeared. The other defendant pleaded that he was not notified, and a statute of New York was shown, by which it was provided that in actions against two or more per- sons, upon any joint obligation, contract, or liability, if the process, issued against all the defendants, should be duly served upon any of them, the defendant so served should answer to the plaintiff, and in such case the judgment, if rendered in favor of the plain- tiff, should be against all the defendants, in the same manner as if all had been served with process. In another section of the same statute, it was provided that such judgment should be conclusive 1 Board of Public Works v. Columbia ^ Foote v. Newell, 29 Mo. 400. College, 17 Wall. 521. s Menlove v. Oakes, 2 McMull. 162. FOREIGN JUDGMENTS IN PERSONAM. 211 evidence of the liability of the defendant personally served, or appearing ; but against every other defendant it should be evidence only of the extent of the plaintiff's demand, after the liability of such defendant should have been established by other evidence. It was held that the judgment could have no extra-territorial effect.1 A case precisely similar occurred in 1846, in the Supreme Court of Connecticut,^ involving the same statute. It was urged as a reason for sustaining the action upon the judgment rendered in New York, that by the laws of that State a similar suit might there be brought upon the judgment against all the defendants, served and not served, and that the plaintiff would not there be permitted to recur to the original cause of action.^ But the court replied that it was obvious — and the cases cited from Wendell's Reports showed this — that that action was prescribed there, not because there was in fact any judgment furnishing evidence of lia- bility, but on grounds of local policy, as a convenient mode of 1 The court, O'Neall, J., said : " Bead- ing the statute without the aid of note or comment, I do not perceive how there ever could have been a dispute that as against the defendant [not served] the judgment was any thing more than one in form, and that in substance it concluded nothing against the person not served. For the provision against every other de- fendant that it shall be evidence only of the extent of theplaintiff's demand, after the liability of such defendant shall have been established by other evidence, plainly shows that it was intended only as a final judgment against the defendant served, and that every thing was left open against the other. If this was not so, why was it provided that it should not even be evi- dence of the extent of the plaintiff's de- mand until after his liability was estab- lished by evidence f This was putting the plaintiff to prove his case from the be- ginning. When this is so, there can be nothing like a judgment in its appropriate legal sense. For, according to that, it is the final evidence of the court on the rights of the parties. Here, however, the whole matter is yet to be sifted before the court can decide that the defendant is at all liable." In other words, such judgment on such proof only establishes the amount of the plaintiff's demand, not its justice ; this may be disputed in an action upon the judgment. After referring to the decisions of the courts of New York (Carman v. Town- send, 6 Cow. 695; s. c. 6 Wend. 206; HalUdayu. McDougall, 22 Wend. 270), in support of the above view, Mr. Justice O'Neall proceeds : "But, be this as it may, it is very clear that the judgment thus obtained in New York can have no extra- territorial effect. For as against the party not served, it cannot be regarded as a judgment, further than as a mere means by which the partnership effects in New York are made liable to the joint debt. In this respect it is analogous to judgments in attachment, or decrees pro confesso against absent defendants in equity." See Buckner v. Archer, 1 McMuU. 85; Les- terjette v. Ford, Ibid. 86, note, cited by court. 2 Wood V. Watkinson, 17 Conn. 500. 8 Merviu v. Kumbel, 23 Wend. 293. 212 ESTOPPEL BY RECORD. proceeding for the recovery of the original debt from all the joint debtors. The regulation pertained to the remedy, and not to the merits, which could not be thus affected. Cases of foreign attachment are closely allied to these ; indeed, the principle pervading them is precisely the same. A case already referred to ^ affords a good illustration. The plaintiff in New Hampshire sued upon a judgment rendered in Vermont. The original writ described the defendant as a resident of the former State ; and the return upon it showed an attachment of his prop- erty in Vermont, and that he was then living out of that State. The court held that the action must fail in the absence of any thing in the record showing personal notice to the defendant in Vermont, or appearance in the suit. They said that the State of Vermont might assert jurisdiction over property situated within its territorial limits, though the owner was not a resident of the State ; and that so far the proceedings in that State were conclu- sive, but no further.^ We have already noticed the fact that the statement is sometimes made in the books that actions upon foreign attachment are pro- ceedings in rem, so far as the property attached is concerned ; and we have shown that the statement is wholly incorrect.^ The case of Woodruff V. Taylor* shows that legislation cannot change the nature of such proceedings. It was an action of trespass for taking certain personal property. The defendant pleaded that he had recovered judgment in the Court of King's Bench, in Canada, against one Smith, and that he had thereupon taken out a writ of fieri facias, which he caused to be levied upon the property in con- troversy in this suit, as the property of Smith, and that the prop- erty was duly sold, and its avails paid into court, by the sheriff's bailiff; that one Johnson then appeared, and claimed to be also a creditor of Smith, and demanded an apportionment of the avails of the property, and that the court thereupon ordered an apportion- ment ; that there was a law of Canada, that when the proceeds of property sold on execution are thus paid into court, any person having any claim to the property may enter an appearance in court, and that if he neglect to do so, and judgment of distribu- tion is rendered, as was done in this case, such judgment is con- 1 Downer v. Shaw, 22 N. H. 277. » Ante, pp. 10, 11. '2 Hall V. Williams, 6 Pick. 232, 241, 4 20 Vt. 66. cited by the court. FOREIGN JUDGMENTS IN PERSONAM. 2|g elusive, both as to the title of the property and the amount of damages and costs, and is a bar against all persons to any and all actions founded upon any title, claim, or possession in or to the property. The plaintiff replied that the property in question be- longed to himself, and not to Smith, and that during all the time of the pendency of the proceedings in Canada he was a citizen and resident of the United States, and that he had no notice of such proceedings. The court held, upon demurrer, that the proceedings in Canada could not be considered as in rem, and that the replication was a good answer to the plea. We. have sufficiently shown that judgments on foreign attach- ment cannot be considered as in rem ; but we desire to illustrate the additional principle, by this case, that no country can by legi lation make proceedings in personam conclusive against the world. The Legislature may declare such proceedings conclusive agamst all the citizens of the State ; but unless they partake of the real character of proceedings in rem, as by being adjudications upon the status of a person or thing, they can have no effect beyond the jurisdiction of the State, except upon such non-residents as have been served with notice within the jurisdiction, or as have appeared iia the case. The books contain a multitude of cases of this class ; but they are not distinguishable in principle, and seldom in fact, from the above. All agree that such judgments are conclusive between the parties as to the property within the jurisdiction of the State, but void as judgments in personam, unless founded upon personal ser- vice or appearance.^ The principle upon which these cases proceed is one of universal application, both as to judgments of the sister States of the Union, and those of foreign countries. It may be thus stated : Tlie Legis- lature cannot give extra-territorial effect to any matters or proceed- ings, as judgments, which are not based on personal notice to or appearance by the (non-resident) defendant, and trial before a court of competent jurisdiction. These are elements necessary to 1 Lincoln «. Tower, 2 McLean, 473; 517; Wilson u. Niles, 2 Hall, 358; Wat- Westerwelt v. Lewis, lb. 511; Steel a. kins v. Holman, 16 Peters, 25; Barrow v. Smith, 7 Watts & S. 447; Miller v. Miller, West, 23 Pick. 270; Wliiting v. Johnson, 1 BaQ. 242; Chamberlain v. Faris, 1 Mo. 5 Dana, 390. 214 ESTOPPEL BY EECORD. the validity of every judgment in personam when under considera- tion in the courts of any other State or country.^ It is an important question, whether the judgments of a sister State may be attacked for fraud, in the courts of any other State. The books are not wanting in dicta in the affirmative ; ^ but up- wards of thirty years ago there was an express decision of the question in .the negative, by the Supreme Court of Ohio.^ The facts, as they appear in the report of the case cited, were these: The suit was debt upon a judgment, recovered in Virginia. The defendant, in his first plea, pleaded, in general terms, that the judgment sued upon was obtained by fraud ; and, in the second and third pleas, the fraud relied upon was specially alleged. Issue of fact was joined upon the first, and a demurrer was entered to the second apd third pleas ; and the demurrer was sustained.* 1 Buchanan v. Kucker, 9 East, 192 s. c. 1 Camp. 65; Smith o. NicoUa, ' Soott, 147; ». c. 6 Bing. N. C. 208 Becquet v. MacCarthy, 2 Barn. & Ad. 951 ; Vanquelin v. Bouard, 15 Com. B N. 8. 341 ; Meeus v. Thellusson, 8 Ex. 638 See also the authorities cited in the notes to the preceding pages.' 2 Holt V. AUoway, 2 Blackf. 108 ; Bor- den V. Fitch, 15 Johns. 121 ; Andrews v. Montgomery, 19 Johns. 162; Shumway V. Stillman, 4 Cow. 292. See Lucas v. Bank of Darien, 2 Stewt. 280. ■* Anderson v. Anderson, 8 Ohio, 108. * " It is remarkable," said the court, " that this question has never received a precise determination. The books abound so fully in the general doctrine that fraud avoids all judicial acts, and the proposi- tion is so often asserted in terms which import that a judgment may for that cause be impeached collaterally, that one would expect to meet with several cases in which the question has been directly adjudged. In Borden v. Eitch, 15 Johns. 121, the defence was placed on the ground of want of jurisdiction, in the Supreme Court of Vermont, to decree a divorce ; the defendant to the petition residing in another State, and having no notice of the proceedings. It is, however, said by the court, that as the decree was obtained by false and fraudulent representations, it was void ; and Eermor's Case, 3 Coke, 77, is relied upon as the only authority. .... But it is important to examine Eermor's Case. It was a bill in chancery to annul a fine ; that is, it was a proceed- ing, directly instituted, to get rid of a judgment at law. Richard Eermor, the plaintiflf, demised land to the defendant, Thomas Smith, for twenty-one years. Afterwards Smith fraudulently levied a fine, to bar the plaintiff of the inheritance. And it appears to have been a great ques- tion then whether the plaintiff could be relieved, even in chancery ; for it is said that it was debated two days, before all the judges of England, and the barons of the Exchequer, when it was finally deter- mined in his favor. So that Eermor's Case, so far from being an authority in support of the position that a judgment may be impeached collaterally, is an authority the other way " With regard even to foreign judg- ments, there appears now to be the strongest inclination to depart from the doctrine that they are only prima fade evidence." After referring to cases already con- sidered, holding to the conclusiveness of foreign judgments, Tarleton v. Tarleton, 4 Maule & S. 20; Boucher v. Lawson, FOREIGN JUDGMENTS IN PERSONAM. 215 There has been conflict also as to whether such a judgment may be restrained. In a case in the Court of Chancery of New York,i the complainant sought to restrain the defendants from prosecuting a suit in the Supreme Court upon a judgment re- covered by them against the complainant, in Massachusetts. His bill alleged that the judgment referred to had not been entered, filed, or docketed, at the time alleged in the declaration in the Supreme Court, or for many years thereafter; that no verdict was ever rendered, and that there had been no assessment of damages ; that the alleged judgment had been entered some three years after the time stated in the declaration, through the mistake or collusion of the clerk, and by the fraud and procurement of the defendants in the present suit, or their agents, without lawful war- rant or authority. The bill was demurred to, and the demurrer sustained on appeal. Chancellor Walworth said that, if the judgment had been fraudu- lently entered, the proper remedy was an application to the court in Massachusetts to set it aside, and to take the spurious record off the files of the court. It would not be according full faith and credit to the record of a judgment rendered in another State, if the party against whom it purported to have been obtained should be allowed to show, in another State, that no such judgment was given, or authorized to be entered by the court, but that it had been fraudulently made up and filed. The Supreme Courts of Connecticut and Georgia have recently Cas. Temp. Hardw. 89 ; Martin v. Nicolls, raised several years earlier in Massachu- 3 Simons, 458, he proceeds to say : — setts ; and the same rule had been de- " If such is the view which is now clared. McRae v. Mattoon, 13 Pick. 53. taken of the efficacy of foreign judg- See Homer v. Fish, 1 Pick. 435. The ments, what shall we say of the attempt court in the case cited said that, if this to impeach collaterally a judgment of a were not the law, there would be no end sister State, which has all the force and of litigation. If the first judgment were validity of a domestic judgment J That to be impeached for fraud, the second was it cannot be vindicated either upon prin- liable to the same attack, and the third ciple or authority, and that although loose also, and so on. The law would become dicta in abundance may be found to coun- a game of frauds, in which the greatest tenance it, yet that it has no root either rogue would become the most successful in English or American jurisprudence." player. The doctrine of this case was re- The learned judge was mistaken in the cently held by the Supreme Court of Con- statement that there had been no prior nectiout. Sanford u. Sanford, 28 Conn, determination of the question at the time 6, 28. he decided this case. The point had been ' Bicknell v. Field, 8 Paige, 440. 216 ESTOPPEL BY RECORD. declared a different rule ; ^ and the Supreme Court of Iowa have made a decision not in harmony with this case.^ The Iowa case referred to was a suit upon a judgment rendered in Kentucky, in an action of slander. The court below, acting as a jury, found that the defendant, a resident of Kentucky when the suit for slander was begun, had removed to Iowa, after employing counsel to defend the case ; that subsequently he appeared, but the cause was passed ; that afterwards he saw the plaintiff, who then assured him that he would dismiss the suit, and that he, the de- fendant, need not come back from Iowa to defend the case any further ; that the defendant, relying upon this assurance, left for his home in Iowa ; and that the plaintiff a year later called up the case, in the absence of the defendant, and without notifying him, and obtained the judgment now sued upon. The judgment of the court below, upon these facts, was in favor of the defendant ; and this judgment was affirmed in the Supreme Court.'' Mr. Justice Dillon, who delivered the opinion in the case, after stating that the circuitous practice of a bill in chancery to enjoin the action at law was no longer necessary under the practice in that State, and that therefore, if the facts pleaded were sufficient either in law or equity to constitute a defence, the plaintiff must fail, passed on to the main point in question. He said that the courts were in the constant habit of relieving parties on equitable terms from judgments rendered against them in consequence of the fraudulent acts of the successful party, or his attorney.* " If the judgment sued on," he continued, " had been rendered by a court in Iowa, the facts found by the court below would be a good defence, at least in equity, to an action upon it, or sufficient to re- 1 Pearce v. Olney, 20 Conn. 544 ; Engel service had been obtained by fraud, but V. Scheuerman, 40 Ga. 206. See Dobson that the justice of the claim should have V. Pearce, 12 N. Y. 156. been denied ; and that even both of tliese 2 Rqgers v. Gwinn, 21 Iowa, 58. allegations might not have been sufficient, » In Luckenbach v, Anderson, 47 Penn. unless the judgment itself had been St. 128, — a suit upon a judgment rendered obtained by fraud. in New York, — the defendant, a resident See also Crawford v. "White, 17 Iowa, of Pennsylvania, offered to prove that he 560 ; Potter v. Parsons, 14 Iowa, 286. had been deceived and decoyed into New » He cited Harshey v. Blaekmarr, 20 York for the purpose of procuring service Iowa, 161 ; 5 Am. Law Reg. n. s. 389 ; on him, and that service was thus, and 2 Story, Eq. §§ 194, 195; Pearce v. Olney, not otherwise, effected. The court held 20 Conn. 544 ; Dobson «. Pearce, 12 N. Y. that it was not sufficient to show that 156 ; Milne v. Van Buskirk, 9 Iowa, 558. FOREIGN JUDGMENTS IN PERSONAM. 217 quire a court of equity, upon petition filed for that purpose, to cancel it. And we cannot doubt that they would be so regarded by the courts of Kentucky, if this action had been brought in that State, or if the defendant, in that State, had sought relief against the judgment. So that if we should hold as the appellant insists we should, we would be giving to the judgment of the court of one sister State a greater force and effect than we would give to a like judgment rendered by our own courts." In a suit for an injunction against proceedings at law upon a judgment of a sister State, founded upon facts quite similar to those in the case just under consideration, the Supreme Court of Connecticut came to the same conclusion,^ and sustained the in- junction. The court said that this was no attempt to impeach the validity of the judgment of another State ; that the court of equity did not presume to direct or control the court of law ; but it con- sidered the equities between the parties, and acted upon the person, restraining him from instituting or prosecuting the action. But the question in its legal aspecl has recently received an authoritative decision from the Supreme Court of the United States, the court of last resort in matters relating to the Federal Consti- tution and acts of Congress.^ The court said that, unless the merits were open to exception and trial between the parties, it was difBcult to see how the plea of fraud could be admitted to the action upon a judgment of a sister State. Whether an action on such judgment could be restrained or not was not determined. The dieta to the contrary may now be considered as overruled, and the doctrine established that judgments of one State cannot be avoided at law in another for fraud, while in full force where ren- dered, unless indeed the plea of fraud would there be good ; ^ and, as the same pleas would be good in a sister State that would be good in an action upon the judgment at home, it follows that if the judgment has been limited or restrained, as by injunction, in the 1 Pearce v. Olney, 20 Conn. 544. See on the doctrine that fraud is no ground for Dobson V. Pearce, 12 N. Y. 156. the impeachment of a domestic judgment ; 2 Christmas v. Russell, 6 Wall. 290. and it would seem to follow from the doo- See also Granger v. Clark, 22 Maine, 130 ; trine of Hampton v. McConnell, 8 Wheat. Boston &W. R. Co. v. Sparhawk, 1 Allen, 234, that if the law of any State is other- 448 ; Atkinson v. Allen, 12 Vt. 624 ; Ham- wise, and a plea of fraud good as to a home mond t7. Wilder, 25 Vt. 342; Embury v. judgment, it would be good when pleaded Conner, 3 Comst. 522. to a judgment of such State in any other 3 Christmas v. Russell, supra, was based part of the Union. 218 ESTOPPEL BY EECORD. domestic court, the fact may be pleaded, or perhaps a similar pro- ceeding may be maintained, in any other State, when it is sought to enforce the judgment.^ But, as has already been intimated, it is quite probable that a different rule may prevail as to judgments rendered in foreign countries ; for the rule in the American States, as w'e have seen, is founded upon the fundamental law of the land, which expressly applies only to the judgments of the sister States. In the dicta which we have referred to as sustaining the plea of fraud, the judges perhaps failed to notice the distinction between the two classes of judgments. Suppose, however, the plaintiff, instead of suing upon the foreign judgment, prefers to bring suit de novo, on the original cause of action : will the former judgment in his favor estop him ? Let us, as heretofore, answer the inquiry by considering, first, the judg- ments of colonies and foreign countries, and, secondly, those of the sister American States. This question was directly raised in the English Court of Com- mon Pleas, in the year 1839, in the well-known case of Smith v. NicoUs.^ This was an action on the case, for an unfounded charge, as alleged in the first count of the declaration, of illegal trading and seizure of the plaintiff's ship, the Admiral Owen. Among other things the defendant pleaded, substantially, that the plaintiff had impleaded him in the Vice- Admiralty Court of Sierra Leone, upon the same cause of action, and obtained judgment; and that this still remained in full force and effect. The issue was finally raised upon demurrer to a replication to this plea. Judg- ment was given for the plaintiff. Chief Justice Tindal said that the broad question was whether the plea of judgment recovered was such as to deprive the plaintiff of the right of suing in Eng- land upon his original cause of action, or whether it amounted to more than an agreement as to the quantum of damages. No case, he said, had been cited for the defendant, and none could be found, to show that a judgment of this kind stood upon the same footing as a judgment recovered in one of the superior courts of 1 It has heen held that chancery will directly upon the merits of the case, restrain - party from proceeding at law Winchester v. Jackson, 3 Hayw. 305; upon a judgment of a sister State before s. o. Cooke, 420. he has made any attempt to enforce it ; 27 Scott, 147 ; s. c. 5 Bing. N. C. and this, too, though the attack was 208. FOREIGN JUDGMENTS IN PERSONAM. 219 Westminster. The ground upon which a judgment recovered in the courts of England was held to be a bar was that the nature of the debt or demand was changed ; the plaintiff had a higher remedy ; he had a judgment of a court of record upon which an immediate execution might be issued, and consequently it would be very superfluous, and give encouragement to much useless litigation, and create unnecessary delay and expense, if he might commence de novo, and bring a second suit for the same debt or ground of complaint. It had therefore always been held that where a plaintiff had obtained judgment in a court of record, whether in an action for debt or for damages, the original cause of action became merged or extinguished by the higher remedy. The Vice-Admiralty Court, he stated, was not, in the first place, a court of record ; and its judgment could not be put upon higher ground than one obtained in a common-law proceeding of a colo- nial court, if as high. It was familiar to all that the only mode of proceeding upon such a judgment in England was by bringing an action upon it, in which action the judgment of the colonial court formed the evidence. The first ground of distinction, there- fore, between such a judgment and si judgment of a court of record in England was, that upon the latter there was an immediate remedy by execution, whereas the former could only be enforced by having recourse to another action. He next referred to a possible ground of distinction in respect to the conclusiveness of domestic and foreign judgments, — a matter already sufficiently noticed. He then said : " If the judgment has not altered the nature of the rights between the parties, why is the plaintiff to be deprived of the right which every subject of her Majesty has, to sue in the courts of this country, for the debt due to or damage sustained by him ? It appears to me that he has the option of suing upon his oi'iginal ground of action, or bringing an action of assumpsit upon the foreign judgment.'' This was the line of ar- gument advanced by the other members of the court; and the case has been uniformly followed in England.^ The same doctrine was held in Texas prior to the admission of 1 Bank of Australasia v. Harding, 9 Odber, 11 East, 118 ; Plummer v. Wood- Com. B. 661 ; Robertson v. Struth, 5 Q. B. burne, 4 Barn. & C. 625; s. c. 7 Dowl. & 941. See also tlie earlier cases of Hall v. E. 25; Obicini v. Bligh, 8 Bing. 335. 220 ESTOPPEL BY EECOED. that State into' the Union.^ And the court of Massachusetts hold that where judgment was rendered for the plaintiff in Canada, in a suit instituted subsequently to one brought in Massachusetts, for the same cause of action, a plea of the foreign judgment, if it has not been satisfied, is no defence.^ An examination of the American cases, however, shows a dif- ferent rule in relation to the judgments of the sister States. Bank of the United States v. Merchants' Bank of Baltimore^ is a leading case. To an action of assumpsit in Maryland, the defendant pleaded as follows : " That the plaintiff ought not to maintain its action, inasmuch as the plaintiff, after the day of issuing forth the writ in this cause, that is to say, on the 31st day of March, 1842, in a certain court of record, called the District Court for the City and County of Philadelphia, in the State of Pennsylvania, im- pleaded the said defendants, in a plea of trespass on the case, for the not performing the same identical promises and undertakings, and each and every of them, in the declaration mentioned. That afterwai'ds, to wit, on the 23d day of April, 1842, the plaintiffs, by the consideration and judgment of the said court, recovered on the said plea, against the said defendants, 1169,676.20, for its damages, which it had sustained on the occasion of the not per- forming the same identical promises and undertakings in the declaration mentioned. And that the said judgment still remains in full force and effect, and not the least reversed, satisfied, or made void." To this plea a demurrer was entered and sustained in the court below ; but the plea was sustained on appeal.^ i Wilson V. Tunstall, 6 Tex. 221 ; Fra- controverted, with respect to the merits zler V. Moore, 11 Tex. 755. of the original demand ; that the parties 2 Wood V. Gamble, 11 Cush. 8. were precluded from going behind the ^ 7 Gill, 415. judgment into an investigation of the * After considering and overruling original cause of action ; and that by the several objections to the form of a plea, act of Congress of the 26th of May, 1790, as that it should have been pleaded puis the same effect is to be attributed to the darrein continvance, and should have judgment by the courts of Maryland, alleged that the foreign court had jurisdic- when it is introduced into the tribunals tion, the court said: "And if it be true of that State as evidence, or relied upon that the judgment possessed in the State in pleading, to which it would be entitled where it was rendered the attribute of in the State where it was pronounced; conclusiveness ; that it had there the rank and that it has all the operation and force and dignity of a debt of record ; that it in Maryland that could be claimed for it •was not re-examinable, and could not be in Pennsylvania, as conclusive in relation FOREIGN JUDGMENTS IN PERSONAM. 221 In a similar action in Connecticut, the defendant pleaded a judgment against himself in New York ; but it appeared upon the trial that an appeal from this judgment was pending. It was found that by the laws of the State of New York the appeal did not supersede the judgment, but that execution might issue thereon at any time, upon the application of the plaintiff. Counsel for the plaintiff contended that the judgment was not final and conclusive in New York ; that an action could not there be maintained upon it ; and that a transcript of the record would show an appeal taken, a lis pendens, an imperfect judgment, which could not estop the parties. But the court, Storrs, C. J., said that the effect of the appeal depended upon the character of the juris- diction of the New York court. If by the laws of New York a case carried before it by appeal is to be retried as upon original process, and it had jurisdiction to settle the controversy by a judg- ment of its own, and to enforce the same by its own process, the appeal, like an appeal under the Connecticut statutes from a justice of the peace to the superior court, would vacate the judgment of the inferior court. But if the appeal was in the nature of a writ of error, and only carried up the case for a correction of errors, and for an adjudication upon the question whether the judgment should be affirmed, reversed, or modified, and the court had only the corresponding powers, then such appeal would not vacate or suspend the judgment ; and the removal of the case to a higher court would no more bar an action upon the judgment than the to the merits of the claim and the subject- commencement of the suit." The court matter of the suit, — it follows as an irre- added that, though the judgment in ques- sistible conclusion, upon the undoubted tion was obtained after the present suit principles of the common law, that it was instituted, the defendants werp au- must operate here as an extinguishment thorized in specially pleading the matter. of the original demand. In McGilvray v. Avery, 30 Vt. 538, the " We think it therefore to he clear, defendant was sued simultaneously upon upon the true exposition of the first the same cause of action in New Hamp- section of the fourth article of the Con- shire and Vermont. Judgment having stitution of the United States, and the first been rendered in the former State, act of Congress passed in execution of it was held that this was a bar to the fur- the power granted by the Constitution, ther prosecution of the action in Vermont, and the doctrine of extinguishment, as though the mere pendency of the suit estabhshed by the common law, that the was not even ground for an abatement, appellee could not have maintained an Walsh v. Dnrkin, 12 Johns. 100; Hatch action of assumpsit, upon the cause of v. SpofEord, 22 Conn. 485, cited by the action exhibited in the record, if the judg- court. See also Weeks v. Pearson, 5 ment set forth in the plea had been N. H. 324 ; Embree v. Hanna, 3 Johns, obtained in Fennsylrania prior to the 101. 222 ESTOPPEL BY RECORD. pendency of a writ of error at common law. That such an action, under those circumstances, would not be barred, he said, was well settled.^ The judgment was therefore in favor of the defendant.^ In the above cases, the defendant was served with process or appeared in defence. Let us see what effect an opposite state of facts produces. In a case in New Hampshire, already referred to,^ the plaintiff sued in assumpsit, and it appeared from facts agreed that a recovery in Maine upon the same cause of action had been obtained by the plaintiff against the same defendants. The record did not show any notice or appearance by either defendant ; but it did state that one of them was a resident of New Hampshire. After holding that in such case there would be no presumption in favor of notice to or appearance by this non-resident defendant, the court held that the judgment in Maine was not an estoppel against the suit in New Hampshire, as to the last-mentioned party.* The rule then as to judgments rendered in the courts of the sister States of America is that they are an estoppel to any suit between the same parties, upon the original and same cause of action, provided they are valid and conclusive where rendered, and based upon personal notice or appearance, otherwise not.^ But 1 Case V. Case, Kirby, 284; Sloan's party that the demand has passed into Appeal, 1 Boot, 151 ; Curtiss w. Beardsley, judgment, and that the action cannot be 15 Conn. 523. maintained for that cause ? . . . . ^ See Scott v. Pilkington, 2 Best & S. " To maintain the position that, in the il. case of an action upon the judgment, the 3 Eangely v. Webster, 11 N. H. 299. judgment is void, and may be so treated, * The court said : " If the judgment but that when the action is upon the is to he regarded as a mere nullity, when original demand the same- judgment is an attempt is made to enforce it by an valid, is to maintain that the form arid action here, the question arises, must it manner of the action adopted determine not be considered equally a nullity when the character of the former judgment, its the defendants set it up as a bar or answer validity or invalidity, instead of the facts to an action upon the original note upon and circumstances attending its recovery." which that judgment was rendered ? Can The question had been determined the it be treated by one party as valid, while same way a few years earlier. Whittier as it respects the other party, in reference v. Wendell, 7 N. H. 257. To the same to the same subject-matter, it is held to effect is Kane v. Cook, 8 Cal. 449. be void ? Can it be said, when the action « Baxley v. Linah, 16 Penn. St. 241 ; is brought here upon the judgment, that Barnes v. Gibbs, 2 Vroora, 317 ; Brown v. the original demand does not rest in judg- Lexington & D. R. Co., 2 Beasl. 191 ; ment, for the reason that the judgment is Rogers v. Odell, 39 N. H. 457; Child ti. void ; while at the same time, if the action Eureka Powder Works, 45 N. H. 547 ; were brought upon the original demand. North Bank v. Brown, 50 Maine, 214 ; it may be legally asserted by the same Cincinnati, &c., R. Co. v. Wynne, 14 Ind. FOREIGN JUDGMENTS IN PERSONAM. 223 in the case of judgments rendered in foreign countries, or in colo- nies or dependencies, tliere is no estoppel to a fresh suit for the same demand, where the same 'plaintiff recovered in the prior action.^ There is another rule which seems deducible from the cases, and that is, that if the judgment in question was given for the defend- ant, it will always be an estoppel, whether it was rendered in a court of a foreign nation, a colony, or a sister State, if it was final and conclusive there.^ It is perfectly clear that this should be true in the cases of judg- ments of our sister States, by reason of the constitutional provision and the act of Congress ; but as to the other classes, why should judgment for the plaintiff cause no estoppel to a fresh suit, and the opposite rule prevail where it is in favor of the defendant ? The distinction (bearing in mind the fact that the doctrine of merger does not here prevail) we conceive to be this : — 1. Any party may waive an advantage in his own favor, provided he does not thereby interfere with any of the rules of law. The plaintiff waives such an advantage when he elects to bring a fresh suit upon the original cause of action ; and this without injury to the rights of the defendant. He risks losing his case, without the power, it would seem, of proving a larger claim than the amount for which the former judgment was rendered.^ We speak, of course, of a judgment valid by the law of nations, i. e. one ren- dered before a courttof competent jurisdiction ; for if the judg- ment were void, it would be no estoppel, and of course could have no influence upon the quantum of damages. And in the case of a valid judgment, the reason why he could prove no more than the 385; Lapham w. Briggs, 27 Vt. 26; Nichol in bar the judgment rendered in New V. Mason, 21 Wend. 339. York ; but the court held the plea bad. But the doctrine of extinguishment, i But it is held in Louisiana, under the which results from the Constitution and Code, that a judgment of a foreign coun- aet of Congress, must be taken with some try extinguishes the original cause of qualification. A judgment in one State action, so that suit must be brought upon cannot extinguish a judgment in another the judgment. Jones v. Jamison, 15 La. State. Weeks v. Pearson, 5 N. H. 324. An. 35. In this case, the plaintiff had first brought ^ Frayes v. Worms, 10 Com. B. n. s. his action in New Hampshire. He then 149 ; Plummer v. Woodburne, 4 Barn. & sued in New York on the judgment there C. 625 ; s. c. 7 Dowl. & E. 25. rendered. Not having satisfied the same, ' Smith v. Nicolls, 7 Scott, 147, 166, he sued again in New Hampshire, on the Tindal, C. J. first judgment. The defendant pleaded 224 ESTOPPEL BY RECORD. sum recovered in the foreign suit is that this would be to discredit the foreign judgment upon the merits ; and this could not be done against the objection of the defendant, as we have seen. The foreign court has said that the plaintiff is entitled, for instance, to $1,000 ; and to allow him to prove a larger debt would be to say that the court abroad had not properly adjudicated upon the claim. It is quite clear, then, that while the plaintifif waives his rights, he does not endanger those of the defendant. 2. If the foreign judgment in favor of the defendant were not a bar to another suit by the plaintiff upon the same demand, the effect would be to allow the merits to be opened again, and thus to render a contrary decision possible. This would be endangering the rights of the defendant, and violating a rule of law. The plaintiff' may waive his own rights, as when the foreign judgment was in his own favor, and incur the hazard of a judgment in favor of the defendant ; but he cannot waive his adversary's rights, and force him to try the question again. It is immaterial what may be the plaintiff^'s motive in suing de novo, instead of suing upon the judgment. Though, as in the case supposed, it may be perfectly valid, he may still have doubts upon the matter and prefer to bring a fresh suit ; but whatever his motive, he waives an advantage and hazards his cause, without in- jury to his adversary ; and he violates no rule of law. We have already mentioned several matters as to which the rules of law are common to all the classes of foreign judgments, such as these : that in proceedings in rem, the judgments of courts of com- petent jurisdiction are conclusive of the change of property ; and that as to proceedings in 'personam, only such judgments as are founded upon personal notice or appearance are held conclusive. There are also other matters to be noticed, in which the same principles prevail in the three classes of foreign judgments. "We proceed to notice some of the rules in proceedings by garnishment, or trustee process. The doctrine, as generally declared, is that where a debt or de- mand has been recovered by garnishment in a foreign court, the recovery is a protection to the garnishee or trustee against his original creditor.^ 1 Taylor v. Phelps, 1 Har. & G. 492, Holmes ». Eemsen, 4 Johns. Ch. 460; 502 ; Le Chevelier ». Lynch, 1 Doug. 170 ; s. c. 20 Johns. 229 ; Erabree i;. Hanna, 6 Phillips «. Hunter, 2 H. Black. 402 ; Johns. 101 ; McDaniel v. Hughes, 3 East, FOREIGN JUDGMENTS IN PERSONAM. 225 A case before Lord Mansfield involved this principle.^ Le Chevelier was assignee in bankruptcy of one Dormer. A creditor of Dormer, to whom he (Dormer) was indebted before the bank- ruptcy, attached a sura of money in the hands of one Lynch, a debtor of Dormer, after the bankruptcy. After this Lynch came to England, whereupon Dormer's assignee brought the present action against him, to recover the debt owing by him to the bank- rupt. The assignee contended that, as the debt for which the money was attached was due before the bankruptcy, the foreign creditor was only entitled to his share of the dividend under the commission of bankruptcy, and could not attach the money in the hands of Lynch, because the right to the money owing by Lynch was vested by the assignment in him, the assignee, for the benefit of all the creditors. But Lord Mansfield, while admitting the proposition to be true generally, said that if after the bankruptcy, and before payment to the assignee, money owing to the bankrupt, out of England, was attached, bona fide, by regular process, accord- ing to the law of the place, the assignee could not recover the debt. Among the American cases, Hull v. Blake ^ is a leading one. In that case a lona fide indorsee of a note, made in Georgia, brought an action in Massachusetts against the maker thereof. The defendant pleaded that he had been summoned as garnishee of the payee of the note, in a suit in Georgia, by a creditor of the payee ; that he had answered that he owed the note in question ; and that judgment had thereupon been rendered against him, in which it was declared that the same should operate as a bar in favor of the garnishee against the plaintiff, or his indorsee. The indorsement had been regularly made to the present plaintiff be- fore the proceedings by garnishment were instituted. Counsel for the plaintiff urged that, this being the fact, the defendant had ceased to be the debtor of the payee, i. e. the indorsement having, been made to the plaintiff before the garnishment, the payee's in- terest had been passed away, so tha,t there was nothing for the pro- cess to operate upon ; and that the courts of Georgia could not construe their statutes in such a way as to injure the citizens of 867 ; Wilkinson v. Hall, 6 Gray, 568 ; i Le Chevelier v. Lynch, 1 Doug. 170u Barney v. Douglas, 19 Vt. 98; Kimball 2 13 Mass. 153. Ki Gay, 16 Vt. 131 ; Chase v. Haughton, Ibid. 594. IS 226 ESTOPPEL BY RECORD other States. The statute of Georgia does not seem to have been before the Massachusetts court. Parker, C. J., said that, if by the laws of Georgia in force when the note was made, payment to the payee, after indorsement, woul d discharge the same, and such pay- ment were actually made, proof of these facts would protect the defendant from a second suit, though brought by an innocent in- dorsee who had paid value for the note. Such a law would be extraordinary, but if it existed it must prevail, since the law of the country where the contract was made would govern its per- formance. And the plea was allowed.^ In a subsequent case in the same State,^ involving the same general question, it appeared that no execution had issued against the garnishee in the sister State ; and an examination of the stat- ute of the State ^having convinced the court that the judgment operated only as a lien on the fund (a promissory note) in the hands of the garnishees, and that even that was provisional, to take effect only in case other funds, first chargeable, should prove insufficient to pay'the debt, it was held that the defendants' plea of the judgment against themselves as garnishees was no bar. Shaw, C. J., said tliat, upon general principles, one who had not yet been compelled to pay, and who might never be obliged to pay to another the debt attached, seemed in no condition to deny the original creditor's right to recover his debt absolutely and for ever, though he might have good right to insist that proceedings should be stayed while his hands were tied. But it is evident that these 1 " The question then," he continued, of the court. In this case, a true disclos- " in the present case, would seem to be ure appears to have been made ; and, al- whether such was the law of Georgia though the law of this State would not with respect to a negotiable promissory authorize a similar judgment upon slmi- note at the time this contract was made, lar facts, the law of Georgia may be That it was, the evidence resulting from different, and must be presumed to be the judgment of the court of that State, so ; because a judicial court of that State, which had the jurisdiction of the subject- of competent jurisdiction, has so declared matter, is perhaps conclusive. At least it." (a) He then ruled that it was un- it ought to be so considered in favor of a necessary for the defendant to have taken party who has been there concluded by the opinion of the court of last resort in it, and has no means of avoiding the Georgia, and that a judgment, fairly ren- execution of it ; unless it should be made dered, would protect him as well as if to appear that he aided in the procure- actually satisfied, ment of such a judgment by withholding 2 Meriam v. Rundlett, 13 Pick. 511. facts essential to the right determination (a) The foreign judgment itself is the highest evidence of the law j and it is not permissible to give other evidence of what the law is. Davidson i-. Sharpe, 6 Ired. 14. FOREIGN JUDGMENTS IN PERSONAM. 227 remarks must be taken in strict application to the facts in this case, as above stated, and not as declaring a general rule ; for a rule like this would cover the case of an ordinary judgment, operating directly and wholly upon the particular fund attached, when not followed by execution. In such a case, the garnishee has not- been compelled to pay, and perhaps may never be ; but still, according to the case above referred to,' which is cited as authority on this point in the case under consideration, such judg- ment would protect the defendant. The distinction between the cases is simply this, that in the earlier case "the judgment against the garnishee was absolute ; while in the latter case it was pro- visional, and hence it was uncertain whether he could ever be required to pay at all, and it was probable in any event that he would be obliged to pay only a portion of the amount of the note. In a case in the Supreme Court of New York,^ — a suit against the maker of an unnegotiable promissory note, — the defendant pleaded judgment in Vermont against him as garnishee of a creditor of the plaintiff; to which the plaintiff replied that, before the suit in Vermont was brought, he had assigned the note to A. and L., for whose benefit the present suit was prosecuted. The court held that the replication would have been good, had it averred that the debt was assigned for a valuable consideration ; the suit being prosecuted in the interest of the assignees, who were not before the court in Vermont, and were not parties to the proceedings there. The court would presume that the rights of the assignee would have been recognized and protected, had the assignment been known at the trial in Vermont. The proceedings were therefore res inter alios acta; and it was not drawing them into question to hold that the assignees were not concluded. In respect to the doctrine of privity, the question has frequently arisen, whether the relation exists between administrators of differ- ent countries, of the same person's estate, so as to make a judg- ment iri favor of an administrator or executor, in one country, an estoppel to a suit against another in another country ; or whether judgment against an administrator or executor in one country may be a ground of action, and therefore an estoppel on the merits, against another in another country. The case of Stacy v. Thrasher ^ was a demurrer to an action in 1 Hull V. Blake, 13 Mass. 153. s 6 How. 44. 'i Presoott V. Hull, 17 Johns. 284. 228 ESTOPPEL BY RECORD. Louisiana upon a judgment rendered in Mississippi against an administi'ator appointed under tlie laws of that State ; the action in the former State being brought by the same plaintiff against the Louisiana administrator of the same intestate. In the language of the court, by Grier, J., the question was : " Will an action of debt lie against an administrator in one of these United States, on a judgment obtained against a different administrator of the same intestate appointed under the authority of another ? " The answer was in the negative.^ The doctrine of this case is well settled.^ And the dictum ex- pressed by the court, that an executor in one State and an admin- 1 After showing that the action could not be maintained in the case of a judg- ment rendered in a foreign country, the learned judge proceeds to consider the particular case before him of a judgment of a sister State. He says : " The par- ties to these judgments are not the same. Neither are they privies. (1 Greenl. Ev. § £23.) . . . Privies are divided by Lord Coke into three classes : first, privies in blood ; second, privies in law ; and, third, privies by estate. The doctrine of estoppel, however, so far as it applies to persons fall- ing under these denominations, applies to them under one and the same principle ; namely, that a party claiming through another is estopped by that which es- topped that otlier respecting the same subject-matter. Thus, an heir who is privy in blood would be estopped by a verdict against his ancestor, through whom he claims. An executor or ad- ministrator, suing or sued as such, would be bound by a verdict against his testa- tor or intestate, to whom he is privy in law. . . . An administrator, under grant of ad- ministration in one State, stands in none of these relations to an administrator in another. Each is privy to the testator, and would be estopped by a judgment against him; but they have no privity with each otlier in law or in estate. They receive their authority from different sovereignties, and over different property. Each is accountable to the ordinary from whom he receives his authority. Nor does the one come by succession to the other into the trust of the same property, encumbered by the same debts, as in the case of an administrator de bonis non, who may be truly said to have an official privity with his predecessor in the same trust, and therefore liable to the same duties. (Yare v. Gough, Cro. Jac. 3 ; Snape v. Norgate, Cro. Car. 167 ; Dykes V. Woodhouse, 3 Rand. 287. But see Coleman v. McMurdo, 5 Rand. 51 ; ante, pp. 79, 80.) . . . "A judgment may have the 'effect' of a lien upon all the defendant's lands in the State where it is rendered, yet it cannot have that effect on lands in an- other State, by virtue of the faith and credit given to it by the Constitution and act of Congress. The laws and courts of a State can only affect persons within their jurisdiction. Consequently, both as to the administrator and the property confided to him, a judgment in another State is res inter alios acta. It cannot be even prima facie evidence of a debt; for, if it have any effect at all, it must be as a judgment, and operate by way. of es- toppel." 2 See Dent v. Ashley, Hempst. 54; Taylor v. Barron, 35 N. H. 484 ; Grout V. Chamberlin, 4 Mass. 613 ; Talmadge v . Chapel, 16 Mass. 71 ; Pond v. Makepeace, 2 Met. 116 ; Low v. Bartlett, 8 Allen, 259 ; Hill V. Tucker, IS How. 466 ; McLean v. Meek, 18 How. 16 ; Rosenthal v. Renick, 44 111. 202; Latine v. Clements, 8 Kelly, 426. FOREIGN JDDGMENTS IN PERSONAM. 229 istrator de bonis non, with the will annexed, in another State, are so far in privity, that a judgment in favor of the former may be a groimd of action in favor of the latter, has been followed in sev- eral chses.^ But it is doubtful if such persons are in strict privity for every purpose, as we have elsewhere suggested.^ As to execu- tors appointed under the same will in the same State, they are in privity, it is said, and the principles of estoppel apply ; ^ but the case just cited establishes a contrary rule in the case of executors qualified in different States.* The court in Hill v. Tucker, cited in the note, readopt the language quoted from Stacy v. Thrasher, and say that for the same reasons they hold that a judgment against an executor appointed in one State would not be conclusive against another qualified in another State. And the same is true of trus- tees appointed by court to receive legacies for minors and an administrator of the same estate qualified in another State ; there is no privity between them.^ Judgments of Foreign Courts of Inferior or Limited Jurisdiction. "We have hitherto had under consideration the judgments of superior courts, or courts of record, of other States and countries ; the judgments of courts of the sister States, of limited jurisdiction, particularly those of justices of the peace, remain to be examined. Are these within the Constitution and act of Congress as to conclu- siveness ? The question has been answered both in the affirmative and in the negative. The point arose in 1824, in the Supreme Court of Massachu- setts.® The case cited was an action of debt upon a judgment rendered before a justice of the peace, in Connecticut. The ques- tion raised by the pleadings was whether the judgment declared on was conclusive evidence of debt, so as to admit of no inquiry Into the merits of the demand upon which it was founded. The court, Parker, C. J., said that it was perfectly clear that the Con- stitution settled only this, that the acts, records, and judicial pro- 1 Latine v. Clements, supra; Hill v. * See also Jackson w. Tiernan, 15 La. Tucker, supra. 485. 2 Ante, pp. 79, 80. ^ Low v. Bartlett, 8 Allen, 259 ; Rosen- s Hill V. Tucker, supra. thai v. Remick, 44 111. 202. •> Warren v. Elagg, 2 Pick. 448. 230 ESTOPPEL BY RECORD. ceedings, authenticated as Congress should prescribe, were to be received as conclusive evidence of the doings of the tribunals ; and it was equally clear that the effect of such acts, &c., was to be determined by Congress. The act of 1790, said the Chief Jus- tice, prescribed the mode of authentication, and in the opinion of the court had not determined the effect of judgments of the sister States ; but upon this point they yielded rather " to the authority than to the reasons " of the court at Washington.^ A few years later the Supreme Court of New Hampshire adopted the same rule, upon a similar issue.^ Tiie court, by Richardson, C. J., said : " We suppose it to be clear that, until the record is duly authenticated in the manner Congress has prescribed, the judgment can stand on no better ground than any other foreign judgment. But such is the nature of the mode prescribed in the statute of the United States for the authentication of records, that in our opinion the record of a justice of the peace cannot be so authenticated, and 1 " Certainly we think,'' continued is ^o constituted as to admit of such offi- Cliief Justice Parker, " the judicial pro- cers ; and the act has wisely left the rec- ceedings referred to in the Constitution ords of magistrates who may be vested were supposed by the Congress, which with limited judicial authority, varying in passed the act providing the manner of its objects and extent in every State, to authenticating records, to have related be governed by the laws of the State into to the proceedings of courts of general which they may be introduced for the jurisdiction, and not tliose which are purpose of being carried into effect. Be- merely of municipal authority ; (a) for it ing left unprovided for by the Constitu- is required that the copy of the record tiou or laws of the United States, they shall be certified by the clerk of the stand upon no better footing than foreign court, and that there shall be also a cer- judgments, being not more than prima tificate of the judge, chief justice, or pre- facie evidence of debt." siding magistrate, that the attestation of '^ Robinson v. Prescott, 4'N. H. 450. the clerk is in due form. This is founded The doctrine reaffirmed, Mahurin v. Bick- upon the supposition that the court whose ford, 6 N. H. 567 ; Taylor v. Barron, 30 proceedings are to be thus authenticated N. H. 78. (a) The act of May 26, 1790 (1 Stat, at L. 122), reads as follows : " That the records and judicial proceedings of the courts of any State shall be proved or ad- mitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial proceedings, authenti- cated as aforesaid, shall have sucli faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from whence the said records are or shall be taken." The act of March 27, 1804 (2 Stat, at L. 298), extended these provisions to " all records and exemplifications of office books . . . not pertaining to a court." FOREIGN JUDGMENTS IN PERSONAM. 231 that therefore the judgment of a justice of the peace is not within those provisions." This doctrine is maintained in the more recent case of Taylor v. Barron, just cited, in regard to the conclusiveness of a decision given by commissioners appointed by a court of probate in a sister State. The plaintiff in that case brought an action of assumpsit in New Hampshire against an administrator, who pleaded that the alleged claim had been preferred before commissioners in Vermont, appointed by a court of probate, of competent jurisdiction, and by them rejected ; and that by the law3 of Vermont the decision was a final and conclusive judgment, for ever barring the plaintiff. Remarking upon the subject of the dependence of a judgment of another State upon the mode of its authentication for its force and effect, Mr. Justice Bell said that the act of Congress prescribes a mode of proof which implies tliat there must be a clerk and a judge, cliief justice, or presiding magistrate ; while it must have been well known that justices of the peace, and many other inferior tribunals, have no clerk ; and many public boards, exercising judicial powers, have no officer tliat can, with any propriety, be denominated a judge or presiding magistrate. The omission to provide for cases of these classes, he thought, must have been intentional. And when the act provided that the records and judicial proceedings, authenticated as aforesaid, shall have faith, &c., it evidently designed to omit and leave unprovided for the proceedings of such courts as did not admit of such authentication. But the plea in the case did not show that there had been a trial on the merits of the claim, or that there was a trial at all ; and on this ground it was overruled. The court refrained from expressing an opinion as to whether it would have been a good plea, if it had alleged a trial on the merits. To make the plea effectual, the court said tliat it should at least have shown that there had been an adjudication, sustaining a defence to the claim, which in its nature would be equally a defence in New Hampshire.^ 1 It had been held in an earlier case dered in the Supreme Court of Vermont in the same State, that where a party, a in faror of tlie administrator, that that citizen of New Hampshire, presented a judgment constituted a good defence to claim to the commissioner of an insolvent the same claim by the same party ; and estate in Vermont, where the intestate that an ancillary administrator in New resided, and the administrator having ap- Hampshire might plead such judgment pealed from the commissioner's decree in bar of the allowance. Goodall v. Mar- allowing the same, the case had been tried shall, 14 N. H. 161. on its merits, and judgment finally ren- 232 ESTOPPEL BY EECOED. The court of South Carolina have also declared that judgments of justices of the peace of sister States are prima fade evidence. The question, however, was not as to their conclusiveness, but whether they were evidence at all, and a proper ground of action.! The same doctrine was declared in Vermont in the early case of King V. Van Gilder.^ But this case has been overruled, and the courts of that State now hold that the judgments rendered in other States by justices of the peace, acting within their jurisdic- tion, are conclusive.^ In Starkweather v. Loomis, the court say: " When the subject came to be examined upon principle, and in connection with the statutes that give large jurisdiction to justices, this court felt constrained to decide that, though a justice has no clerk, yet where the law requires him to keep records, he must be considered as his own clerk ; and if he has no seal, he may use a common seal, or may certify that he has po seal of office, as an excuse for omitting to attach one to his copies of record." What the doctrine in New York is, does not appear to have been determined. In the case of Thomas v. Robinson,* in which a ques- tion of the proper way of showing the jurisdiction arose, the court remarked tliat in order to prove what faith and credit should be given to a judgment rendered by a justice of the peace, in another State, it would be necessary to produce and prove the authority under which tliey wei'e organized and proceeded. But this language was evidently used in reference to the question of jurisdiction.^ A decision to the same effect, as to the conclusiveness of justices' judgments of other States, that this must depend upon the law creating the courts, was recently made in Texas.^ The meaning of tliis evidently is, that they will be accorded the same force and effect in Texas which they receive at home, upon producing and proving the law of the State. And the Court of Ohio have, in a dictum, maintained the doctrine that sucli judgments are not sub- ject to examination in the courts of other States.^ In a subsequent case,^ this question was raised by a demurrer : What is the charac- 1 Clark «. Parsons, Eiee, 16 ; Lawrence < 8 Wend. 267. V. Gaultney, Cheves, 7. See also Snyder 5 gee also Cole v. Stone, Hill & D. 360. !;. Wise, 10 Barr, 157. *> Beal u. Smith, 14 Tex. 305. 2 U. Chip. 59. _ 1 Silver Lake Bank v. Harding, 5 ' Starkweather v. Loomis, 2 Vt. 578 ; Ohio, 545. Blodget V. Jordan, 6 Vt. 580; Carpenter 8 Stockwellw. Coleman, 10 Ohio St. 83. «. Pier, 80 Vt. 81. FOREIGN JUDGMENTS IN PERSONAM. 233 ter of a debt evidenced by a transcript of a judgment rendered by a justice of the peace of the State of Indiana ? The court, after citing the case of Silver Lake Bank v. Harding, just referred to, as authority for the doctrine that a justice's judgment was a judidal proceeding, entitled to full faith and credit, said that the debt founded upon the transcript of the judgment should therefore be regarded as of the same character which it would have in Indiana ; if it had the conclusive character of a judgment of a court of record there, it must receive the same consideration in Ohio. Aside from judicial construction of the act of Congress on this subject, it seems quite clear to us that Congress must have intended the judgments of inferior courts, not of record, by the expression "judicial proceedings," in connection with the context. The act to which we refer ^ relates only to proceedings of the courts. The language is : " That the records and judicial proceedings of the courts of any State shall be proved .... by the attestation of the clerk and the seal of the court, if there be a seal," » feet wide. • street.' " The words of the deeds, • westerly < 44 N. Y. 60. on Park Street,' " said the court, " would RECITALS. 271 pie. Premises had been conveyed to the defendant, " subject to certain mortgages now a lien on said premises : one made to the Home Insurance Company, to secure the sum of f4,000, with interest; and the other made to Ira A. Allen, to secure the sum of $1,000." The court said that the defendant, by receiving his con- veyance on these terms, had conclusively admitted the lien of the mortgages. If the conveyance had contained the further words, " which the said grantee hereby assumes and promises to pay," this would have caused a personal liability on the part of the defendant to pay the mortgages ; ^ but it would have had no greater effect of subjecting the premises than was imposed by the clause as it stood. ^ The case of Cutler v. Bower ^ was an action upon a covenant to pay the sum of £2,200 by instalments, in an indenture. The deed recited the grant of letters-patent to the plaintiff in 1841, for a certain invention, and also recited a deed dated July 23, 1842, by which the plaintiff granted the defendant the sole use of the patent, subject to the payment of a certain royalty. The deed then recited that the defendant had agreed with the plaintiff for the absolute purchase of a half-interest in the patent, subject to the indenture last mentioned, but with the benefit of one-half of the royalty thereby reserved. It was then recited that, in consid- eration of £2,200, for the purchase of half the patent and half the royalty, the plaintiff assigned and transferred the patent to a trustee for the defendant. The defence pleaded was, that the plaintiff was not , the first inventor, and that the patent was void. The court said that, as there had been no eviction, the considera- tion had not wholly failed. The defendant was at all events bound by the indenture of July 23d to the royalty therein named, whether the patent were valid or not, as he would be estopped from denying the validity of the patent in an action upon that deed ; and by the deed upon which the action had been brought, he was entitled to half the royalty. A similar question was raised in Hills v. Laming.* The action was covenant to recover a certain sum stipulated to be paid as liquidated damages for the breach of a covenant concerning the 1 Lawrence v. Fox, 20 N. Y. 268; 294,307; Jackson v. Thompson, 6 Cow. Eicard v. Sanderson, 41 N. Y. 179. 178; Lee v. Clark, 1 Hill, 56. 2 See also Green v. Kemp, 13 Mass. » 11 Q. B. 973. 515 ; Housatonic Bank v. Martin, 1 Met. * 9 Ex. 256. 272 ESTOPPEL BY DEED. use of certain patents. It appeared that there had been a dispute between the parties as to tlieir rights under certain patents, which was finally adjusted by their entering into an agreement under seal, reciting that a certain patent had been granted to the defend- ant, and a certain other patent had been granted to the plaintiff, and that, to put an end to their differences respectinig them, the parties covenanted that the defendant should have the exclusive use of the patent granted to the plaintiff, under certain limitations, and that the plaintiff should have the exclusive use of the patent granted to the defendant, under similar limitations. The defend- ant pleaded to the action that the plaintiff's patents were not valid, that the inventions were not new, and that the plaintiff was not the first inventor. On demurrer the court held the plea bad, dis- tinguishing the case from Hayne v. Maltby.^ The sureties in an administration bond are estopped by its re- citals to deny that their principal had been duly appointed to the office of adminstrator.^ So in the, case of the, bond of deputies to the sheriff, if the bond recites that the parties signing were depu- ties, they will not be permitted to deny the allegation.^ And it has been held, in a suit upon a replevin bond, that the obligors will not be permitted to deny that the property was that of the defendant in the attachment, where the bond recited that the property had been "attached as" his;* but a contrary doc- trine has also been held with much apparent soundness.* How- ever, it is certain that if the recital is specific, — as when it alleges that a writ was issued against the goods, chattels, lands, and tene- ment of the defendant, and a certain piece of property was levied upon by virtue of the writ, — the obligor cannot deny that the property belonged to the defendant in attachment,^ unless before forfeiture he surrendered the property in accordance with the terms of the bond.^ ' 3 T. R. 438. corporation estops the mortgagor to dis- 2 Cutler V. Dickinson, 8 Pick. 386; pute the existence of the corporation. Bruce a. United States, 17 How. 437 ; Franklin v. Twogood, 18 Iowa, 515. Shroyer v. Richmond, 16 Ohio St. 456 ; * Bursley v. Hamilton, 15 Pick. 40. Norris v. State, 22 Ark. 624. 6 Decherd v. Blanton, 3 Sneed, 373. 3 Cox V. Thomas, 9 Gratt. 312 ; Cecil » Gray v. MacLean, 17 111. 404 ; Michell V. Early, 10 Gratt. 198. Nor will a surety v. Ingram, 88 Ala. 395; Dezell v. Odell, ' be permitted to say that his principal was 8 Hill, 215. See Dresbach v. Minnis, 45 dead at the time the instrument was ex- Cal. 228. ecuted. Collins v. Mitchell, 6 Fla. 864. ^ Page v. Butler, 15 Mo. 73. So, too, the execution of a mortgage to a RECITALS. 273 So where a deed of land described it as the premises on which the grantor resided, the parties were held estopped to deny that the premises were the homestead of the grantor.^ And a recital in a chattel mortgage that the property mortgaged is personal estops the mortgagor to say it is real property, whatever the fact may be.^ But a party is not estopped by a recital in his deed that the title was derived in a particular way, unless it appears that the title was acquired in that way, and that the party claims under that title.^ So, too, a widow, by executing a release, in which she styles herself widow and sole devisee, is estopped to deny that she has elected to take under her husband's will.* And a deed which •recites that the defendant has bargained, sold, and delivered certain property, estops him to dispute the delivery.^ It appears from several of the above cases that there may be an estoppel by recital of a conclusion of law, as in tlie case of Hills v. Laming, above referred to, where the defendant was held estopped to deny the validity of certain patents by reason of the recitals of a deed executed between him and the plaintiff. And there is good reason for such a doctrine. It is a settled principle of the law of contracts that the compromise of a claim doubtful in law is bind- ing, and is a sufficient consideration for a promise to pay money .^ If so, the recitals of the deed, though admitting the validity of acts or instruments which in law were invalid, will preclude the parties, in an action upon the deed from asserting the contrary .■!■ 2. Creneral Recitals. General recitals, on the other hand, do not ordinarily estop the parties from disputing the statements made in them, because, as 1 Williams v. Swetland, 10 Iowa, 51. N. Y. 441. But this would probably be 2 Ballou V. Jones, 37 III. 95. true only of conduct understood to be an 3 Hovey v. Woodward, 33 Maine, 470. affirmation oi fact, as that the indorser See Great Falls Co. v. Worster, 15 N. H. had received notice of dishonor. If under' 414, 450 ; Housatonic Bank o. Martin, 1 stood to be a conclusion of law from a Met. 294, 307. comparison of facts, propositions, or the> * Dundas v. Hitchcock, 12 How. 256. like, qiicere if the party would be estopped' 6 Nevett V. Berry, 6 Cranch C. C. 291. to say the contrary. See Estoppel by 8 1 Story, Contracts, § 571, 5th ed. Contract, post. We have seen, in con- 1 And there may be an estoppel in pais sidering the subject of judgments, that it as to a man's liability in law ; as in the is a fundamental rule of law that a valid case of the conduct of an indorser of a adjudication estops the parties from dis- note or bill, whose liability has in truth puting, not only the facts found by the never been fixed. Libbey v. Pierce, 47 jury, but the legal conclusions of the N. H. 309. See St. John v. Eoberts, 31 court. 18 274 ESTOPPEL BT DEED. we have said, that certainty which is essential to every estoppel, is wanting.! In Right V. Bucknell,2 -^hich was an ejectment, it appeared that the plaintiff claimed under a release which recited that the grantor was " legally or equitably " seized of the premises. The defendant having acquired the legal title, it was held that he was not estopped to rely upon it. Lord Tenterden said that it was a rule that an estoppel should be certain to every intent ; and therefore, if the thing could not be precisely and directly alleged, or if it were mere matter of supposal, it was not an estoppel. In the present case, there was a want of that certainty of allegation in the recital which was necessary to make it an estoppel. But the case of Kepp v. Wiggett ^ is still more in point. In that case, the condition of a bond recited that a certain person " had been duly nominated and appointed collector." The court held that upon a construction of the deeds this recital did not estop the defendants from showing that there had been no com- plete appointment of the person as collector.* The distinction between a conveyance by general and one by particular description is further illustrated by Doe d. Butclier v. Musgrave.^ The action was ejectment to recover a certain can- onry, under a mortgage by demise for ninety-nine years, of " all ' Sometimes a party may be concluded the suras assessed. Still he was a col- without an ^express recital or affirmation, lector within the sense and meaning of where it is evident from the tenor of the the expressions used in the bond. I deed that it was the intention of the therefore think that the doctrine of es- parties that a certain state of facts should toppel does not apply." be affirmed as the inducement to the Mr. Justice Williams thus stated the deed. See Van Eensselaer v. Kearney, position ; " As to the remaining question, 11 How. 297. whether the defendants are estopped by 2 2 Bam. & Ad. 278. the recitals in the bond from setting up 5 10 Com. B. 35. this defence, it is to be observed that it is * Maule, J., observed: "As to the a rule that estoppels must be certain to question of estoppel, it appears to me every intent. And here it is at least that the matters that are stated in the doubtful whether the recital that Lee had case, — some of them by recital in the been duly nominated and appointed a condition of the bond, — and which were collector for the year ending the 5th of in the knowledge of all parties, show April, 1847, and that duplicates of the that, in speaking of the appointment of assessment had been delivered and given Lee as collector, they did not mean that in charge to him, with a warrant or war- he was fully armed with authority to rants for collecting the same, should be collect the sum assessed. He had been referred to the assessments under sched- appointed to collect, and was the person ule (A) or schedule (D). I therefore who was intended to be armed with think there is no estoppel." power to collect and enforce payment of ^ i Man. & G. 625. RECITALS. 275 that the canonry of him, the said R. A. Musgrave, of the king's free chapel of St. George, at Windsor, and all glebe and other lands, messuages, tenements, and hereditaments belonging thereto, and all and every the rights, rents, profits, emoluments, privileges, advantages, and appurtenances to the said canonry belonging." The question was, whether the action could be maintained either for the canonry, or for the house in which the defendant resided as a canon of Windsor. It did not appear that any other property had been specifically appropriated to the canonry, and the argu- ment had been confined to the case of the house. It was held that there was no estoppel.^ The operation *of an uncertain recital was considered by the Supreme Court of Pennsylvania in a recent case.^ An action of debt was brought on a bond of indemnity to a sheriff, which recited that he had paid to the defendant a sum of money, the proceeds of the sale of the goods and chattels of one Christian Klusmeyer,- under s. fieri facias " at the suit of the said " defendant. The fact was that the sheriff had had in his possession the goods of several different parties, levied upon under sundry executions against Klusmeyer, and that he had sold under the writ of one Collmar, and not of the defendant. It was alleged by the plaintiff that sub- sequently to the execution of the bond it was ascertained that the defendant was not entitled to any part of the proceeds of the sale as against the other execution creditors of .Klusmeyer ; and the present action was brought to recover the money paid, for which the bond had been given. The defendant contended that the plaintiff was estopped by the recital in the bond ; but the court overruled the objection. Woodward, C. J., said that the bond did 1 " A preliminary objection/' said the contained in the mortgage-deed. If the Chief Justice, " has been taken on behalf house had been included in the mortgage of the lessor of the plaintiff, that as be- by a particular description, the defendant tween her and the defendant, as mort- could not have been allowed to say he gagee and mortgagor, the defendant is had no title, and that the house belonged estopped by the mortgage deed from to the dean and chapter, he having only a denying that he has the title he therein permissive occupation. But here the sub- assumed to have, or from setting up title ject-matter of the mortgage is described in any one else. I entirely concur in that to be, all that the canonry of him, the as a general proposition ; but the ques- defendant, of the king's free chapel at tiou here is, not whether the defendant Windsor, and all glebe and other lands, may set up a title in some third party, messuages, tenements, and hereditaments but whether he may not say that the belonging thereto." house is not comprised in the description ^ Noble v. Cope, 50 Fenn. St. 17. 276 ESTOPPEL BT DEED. not assert that the sale was made alone on the defendant's writ ; it was a fair construction of the recital that the sale was made on that writ in connection with others. The sheriff's return showed that he levied and sold by virtue of CoUmar's writ, as well as by that of the defendant. There was no inconsistency between these facts and the recital in the bond. Estoppel excluded facts incon- sistent with itself, but not such as agreed with it. The sheriff, moreover, had not recognized an absolute right in the defendant to the money paid ; if he had, he would not have taken the bond. The bond stood in the place of the money during the litigation between the execution creditors ; and if the effect contended for were to be given to the recital, it would be nullified. The case of Naglee v. IngersoU ^ contains an instance of the effect of a general recital. There had been a grant of land " along low-water mark to the mouth of Cohocksink Creek before it was diverted and thrown to the north by the erection of wharves," and it was held that the parties and privies were not estopped from denying that there was any encroachment by the creek which interfered with the possession of the grantee.^ This subject is illustrated also in Parrar v. Cooper .^ The ques- tion raised was, whether a testator, the grantee in certain deeds of mill privileges, was estopped, by a recital of the existence of another mill-site above, to deny the right of occupancy of it. The court held that he was not estopped. Though the testator might not be allowed to deny the existence of the mill-site, the Chief Jus- tice observed, with the privileges and appurtenances belonging to it, still among them the right of prior occupation was not stated as appurtenant to the site. The conveyances were all silent respect- 1 7 Barr, 185. existence of the alleged encroachment, 2 Mr. Jastice Bell, speaking for the being thus left at large, was open to the court, said : " How far the encroachment inquiry of the jury, as matter of fact, both infringed on the original course, whether as to its continued existence and its al- one inch or one hundred feet, is not even leged extent. It was certainly competent hinted at. Nay, it is not expressly averred to the plaintiffs to show that it interfered that it continued to exist at the period of not with the defendant's possession be- the conveyance, nor is there any thing to yond one inch, and, if so, to prove it did show, except inferentially, that the de- not interfere at all ; for, the inquiry once fendant could not at once have possessed entered upon, there was nothing in the himself of the whole one hundred and deed itself to limit a point at which it fifty-nine feet conveyed. Without labor- should be stayed." ing the argument, it is perhaps sufficient '^ 34 Maine, 394. to say that the extent and continued RECITALS. 277 ing such a right ; and the testator by denying it would not neces- sarily contradict any thing stated in them. The case of Doane v. Willcutt^ will illustrate one of the circum- stances under which a recital does- not work an estoppel. It was an action for a trespass alleged to have been committed on the plaintiff's close. The parties had been held to be tenants in com- mon prior to an indenture of partition executed by them.^ The plaintiff attempted to prove his title to the premises, in addition to that under the indenture, by adverse possession for upwards of twenty years. But the defendant, in order to show that the plain- tiff's possession was not adverse, introduced in evidence a lease to the plaintiff from Elizabeth Nichols, a widow, of all the land which had been set off and assigned to her as dower in the estate of her deceased husband. Upon resorting to the record of the assign- ment of dower to Mrs. Nichols, to ascertain what estate was de- mised by the lease, it appeared that the premises in controversy constituted no part of it. But the defendant objected that this record was inadmissible, on the ground that the plaintiff was estopped by a recital in the indenture of partition that the land therein mentioned had been set off to Mrs. Nichols. The court, however, decided that there was no estoppel. Mr. Justice Merrick observed that the recital was plainly only a part of the description of the estate upon which the deed was in- tended to operate, and which was therein otherwise fully and accu- rately described. The doctrine of estoppel did not apply to such a case. Where several particulars were mentioned and referred to in the description of land conveyed, some of which were found to be erroneous, these might be rejected as a false demonstration, and the other unambiguous and correct parts be relied on to fix and determine the rights of the parties under the deed.^ So, too, a general and indefinite recital in a replevin bond con- cerning the amount of property replevied will not estop a surety to show how much of the property in the writ was in fact re- plevied.* It is held that where a party makes a deed confirmatory of a for- mer one to which he was not a party, he does not thereby adopt the recitals of the former deed, so as to be concluded by them, 1 16 Gray, 368. ' 1 Greenl. Ev. § 26 ; Wright v. Tukey, 2 5 Gray, 328. 3 Gush. 290. * Miller v. Moses, 56 Maine, 128. 278 ESTOPPEL BY DEED. without language to that effect.^ In the case cited, in order to prove the bankruptcy of one Brown Shelton, and the assigneeship, recourse was had to two deeds ; the former of which recited a sale to have taken place under a commission of bankruptcy against Shelton, and conveyed to the defendant lands sold thereunder by his assignees. To this deed the defendant was not a party. By the latter deed, the defendant, acting upon the former, executed a settlement of the land upon himself after a certain event. The latter deed was silent respecting the bankruptcy. It was con- tended that the defendant had recognized and adopted the former deed by the latter. But the court held otherwise. Lord Denman ' said that there was no authority for such a general proposition that a party claiming like the defendant adopted the statements of an anterior deed which went to make up his title. But a general recital may sometimes work an estoppel ; and whether it will do so or not depends upon a proper construction of its terms and the intention of the parties.^ The case first cited, as stated by Mr. Baron Martin, was an action on a bond conditioned for the performance of covenants by the defendant and H. Warden, in a deed dated in 1847 ; and the breach was, that they broke a covenant to perform certain works mentioned in the deed. There was a plea, by way of estoppel, in confession and avoidance. The plaintiffs replied, setting out the indenture ; and there was a de- murrer to the replication. It then appeared that by an instru- ment under seal, in 1854, the parties stated that, with the exception of certain claims contained in the schedule, the plaintiffs and the defendant and H. Warden had settled, adjusted, and mutually satisfied every other account, claim, or demand arising out of the contract on which the action was brought. It was contended that, as tlie language was general, the effect which the court was to give to it did not depend upon the intention of the parties. The court, however, ruled otherwise.^ 1 Doe d. Shelton v. Shelton, 3 Ad. & B. struing a deed the court cannot look at 265, 283. collateral matters, but the intention of 2 Southeastern Ry. Co. v. Warton, 6 the deed as appearing upon the face of it Hurl. &N. 520; Carpenter v. BuUer, 8 must be regarded. If in the present case Mees. & W. 209. it had appeared that the parties intended 3 The learned baron above named to abandon every claim except those re- said : " Every deed must be construed ac- ferred to in the schedule, the argument cording to that which, looking at the on the part of the defendant would have document itself, appears to be the inteu- been unanswerable. But, when the whole tion of the parties. It is true that in con- deed is looked at, no such intention ap- RKCITALS. 279 The rule respecting the recital of immaterial matters is the same as that in relation to general recitals : it does not work an estoppel.^ The doctrine seems to rest on that of a case already presented,^ in which it was held that a party to an instrument under seal is not estopped in an action by the other party not founded on the deed, but collateral to it, to dispute the matters recited ; and so the eourt of New York observed, in the case above cited. The date of a deed may be denied when it is immaterial, but not otherwise.^ In the case first cited, the plaintiff executed a deed to pears. The parties intended to refer cer- tain matters to arbitration. Tliey intro- duce tlie recital that, ' whereas, with the exception of the claims of the said Charles Warton and Henry Warden contained in the schedule, the said Charles Warton and Hem-y Warden and the Southeastern Railway Company have settled, adjusted, and mutually satisfied every other ac- count, claim, or demand which the said parties have or hath against each other arising out of the said contract, or any other account, matter, or thing whatso- ever, as they the said Southeastern Kail- way Company and the said Charles War- ton and Henry Warden do hereby sever- ally admit and acknowledge ; but the claims of the said Charles Warton and Henry Warden, contained and set forth in the said schedule, as well as the amount claimed thereby, are disputed.' And the recital goes on to state that it liad been agreed that the claims contained in the schedule should be referred to an arbitra- tor. The true meaning of the deed is, tliat the arbitration shall be confined to the matters specified in the schedule; and the admission is made for the pur- pose of that deed. I do not think that the parties ever contemplated that what- ever cause of action either might have against the other should finally cease. A recital in such a. deed would be bind- ing, if it was the bargain on the faith of which the parties acted. But that is not the case here. Neither is this an estoppel by means of a recital contained which is the foundation of the action. See Car- penter V. BuUer, 8 Mees. & W. 209. . . . The arbitration was a wholly collateral matter. The admission is evidence, and may be strong or of very little value, ac- cording to circumstances. Here I collect from the deed that it was not the inten- tion of the parties to prevent the plaintiflfs from bringing such an action as the pres- ent." Channell, B., observed : " If we could see the parties had agreed to release all other claims in consideration of the agree- ment to refer, then there might be an estoppel ; but that does not appear to have been their meaning. On these grounds the plaintifis are entitled to judgment. It was said that this is not a question of intention. It may be that. When a deed contains a recital of a particular fact in express terms, the effect of the recital cannot be got rid of by showing what the intention of the parties was. But, when the language is general, we may collect the intention from the terras of the whole deed ; and in that way we have endeav- ored to arrive at the true construction of the deed in the present case." 1 Eeed v. McCourt, 41 N. Y. 435; Champlain, &c., R. Co. «. Valentine, 19 Barb. 484. See, also, Deery u. Cray, 5 Wall. 795; Comings v. Wellman, 14 N. H. 287, 293. 2 Carpenter v. Butler, 8 Mees. & W. 209. 3 Dyer v. Rich, 1 Met. 180; Cady v. Eggleston, 11 Mass. 282, 285 ; Kimbro v. Hamilton, 2 Swan, 190. See Washington Co. Ins. Co. V. Colton, 26 Conn. 42. 280 ESTOPPEL BY DEED. the Rockingham Manufacturing Company, bearing date of the 28th of January, 1836, and the company were not organized until the 10th of February, 1836, though incorporated the November pre- ceding, and in fact this agreement was made the 22d of January, 1836, before the date of the deed and the organization of the com- pany. But the court said that the date of a deed might always be controlled by evidence of the actual delivery. Here the agreement recited the deed, and recited that it was then made and so made at their request, and this was conclusive that the deed was then made, and the date is immaterial. The same idea appears in other cases, where a party is not estopped by a statement in a deed, unless it appears that there was an intention that the statement should not be questioned, or that injustice would follow if the court were to allow it to be con- tradicted.' In Hays v. Askew, just cited, it was said by Mr. Justice Pearson that to render a recital an estoppel it must show that the object of the parties was to make the matter a fixed fact, as the basis of their action. In the case of Den d. Brinegar v. Ohaffin,^ in the Supreme Court of North Carolina, it was held that there was no estoppel to either party to a deed of bargain and sale to show that one of the bar- gainors, recited to be a feme covert, was in fact a feme sole at the time the deed was executed.^ 1 Hays V. Askew, 5 Jones, 63 ; South- fee, by purchase from C, was part of the eastern Ry. Co. v. Warton, 6 Hurl. & N. contract, and without wliich it would not 5"20. have been made. For ordinarily the sei- 2 3 Dev. 108. sin only is of the essence of the contract, 3 Henderson, C. J., speaking for the and how and from whom derived are but court, said ; " Recitals in » deed are es- circumstances. So of every other re- toppels when they are of the essence of cital. And this distinction reconciles the contract ; that is, where, unless the the many apparent contradictions in the facts recited exist, the contract, it is pre- books, some declaring that recitals are sumed, would not have been made. As estoppels, and others that they are not. if A recites that he is seized in fee of cer- In the case under consideration, that the tain lands, which he bargains and sells in feme was the wife of Jacks was not of the fee, he is estopped to deny that he is essence of the contract. It formed no seized in fee ; for without such seisin it is part of it.. It was a mere circumstance of fair to presume that the contract would description, more unfavorable to the de not have been made. But if the recital fendant, or rather the bargainee, than it be that he is seized in fee by purchase she had been sole. For if sole, the deed from C, here neither the bargainor nor was effectual by sealing and delivery. If bargainee is estopped from averring and she was covert, her private examination proving that he is seized by purchase was necessary to make it her deed. In from D, unless it appear that the seisin in truth, her coverture was a fact for which RECITALS. 281 The doctrine of this case seems to be supported also by the cases now to be presented, holding that the acknowledgment of receipt of the consideration in a; deed is not conclusive. Mr. Justice Cowen, as we shall see, expressly rests the rule upon the principle above set forth.i 2. Acknowledgment of Receipt of Consideration in a Deed. It has been settled for many years that the acknowledgment in a deed of conveyance of the receipt of the consideration is not con- clusive, but may be explained or disputed. The doctrine is discussed in Shephard v. Little, decided by the Supreme Court of New York.^ The action was assumpsit for money had and received. The plaintiff ofifered to prove at the trial that, being in possession of a lease of the value of |500, and that being in debt to a third person in a smaller sum, the defendant agreed to advance him the amount necessary to pay the same, taking in consideration an assignment of the lease, which he was to sell, and pay the plaintiff the difference between the sum so advanced and the sum realized from the sale of the lease; that he, the plaintiff, thereupon assigned the lease, by deed, to the defendant ; the assignment stating the consideration to be |500 in hand paid. The defendant objected to the introduction of this evidence ; but the court held that it was admissible, reversing the decision of the Common Pleas.^ the bargainee neither gave nor received deed that she is a feme sole, grant an an- any thing. Nor did he on that account nuity, this is a void grant, and she shall receive any thing by the deed which he not be concluded by this recital." Per- would not have received if she had been kins, s. 41, note. sole. Neither did it form the basis, nor ' Post, p. 282. in any manner move or conduce, to the ^ Shephard v. Little, 14 Johns. 210. contract. It is therefore mere matter of ' Mr. Justice Spencer thus stated the evidence, and like all other evidence may opinion of the court : "The case of Scher- be rebutted by contrary proof. . . . merhorn v. Vanderheyden, 1 Johns. 139, " But the case does not rest upon gen- is referred to, to show that the court be- eral reasoning. If A. S., by his deed, low decided correctly. If that case is reciting that she is a feme covert, when in well understood, it warrants no such con- truth she is a, feme sole, grants an annuity, elusion. The case of Preston v. Merceau, it is a good grant, for that is but a void 2 Wm. Black. 1249, was cited and relied recital, although the grantee had not put on by the court. In that case, it was de- it in his writ ; and it cannot be a conclu- cided that parol evidence was inadmissi- sion to him, when he shows the deed, ble to prove an additional rent payable to Viner's Abr. M. ». 8, pi. 11 ; Perkins, s. a tenant, beyond that expressed in a writ- 40. So if a feme covert, reciting by her ten agreement for a lease, and Blackstone, 282 ESTOPPEL BY DEED. It will be seen, however, that the courts have gone still further, in many instances, and allowed the parties to prove an altogether different consideration from that expressed in the deed.* This question came before the Court of Errors of New York in MeCrea V. Purmort.2 In this case, the consideration in a deed of lands was alleged to be money paid, and the court allowed evidence to show that, instead of money, the consideration paid was iron.^ J., said : ' Here is a positive agreement that the tenant shall pay £26; shall we admit proof that it means £28 12s. &d. ? ' But he added, as to collateral matters It might be otherwise ; he might show who is to put the house in repair, or the like, concerning which nothing is said. But he cannot shorten the term, or alter the rent. In Maigley v. Hauer, 7 Johns. 341, we refused to admit parol evidence of a consideration of a different nature from that expressed in the deed of conveyance. The evidence offered in this case steers clear of the principles adopted in the cases cited. Here the plaintiff does not attempt to set up a different consideration from that expressed in the deed of assign- ment. He merely offered to show that it was not paid, and that the amount to be paid him for the assignment was to de- pend on an event subsequently to happen, to wit, the sale by the assignee of the property assigned. . . . " The date of a deed, and whether the consideration was paid or not, are facts open for inquiry, by parol proof. If notes of hand, which are of no higher nature than verbal promises, and are classed among parol contracts, were given for the consideration money of a conveyance of land, could there be any doubt that such notes would be recoverable when the deed expressed that the consideration was paid in land? Yet it is certain that between the contracting parties you may inquire into the consideration of a note. If so, then you could show that they were given for the land conveyed; and by showing that the consideration was con- fessed to be paid by the deed, a recovery would be defeated by the higher proof arising from the deed. But this is not the case; and though when one species of consideration is expressed you cannot prove another or different one, and al- though you cannot by parol substantially vary or contradict a written contract, yet these principles are inapplicable to a case where the payment or amount of the con- sideration becomes a material inquiry. See Abbott v. Marshall, 48 Maine, 44. 1 Irvine v. McKeon, 23 Cal. 472 ; Coles V. Soulsby, 21 Cal. 47. 2 16 Wend. 460. 8 Mr. Justice Cowen, who delivered the judgment, after showing that there had been much conflict on tlie subject, both in New York and elsewhere, said : " A party is estopped by his deed. He is not to be permitted to contradict it ; so far as the deed is intended to pass a right or to be the exclusive evidence of a con- tract, it concludes the parties to it. But the principle goes no further. A deed is not conclusive evidence of every thing which it may contain. For instance, it is not the only evidence of the date of its execution, nor is its omission of a con- sideration conclusive evidence that none passed ; nor is its acknowledgment of a particular consideration an objection to other proof of other and consistent con- siderations. And by analogy the ac- knowledgment in a deed that the consid- eration had been received is not conclusive of the fact. This is but a fact ; and test- ing it by the reason of the rule which we have laid down, it may be explained or contradicted. It does not necessarily and undeniably prove the fact. It creates no right; it extinguishes none. A release cannot be contradicted or explained by parol, because it extinguishes a pre-exist- ing right; but no receipt can have the EECITALS. 283 In Massachusetts it has also been held from an early day that the acknowledgment of receipt of the consideration in a deed is not conclusive, but may be explained or denied.^ The case first cited was an action by the grantor of land against the grantee to recover a part of the consideration money, the whole of which was expressed to have been paid ; and the court sustained the action. The Chief Justice said that this was a merely formal part of the deed, and that it received so little attention that to consider it conclusive would be unjust. Moreover, a receipt was always open to explanation ; and though the acknowledgment in the present case had been made under seal, it was nothing more than a receipt, for the seal gave it no additional solemnity .2 A case has, however, arisen in Pennsylvania requiring a qualifi- cation of the general rule.^ It was an action of trespass quare clausum fregit. The facts were that the defendant agreed to con- vey the premises to the plaintiff, provided a certain piece of land should be given him (defendant) by his father by will. The bar- gain was consummated, and a deed given reciting the consideration as money paid ; and the will desired was executed. The defendant offered to prove at the trial that no money passed, contrary to the terms of the deed ; but he was not allowed to do so. The court said that the principle which governed the case was, that where a vendor, without fraud or mistake, accepted of the engagement of a third person for the consideration agreed on, and on the faith of such engagement acknowledged the receipt of the consideration, it effect of destroying, per se any subsisting land was paid or not ; and the admission right ; it is only evidence of a fact. The of its payment in the deed is generally payment of the money discharges or ex- merely formal." tinguishes the debt ; a receipt for the 1 Wilkinson v. Scott, 17 Mass. 249 ; payment does not pay the debt; it is only Gale v. Coburn, 18 Pick. 397; Clapp v. evidence that it has been paid. Not so Tirrell, 20 Pick. 247 ; Livermore v. Al- of a written release ; it is not only evi- drich, 5 Cush. 431 ; Preble v. Baldwin, 6 dence of the extinguishment, but it is the Cash. 550 ; Clark v. Desbon, 12 Cush. extinguisher itself, (a) 589 ; Paige v. Sherman, 6 Gray, 511 ; " The acknowledgment of the pay- Miller v. Goodwin, 8 Gray, 542. ment of the consideration in a deed is a ^ See Rex v. Scammonden, 3 T. R. fact not essential to the conveyance. It 474. is immaterial whether the price of the 3 McMullin v. Glass, 27 Penn. St. 151. (a) " In speaking of a written release as an extinguisher of itself, I do not under- stand him to mean the releasing clause in a conveyance which usually accompanies an acknowledgment of the receipt of the money, but an absolute, separate, and dis- tinct release." Miller, J., in Stackpole v. Robbins, 47 Barb. 212. 284 ESTOPPEL BY DEED. ■was against equity that he should be permitted to defeat the opera- tion of the grant by showing that the consideration was not paid. As between the vendor and vendee, the consideration was to be treated as fully paid, and the vendor is estopped from denying it.^ • Compare certain of the doctrines stated in the chapter on Acknowledgment of Receipt in Parol, post. The general rule that an acknowledg- ment of receipt in a sealed instrument may be controverted is, we apprehend, only a rule of interpretation, and not an arbitrary doctrine of the law, even in cases where there are no extraneous cir- cumstances to make the admission bind- ing. There is no reason why the parties should not be able to agree that there shall be no disputing the admission ; and if the parties should^by apt terms in the instru- ment, promise not to question the receipt, the courts could not fail to consider the acknowledgment as binding. As an interesting specimen of an ac- knowledgment of receipt of the olden time, we give an extract from the bond in use among the money lenders of London, A. D. 1235. This whole class were called usurers ; and, judging from the character of the covenant exacted of the borrowers, it is not remarkable that they were well hated. The admission of receipt (if the bond were itself upheld) we imagine would be considered by the courts as something more than prima facie evi- dence. " The form by which the Caursines bound their debtors : ' To all who shall see the present writings — the prior and convent of , health in the Lord. Be it known to you that we have received on loan at London, for the purpose of use- fully settling matters concerning us and our church, from such an one and such an one, for themselves and their partners, citizens and merchants of the city of , 104 marks of good and lawful money sterling, each mark being computed at 13 shillings and 4 pence sterling. For which 104 marks we, in our own name and in the name of our church, do declare that we are quit, and do protest that we are fully paid, ahogether renouncing any exception of the money not being reckoned, and paid, and handed over to us, and also the exception that the said money has not been converted to our own uses and to the uses of the church. And the aforesaid 104 marks sterling, in the man- ner and to the number aforesaid, to be reckoned to the said merchants, or to one of them, or to their certain emissary who shall bring with him these present letters, on the feast of St. Peter ad Vincda, namely, the first day of the month of August, at the New Temple, London, in the year of our Lord's incarnation one thousand two hundred and thirty-five, we promise by lawful covenant, and bind ourselves, in our own name and in that of our church, that we will pay and dis- charge in full,' " &c. The above, and the remainder of the bond, containing the penalty, may be found in Matthew Paris's Chronicle, The Historia Major, Giles's transl., London, 1852. TITLE BT ESTOPPEL. 285 CHAPTER XI. TITLE BT ESTOPPEL.! The subject upon which we now enter presents the most re- markable and the most complicated doctrine in all the " curious learning" of estoppel. An estate by estoppel arises, in general terms, in a case where a grantor, without title, makes a lease or conveyance of land by deed with warranty, and subsequently, by descent or purchase, acquires the ownership ; which after-acquired title of the grantor enures (in common phrase) by estoppel to the benefit of the grantee. And this is the doctrine which we are now to examine and endeavor to explain. By the old common law, only four kinds of assurances possessed the efficacy to pass an after-acquired estate, the feoffment, the fine, the common recovery, and the lease. The last-named is the only one of these that has come down to us and is now in use. The common recovery long since became obsolete, and seems to have left little or no trace of its existence in America. The fine was substantially an acknowledgment of a feoffment of record, but we pass it as affording no independent aid to our present inquiries, and proceed to the consideration of the first-mentioned and most important species of assurance, the feoffment. This manner of conveyance, it is said in the Touchstone,^ was the most ancient kind of conveyance, and in some respects ex- ceeded that by fine or recovery ; for it was of such a nature and efficacy, by reason of the livery of seisin ever inseparately incident to it, that it removed all disseisins, abatements, intrusions, and other wrongful and defeasible titles, and reduced the estate clearly to the feoffor, and through him to the feoffee, when the entry of the feoffor was lawful ; which neither fine, recovery, nor bargain and sale by deed indented and enrolled would do, when the feoffor was out of possession by disseisin. And the learned editor of the 1 Chapter IX. of Eawle on Covenants = Page 203. for Title is recommended for study in connection with the following pages. 286 ESTOPPEL BY DEED, Touchstone, Mr. Preston, in a note to this passage, says that to make a feoffment good and valid nothing was wanting but pos- session; and when the feoffor had possession, though entirely- naked, yet a freehold or fee-simple passed by it, as against the feoffor, by reason of the livery. The feoffment passed not only all present estates and interests of the feoffor, but also barred and excluded him (and his heirs prior to the statutes de bigamis^ and quia emptores'^^ from all future estates, rights, and possibilities in favor of the feoffee.^ This effect of barring all future interests was produced, it is said, by the presence of the word dedi in the charter of feoffment, which word imported a warranty to defend the estate.* We must now ascer- tain the character and operation of this ancient warranty. As defined in the work to which we are constantly referring,^ the warranty was a covenant real, annexed to an estate of freehold or inheritance, whereby a man and his heirs were bound to warrant the same, and either upon voucher or by judgment in a writ of warrantia chartce to yield other lands and tenements to the value of those of which there should be an eviction, in which case the party received a compensation for the lands lost ; or the warranty might be by way of rebutter, in which case it operated as a defence to the possession.^ The effect of the warranty was to bar and conclude the war- rantor personally, and before the statutes already mentioned, his general heirs, as distinguished from heirs in tail, of the land so warranted for ever, so that all his rights, present and future, were bound.'^ " And therefore," in the example given in the Touch- 1 4 Edw. 1, ch. 6. in fee by the feudal verb dedi, to hold of 2 18 Edw. 1, ch. 1. himself and liis heirs, by certain services, ' Touchstone, 204. the law annexed a warranty to this grant, * lb. 184 ; Coke, Litt. 383, 384. which bound the feoffor and his heirs, to 6 Touchstone, 181. whom the services (which were the con- 8 The subject is more fully explained sideration and equivalent for the gift) by Blackstone. " By the feudal constitu- were originally stipulated to be rendered, tion," he observes, " if the vassal's title to . . . But in » feofiment in fee by the enjoy the fee was disputed, he might verb dedi, since the statute of quia emp- vouch, or call the lord or donor to war- tores, the feoffor only is bound to the im- rant or insure his gift ; which if he failed plied warranty, and not his heirs : because to do, and the vassal was evicted, the it is a mere personal contract on the part lord was bound to give him another feud of the feoffor, the tenure, and of course the of equal value in recompense. And so ancient services, resulting back to the su- by our ancient law, if before the statute perior lord of the fee." 2 Black. Com. 300. of quia emptores a man enfeoffed another '' Touchstone, 182. TITLE BY ESTOPPEL. 287 stone, "if the father be disseised, and the son in his lifetime release all his right to the land to the disseisor, and make a war- ranty in the deed, and then the father dieth, and the right de- scendeth to the son, albeit the release doth not bar the son, yet the warranty doth bar him." In the case of assets, the warranty, if lineal, was a bar of an estate in tail againstthe heir ; and if the warranty was collateral, it was a bar with or without assets (except in cases provided for by statute) of an estate in fee-simple or fee-tail, and all possibility of right thereunto. A word is necessary as to the perplexed subject of collateral warranty. This mode of assurance (for such it was) arose after and by reason of the passage of the statute de donis conditionalibus. Previous to that act, or^ather previous to the statute of Glouces- ter, passed a little earlier, the heir was in every case bound by the ancestor's warranty. As a covenant real, the warranty descended upon him and bound him, even though he claimed title from a third person. These statutes were intended respectively to relieve the heir from such injustice, and to establish entails. The statute of Glou- cester protected the son of tenant by the curtesy from the father's warranty. He was now safe when he claimed title from his mother. The statute de donis went further, protecting the son generally from the father's warranty ; but this was the extent of the pro- tection. The doctrine of warranty still prevailed in other cases ; ^ and so, when it happened that the son was heir also of one who was collateral to the title to the land in question, as where he was heir of his uncle as well as of his father, it was only necessary for the collateral ancestor to make a warranty of the land. This descended still upon the heir and bound him to warrant just as it did before the statute. This was the contrivance invented by the ingenuity of Sir Thomas More to avoid the effect of the above- named statutes ; and it was called collateral warranty. The war- ranty was collateral to the title ; not necessarily, it should be observed, collateral to the blood. The father's warranty might be collateral as well as the uncle's in the case above put ; as where the title to the land had been in the uncle, and his nephew was his heir.^ Thus was an entail efiFectnally barred ; and this evasion of the policy of feudalism, modified by modern statutes, was a recognized mode of 1 And it was held still to prevail if the by the latter. 2 Inst. 293 ; Kawle, Cov- heir received by descent another estate enants, 6, 7, 4th ed. from the ancestor equal to that conveyed ^ No part of the law is more compli- 288 ESTOPPEL BY DEED. assurance in England until within about forty years of the present time.^ And in either sort of warranty, lineal or collateral, if the war- rantor should implead the warrantee, the latter, the tenant, might show the warranty and demand judgment whether, contrary to the warranty, the warrantor should be suffered to demand the thing warranted; and this was called a rebutter. This rebutter was given as a defence to the title to avoid circuity of action ; since if the demandant were to have recovered, contrary to the warranty, the other party would recover the same lands, or lands of equal value, by force of the warranty .^ Thewarrantee again might, at any time before he was impleaded for the land, bring a writ of warrantia chartoe upon the warranty in the deed, against the warrantor or his heirs ; and by this pro-' ceeding all the land that the heir had from the ancestor was bound and charged with the warranty, in the hands of all persons to whom it should afterwards go, from the impetration of the writ ; so that if the land warranted should afterwards be recovered from the warrantee, he should be entitled to recover of other lands of the heir, or of the warrantor if living.^ These observations are sufficient to show that the old common law warranty was wholly different in character from the covenants now in use in the conveyance of real estate. The old warranty, before the statute de donis, ran with the land and operated against cated than this subject of collateral war- bind, or not, directly, and a priori, be- ranty has been made. "If Littleton," cause it is lineal or collateral, for no said Vaughan, C. J., in Bole v. Horton, statute restrains any warranty under Vaughan. 375, "had taken that plain those terms from binding, nor no law in- way in resolving his many excellent cases stitutes any warranty in those terms, in his chapter of warranty, of saying the But those are restraints by consequent warranty of the ancestor doth not bind in only from the restraints of warranties this case because it is restrained by the made by statutes." statute of Gloucester or the statute de i See 4 and 5 Anne, i;. 15. Warranties donis, and it doth bind in this case as at and real actions generally were abolished the common law because not restrained by 3 and 4 Will. 4, c. 27, § 89 ; lb. c. 74, by either statute (for when he wrote, § 14. See further, as to collateral war- there were no other statutes restraining ranty, Eawle, Covenants, u. 1 ; Russ v. warranties; there is now a third, 11 H. Alpaugh, 118 Mass.; Southerland v. 7), his doctrine of warranties had been Stout, 68 N. C. 446. Collateral warranty more clear and satisfactory than now it is, as it stood before the St. 4 and 6 Anne being intricated under the terms of lineal probably never prevailed in this country, and collateral; for that in truth is the Ibid. genuine resolution of most, if not of all, 2 Coke, Litt. 265 ; Touchstone, 182. his cases. For no man's warranty doth ^ Touchstone, 184. TITLE BY ESTOPPEL. 289 the heir regardless of assets from the feoffor ; and after the statute, the same was true of collateral warranty. The modern covenant affects only the grantor, unless first the heir have assets from him, and then only to the extent of such assets, or unless, secondly, the heir claim the land quasi heir of the grantor ; in which latter' case the land would itself become assets in the hands of the heir (if he were allowed to recover), with which he must, as in the other case, respond to his ancestor's covenant of warranty.^ The policy of the law, it will thus be seen, is to prevent a cir- cuity of action. If the heir, having assets from his father, the grantor, were to be allowed to recover the land which the father had conveyed with warranty, though the title had come to him from his mother or from any other collateral source, he would be compelled at once to respond to his father's covenant, to the extent of his assets (not exceeding of course the value of the land) ; so that he would be in no better position in a pecuniary aspect, which alone the law regards, after the litigation than before. The law therefore wisely holds him estopped, or more properly, rebutted, from claiming the land. And the same would be equally true if he should claim the land quasi heir of his father (under a title acquired by the father after the conveyance) regardless of assets ; for the land, if a recovery were permitted, would itself become assets. This is upon the supposition that the warranty is in the usual general form, for the grantor, his heirs and assigns ; but if the warranty should be personal only, and not for the heir also, the lat- ter would not be barred, even with assets, from claiming the land from another source, as from his mother ; since this would be no breach of the warranty, and there would be no place for a re- butter. He could not, however, claim the premises quasi heir of the grantor in this or in any other case, for as such a claimant he would be in privity with the grantor, and would be estopped accordingly. Thus much as introductory to what we have to say upon the ex- isting law, and as showing the origin of the doctrine of title by estoppel. We shall recur to the subject hereafter in detail, in dis- cussing the respective rights of a grantee before title acquired and a grantee after, under our existing modes of conveyance. We turn now to the modern doctrine; and first of leases by es- toppel. 1 See Buss v. Alpaugh, 118 Hasa. 19 290 ESTOPPEL BT DEED. 1. Leases. Where no Interest passes, an Estoppel arises. One of the most important doctrines in estoppels by deed is this, that where no interest passes, an estate by estoppel is created between the parties and those claiming under them, in case of a subsequent acquisition of title by the grantor. Or in the example put in the familiar case of Trevivan v. Lawrence,^ if a man makes a lease, by indenture, of D,,in which he hath nothing, and after- wards purchases D in fee, and suffers it to descend to his heir, or bargains and sells it to A, the heir or A shall be bound by this estoppel, and so shall the lessee and his assignee. For when an estoppel works on the interest of the land, it runs with the land into whose hands soever the land comes ; and an ejectment is maintainable upon the mere estoppel. Mr. Preston,^ in speaking of this doctrine, says that the lease first operates by way of estoppel, and finally, when the grantor obtains an ownership, it attaches on the seisin and creates an interest, or produces the relation of landlord and tenant. There is a term commencing by estoppel, but for all purposes it becomes an estate or interest. It binds the estate of the lessor, and there- fore continues in force against him and his heir. It also binds the assigns of the lessor and the lessee. We must now consider the converse of this rule ; for though it does not strictly present the subject of an estate by estoppel, it is still so intimately connected with the subject just considered that any separation would seem unnatural and forced. 2. Leases. Where an Interest passes, no Estoppel arises. The converse of the above rul6 is also true, that where an inter- est passes by the deed of lease there is no estoppel.^ Doe d. Strode v. Seaton was an ejectment to recover certain premises in the city of Bristol, against the assignee of a lessee for years. It 1 1 Salk. 276 ; 8. c. 6 Mod. 258 ; 2 Ld. of leasehold estates ; and that, in the com- Raym. 1036. mon conveyance with warranty, the es- 2 2 Preston, Abstracts, p. 210, as cited toppel applies against the grantor as to by Tindal, C. J., in Webb v. Austin, 7 after-acquired interests as well where he Man. & G. 701, 724. had an estate at the time of the grant as 3 Coke, Litt. 47 b ; Doe d. Strode v. where he had none. House «. McCor- Seaton, 2 Crom. M. & R. 728. But it is mick, 57 N. Y. 310. held that this rule applies only to the case TITLE BT ESTOPPEL. 291 appeared that the lessee had covenanted to pay rent and deliver possession of the premises at the end of the term to the lessor, his heirs and assigns. The action was brought by the devisee of the lessor, after the expiration of the term. The assignee proposed to show that the lessor was only tenant for life of the premises ; while the plaintiff contended that he was estopped by the deed. The court ruled in favor of the defendant.^ This question again arose in a recent case,^ in which the vice- chancellor said that it was conceded that if a termor, or the owner of any estate in land, which might possibly be suflBcient to allow an interest created by his deed to take effect out of such estate, make a deed purporting to grant such interest, which in the event fails to some extent, from the circumstance of the grantor's own estate not being of sufBcient duration to enable the grantee to take all that the deed purported to give him, — as in the [above] illustration in Coke, Litt., if a tenant for life were to demise for a term, and then to die during the term, — an actual interest would pass by the grant, and the grantee would not be estopped from showing the determination of such interest, as by the death of the grantor during the term ; that is to say, admitting that the lease was for a term of so many years, he would be at liberty to prove that the lessor had only a life interest, and that accordingly, by his death, the lease had determined. For though it was an ad- mitted principle that the lessee could not dispute the title of his landlord, it was equally clear that where he can confess and avoid it, by showing that the landlord's estate has determined, he is per- mitted to do so, and thus prove that the lease exists no longer.^ 1 "Is there any case," said Mr. Baron and after purchases the reversion in fee ; Parke, " which establishes that the words B dieth ; A shall avoid his own lease, for of such a covenant make any difference 1 he may confess and avoid the lease w hich Who could have sued for a breach of this took effect in point of interest, and deter- covenant, for not giving up possession at mined by the death of B.' That case is the end of the term ? It was not a cove- similar to the present, except that there nant running with the land, and therefore the reversion was purchased by the lessor the heir could not sue. This lease does instead of the lessee. That ^hows that not operate as an estoppel, because Colonel an interest passes, and then there is no Strode, having a life-estate, had a right estoppel." to grant a lease for twenty-one years, 2 Langford v. Selmes, 3 Kay & J. 220. determinable upon his Ufe, and therefore ' " In truth," said the learned judge, an interest passed ; and where an interest " the question in this case is, whether or passes there is no estoppel. In Coke, Litt. not there is any reversion on which the 47 b, it is said : ' A lessee for the life of B purchaser of the ground rent would have a makes a lease for years, by deed indented, right to proceed for its recovery by dis- 292 ESTOPPEL BY DEED. The rule is stated in terms substantially these, by a writer of high authority ; ^ that although it is a general rule that a lessee by indenture is estopped from alleging that the lessor had no interest in the demised premises during the joint lives of the lessor and the lessee, yet if, in fact, the lessor was only tenant for life, the lessee may say so in answer to an action of covenant against him by the heir of the lessor. And the following examples are given: where covenant was brought upon a lease for years by the plain- tiff as heir in reversion in fee to his father, and breach assigned for want of repairs, the defendant pleaded that the father, when he made the lease, was only tenant for life ; and the father being tress or re-entry. As respects the rever- sion, the case is in a singular position. Unquestionably, a termor who grants a lease longer than his term thereby parts with his whole interest ; and during the term of the original lease the tenant would hold of the owner in fee-simple, who had granted the original lease ; but the argu- ment is, that on the subsequent acqui- sition of the fee-simple by the original lessee, an estoppel arose, by which, on the expiration of the original lease, the supposed under-lessee will hold of the under-lessor who had affected to demise to him, at a rent of ;E6, for a term greater than he was possessed of at the date of the under-lease. There is no authority for such a proposition ; and the only argument in favor of it has been that, although there is, not a complete estoppel where there is an interest which might be sufficient to effect the whole object of the deed, yet where the interest was ab initio insuffi- cient, there, in order that the deed may not lose its effect, the parties are estopped from saying that the actual interest which it purported to grant has not passed. The only authority which has been cited is Gilman v. Hoare, 1 Salk. 276, which was of a different character. That was a case where a person having a reversionary interest made a grant, and it was sup- posed, from the report in 1 Salkeld, that an interest there passed by way of estop- pel during the first period, and out of the estate during the latter period of the de- mise. It appears, however, from another report of the same case, said to be in 3 Salkeld, sed qu. (and it is impossible therefore to treat it as an authority), that there was no interest at all, because there had been no attornment in respect of the original interest of the lessor which he purported to grant, and therefore, the lessor having no interest, the rule applied that a lessee cannot say that his lessor had no interest at the time of making the lease, and accordingly there was a perfect estoppel as between the lessor and the lessee; and therefore there was no diffi- culty in that case, because the true reason of the rule is, that a lessee, having ac- cepted a lease, cannot plead to an action by his lessor that the lessor nil habuit in tenementis. That is the principle of estop- pel; but I never heard it doubted that, where a person has granted a lease ex- ceeding in duration the actual term which he held, the effect of that would be a de- mise of the whole term, so that the grantee would hold of the grantor of the original term, out of which the underlease was intended to be made." But if the devisee, in his declaration, allege the reversiok to belong to the lessor and heirs, the defend- ant must traverse it ; for to contess and avoid, would be to admit the existing title in the devisee. Weld v. Baxter, 1 Hurl. & N. 568, in Exchequer Chamber, per Crompton, J. ; s. o. 11 Ex. 816. 1 Sir E. V. Williams, in note to Walton V. Waterhouse, 3 Saund. 419. TITLE BY ESTOPPEL. 293 dead, the lease had determined, and, traversing the allegation of reversion in fee in the father, the plea was held good, on demur- rer.^ Upon the same principle it seems that the lessee is not estopped from showing that the lessor was only seized in right of his wife, and that she died before the covenant was broken.^ The principle is simply this : that, while the lessor shall not be permitted to say that he had no estate when he executed the lease, he may say that he exhausted his interest by the lease. In other words, the effect of a tenant's granting a lease of a greater inter- est than he possesses, or merely of his entire interest, is to make an assignment of his term;^ and therefore if. he subsequently acquire the interest of the original owner (that is, if he now ac- quire the reversion), he takes the position of the reversioner. And as the lease was void against him, as to the excess above the ten- ant's interest, the (middle) tenant, being now in the situation ot the reversioner, may avoid the lease at the expiration of his own original term.^ But neither he nor the lessee can say that the former had no in- terest when the lease was granted ; and if in fact the lessor had no estate at that time, he of course cannot say that the lease exhausted his right. The consequence in such case is that, if he afterwards acquire the reversion, he cannot disturb the lessee until the term of the lease shall have expired ; that is, the tenant has an interest by estoppel. It is to be observed, however, that Mr. Preston says that in equity, if the lessor afterwards acquire an interest sufficient to make good the lease, he may be compelled to give effect to the instrument by way of a further assurance.^ That is (probably), he may be compelled to grant a new lease for the remainder of the term. The original lease will not itself operate even in equity upon the new interest.^ As to the tenant, the rule (as we shall see hereafter) is similar ; to wit, that while he cannot deny that the landlord had a title when he granted the lease, he may show that he accepted the lease under a mistake of fact as to the title, or through the fraud of the lessor. And the above rules prevail as well where the lease is ' Brudnell v. Roberts, 2 Wils. 143. * See Langford o. Symes, 3 Kay & J. - 2 Blake v. Foster, 8 T. R. 487. 220. ; s 1 Stephens's Com. 512, 524, 7th ed. » Abstracts, 217. 6 Langford v. Symes, supra. 294 ESTOPPEL BY DEED. verbal (when not void under the Statute of Frauds) as where it is in writing under seal.^ 3. Orantor and Grantee. We proceed now to the consideration of the doctrine of title by estoppel as applied to existing conveyances of land by deeds of bargain and sale, quitclaim, and the like. The general rule, as we have said, is that upon the acquisition of title by the grantor of a warranty deed^ made before title accrued, the interest enures to the grantee and gives him a title by estoppel ; and the con- trary, if the conveyance was without warranty.^ We shall devote the remainder of the present chapter to a minute examination of the limits of this rule. The proposition must be divided into two parts, according as it is to be applied between the grantor (and his heirs) and the grantee, and between this grantee ,and a subsequent grantee of the grantor, to whom a conveyance of the same premises has been made after title accrued. The two cases, as we expect to show, stand upon a very different footing. First, then, as to the applica- tion of the above rule between grantor and grantee. To determine whether the grantee will have against the grantor a title by estoppel upon the acquisition of title by the latter, in other words, whether the grantor will be estopped from setting up the after-acquired interest against his grantee and thus from claiming the premises, will depend upon the nature of the deed. It is not always necessary that the deed should contain covenants of warranty to operate in this way ; nor will it always operate in this way when it does contain such covenants. Besides, the deed must be voluntary ; and hence a sheriff's deed will not bar the judgment debtor from claiming the land under an after-acquired title, whether the deed be with warranty or not.^ There is, then, in the first place a class of cases in which the grantor will be precluded from claiming his newly acquired title against his grantee, though he entered into no, covenants of war- ranty. Cases of this kind are those in which the grantor's deed con- 1 See post, ch. 14. 3 Emerson v. Sansome, 41 Cal. 552 ; 2 So, too, of an assignment, without Dougald v. Dougherty, 11 Ga. 678, 694 ; warranty, of a mortgage. Weed Sewing Prey v. Eawsour, 66 N. C. 466. But- it Machine Co. v. Emerson, 115 Mass. 664. is, of course, binding as to the existing See Merritt o. Harris, 102 Mass. 326. title. Gorham v. Brenon, 2 Der. 174. TITLE BY ESTOPPEL. 295 tains a certain recital or affirmation, express or implied, that he is seized of a specific estate, which estate is conveyed to the grantee. The effect of such a deed, upon the principles already considered in the chapter on Eecitals, will be to prevent the grantor ever after from denying that he was so seized (whatever may be the truth), and that such estate has passed to the grantee. This subject is illustrated by a case decided by the Supreme Court of the United States.^ In this case, the averment of the specific estate in question was not in so many words expressed, but the coui:t gathered from the whole deed an affirmation of a particular interest, which interest the deed purported to convey. Though there were certain covenants in the deed of somewhat doubtful import, the court held that independently of these the deed bore on its face evidence that the grantors intended to con- vey, and the grantees expected to become invested with, an estate of a particular quality. And the bargain having proceeded upon that footing, the instrument was as binding, in respect of the after- acquired interest, as if a formal covenant had been made, at least so far as to estop the grantors and those claiming under them from denying that they were seized of the particular estate at the time of the conveyance.^ The court upon a review of the "cases said that the principle deducible seemed to be that, whatever the form or nature of the conveyance used to pass real property, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he is seized or possessed of a particular estate in the premises, which estate the deed purports to convey, or, what is the same thing, if the seisin or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor and all persons in privity with him shall be estopped ever afterwards from denying that he was so seized and possessed 1 Van Eensselaer v. Kearney, 11 How. & B. 792 ; Stow v. Wyse, 7 Conn. 214 ; 297. Penrose v. Griffith, 4 Binn. 231 ; Denn v. 2 The following cases were cited: Cornell, 3 Johns. Cas. 174; Carver !;. Goodtitle v. Bailey, 2 Cowp. 601 ; Bens- Jackson, 4 Peters, 1. To the same effect, ley V. Burdon, 2 Sim. & S. 524; s. c. 6 see Koot v. Crock, 7 Barr, 378 ; MoCall Law J. Ch. 85 ; Eight v. Bucknell, 2 v. Crover, 4 Watts & S. 151. The grantor Barn. & Ad. 278 ; Doe d. Marchant v. cannot in a court of equity allege that the Errington, 8 Scott, 210 ; Eees v. Lloyd, land was held in adverse possession by Wightwick, 129 ; Bowman v. Taylor, 2 another when he conveyed. Euffin v. Ad. & E. 278 ; Lainson v. Tremere, 1 Ad. Johnson, 5 Heisk. 604. 296 ESTOPPEL BY DEED. at the time he made the conveyance. The reason was that the estate thus affirmed to be in the party at the time of the convey- ance must necessarily have influenced the grantee in making the purchase, and hence the grantor and those in privity with him, in good faith and fair dealing, should be for ever thereafter precluded from gainsaying it. In cases of this kind, the question whether the grantor or his heirs will be precluded from claiming the newly acquired estate will depend upon the nature of the recital or implied affirmation. If to assert the interest is not inconsistent with the recital, the grantor and those in privity with him may of course assert it. To this class of cases must be referred certain decisions under statutes. In Missouri, for example, it is provided by statute that a deed conveying the " fee-simple absolute " shall operate to bar the grantor from claiming any future interest in the premises, as well without as with warranty ; at least, such is the construction put upon the statute by the courts. ^ And similar statutes in 1 Gibson v. Chouteau, 39 Mo. 536. In this ease, Holmes, J., in delivering judg- ment, said : " If this deed purports to convey the real estate in fee-simple abso- lute, the after-acquired title passes under the statute, otherwise not. There is no covenant of warranty, and no estoppel by virtue of any kind of expressed warranty. The words ' bargain, sell, release, quit- claim, and convey,' are words of release and quitclaim merely. They carry the grantor's interest and estate in the land described, whatever it may be ; they do not of themselves purport to do any thing more ; they do not even raise the statute covenants implied in the words ' grant, bar- gain, and sell,' nor would these transmit a subsequently acquired title. Chauvin v. Wagner, 18 Mo. 531. There is no Eng- lish authority that any other conveyance than a feoflFment, fine, or lease, operated by way of estoppel to pass an after-acquired title. Kawle, Covenants, 408. The land is described as being part of the tract located under a New Madrid certificate, to James Y. O'CarroU, or his legal representatives, and as being the same parcel of land con- veyed to Pierre Chouteau, Jr., by Robert Wash, as trustee of Joseph Hertzog,' by deed recorded. The habendum is to Pierre Chouteau, Jr., and his heirs for ever. This description would seem to show very clearly that neither party contemplated any other than the inchoate title created by a location under a New Madrid certifi- cate, whatever that might be, and not a fee simple, and that the grantee already had, or claimed to Iiave, that inchoate right by virtue of a deed from Hertzog's trustee, and the grantor releases, quit- claims, and conveys all his interest in the same land and title for the small con- sideration expressed. It is essentially a quitclaim deed, and nothing more. It makes no positive averment that the grantor is seized or possessed of any par- ticular estate in the premises which the deed undertakes to convey and confirm. Such averments, to create an estoppel, must be positive and certain No seisin or possession of any particular estate is affirmed in the deed, either in express terms or by necessary implication, whereby an estoppel might be created. In Van Rensselaer v. Kearney, 11 How. 297 [supra], the deed expressly affirmed that the grantor had seisin and possession of the estate conveyed, and undertook to TITLE BY ESTOPPEL. 297 Illinois, Arkansas, and California, have received a lilce con- struction. ^ Next, as to the cases in which the grantor's deed contains a cov- enant of warranty. Whether the effect of such a conveyance be to bar the grantor from claiming the after-acquired estate will depend upon the nature both of the grant and of the warranty. We have already considered the cases in which the warranty convey and confirm the same to the grantee. This is not a deed of that char- acter. It falls . within the general prin- ciple, which is fully recognized in that case, that a deed of this character, which purports to convey, and is understood to convey, nothing more than the interest or estate of which the grantor is seized or possessed at the time, does not operate to pass or hind an interest not then in existence. In French v. Spencer, 21 How. 228, also, the deed expressly affirmed the existence of the particular interest and estate conveyed, and empowered the grantee to make the location, and receive the patent for the land when that interest should be ripened into a complete title. This is clearly not such a deed ; nor does it purport to convey a fee-simple absolute. To have this effect, under the statute, the deed must undertake to convey an in- defeasible title. It must not be a quit- claim deed, merely transferring the grantor's interest, whatever it may be, but a deed which expressly undertakes to convey the land itself, and to convey it in such a manner that the grantee is not to be disturbed in his possession by any one. Bogg V. Shoab, 13 Mo. 365. It must con- tain such positive and certain averments of an absolute title in fee-simple as would amount to an express warranty, if con- tained in a covenant of warranty, that the grantor was seized and possessed of such title to an estate, which he undertook to convey, assure, and confirm to the grantee against all the world, and would therefore create an estoppel by virtue of which the subsequently acquired title might enure to the grantee. " The statute provision would seem to be the same in principle as the doctrine laid down in these decisions of the Supreme Court of the United States, proceeding upon the idea of an estoppel. It is said in Bogg V. Shoab that the statute extends to every deed which was obviously in- tended to convey, and purported to con- vey, a fee-simple absolute, even without a covenant of warranty, but that it did not reach, and ought not to apply to, a deed where the grantor expressly guards against such an inference by inserting a special warranty against himself only, and those claiming under him. The statute requires that the deed should un- dertake to convey a fee-simple absolute. " A similar statute in Illinois has re- ceived the same construction which is given to it in this State. Trink v. Darst, 14 111. 304. In Cocke v. Brogan, 5 Ark. 693, under a like statute, the after-acquired title was held to pass by deeds which con- veyed the lots in fee-simple. This deed can have no greater force than a mere quitclaim which expressly conveys only the right, title, and interest of the grantor, as the case was in Valle v. Clemens, 18 Mo. 486. "We conclude, therefore, that the after-acquired, inchoate, equitable title to this location did not pass and enure to the grantee under this deed, and that neither the grantee nor these defendants thereby became the legal representatives of O'Car- roU, Ruddell, and Wilt, in respect to this land." 1 Frink «. Darst, 14 111. 304; Cocke v. Brogan, 6 Ark. 693 ; Vallejo Land Assoc. V. Viera, 48 Cal. 672. 298 ESTOPPEL BY DEED. operates to bar the grantor's heir, or rather descendant ; ^ but the question now is, when the warranty will bar even the grantor. It is held that if a party having a vested and a contingent inter- est in property convey by deed, with warranty, " all his right, title, and interest " therein, the deed passes only his vested interest ; and he will not be estopped to claim an after-acquired interest in the property.^ In the case first cited, one Soley conveyed, by the words quoted, one eighth of an estate devised to him by his grand- father, one half of which devise was a contingent remainder; and it was contended that, though this last-named interest did not pass by the deed, still that when the estate afterwards became vested the deed operated by way of estoppel. The court, however, were / of a different opinion. Chief Justice Shaw said that, if the deeds contained the sup- posed matter of estoppel, the court were not disposed to deny the legal consequences attributed to it. But, upon examination of the deeds, they did not contain any thing which prevented the peti- tioner from asserting his title to the contingent interest. The in- denture which had been most relied upon contained no stipulation or averment that the petitioner's share and property were of any particular proportion. It was manifest that the conveyance was fully satisfied by applying it to the vested interest. No allegation or averment was falsified by a denial of the claim to the land in controversy, because there was no averment of the nature or ex- tent of the right, title, and interest under the grandfather's will. Nor did it make the case different that there was a covenant of warranty ; for this was simply equivalent to a warranty of the estate he then held, and was to be confined to the estate then vested.^ This subject was considered also in the case of Comstock v. Smith,* which was a writ of entry. The demandants counted upon their own seisin within thirty years, and a disseisin by the tenant. The tenant pleaded that before the demandants had any thing in the premises, one Waters was seized thereof in fee, and that while he was so seized he (the tenant) bargained with him, 1 Ante, p. 289. As heir strictly he is McBridge v. Greenwood, 11 Ga. 379, and barred, of course, whenever the grantor cases cited in the following pages. is barred. 3 Brown v. Jackson, 3 Wheat. 449. 2 Blanchard v. Brooks, 12 Pick. 47 ; < 18 Pick. 116. TITLE BY ESTOPPEL. 299 by parol, for the purchase of the land. Afterwards, the demand- ants having disseized Waters unlawfully, and pretending to have a good title, granted the land in fee to the tenant, with warranty ; and the tenant continued for a year and upwards to hold under this deed. The tenant then, in order to get back the considera- tion paid, by deed, " granted, sold, and quitclaimed " to the de- mandants in fee all his " right, title, claim, and demand in and unto " the premises, covenanting " against the lawful claims and demands of all persons claiming by or under him ; " whereupon Waters co'nveyed the premises by deed to him. The demandants replied that the tenant was estopped by his deed to set up this defence ; to which, on oyer of the deed, there was a demurrer, which was sustained.^ 1 The judgment was delivered by Mr. Justice Wilde, in an opinion so clear and instructive that we cannot forbear to pre- sent a considerable portion of it. " It is a well-settled principle of the common law," he observed, " that if one conveys lands or other real estate, with a general covenant of warranty against all lawful claims and demands, he cannot be allowed to set up against his grantee, or those claiming under him, any title subse- quently acquired either by purchase or otherwise. Such new title will enure, by way of estoppel, to the use and benefit of his grantee, his heirs and assigns. This principle is founded in equity and justice, as well as the policy of the law. It is just that a party should not be permitted to hold or recover an estate in violation of his own covenant ; and it is wise policy to repress litigation and to prevent a cir- cuity of actions, when better or equal justice may be administered in a single suit. By such a grant, with general warranty, nothing passes, nor indeed can possibly pass, excepting the title which the grantor has at the time of the grant ; but he is estopped to set up a title subse- quently obtained by him, because, if he should recover against his grantee, the grantee in liis turn would be entitled to an action against the grantor, to recover the value of the land. The principle of estoppel, therefore, not only prevents multiplicity of suits, but is sure to admin- ister strict and exact justice ; whereas, if the grantee were driven to his action to recover the value of the land, exact jus- tice might not be obtained, because the land might possibly not be estimated at its just value. If, however, the grantee were not entitled to recover the value of the land on the grantor's covenant of warranty, then in such case it is obvious that this species of estoppel would not be apphcable. And such appears to be the law in regard to the covenant in question, by which the demandants attempt to es- top the tenant to set up or plead the title of Waters. The tenant's covenant is a restricted covenant, and is coextensive with the grant or release. He agrees to warrant the title granted or released, and nothing more ; that title only he under- took to assert and defend. To extend the covenant further would be to reject or do away the restrictive words of it, and to enlarge it to a general covenant of war- ranty, against the manifest intention of the parties. . . . Now if Waters, after the tenant's quitclaim deed, had evicted the demandants, this would have been no breach of the tenant's covenant. Or if the tenant now held under Waters, with- out having obtained the fee from him, he might pray Waters in aid, and thus defend himself against the title of the demandants ; the title of Waters being. 300 ESTOPPKL BY DEED. The rule is settled in Massachusetts and Maine that the covenant of warranty in a quitclaim deed of the grantor's right, title, and interest, will be limited in effect to such estate as the grantor then had, however the covenant may be expressed.^ Thus, in Hoxie v. Finney, a deed of this kind contained a covenant that the grantor was lawfully seized in fee of the premises, that they were free from all incumbrance, that he had good right to sell and convey the same, and that he would warrant and defend them to the grantee, his heirs and assigns, against the lawful claims and demands of all persons. And yet it was held that the covenant was not broken by an eviction of the grantee under an incumbrance created by the grantor before making the conveyance. It would follow that the grantor could recover the premises from his grantee under a title as the plea avers, the elder and better title ; and this would also be no breach of the tenant's covenant. He did not undertake to convey to the demandants an indefeasible estate, but only his own title, nor did he agree to warrant and de- fend it against all claims and demands, but only against those derived from him- self; by which he must be understood to refer to existing claims or incumbrances, and not to any title which he might after- wards acquire by purchase or otherwise from a stranger. (Ellis v. Welch, 6 Mass. 24G, 250.) . . . " It was then contended by the de- mandant's counsel, that, admitting the tenant is not estopped by his covenant of warranty, he is nevertheless estopped by his conveyance to deny that he had any title in the land at the time of the con- veyance. This also is a well-established principle of the common law. Coke, Litt. 46, 47 ; Jackson v. Murray, 12 Johns. 201 ; Jackson v. Ball, 1 Johns. Cas. 81. But the tenant, in his plea, does not deny that he had any title to the land ; on the contrary, he avers that, before the time of his conveyance, he was in possession of the land under Waters, that after- wards the demandants disseized Waters, and, being seized by disseisin, they con- veyed to the tenant all their right and title, with a covenant of warranty similar to the one contained in his reconveyance to them. The demandants, in their turn, would be estopped to aver that they had no title in the land, nor is there any such averment in the pleadings. The tenant, at the time of his reconveyance, might have had a valuable interest in the land by possession and improvements, al- though Waters liad a paramount title. This interest, whatever it was, passed to the demandants by the tenant's deed; and it was all the title he had to convey or was expected to convey. If under these circumstances the demandants could now acquire, without any consideration, another title by estoppel, we should be compelled to admit that estoppels are as odious as they are sometimes said to be. But the doctrine of estoppel aids much in the administration of justice ; it be- comes odious only when misunderstood and misapplied." 1 Hoxie V. Finney, 16 Gray, 332; Allen V. Holton, 20 Pick. 458 ; Blanchard V. Brooks, 12 Pick. 47 ; Sweet u. Brown, 12 Met. 175 ; Kinnear v. Lowell, 34 Maine, 299. See Merritt v. Harris, 102 Mass. 826; Uuss v. Alpaugh, 118 Mass. But qimre if this is any thing more than inter- pretation of language, and if the grantor could not so express himself as to be pre- cluded from setting up a title afterwards acquired from another ? TITLE BY ESTOPPEL. 301 acquired from another which was in existence when the deed was executed. In other States, however, the use of such general covenant ot warranty operates as effectually by way of rebutter as it does in a conveyance of the fee-simple.i Jones v. King was such a case. The grant was of " all right, title, interest, and claim ; " and covenant read as follows : " And the said James A. King and William King, for themselves and their heirs, do by these presents covenant to and with the said Thomas C. King that they will for ever warrant and defend the title to the said tract of land or lot of ground, to be free from the claim or claims of himself and his heirs, and all other persons claiming, by, through, or under him and also from the claim or claims of all and every other person or persons whomsoever." Mr. Justice Breese, spealiing for the court, said that it was a well-settled principle of the common law, that if one conveys lands or other real estate, with a covenant of general warranty against all lawful claims and demands, he cannot be allowed to set up, against his grantor [grantee ?] or those claiming under him, any title he himself may subsequently acquire from another, by purchase or otherwise. Such new title would enure, by way of estoppel, to the use and benefit of his grantee, liis heirs and assigns. This principle was founded in equity and justice, for it was not just that a party should be permitted to hold or recover an estate in violation of his own covenant. Covenants against the lawful claims and demands of all persons claiming by or under the grantor, in a quitclaim deed, reserving a right of way for a certain purpose, do not estop the grantor from claiming a right to enjoy the way for other purpose than that men- tioned, if the way has been laid out and accepted by the public authorities.^ Nor does a covenant of warranty estop the grantor to claim a way of necessity over the land granted.^ • A deed of land through which a stream runs, though it contain, the usual covenants of warranty, does not estop the grantor from subsequently erecting a dam below the land, and thereby flowing it, under the protection of the Mill Acts, in the same manner as if the proprietor had derived his title from some other source.* 1 Jones V. King, 25 111. 383 ; Mills v. ^ Flagg v. Flagg, 16 Gray, 175. Catlin, 22 Vt. 98; Stelner v. Baughman, " Brigham v. Smith, 4 Gray, 297. 12 Penn. St. 106. See Calvert v. Se- * Dean v. Colt, 99 Mass. 486. bright, 15 Bear. 156. 302 ESTOPPEL BY DEED. In another case^ involving the construction of a similar war- ranty in a deed of partition, Mr. Chief Justice Shaw said that a covenant that the grantee should hold free from all right, title, interest, or claim of the grantor, could not have greater force than a direct covenant of seisin, which was not broken by the existence of an outstanding, paramount title. It did not estop the plaintiff from showing that, at the time of the partition, a third party held the superior title, which the plaintiff had since acquired and now relied upon.^ In a recent case in Maine,^ the plaintiff brought an action for dower. It appeared that her husband had conveyed the premises to one Joab Harriman by a deed to which the plaintiff was not a party. Joab quitclaimed the premises to one under whom the defendant, by sundry mesne conveyances, claimed. This deed of quitclaim contained no covenants of warranty, but closed in these words : " So that neither I, the said Joab Harriman, nor my heirs, or any other person or persons claiming from or under me or them, or in the name, right, or stead of me or them, shall or will, by any way or means, have, claim, or demand any right or title to the aforesaid premises or their appurtenances, or any part or parcel thereof for ever." The defendant claimed that the plaintiff had barred her right to dower by a deed of release made to Joab Har- riman subsequently to his quitclaim of the premises. But the court ruled that this was no bar.* But the propriety of such a construction has been very properly doubted.^ A similar covenant in Trull v. Eastman ^ was regarded as a covenant real, operating by way of rebutter against the future claims of the grantor, his heirs and assigns.'^ 1 Doane v. "Willoutt, 5 Gray, 328. subsequent title by language such as is 2 See also Wight v. Shaw, 6 Gush. 56 ; found in the deed of Joab to James Har- Miller v: Ewing, 6 Gush. 34 ; Smith v. riman. Nor do the subsequently ac- Strong, 14 Pick. 128 ; Stearns v. Hender- quired rights of Joab enure to the use of sass, 9 Gush. 497. the grantee." Pike v. Galvin, 29 Maine, 3 Harriman v. Gray, 49 Maine, 537. 183. * " As between the demandant and 6 Rawle, Govenants, 414, 415; where it Joab Harriman," Appleton, J., remarked, is said that Pike v. Galvin, and the sub- " she would be estopped. But the release sequent case of Loorais v. Pingree, 43 to Joab does not enure to his grantees, Maine, 299, 314, hare not elsewhere been and, not enuring by estoppel to their followed, benefit,- they cannot set it up as a bar. 6 8 Met. 121. It has been repeatedly settled that a 7 See also Miller y. Ewing, 6 Gush. 34; grantee is not estopped from setting up a Jackson v. Bradford, 4 Wend. 619. TITLE BY ESTOPPEL. 303 If the covenants should become extinguished, they can have no effect, it is plain, as to after-acquired interests. In a recent case," the plaintiff brought ejectment under the following circumstances : The land had been conveyed by A to B, with warranty ; B con- veyed to C ; and C, then conveyed it back to the first grantor, A. The plaintiff took a conveyance of the land from B, after he had conveyed to C ; and in a suit against A, he now claimed that A's after-acquired title enured to him by reason of the covenants in the first deed by A to B. But the court ruled otherwise. The fact that the plaintiff claimed through divers mesne conveyances from the defendant, who had conveyed with warranty, and the further fact that the defendant had again acquired the title, did not affect the case, and constituted no estoppel against the defendant. The covenants, which passed to C, had been extinguished by the con- veyance of the land from C back to the defendant. The plaintiff, having taken a deed from an intermediate grantee, after he had parted with his title, was not in a position to set up an estoppel. This doctrine respecting after-acquired estates applies, when the grant and warranty are sufficient, though the original conveyance was fraudulent and void as against creditors.^ The case cited was an action of trespass on land ; the plaintiff having conveyed his life interest in trust for the benefit of his wife, by deed of quit- claim, with special warranty against all claims of the grantor or his heirs, or of any other person claiming under him or them. The deed was fraudulent and void, the grantor having been in- solvent at the time. Subsequently, having taken the benefit of the insolvency law, he became the purchaser of the assignee's interest in the land, and received a conveyance. The court held that this new title vested in his grantee, and that the action could not be sustained. Shaw, C. J., said that the covenant in the original deed differed from a general warranty in this, that one was a warranty against any and all paramount title, while the other was against the grantor himself and all persons claiming under him.^ In the present case, the plaintiff was claiming the very same title which lie had conveyed with warranty ; and it was quite distinguishable from the case when the grantor subsequently 1 Goodel V. Bennett, 22 Wis. 565. The 2 Gibbs v. Thayer, 6 Gush. 30. Bankruptcy Act of 1841 did not extin- ' Newcomb v. Presbrey, 8 Met. 406. guish covenants of warranty in a deed. Bush V. Cooper, 18 How. 82. 304 ESTOPPEL BY DEED. purchased another estate. It was immaterial, he said, whether or not the original conveyance was fraudulent against creditors. If it was not, then the property did not pass to the assignee, and the plaintiff took no title under it; if it was fraudulent, it was by reason of acts done by him, which had given rights to creditors to reclaim the land and hold it, and was an incumbrance against which he had warranted. In this case, the purchase of the interest was only an extinguishment of an incumbrance ; and by the doc- trine of estoppel, this purchase of the outstanding right of creditors enured to the benefit of the plaintiff's grantee. Improvements erected by the grantor in ^possession also enure to the benefit of the grantee.^ The case cited was an action to recover possession of certain improvements on property in' the hands of a tenant of the owner, by virtue of an attachment and execution against the latter. The owner had, prior to the attach- ment, mortgaged the property to a third person, and had then erected the improvements in question. The court held that the action could not be maintained ; the ground taken being that the owner, by his mortgage, would be estopped, in a contest between him and his grantee, from asserting a title to the property, by the covenants in the deed. - Covenants for quiet enjoyment in themselves are said to be as effectual by way of estoppel as words of conveyance.^ The doc- trine seems to rest upon the same grounds as that concerning the estoppel of a grantor in fee, with warranty to set up an outstanding title against his grantee, namely, that of prevention of circuity of actions. Should the grantor, having acquired a paramount title, attempt to disturb and regain the possession of his grantee, the latter would be entitled to set up the covenant for quiet possession, by way of rebutter ; and this, it would seem, would as effectually operate against the grantor as if he had made a direct conveyance of the land. It is important to notice the distinction laetween covenants of seisin and against incumbrances, and the covenants for further assurance and of warranty. The distinction was presented in the case of Ohauvin v. Wagner .« In this case, Chauvin and wife joined in a conveyance of the wife's laud, by a deed which the court held 1 Humphreys W.Newman, 51 Maine, 40. N. Y. 572; Goodtitle v. Bailey, 2 Cowp. 2 Long Island E. Co. v. Conklin, 29 597. » 18 Mo. 531. TITLE BY ESTOPPEL. 305 ineffectual to convey her estate by reason of a defective certificate of acknowledgment. This deed contained statutory covenants of seisin, against .encumbrances, and for further assurance. The plaintiflFs, who were heirs of the grantor, their father, but without assets from him equal to the value of the property conveyed, now brought ejectment to recover it of the defendants, who claimed under the conveyance mentioned. The court held that the plain- tiffs were not estopped by the covenants.^ 1 Mr. Justice Gamble, who delivered the opinion, said that but one of the stat- utory covenants in the deed in question ran with the land, which was the cove- nant for further assurance. Collier ». Gamble, 10 Mo. 467. " The others," he proceeded to say, " are broken as soon as made, if in the one case there is not an indefeasible seisin, or in the other there is an encumbrance. A right of action exists in either case upon the appropriate covenant, on the execution of the deed ; but the damages to be recovered may be enhanced by subsequent events. A re- covery of land by title paramount is not the breach of the covenant, but evidence of the extent to which the grantee is damnified by the breach, which existed as soon as the covenant was made. Mosely v. Hunter, 15 Mo. 328. The lia- bility on the covenants, arising as soon as the covenants were made, would bind the heirs of the grantor, having assets by descent, in just the same manner that they would have been bound by a bond for the payment of money, in which he bound his heirs. The covenants are not connected with nor do they run with the land. These covenants do not operate as the ancient covenant of warranty to transmit a subsequently acquired title to the covenantee, nor do they operate as a rebutter against the grantor in respect to their obligation as covenants. In some cases, recitals and admissions contained in deeds are held to estop the grantor and those claiming under him from as- serting a title to the land conveyed, when such assertion of title would be contrary to the recital or admission made in the deed. Goodtitle v. Bailey, 2 Cowp. 597 ; Carver v. Astor, 4 Peters, 86 ; Kinsman V. Loomis, 11 Ohio, 478 ; Root v. Crock, 7 Barr, 380 ; Stow v. Wyse, 7 Conn. 214. [This point is elsewhere considered.] The principle in these and similar cases would warrant the decision that the covenants contained in the words ' grant, bargain, and sell,' and which are to be regarded as if written out in the deed, should, as an assertion of present seisin in the grantor, estop him and those claiming under him from asserting a title at the time of mak- ing the conveyance. . . . " If the plaintiffs are not estopped by the covenants of seisin or against encum- brances, are they afiected by the covenant for further assurance ? This covenant runs with the land. If Francis D. Chau- vin, the ancestor, had acquired a further or better title to the premises, after his conveyance, he would have been com- pelled specifically to execute the cove- nant by conveying such title. 2 Sugden, Vendors, 541 ; 2 Ch. Cas. 212 ; Smith v. Baker, 1 Younge & C. Ch. 223. If he had acquired a title subsequently to his conveyance, and such title had descended to his heirs, they would have been com- pelled to execute the covenant. The present plaintiffs have never acquired any title to the property from their father. In respect to it, there is no privity be- tween them and their father. It was acquired fourteen years after his death. They are responsible as his heirs, upon his covenants, as far as they have assets by descent from him. And if in the present case it were shown that the as- sets by descent were equal to the value 20 306 ESTOPPEL BY DEED. There remain to be mentioned certain cases of implied warranty. Thus, in the case of a partition of lands between co-tenants, the law imports a warranty of the common title, and holds it incom- patible with their duty to each other for either to become demandant in a suit to recover any portion of the land by a paramount title, and thus to place himself in antagonism to his co-tenants and their common warrantor.^ But there are some qualifications to this rule. In a case in Ohio the question arose as to the effect of a partition between co-devisees upon an inchoate right of dower in one of them, which subsequently became perfect.^ The facts in the case cited were these : The plaintiff was the widow of Joseph Walker, and the daughter of Josiah Hedges, and also sister of the defendant. During her coverture, her husband had been seized in fee of the premises in which she now claimed dower. The land was con- veyed to Hedges, her father, without any release of dower. He died, leaving this and other land to his children ; they made par- tition of the property, and the land in controversy was assigned to the defendant. It was held that the rule of estoppel did not apply .3 of the property when they acquired the title, their obligation then as heirs, in respect to the assets descended, might have been held complete to make the assurance. [See Kector v. Waugh, 17 Mo. 13; Dean v. Doe, 8 Ind. 475; 2 Smith's L. C. 742, 6th Am. ed. For the early common-law rule see Jourdan v. Jourdan, 9 Serg. & R. 268.] The duty to make an assurance could not devolve on them while the title was in their mother. The covenant provided by the statute, if written in the deed in the form expressed in the act, would simply contain a stipu- lation 'for further assurance thereof to be made by the bargainor, his heirs and assigns.' The heirs of the grantor, as such, are bound to make assurance, but certainly not until there is something to be done by which the grantee's title can be secured. But nothing could be done by them until the title came to them by descent from their motlier, and they could not be held to convey it then, unless they had assets of equal value t^om their father. No such fact has been shown in the case. If the plaintiffs are to be held bound to make assurance because of equal assets descended from the father, it must be shown by the defendants." Sealed articles of agreement for the conveyance of land do not amount to a covenant for further assurance, and do not estop the obligor from claiming the land. Anonymous, 1 Hayw. 331. 1 1 Washburn, Real Prop. 431, 432 ; 2 Black. Com. 300. 2 Walker v. Hall, 15 Ohio St. 355u ' Mr. Chief Justice Brinkerhoff, speak- ing for the court, said : " Is the plaintiff pre- cluded from asserting her claim to dower in a portion of the lands partitioned among her and her co-devisees, by the mutual warranty which the law implies as arising and subsisting, inter se, between parties to a partition so long as the priv^ ity of estate continues between them? This is a serious question, and one not free from difficulty. That such warranty, as a general rule, exists at common law, TITLE BY ESTOPPEL. 807 4. Grantee lefore and Grantee after Title acquired} We now come to the case of a contest between a grantee before title acquired and a grantee after, liaving no notice of the prior con- is clear from the old books. ' If the pur- party of one parcener be evicted by a title paramount, the partition shall be de- feated ; for the partition imports a warranty and condition, in law, that the one shall enter upon the other and enjoy her part in parceny, if she be evicted, as long as the privity between them continues.' Comyns' Dig. ' Parcener ' C, 13 ; Coke, Litt. 173 b and 174 a. ' Applying this common-law duty of co-tenants to aid each other in protecting what had been a common estate, even after partition made, the law holds it incompatible with their duty towards each other for either to become the demandant in a suit to re- cover any portion of the land by a para- mount title, and thus to place himself in antagonism to his co-tenants and their common warrantor.' 'And where par- tition has been made by law, each par- titioner becomes a warrantor to all the others to the extent of his share, so long as the privity of estate continues between them. And inasmuch as a warrantor cannot claim against his own warranty, no tenant after partition made can set up an adverse title to the portion of another for the purpose of ousting him from the part which has been partitioned ofE to him.' 1 Washburn, Eeal Prop. 431, 432 ; Venable v. Beauchamp, 3 Dana, 321 ; Feather v. Strohoeeker, 3 Penn. 505; Jones V. Stanton, 11 Mo. 433. " That these are the established gen- eral rules bearing upon the question un- der consideration must be admitted ; and it is equally clear that when they are applied to the ordinary case of the ac- quisition by purchase of an independent, adverse, and paramount title by one co- tenant, and its assertion by him against another after partition, the operation of these rules is equitable and just. In such case, it is but just, that the purchaser of the adverse title should be held to have purchased for the common benefit of all parties to the prior partition, and that his rights under such purchase should be limited to a claim for contribution against his late co-tenants, to reimburse him for his expenditure for the common benefit. 4 Kent, Com. 371, notes. And, e;^cept the case of Woodbridge v. Banning, 14 Ohio St. 328, 1 have not been able to find a case in which any exception to the ap- plication of these general rules has been recognized. But the cases in which the doctrine of implied warranty between partitioners has been invoked and ap- plied are few ; and all of them present the simple case of a voluntary purchase (after partition made, and before eviction by adverse paramount title) of an ad- verse and paramount title, and the at- tempt to assert such title against co-par- titioners. But this is not such a case. As in Woodbridge v. Banning, supra, this is a case in which, by the operation of law and the act of God, there has, subse- quent to the partition, ripened in favor of the demandant a title which potentially existed in her at the time of the partition, but which was then inchoate and incapable of being asserted. In none of the other cases were the facts analogous to the facts in this ; and the question as to whether the common-law doctrines of im- plied warranty between co-partitioners apply to a case of this kind did not in them arise. Moreover, it seems to me- to. be not unworthy of notice that the doc- trines of implied warranty and consequent estoppel between co-partitioners origi- nated at common law; and, though based on considerations of natural equity, they 1 The author published the substance of the following in the American Law Review for January, 1875. 9 Am. Law Eev. 252. 308 ESTOPPEL BY DEED. veyance. And it now becomes necessary to ascertain the precise nature of a title by estoppel, under existing modes of conveyance. Does the after-acquired estate actually pass to the grantee as soon as the grantor acquires it, or is the grantor only precluded from setting it up ? And if the latter, does the estoppel fall upon the assigns of the grantor without notice, as well as upon the heirs ? These questions we propose now to examine, considering the subject, first, as it stood before the Statute of Uses, and, secondly, as it has been modified by that statute. At common law (that is, before the Statute of Uses) there were -three assurances which operated to pass future interests to which the alienor had at the time no title, — the feoffment, the fine, and the common recovery, — to which a fourth, the lease, may be added, as possessing a very similar efficacy. The feoffment was the conveyance by which the lord of the manor parcelled out his lands to his vassals, in consideration of fealty and service ; and, as the vassal promised allegiance for life, the donor, from the earliest times, gave to him a life-estate, and, in later times, often a fee. The feoffment created in all cases a life-estate, at least ; by right, if the feoffor owned an estate in the were long applied only in proceedings at ■ recompense Mrs. Hall for the loss of her common law by writ of partition. That equal proportion of the estate, exclusive form of proceeding is now obsolete, and of the dower estate of Mrs. Walker, will has never had a place in the practice of do justice to all. . . . our courts ; it being superseded by pro- " The case of Woodbridge v. Banning, ceedings in equity, and under special before referred to, was closely analogous statutes. And it seems to us that when to this. There a partition was had be- the principles of the common law are, as tween parties as heirs of Anthony Ban- here, invoked as guides to proceedings in ning, deceased. Subsequently a spoliated equity, they ought to be applied only so will of the common ancestor was estab- far as the ends of justice will allow. The lished and admitted to probate. And in warranty under consideration is not a an action by a devisee under the will, who warranty in fact, but a warranty by im- had been a party to the proceeding in plication of law only. The law raises the partition, to recover lands which the par- implication for the attainment of justice ; tition had assigned to other parties, he was and the implication should cease when- held not to be estopped by the proceed- ever its application will work injustice, ings in partition. I think I am not mis- To hold Mrs. Walker estopped to claim taken in saying, however, that in that dower in this case by reason of an implied case the common-law doctrine of implied warranty would be unjust to her ; but to warranty between co-partitioners escaped award it to her in accordance with the the attention of the court. Had it been provisions of our statute in respect to otherwise, the reasons given for the de- improvements made subsequent to aliena- cision would probably have been modi- tion by the husband, and decreeing con- fled ; but the decision would have been tribution by all the co-partitioners to the same." TITLE BY ESTOPPEL. 309 > lands equal to that conveyed ; and by -wrong, if he did not. In the latter case, all estates, whether in expectancy or possession, which stood in the way of a gift of the freehold, were displaced ; and in most cases the parties injured lost their right of entry, and were driven to an action at law. This was by force of the seisin and possession of the feoffor. Seisin always gave an estate of freehold, whether the party was in by right or by wrong ; and it followed that by the delivery of it (which, of course, required possession) an estate for life or in fee passed to the donee. If the donor had not a sufficient estate in himself to effect the object by right at the time of the conveyance, and should afterwards acquire the requisite interest, he was barred from setting it up against his feoffee. The feoff- ment " passeth the pi-esent estate of the feoffor, and not only so, but barreth and excludeth him of all present and future right, and possibility of right, to the thing which is so conveyed." ^ And there was no way in which the feoffor could avail himself of an after-acquired title, except by disseisihg his feoffee. He had of course no right of entry in pais, for the interest acquired was necessary to make out the freehold which the livery of seisin had conveyed ; and he could not bring a writ of entry, for the feoffee would set up the feoffment as an estoppel. He could not convey by release, fine, or recovery, for these assurances also required a possession ; and he could not aliene the new interest by grant or bargain and sale, for these conveyances, when used to convey present interests, were, as we shall see, void at law in all cases, and ineffectual in equity without possession. " He cannot pur- chase the fee," says Mr. Preston, " since his feoffment is a dis- seisin " of the owner.^ That is, since the owner has been put out of possession, he cannot aliene to one not in possession. So, too, a release of the new interest to any one but the tenant in pos- session would be void.^ . Such was what is often called "the high and transcendent effect " of an estoppel at common law ; but in point of fact it ap- pears to be nothing more than the transcendent effect of a deliv- ery of the donor's seisin. He who disseized another acquired for all intents and purposes, so long as he retained possession, an estate of freehold; and the disseisee, though having still the 1 Touchstone, 204. ' Coke, Litt. 270 a. 2 2 Preston's Abstracts, p. 211. 310 ESTOPPEL BY DEED, right of property, could make no use of it until the disseisin was terminated, except by way of release to him in possession. Now, this estate of freehold was as effectually passed by livery of sei- sin as it was acquired by disseisin ; and for the feoffor to set up an after-acquired interest against his feoffee would be repugnant to the estate conveyed, as much so as if his conveyance had been rightful. But this effect of the conveyance has been commonly called an estoppel, and appropriately enough. Among the acts giving rise to an estoppel in pais (and in early times the feoff- ment was an act in pais) Cpke mentions livery, entry, &c., — acts of a notorious character, having the like conclusive effect of a deed.i Prom this it appears that the estoppel upon the feoffor arose from the very nature of the conveyance. But there was another important function of the feoffment, arising upon the operative word dedi, which should be distinguished from the estoppel. The word dedi implied a warranty on the part of the feoffor (and, before the statute of quia emptores, of his heirs) that the vassal should be protected in his estate ; but this warranty was usually something different from the estoppel. The estoppel was merely the effect of the livery, operating to actually pass after-acquired interests ; the implied warranty arising from dedi was probably most gener- ally used either as a voucher to the feoffor when the lands were de- manded by another, or as ground for a writ of warrantia chartce, in either of which ways the feoffor could be called upon to give to the feoffee other lands of equal value in case of a recovery by the demandant.2 But it seems that this warranty could also be used as a rebutter against the feoffor, should he attempt to regain the lands. " If the warrantor," says Coke, " should implead the war- rantee, the latter, the tenant, might show the warranty and demand judgment whether, contrary to the warranty, the warrantor should be suffered to demand the thing warranted ; and this was called a rebutter." ^ This use of the warranty was probably rarely called into requi- sition ; for it must have seldom happened that the lord would en- deavor to regain possession in this way, knowing, as he doubtless did, how vain would be the attempt to enter an action at law 1 Coke, Litt. 352 a. 3 Coke, Litt. 265 a; Touchstone, 182. 2 Touchstone, 181, note ; 2 Black. Com. 300. TITLE BY ESTOPPEL. 311 against his tenant in the face of his own solemn conveyance. If dissatisfied with his tenant, he would be more likely to resort to the rough but effectual method of the times, — an eviction «i e< armis. The tenant could then, however, bring his wdrrantia char- tee, and recover other lands, as in the case of an eviction by a stranger. But if the implied warranty was ever in fact used as a rebutter against the feoffor, it would seem to have been merely equivalent to setting up the conveyance against him and relying upon the livery of seisin. The word relied upon as creating the warranty (^dedi) possessed no inherent potency, as appears from the fact that in other alienations, as in the grant and bargain and sale, where the words dedi et concessi are also the operative terms, dedi has never imported a warranty. If this view is correct, it follows that the passing of future in- terests to the feoffee did not arise by force of the warranty, unless that term, when used in a contest between the feoffor and the feoffee, was simply an expression of the effect of the livery. We apprehend that, if ever used in such cases, this was the extent of its signification ; that it expressed nothing of itself, and that its use was unnecessary. To say, then, that future interests passed by force of the warranty is only to say that they passed by force of the livery of seisin. If this is true, no argument can be based upon the operation of the feoffment warranty to show the effect of a war- ranty in our modern conveyances.^ The fine, also, had the effect of passing future interests.^ The highest form of it (^sur cognizance de droit come ceo') was indeed an acknowledgment of record of a feoffment made ; though it did not in all respects possess the efficacy of a feoffment.^ But the form of fine above mentioned had in some particulars even gi-eater potency than the actual livery of seisin, of which it was an admission by the tenant ; for it was always levied with proclamations,* and from this circumstance bound not only parties and privies, but strangers also, if they failed to put in their claims within the time allowed by law. And it was in reference to this property of a fine that rights are said to be barred by fine and non-claim.^ ' See the consideration of the common- ' See Touchstone, 203. law warranty in 2 Smith's L. C. 731 (6th * 1 Spenoe, Equity, 164. Am. ed.). ' 1 Stephen's Com. 564, 565. The 2 Doe d. Christmas v. Oliver, 10 Barn, references to this valuable work are uni- & 0. 181 ; Weale v. Lower, PoUexf. 66. formly to the 7th edition. 312 ESTOPPEL BY DEED. This particular fine also operated to bar estates tail,i and there- fore had the further tortious eifect of a feoffment in displacing remainders and reversions ; ^ and it was also used to pass the estates and bar the rights of married women. This last operation, how- ever, appears not to have been tortious, since it was preceded by a private examination of the wife.^ Mr. Spence, however, informs us that the fine Bur concessit — which was employed where the cognizor, in order to make an end of disputes, though he acknowledged no precedent right, yet granted to the cognizee an estate de novo by way of supposed com- position * — was usually resorted to, to bind, by way of estoppel, the contingent, or executory, or other estates and interests of mar- ried women .^ And in the same connection he speaks of fines generally as operating by way of estoppel, meaning apparently their operation upon after-acquired interests. We find no suggestion in the books that this effect of the fine in passing future estates arose otherwise than by virtue of the conveyance itself; and as the fine most commonly in use (that first mentioned) was simply a feoffment of record, it is but rea- sonable to presume that its operation by way of estoppel was the same as that of a feoffment. It was an acknowledgment in court on the part of the tenant that he had made livery of seisin to the cognizee ; that is, that he had had possession of a freehold estate and had delivered it to the cognizee ; and he and his privies were precluded by the record from disputing the fact. Seisin in the cognizor was always essential to create a life-estate or a fee. If a tenant for years, for example, levied the fine with- out having previously created a freehold by disseisin, it could be avoided by pleading partes finis nihil habuerunt.^ The effect of a common recovery was to pass to tlie recoveror an estate in fee-simple absolute, and thereby to bar, not only the estate of the tenant in tail who suffered it, but all remainders and reversions expectant thereon, and all executory limitations and conditions to which the estate tail had been subject.'' But it was necessary in every case of a recovery, following the rules which governed real actions, that the person against whom the action 1 1 Spence, ut supra. 5 Ibid. 2 1 Stephen's Com. 566. o 2 Sanders, Uses, 15. 8 1 Spence, Equity, 165. 1 1 Stephen's Com. 572 ; 1 Spence, * 1 Stephen's Com. 568. Equity, 165. TITLE BY ESTOPPEL. 313 was brought should be actually seized of the freehold, else the recovery was void.^ The same result must then have followed as in the case of a feoffment. If the tenant were a disseisor, as in the case of the presumptive heir disseizing the ancestor in tail, he had a freehold estate ; and this the demandant recovered. And when the title descended, it passed of necessity to the recoveror ; for the tenant could not enter upon him contrary to his convey- ance, so as to enfeoflf another, or to suffer a fine, or another recov- ery. And an attempt to aliene the interest by bargain and sale, grant or release, would be futile, for the same reason that pre- vailed where a feoffment had been made. As to this method of assurance, also, we fail to find any the slightest evidence that this " transcendent effect of estoppel " was any thing else than the operation of the assurance itself in its very nature. A lease for life, like a feoffment, required livery of seisin ; and livery in this case, as well as in that, operated of necessity to give a freehold to the lessee. The conveyance was, in fact, in its original, a feoffment, the estate for life in feudal times being a feud.^ " These estates for life are, like inheritances, of a feudal nature, and were for some time the highest estate that any man could have in a feud, for this was not, in its original, hereditary. They were, accordingly, originally conferred with the same feudal solemnities, the same investiture or livery of seisin, as fees them- selves."* This method of assurance may, therefore, be passed over, as already explained in its effects upon after- acquired inter- ests in what has been said concerning the feoffment. It remains to consider the case of a demise of an estate for years. This, being less than a freehold interest, did not require livery of seisin ; * and livery was never made except when the alienor conveyed, with the estate for years, the remainder to another.^ And though the livery in such case was made to the tenant of the particular estate, it was not made for his benefit ; it was for the benefit of the remainder-man, enuring to him, and creating and vesting in him the freehold during the continuance 1 2 Sanders, Uses, 15; 1 Spence, Ibid. 172-174, where the feud is more Equity, 165. fully explained. 2 1 Stephen's Com. 512. * 1 Stephen's Com. 512. 3 1 Stephen's Com. 254. See also » Ibid. ; Coke, Litt. 143 a. 314 ESTOPPEL BY DEED. of the term for years.^ The tenant was considered, and is still considered, as having a possession, but not a seisin .^ The operation of a lease in respect of the rule of estoppel was, and still is, peculiar ; the rule at law being that where an interest passes by the lease, no estoppel arises as to after-acquired estates, and the reverse where no interest passes.^ Thus, in the example given by Coke, as last cited, A., lessee for the life of B., makes a lease for years, by deed indented, and after purchases the rever- sion in fee ; B. dieth ; A. shall avoid his own lease, for he may confess and avoid the lease which took effect in point of interest, and determined by the death of B. This, of course, could only occur where the term demised is greater than the estate owned by the lessor ; and the reason of it seems to be that the lessor, becoming assignee of the reversion, stands in the shoes of the assignor, who could not be bound by the lease, as to the excess. However, in equity, the lessor, upon acquiring an interest equal to that de- mised, will be bound, if the lease was founded on a valuable con- sideration, to give effect and confirmation to the demise by way of granting a further assurance.* In order, then, to show the operation of the lease upon after- acquired interests, we must suppose that the lessor had no inter- est at all when the demise was executed. That the lease in such cases has always possessed the efficacy of passing the new estate as soon as acquired is clear. Thus, Mr. Preston, speaking of the old common-law assurances, says : " An indenture of lease, or a fine sur concessit, for years, operates at first by way of estop- pel, and finally, when the grantor acquires an ownership, it at- taches the seisin and creates an interest, or produces the relation of landlord and tenant. The term commences by estoppel, but the after-acquired interest renders it for all purposes an estate ; and it binds the lessor, his heirs and assigns, and the lessee and his assignees.^ So in the example put in the familiar case of Trevivan v. Lawrance,^ which may be considered as representing the modern law ; if a man make a lease, by indenture, of D., in which he hath nothing, and afterwards purchases D. in fee, and 1 Coke, Litt. 49 a, 49 b. 4 2 Preston, Abstracts, 217. 2 3 Washb. Real Prop. 498. 5 2 Preston, Abstracts, 210. 8 Coke, Litt. 47 b ; Doe d. Strode v. « 1 Salk. 276; s. c. 6 Mod. 258; 2 Ld. Seaton, 2 Cromp., M. & E. 728 ; Webb v. Raym. 1036. Austin, 7 Man. & G. 701 ; ante, p. 290. TITLE BY ESTOPPEL. 315 suffers it to descend to his heir, or bargains and sells it to A., the heir or A. shall be bound by this estoppel. In Bacon's Abridg- ment there is a still stronger example, to the effect that the acqui- sition of title by the lessor will avail the lessee for years, even against a subsequent feoffee of the lessor .^ The case of Webb v. Austin ^ also illustrates this point. This was an action brought by the purchaser against the vendor of real estate sold at auction to recover the amount of a deposit, on the ,ground of the failure of the defendant to make a sufficient title. The substance of the situation was that the defendant had leased the land in question when he had no legal title to it, and that, after acquiring title (strictly, the legal owner agreed to make title), the plaintiff purchased ; and he now contended that as the defendant had no title when he leased, a purchaser would have no remedy against the lessee for breach of the covenants in the lease ; in other words, that the lease was effectual only between the parties. But this view was rejected by the court ; and it was held that, upon the acquisition of title, what was at first purely an estoppel became an estate in interest, affording full protection to the plaintiff.^ Here, then, is a form of conveyance in existence at the present day which has transmitted to modern times an example apparently of the " transcendent " effect of estoppel. As the object of this article is to show that such is not the necessary effect of other existing modes of conveyance, though accompanied with warranty, it remains to explain the nature of the lease in its operation upon future interests. The explanation we understand to be this: 1. The lease be- comes a complete vested interest only when the lessee enters into possession. Before entry it is simply an interesse termini ; * and at common law, i. e. before the Statute of Uses, the lease was so inefficient without entry that a release of the reversion to the lessee was void.^ 2. Upon entry of the lessee, the seisin, which, 1 Leases, 0. said that under the Statute of Uses an 2 7 Man. & G. 701. entry of the lessee of a term is not neces- ' See also Eawlyns's Case, 4 Coke, 52 ; sary, the statute transferring the posses- Weale v. Lower, PoUexf. 63 ; and see the sion to the use. Touchstone, 267, note e. criticism on Webb v. Austin in 2 Smith's But this seems to be inaccurate. Estates L. C. 719 (6th Am. ed.). less than a freehold are not embraced with- * 1 Stephen's Com. 513. • in the statute, and remain as they stood 6 Coke, Litt. 270 a. It is sometimes before. 3 Washb. Beal Prop. 378. The 316 ESTOPPEL BY DEED. it must be remembered, means, properly speaking, an estate of freehold, becomes separated from the actual possession. The lessor retains the seisin, but the tenant has the possession. 3. As we have already seen, livery of seisin could only be effected by means of possession. Estates not in possession, as reversions and remainders, were said to lie in grant, and not in livery. And while the necessity of livery has been done away by the Statute of Uses, the doctrine of seisin remains untouched ; and it is just as true now as before the statute, in those states in which the English law has been adopted, that the seisin (i. e. the freehold) remains in the lessor, and that it cannot be passed without obtain- ing possession. 4. It follows, then, that when the lessor acquires the new interest, though he has now a rightful freehold, he cannot, being out of possession, pass his seisin to another without the consent of the tenant. The statute executes the use in the grantee when there is a seisin to support it which at common law could be delivered. In the case in question there could be no livery ; and therefore, even if there were a use, it could not be executed. Hence it is said that the subsequently acquired interest, attaching itself to the lessor's seisin, feeds the estoppel, and creates an estate in interest. And the case would, it seems, be the same if the grantor should dispossess his lessee before conveying, as appears from the case above cited from Bacon's Abridgment. This case decided that the statute carries the possession of pres- sion f His riglit would not be an interesse eut freehold estates to the grantee (cestui termini at all, if the editor be correct (and que use) by declaring that the seisin shall this he himself suggests), but an estate in pass to him, ^nd in no other way ; and if possession. an interest less than a freehold be aliened, That there is no transfer of possession the possession does not pass, since the in such a case is stated in Coke, Litt. seisin remains in the grantor. In the first 270 a. " Before entry," says Coke, " the case there was at common law a livery of lessee has but interesse termini, an interest seisin, wliich was of course a delivery of of a term, and no possession." the possession and the freehold ; in the There is one case, however, where the latter there never was livery, and the statute does transfer the possession to a consequence is, that the possession as well lessee; but that is the case of a lease fol- as seisin remain in the alienor, and that lowed by a release of the reversion. In an entry is necessary to give the tenant that case, if the lessee should not enter a possession. And the editor of the under the lease, both the seisin and the Touchstone is inconsistent witli himself; possession would remain in tiie lessor; for in the same note he says that a person and upon executing a release, the statute having only an interesse termini cannot would execute the use by transferring the maintain trespass or ejectment. But why seisin, and with it, of course, the posses- not, if the statute gives him direct posses- sion. TITLE BY ESTOPPEL. 317 feoffee of the lessor is bound ; and as a feoffment could not be made while another was in possession without his consent, the tenant must either have consented and attorned, or have been ousted of his possession. The latter hypothesis is more probable ; for it is hardly to be supposed in the other event that the feoffee would have sought to destroy the term. Besides, a purchaser at the present day would in most cases have notice, or would be charged with notice, of the leasehold estate ; and he would, for this further reason, be compelled to recognize it, notwithstanding the dispossession. The result is, that the efficacy of the lease in transmitting future interests to the lessee arises from the fact of the lessee having entered into possession of the premises demised. His possession gives him a standing analogous to that of the feoffee. Without enti'y the lessor could, as will appear from what is to be said hereafter, aliene his after-acquired interest, free of the term ; upon entry the lessor loses the power of so transferring the estate. Besides the modes by fine, recovery, and lease by indenture, a term was also often created by bargain and sale, and in such case the demise had no tortious effect ; that form of conveyance being one of those modes of assurance called, by way of distinction from feoffments and the like, innocent conveyances.^ When created in this way, therefore, the lease did not, certainly, rank in efiicacy with a feoffment ; its operation as an estoppel not arising by virtue of the very conveyance, but by reason of the possession of the lessee.^ In leases for years, i. e. for any term short of a freehold, there has always been held to be an implied covenant for quiet enjoy- ment in the absence of an express agreement ; but this, apparently, is not the source of power in respect of future estates. If the view above taken is correct, the lessee (in possession) would have no need to rely upon this covenant in a contest with a subsequent purchaser, even if it could be used in such a case. Of the other common-law assurances none had the efficacy, even with warranty, of transmitting future estates. The only assurances that need be considered are the Release, Lease and Release, Grant, 1 See 2 Sanders, Uses, 54. ' See 2 Smith's L. C. 719, 720 (6th Am. ed.). 318 ESTOPPEL BT DEED. and Bargain and Sale ; the rest being of a character never to raise a question of this kind. That the release could not pass future estates is clear from the nature of the conveyance, unless the releasee were in possession ; and even then it was void as a conveyance if the releasor had nothing to release.^ But if it were accompanied with warranty, this would rebut the releasor from claiming the land.^ As, then, in case of warranty the releasor could not enter upon the releasee, he was not in a situation to avail himself of his after-acquired interest without resorting to a disseisin, so -as to aliene to another. But while the releasee thus derived all the benefit of the future estate, this was now the effect of the warranty, and not of the alienation, as appears from the example in Coke, ut supra. " If there be a grandfather, father, and son, and the father disseizeth the grandfather, and makes a feoffment in fee, [and] the grand- father dieth, the father against his own feoffment shall not enter ; but if he die, his son shall enter. And so note a diversity between a release, a feoffment, and a warranty. A release in that case is void ; a feoffment is good against the feoffor, but not against his heir ; a warranty is good against both himself and his heirs." Besides, such a use of the release was wholly aside from its natural object. Its purpose was the conveyance of an ulterior interest in lands or tenements to a particular tenant, or of an undivided share therein to a co-tenant, or of the right to such lands or tenements to a person wrongfully in possession thereof. It always implied an existing estate in the releasor ; for it was a rule that there must be a privity of estate between the releasor and the releasee ; that is, it was necessary that there should be two estates so related to each other as to make one and the same estate.^ Of the five kinds of release, each implied a present estate in the releasor ; and of the many examples given of good releases, there is not one in which the releasor did not possess an estate at the time of the alienation. What has been said of the release is equally applicable to the assurance by way of lease and release. It gave no additional efficacy to this mode of conveyance that it was of a double char- 1 Coke, Litt. 265 a. 8 i Stephen's Com. 618, 619. " Ibid. See Rawle, Covenants, 416 (4th ed.). TITLE BY ESTOPPEL. 319 acter. The lease was usually a bargain and sale for a year or some other short term ; and the release that followed was the instrument already described. It was void if the releasor had no estate ; and it was void though he had an estate, if the lessee had not entered.! And it would not have changed the case, had the releasor added a warranty, since a warranty at common law was void without an estate.^ There was no livery of seisin connected with the conveyance ; and it never had a tortious operation. Vice-Chancellor Leach, in one well-known instance,^ treated an estoppel arising upon a conveyance by lease and release as possess- ing the efficacy of passing future interests ; but the case was soon after impugned, and the doctrine finally abandoned.* The common-law grant was employed for conveying reversions and remainders, and incorporeal hereditaments, such as advow- sons, rents, and the like.^ And there is no suggestion that it was ever used for any other purpose. Livery of seisin was of course inapplicable to it ; ^ and it results that it could never pass more than the interest which the grantor had. It never worked a dis- continuance when made by a tenant in tail of an advowson, common, remainder, or any other inheritance lying in grant.^ So, too, the grant of a rent-charge out of lands of which the grantor was not seized at the time of the grant was void, though the grantor should afterwards purchase the same lands.^ . The last of the common-law assurances to be noticed, that by bargain and sale, needs a more particular examination ; for it has come down to modern times, possessed of the same characteristics as distinguished it before the time of Henry 8, modified only by the Statute of Uses. This conveyance originated from an equitable construction of the Court of Chancery. A bargain was made, or a contract entered into, for the sale of an estate, and the purchase-money paid ; but there was either no conveyance at all of the legal estate, or a conveyance defective at law by reason of the omission of livery of seisin, or (when the reversion or remainder was aliened) 1 Coke, Litt. 270 a ; 1 Stephen's Com. ^ 1 Stephen's Com. 510, 511 ; 2 San- 519. ders, Uses, 26. 2 Rawle, CoTsnants, 413 (4th ed.) ; « Ibid. Seymor's Case, 10 Coke, 96. ' 2 Sanders, Uses, 41 ; Coke, Litt. 832. 3 Bensley v. Burdon, 2 Sim. & S. 519. » Ibid. p. 28. * Right V. Bucknell, 2 Barn. & Ad. 278 ; Lloyd V. Lloyd, 4 Dm. & War. 369. 320 ESTOPPEL BY DEED. of attornment. The Court of Chancery, however, rightfully thought the estate ought in conscience to belong to the person who paid the money, and therefore considered the bargainor or contractor as a trustee for him.i An equitable interest in land, thus raised in the first instance, by the payment of money upon a mere contract, or upon a conveyance inoperative at law, became, in process of time, transferrible by a formal conveyance under the name of a bargain and sale.^ Courts of law in no respect recognized this conveyance, or the claim of the bargainee under it.^ And the only redress that the bargainee had for a failure on the part of the bargainor to perform the duties of his trust was through the Court of Chancery ; and even here the relief was often inadequate, as where the bargainor was afterwards disseized by another.* This was not, however, peculiar to conveyances by bargain and sale ; it was equally true of all conveyances to uses.^ The trust thus raised was called a use ; and this is defined to be the right in one person, the cestui que use, to take the profits of land of which another has the legal title and possession, coupled with the duty of defending the same, and of making estates thereof according to the direction of the cestui que use.^ It will be ob- served that the definition requires of the holder of the legal estate possession of the land, and with good reason ; for how could a use, i.e. a beneficial enjoyment, be granted where the bargainor had himself no enjoyment of the land ? A bargainor of a present estate of freehold, when out of possession, could not, then, create a use against the consent of the tenant ; and there was therefore noth- ing for even a court of chancery to take cognizance of in such a case. That this is true appears abundantly from the chapter on Bar- gain and Sale in Sanders J " There must be a use," he says, " and a seisin to serve it, in every bargain and sale." ^ And on the fol- lowing page : " All corporeal hereditaments of which the bargainor has a seisin, and all incorporeal hereditaments in actual existence, 1 2 Sanders, Uses, 43 ; 1 Spence, Equity, 6 Jbid. 452 ; 2 Washb. Eeal Prop. 292. 6 Tudor'sLead. Cas. 252 ; Chudleigh's ■'' Ibid. Case, 1 Coke, 121; 2 Washb. Keal Prop. 3 1 Spence, Equity, 442; 2 Washb. 858. Eeal Prop. 360.- 1 2 Sanders, Uses, 43-59. * 1 Spence, Equity, 445 ; 2 Washb. 8 Page 50. Eeal Prop. 360. TITLE BY ESTOPPEL. 321 may be conveyed by bargain and sale, because they may be limited to uses:" Now, it would seem to make no difference whether the bargainor owned the premises, and had been disseized, or whether he had no title at all ; for in either case, having no seisin, there could be nothing upon which to raise a use. If, then, he should afterwards acquire in the one case the seisin, or in the other the title and seisin, he could convey again by bargain and sale ; and the second grantee would acquire the right to protection in chancery as against the first grantee, at least if he were a bona fide, purchaser. But, if the bargainor had seisin, though as a disseisor, a use would at once arise upon the contract, and the bargainee would come within the protection of chancery as cestui que use. Still, since his interest was not regarded at law, the bargainor, in whom the seisin was held to remain, could make livery, before or after title acquired, to one having no notice of the previous bargain and sale ; and this alienee would hold the premises both at law and in equity .1 Upon this point the Statute of Uses has effected a radical change, as we expect to show hereafter. In short, the bargain and sale at coinmon law was one of those innocent conveyances, operating merely upon what the grantor might lawfully convey. It could not work a discontinuance, create a forfeiture, or destroy contingent remainders dependent upon par- ticular €states.^ A bargain and sale for a term of years, however, had a different effect, since this was a lease. Such a conveyance, as it did not create a trust and confidence repugnant to the ownership of the legal estate, was upheld ; and the lessee was considered on entry to have the possession, and could maintain trespass or ejectment in case of an ouster. A bargainee was therefore safer in taking the conveyance of a term than one of the fee. It seems clear that a clause of warranty could not change the effect of the conveyance, so as to cause future interests to directly pass to the use of the bargainee even when the bargainor had pos- session ; for, in any view, it must have been very different in character from the implied warranty of the feoffment. That war- ranty, as we have attempted to show, was, when applied between feoffor and feoffee, simply an expression of the necessary effect of the feoffment itself, arising upon the operative word of the convey- 1 1 Spenee, Equity, 445. 3 g Sanders, Uses, 54. 322 ESTOPPEL BY DEED. ance. It derived its potency from the peculiar nature of the as- surance. But a bargain and sale before the Statute of Uses was an imbecile assurance at law, creating, as it did, a trust which was regarded as wholly repugnant and void; and it can scarcely be conceived that the addition of a warranty could give it standing. "The cestui que trust [use']," says Spence, " having, as it was held, neither jus in re nor jus ad rem, there was no form of action at the common law wli,ich could possibly have afforded any remedy, either as regards the land or the profits. If the law had interfered at all, it could only have been by giving a personal remedy for a breach of the confidence reposed," ^ which confidence, he says in the same connection, was wholly repugnant to common-law prin- ciples. It seems equally clear that a warranty could be of no service in chancery ; for that court proceeded entirely upon the principle that he who paid for the estate should have the use of it, as he was in equity and good conscience entitled. A warranty could have added nothing to the right in this view ; and there is nothing in the books to show that the Court of Chancery took any notice of it, if there ever was employed a warranty in this convey- ance before the Statute of Uses. When the bargainor had an estate, chancery upheld the trust without a warranty ; and if he had none, the warranty itself was void.^ It is not, perhaps, conclusive against the operation of a war- ranty upon after-acquired interests, that the alienation in the case supposed was void ; for a release, as we have seen, was void with- out an interest ; but if it contained a warranty, the releasor would be rebutted. But that was only in cases where the release was made to one in possession. This view of the operation of the common-law assurances shows that possession and seisin in an alienor without title were always essential, in order to save the alienee harmless from a second conveyance made on title acquired, and that in one case, that of the bargain and sale, not even these (except in estates for years) were sufficient; that form of conveyance being totally inadequate at law to pass title to estates in possession, though the bargainor had a complete title and right to convey. "We turn now to conveyances under the Statute of Uses. That 1 1 Spence, Equity, 44S. of the new interest, though there was no 2 Even since the statute equity may, warranty. "Whitfield v. Eausset, 1 Ves. it seems, sometimes decree a conveyance Sr. 389 ; Wright v. Wright, Ibid, 409. TITLE BY ESTOPPEL. S23 statute dispensed with the necessity of livery of seisin; by pro- viding that he to whose use another was seized should be con- sidered as the legal owner of the estate ; so that the interests of cestuis que use now became legal estates, and commanded full recognition from the common-law courts. Under this statute feoffments became more and more infrequent and finally obsolete ; and fines and common recoveries, having been abolished in Eng- land, and never having gained a strong foothold in this country, are now unknown. The lease alone remains of the four modes above mentioned of passing future interests by estoppel. In the further consideration of the effect of the Statute of Uses upon the doctrine of title by estoppel, the bargain and sale may be selected for examination, as containing the essence and po- tency of all existing modes of assurance. And it is safe to afiirm, as a preliminary step, that none of our present convey- ances operate to pass future interests, in any case, by virtue of the conveyance ; and that the only way by which such an object could be effected in the most favorable of circumstances would be by the introduction of appropriate covenants of warranty or for further assurance, or of an express or implied recital of the nature of the interest owned and aliened, or of convenants of seisin and title. Now, there are many dicta of the courts, with a few express decisions, giving color to the idea that a bargain and sale, with any of the above additions of covenant or recitals, always operates upon after-acquired interests, so as to cause them to pass to the grantee as effectually as if the grantor had had title when he exe- cuted his deed. Mr. Rawle, indeed, in his valuable work on Cove- nants, makes a very broad and just impeachment of our courts upon this point, and says that in most of the states it is held that the presence of a covenant of general warranty in a conveyance will not only estop the grantor and his heirs from setting up an after-acquired title, but will, by foi'ce of the covenant, have the effect of actually transferring the new estate in the same manner as if it had originally passed by the deed ; and he cites a cloud of cases for the statement.^ It will be found, however, that few of these cases required any decision of this question, and that the statements of the courts are for the greater part mere generalities, having reference to the relation of grantor and grantee or their privies. 1 Bawie, Covenants, 404 {4th ed.). . 324 ESTOPPEL BY DEED. In Somes v. Skinner ,i Parker, C. J., after referring to several of the early authorities, says : " The general principle to be de- duced from all these authorities is, that an instrument which legally creates an estoppel to a party undertaking to convey real estate, he having nothing in the estate at the time of the con- veyance, but acquiring a title afterwards by descent or purchase, does in fact pass an interest and a title from the moment such estate comes to the grantor." Now this can scarcely be considered a dictum, for the question required a solution of the state of the title, the point not arising between grantor and grantee. But the defendant was only a tres- passer (asserting no legal claim to the particular Iocub), and not a subsequent purchaser without notice. And the learned Chief Justice immediately says : " It would be but a feeble title which would not enable the holder to defend his possession against tres- passers, or those who should attempt to disseize him after his title is .established." Whether the court intended to narrow the above statement of the authorities to the facts of the case does not clearly appear ; but this, at all events, was done in a subsequent case,^ where Mr. Justice Thomas said : " An examination of the whole opinion in that case [Somes v. Skinner] would lead us to infer that this statement was not made without some misgiving and distrust. The precise question now under consideration was not before the court, and what in that part of the case was decided was, that where a title has enured by estoppel, it will avail the grantee, not only against the grantor and his heirs, but strangers who usurp possession without right ; and under the facts of the case, and in the view in which it was applied, there is no occasion to reconsider the rule there stated." It is to be observed also that the authorities from which the learned Chief Justice in Somes v. Skinner deduces his general principle are the old ones, relating to feoifments and fines, which have always been conceded to pass future interests. In Bean v. Welsh,^ a question arose similar to that in Somes v. Skinner. The plaintiff in trespass to try title relied upon a title by estoppel against her grantor, who had conveyed to her with warranty, and before the present suit had acquired the ownership. 1 3 Pick. 52, 60. 3 17 Ala. 770. •■^ Blanchard o. Ellis, 1 Gray, 195, 201. TITLE BY ESTOPPEL. 325 The defendant was a stranger, setting up no title, but relying upon the plaintiff's want of any. The plaintiff recovered. The court, indeed, used broad language upon the point of estoppel. " We think," say they, "the principle is well settled that an estoppel will not only bar a right or title, but will pass one to him in whose favor the estoppel works." But this proposition is narrowed ta the facts of the case, for the court proceed at once to say : " If, indeed, an estoppel could not operate as a conveyance, or as a medium through which the title would pass to him in whose favor the estoppel works, we might frequently lock up the title in him and his heirs, against whom the estoppel operated, and the party for whose benefit it was intended might find himself without title and unable to recover from a mere intruder ; for if the title to the after-acquired estate did not pass to the grantee by means of the estoppel, but it only precluded the grantee from asserting an after-acquired title, it would be difficult to see how he could recover in ejectment from one who had no title. To show title in another would not enable him to recover ; and he, having none, could not maintain the suit. To give, therefore, the full effect to an estoppel, it is clear that it must frequently operate to pass the title." In Cole V. Raymond,^ Shaw, C. J., says : " It is a well-established rule of law that although a deed, as a present conveyance, transfers only the title which the grantor then has, yet, if it is a deed in fee, with warranty, it has a further operation as a covenant real, run- ning with the land, by which the grantor and his heirs are bound to make it good ; so that, if the grantor has no good and sufficient title to the estate, yet, if he or they afterwards acquire a good title, it forthwith enures to. the benefit of the grantee, to the same extent as if the grantor and warrantor had had tlie same good title at the date of the grant and warranty, to operate by way of estoppel, if the action be brought in such a form that it may be pleaded by way of estoppel ; otherwise, by way of rebuttal to the claim of any one bound by such warranty." This was said in a contest between the grantee before title and a purchaser after title, and seems, therefore, to be an express decision that there, is an actual transmission of the after-acquired estate. But the case of Blanchard v. Ellis, supra, was not cited by counsel or mentioned by the court ; and it is not to be supposed 1 9 Gray, 217, 218. 326 ESTOPPEL BY DEED. that it was intended to overrule that well-reasoned case. And it would seem that Cole v. Raymond might be supported upon other grounds than those assumed. The grantor, being seized of a life- estate in the premises, conveyed them in fee to the defendants, who apparently went into possession ; and they thus acquired a legal estate under the Statute of Uses. The second conveyance was made by the son of the first grantor, after the latter's death, the son having now acquired title in fee by descent from his mother ; but the son had, by express obligation, taken upon himself the father's warranty. Now, as the son had no seisin, but only a bare title, he could not convey any thing under the Statute of Uses ; and his conveyance to Cole, the plaintiff, would be void under the champerty acts, because the land was at the time in the adverse possession of the respondents. And Cole could not set up his claim in the name of the son, for the son, having assumed his father's warranty, was estopped. It was not necessary, therefore, to hold that the after-acquired title had actually passed to the defendants.! But there are other cases which hold the same doctrine as that laid down in Cole v. Raymond, and in even stronger terms ; ^ especially Jarvis v. Aikens, which was also a -contest between the first grantee and a purchaser after title acquired. But this case, besides arising under the recording acts, was decided partly upon the authority of Trevivan v. Lawrance, the case of the lease, already considered, and partly upon other early cases which were decided upon the common-law doctrine of estoppel. The doctrine of the court in Douglass v. Scott ^ was also referred to with ap- proval, where it was said, " The obligation created by estoppel not only binds the party making it, but all persons privy to him ; the legal representatives of the party, those who stand in his situation by act of law, and all who take his estate by contract, stand in his stead, and are subjected to all the consequences which accrue to him. It adheres to the land, is transmitted with the estate ; it becomes a muniment of title, and all who afterwards acquire the title take it subject to the burden which the existence of the fact 1 As to Cole V. Raymond, see Russ «. Dissenting opinion of Potter, J., In 10 Alpaugh, 118 Mass. R. I. 606. In all of these cases, however, 2 Jarvis v. Aikens, 25 Vt. 635 ; Doe d. the question arose under the recording Potts V. Dowdall, 8 Houst. 369 ; Tifft v. acts. See also McCarthy v. Mann, 19 Munson, 57 N. Y. 97 (two judges dissent- Wall. 20, under an act of Congress, ing) ; McCusker v. McEvey, 9 R. I. 525. » 6 Ohio, 198. TITLE BY ESTOPPEL. 327 imposes upon it." ^ As to which it is to be observed that, if this expression of opinion was intended to cover more than the case before the court, it was soon afterwards disapproved in Buckingham V. Hanna,^ where, referring to Douglass v. Scott and other cases, it is said : " The import of the language in these cases is certainly unmistakable. It supposes the after-acquired title to pass from the grantor to his heirs or assigns, but still conclusively bound by the estoppel." We shall endeavor to show, presently, that the assigns, purchasers without notice, come in (unlike heirs), not as ■ privies under the grantor, but with adverse rights, and that, when put into possession by the grantor, they cannot be disturbed by the first grantee. Cases are not wanting in which the doctrine of the transmission of the new interest is denied. The Supreme Court of Ohio have denied it in Buckingham v. Hanna.^ One Ramey mortgaged, with warranty, land to which he had no title, and subsequently obtained a patent for the land. It appears that one Bveland, under whom the defendant claimed, had an equitable title prior to the mortgage of Ramey, and that he had afterwards obtained a decree that the patent should be considered as obtained in trust for him, Eveland, and that a legal conveyance should be made by Ramey. These proceedings were put in evidence in an ejectment by Ramey's mortgagee against Bveland's grantee. Now, it was claimed for the plaintifiF that when Ramey became invested with the legal title, by patent from the government, it instantly passed to the mort- gagee by force of the warranty, and that there was consequently no title remaining in Ramey upon which the decree afterwards obtained by Bveland could operate. But the court, in an able opinion, ruled otherwise. However, the point was not considered material in the case, since Bveland had claimed by an equitable title paramount to that of Ramey, and anterior to the date of the mortgage. ^ One of the grounds taken by the court was, that, if the title passed in such cases as soon as acquired, the grantee could not recover (substantial damages ?) on his covenant of warranty ; and this brings us to Blanchard v. Ellis,* already mentioned. There it was decided that though, upon eviction of a grantee, his grantor 1 See also Bank of TJtica v. Mersereau, ' Ibid. 3 Barb. Ch. 568. * 1 Gray, 195. 2 2 Ohio St. 551. 328 ESTOPPEL BY DEED. (who had conveyed with warranty) had acquired a paramount title to the premises, this would not prevent the grantee from maintaining an action on the covenant, against incumbrances and recovering the amount paid for the land, witla interest. " Strictly speaking," said Mr. Justice Thomas, speaking for the court, " there would seem to be no transmutation of estate when the new title comes to the grantor. Nor is there any force in th^ original deed to convey a title not then existing in the grantor ; for nothing can pass but his then existing title. But the grantor and those claiming under him are estopped to deny the validity of • the title which he has solemnly asserted, and to set up a title against it. The law presumes that he has spoken and acted ac- cording to the truth of the case, and will not permit him, or those claiming under him, to deny it. . . . It might be curious to trace the progress of this doctrine of estoppel, as applicable to the covenant of warranty, from the simple rebutter of Lord Coke,^ which should bar a future right, to avoid a circuity of action, to its present condition, in which thei"e is claimed for it the full force of a feoffment, or fine, or common recovery at the com- mon law ; that is, having the function of actually divesting the feoffor or conusor of any estate which he might thereafter acquire. But waiving, because not necessary to our purpose, the discussion of the origin and extent of the doctrine of estoppel, it will be sufficient to say that we do not feel called upon to extend its appli- cation. . . . Supposing it to be well settled that, if a new title come to the grantor before the eviction of his grantee, it would enure to him, and not deciding, because the case does not require it, whether the grantee, even after eviction, might elect to take such new title, and the grantor be estopped to deny it, we place the decision of this case on this precise ground, — that where a deed of land has been made with covenants of warranty, and the grantee has been wholly evicted from the premises by a title para- mount, the grantor cannot, after such entire eviction of the grantee, purchase the title paramount, and compel the grantee to take the same against his will, either in satisfaction of the covenant against incumbrances, or in mitigation of damages for the breach of it." ^ 1 Coke, Litt. 265 a. 96 ; Bingham v. Weiderwax, 1 Comst. 2 See to the same effect Burton v. 609 ; Woods v. North, 6 Humph. 309 ; Eeeds, 20 Ind. 87 ; Noonan u. Ilsley, 21 Contra, Reese v. Smith, 12 Mo. 344, a Wis. 139 ; Tucker v. Clarke, 2 Sandf. Ch. remarkable case, in wliich the court com- TITLE BY ESTOPPEL. 329 But the point has been more directly decided in Pennsylvania. In Chew v. Barnet,i certain parties sold to James Wilson a large tract of land, under articles by which he was to reconvey in mort- gage, and agreed that they would have patents for the same taken out in his name. Before this agreement was performed, Wilson conveyed the land, with covenants of warranty, and for further assurance, to the plaintiff, Chew. Afterwards the patents were conveyed to Wilson, who gave back a mortgage of the lands as security for the purchase-money. The defendants claimed under this mortgage ; and the court, in an action of ejectment by Chew, decided in their favor. We quote from the opinion which was delivered by Mr. Justice Gibson, afterwards Chief Justice : " What is the nature," he asks, " of the estate which Mr. Chew acquired by the conveyance from Judge [James] Wilson ? When that conveyance was executed, the legal title was in Jeremiah Parker, by patents from the com- monwealth ; and Judge Wilson, having nothing but an equitable title under the articles, could convey nothing more. His deed therefore passed to Mr. Chew only an equitable title. But it is said the subsequent conveyance from Jeremiah Parker to Judge Wilson enured to the benefit of Mr. Chew. It did so, but only in equity, and to entitle him to call for a conveyance from Judge Wilson, and not as vesting the title in him of itself, as contended, by estoppel. The facts present the ordinary case of a conveyance before the grantor has acquired the title ; in which the conveyance operates as an agreement to convey, which, when the title has been subsequently acquired, may be enforced in chancery. . . . But it is argued that, as the deed to Mr. Chew contains a covenant for further assurance, it is to be considered as a covenant to stand seized to the use of the grantee ; and, consequently, that the estate was executed in him as soon as the seisin arose out of which the use was to be served. It is true that no particular form of words is essential to a conveyance to uses, but the deed, if it cannot operate in one way, may in another, to effectuate the manifest in- tention of the grantor. But here there is not a single feature of a covenant to stand seized, the consideration of which is always blood or marriage ; nor is there any of a bargain and sale, where pelled the grantee to take an after-ac- law on the covenants. Scott, J., dis- quired title, and enjoined a judgment at sented. 1 11 Serg. & K. 389. / 330 ESTOPPEL BY DEED. the consideration is valuable ; for in every conveyance to uses the covenantor or bargainor mud he seized of the legal estate at the time, as the use must arise out of such seisin. In the case of a conveyance before the grantor has acquired the title, the legal estate is not transferred by the Statute of Uses ; but the convey- ance operates, as I have said, as an agreement which the grantee is entitled to have executed in chancery, as was decided in Whit- field V. Fausset." ' The court of Pennsylvania, in Brown v. McCormick,^ seem, however, to have restricted the doctrine of Chew v. Barnet to the principle that the purchaser of an equitable title takes it subject to all the countervailing equities to which it was subject in the hands of the person from whom he purchased ; the equity in that case being a right against Wilson of security for the purchase money, — a right to a mortgage under the articles, from which the first grantee could not escape.^ And in the above case of Brown v. McCormick the first grantee was preferred to the second ; but the first grantee was put into possession, which, as we shall see, would be a sufficient reason for the decision. The same point was raised in Jackson v. Bradford.* The premises had, been conveyed to the defendant by one Price by deed, with a covenant of non-claim. Price had at the time no title, but subsequently the title came to him by descent. The plaintiff claimed by virtue of a judgment and sheriff's sale of the land, as the property of Price, after his father's death ; and his claim was sustained. Mr. Justice Marcy, who delivered the opinion, said : " The judgment, eo instanti the property descended, became a lien upon it, and the title to it vested in the purchaser at the sheriff's sale, unless the operation of the deeds to the de- fendant prevented it. When these deeds were executed. Price had no title or claim to the premises, and could therefore convey no right to them. Qui non habet, ille non dat. A grant by a person who has no estate, as an heir in the lifetime of his ancestor, will not pass any estate.^ This position is well warranted by Sir Marma- duke Wivel's Case.^ In that case, a tenant in tail of an advow- son, and his son and heir, joined in a grant of the next avoidance. 1 1 Ves. Sr. 891. * 4 Wend. 619. 2 6 Watts, 60. s 3 Preston, Abstracts, 25, 26. ' See also Bellas v. MoCarty, 10 6 Hob. 45. Watts, 26. TITLE BY ESTOPPEL. 331 The tenant in tail died ; and it was held that the grant was utterly void against the son and heir who had joined in the grant, because he had nothing in the advowson, either in possession or right, or actual possibility,! at the time of the grant. It is said in the Touchstone ^ that a bare possibility of an interest, which is uncer- tain, is not grantable. The expectancy of an heir-at-law in the life of the ancestor (and such was the defendant's grantor in this case) is less than a possibility .^ ... It is very clear, both from reason and authority, that no title passes by the deed of an heir, apparent or presumptive, to lands that may afterwards descend to him on the death of his ancestor ; yet the heir may be barred by his deed from recovering such lands. Where the deed is by warranty, the warranty will rebut and bar the grantor and his heirs of a future right. This is not because a title ever passes by such a grant, but the principle of avoiding circuity of action- interposes and stops the grantor from impeaching a title to the soundness of which he must answer on, his warranty." The learned judge thought, however, that there was not even a rebutter in the case, on the ground that no action could be maintained upon a covenant of non-claim. There are other cases which support this side of the question, but they need not be presented.* Let us then return to the con- sideration of the subject as it is presented in principle. We shall not attempt to show that the modern covenant of warranty (or that of seisin and title) is not an efficient instru- ment as a rebutter. There is no doubt that it may be employed to as good purpose against a grantor and his privies as could the old implied warranty of the feoffment. But that it has not the potency to directly transmit after-acquired interests can, we think, be satisfactorily shown. There is, however, as there was under the old warranty, a dis- tinction between cases where the grantor, having no title, has a seisin (that is, by disseisin), and where he has not. We propose to devote the remainder of this discussion to the consideration of these two situations, taking first the case of a warranty in a bargain and sale by one having neither title nor seisin. ^ See Lord Hardwicke's explanation * See Bivins v. Vinzant, 15 Ga. 521 ; of this, 1 Ves. Sr. 391. Way v. Arnold, 18 Ga. 181 ; Faircloth ». 2 Page 239. Jordan, 18 Ga. 350; Jacocks v. Gilliam, s Wright V. Wright, 1 Ves. Sr. 409. 8 Murph. 47 ; s. c. 4 Hawks, 310. 332 ESTOPPEL BY DEED. Such a case clearly is not within the Statute of Uses ; for there is no seisin out of which to serve a use. It is a familiar rule, that, to bring an estate within the operation of this statute, it is necessary that three things should concur : first, a person seized to a use ; secondly, a cestui que use in esse; thirdly, a use in esse, either in possession, reversion, or remainder.^ It is essential that it should be an estate of which the grantor has, or is entitled to have, the seisin at the time of the grant ; and it is accordingly held that no use can be raised by a covenant to stand seized of land of which the covenantor is not at the time seized.^ So, too, it is said that if a joint tenant covenant to stand seized of the moiety of his companion after his death, it is void, although the covenantor survive.* After an extensive examination of the authorities, we have been 'unable to find a single statement that the Statute of Uses operates upon interests acquired after the grant, when the conveyance was made by one having no title. It is distinctly laid down that there must be a seisin in esse, to pass simultaneously with the use, in order to bring the conveyance within the terms of the statute.* And the only instance in which a use is said to enure to another after a conveyance, and with it a seisin, so as to constitute a legal estate under the statute, occurs in the case of springing and shift- ing uses. But, as the examples all show, it "is as essential to a conveyance containing such executory limitations that the grantor have himself a seisin out of which to serve the several uses, as in other conveyances.* And it is clear that a contingent use cannot be executed by the statute while the contingency remains sus- pended.^ If the case supposed does not come within the statute, it must stand, apart from the warranty, as at common law. But we have seen that at common law a bargain and sale was void, both at law 1 3 Washb. Real Prop. 376-380; 1 feoffment be made to the use of C and Cruise, Dig. 349 ; Tudor's Lead. Cas. his heirs after the death of A and B, this 258; Crabb, Real Prop. § 1646. is no remainder, but a future use, and the 2 Ibid.; Moore, 342; Croke, Eliz. 301; feoffee is seized in fee-simple. ... So, if Sanders, Uses, 83. the limitation of a use be tliat after two 3 2 RoUe, Abr. 790, pi. 9. years, or after the death of John at Stiles, i 1 Cruise, Dig. 353. it shall be to the use of J. N. in fee, the 5 See 2 Touchstone, 529, note ; 1 feoffor hath the fee-simple remaining in Spence, Equity, 483, 484, note. See also him until this future use come in esse." the example given by Lord Hale, C. J., 6 1 Sanders, Uses, 281. in Weale v. Lower, PoUexf. 65 : " If a TITLE BY ESTOPPEL. 333 and in equity, without possession in one of the parties ; and that the presence of a warranty could not aid the case, since it would be void for want of an estate, and since eqhity proceeded indepen- dently of the warranty. That is, at common law there would not be even a rebutter in such a case. It would probably be carrying the case too far to assert the same rule of such a conveyance at the present time. That the modern covenant of warranty is not to be confined in its operation within the narrow limits of the common-law warranty is universally conceded ; and there is no good reason, in principle, why the covenant should not now be as eflScient without as with an estate. But we do not think that it could avail for any thing more (aside from giving the grantee a right of action in case of a breach) than a rebutter to the grantor and those in privity with him. Warranty, even in its palmy days, when collateral as well as lineal warranty flourished in all its vigor, never possessed the power of conveyance.^ It was a well-established principle that it could not enlarge an estate, having no tortious effect ; and there- fore, when employed in aid of a wrongful alienation, it only oper- ated against the alienor and his representatives. It always took effect, if at all, in one of three ways, — by rebutter, voucher, or warrantia chartae. It cannot, we apprehend, do more now. If title could actually pass, when subsequently acquired, by the mere use of a warranty or other covenant, it would often be in the power of an heir to defeat the claims of the creditors of the ances- tor. A conveyance with warranty, made before the ancestor's death, would, if not proved covinous, bring about this result. There is no need of extending the power of a warranty ; it is siif- ficient for all proper purposes that it can be used effectually when- ever the grantor or his privies attempt to defeat his expressed intention. Besides, if a covenant of warranty possessed such efficacy, it might well be asked, Why should the grantee in such a case be allowed to go into equity, and call for a further assurance from the grantor? And what is meant when it is said, in cases of admitted authority on this point, that the original deed is an agreement to convey the after-acquired interest, which equity will enforce ? ^ 1 See 2 Smith's L. C. 725 (6th Am. Wright v. Wright, Ibid. 409; Taylor v. ed. ) . Dabar, 1 Cas. in Ch. 274 ; Noel v. Bewley, 2 Whitfield V, Fausset, 1 Ves. Sr. 389 ; 3 Sim. 103 Smith v. Baker, 1 Younge & 334 ESTOPPEL BY DEED. Some of the cases, however, stop short of asserting that the warranty operates as a conveyance. Thus the court of Ohio have said, in Douglass v. Scott, that the estoppel by warranty " adheres to the land, is transmitted with the estate; it becomes a muni- ment of title, and all who afterwards acquire the title talje it subject to the burden which the existence of the fact imposes upon it." If this means any thing more than that the covenant runs with the land into the hands of each succeeding grantee, it must mean that a conveyance with warranty, made before tlie grantor has a title, springs up in the nature of a lien upon the land the moment that title is acquired, so as to fall with any new conveyance as a burden upon the estate in the hands of the grantee. Now, it is apprehended that this is wholly at variance with the principle upon which liens are upheld against third persons. To effect this object, liens in the law of real property must be noto- rious ; it being an elementary principle that a purchaser of land without notice takes it free from its burdens. Conveyances by bargain and sale, not being accompanied by livery, have never been of a nature to affect the world with notice of their existence, except under the enrolment and registry laws. Before the Eng- lish Enrolment Act they were resorted to because they were secret.^ And Mr. Rawle affirms that even under the American registry acts a grantee is not bound to take notice of a conveyance made by his grantor before he had a title.^ And there is much force in his position. But clearly there can be no necessary notice in the case of an unrecorded deed. Besides, it is difficult to see how the original conveyance can operate as a lien at all. The effect of the transaction is simply that of an agreement to make a conveyance when the title accrues, as was decided by Lord Hardwicke in Whitfield v. Pausset ; ^ and an agreement to convey is no more a lien than it is a conveyance.* C. Ch. 223; Goodson v. Beacham, 24 Ga. s 1 Ves. Sr. 889. 154 ; Mc Williams v. Nisly, 2 Serg. & R. * Sealed articles of agreement for the 51,6; Chew v. Barnet, 11 Serg. & R. 389 ; conveyance of land do not amount even Steiner v. Baugham, 12 Penn. St. 108 ; to a covenant for further assurance, and Chauvin v. Wagner, 18 Mo. 631 ; 2 Sug- do not estop the obligor himself from den. Vendors, 541. claiming the land. Anonymous, 1 Hayw. 1 1 Stephen's Com. 584. 331. ^ Rawle, Covenants, 428 (4th ed.). • TITLE BY ESTOPPEL. 335 It may, however, be supposed, from the analogy of the relation of feoffor and feoffee, that there is a privity between the second grantee and his grantor, by which the former is precluded from claiming the land ; and there is some color of authority for this position. Thus, in the case from Bacon's Abridgment,^ it is said that the reason why the feoffee takes subject to the lease is that, coming in under one who is estopped, he shall himself be estopped; and similar statements are sometimes made in cases of grantor and grantee. We apprehend that this is not an accurate view of the principle of privity ; and we have seen that the case from Bacon's Abridg- ment may stand upon another and better foundation. It is true that in the old law a feoffee was said to be in privity with his feoffor ,2 but this was because the feoffee's tenure was subordinate to the right of the lord to fealty and service. The estoppel upon the feoffee was much like that upon a tenant now ; and it may be doubted whether it continued long after the incidents of the feudal tenure became obsolete. But, however this may be, the relation of grantor and grantee has for most purposes been held antago- nistic. Thus, in Osterhout v. Shoemaker,^ Bronson, J., says: " Although a tenant cannot question the right of his landlord, a grantee in fee may hold adversely to the grantor ; and there can be no good reason why he should not be at liberty to deny that the grantor had any title. There is no estoppel where the occupant is not under an obligation, express or implied, that he will at some time, or in some event, surrender the possession. The grantee in fee is under no such obligation. ... He owes no faith or alle- giance to the grantor, and he does him no wrong when he treats him as an utter stranger to the title." And so it is held in Blight V. Rochester,* Averill v. Wilson,^ and in other cases.* It is true that this doctrine applies to the case of the acquisition of an outstanding title on the part of the grantee, by which to fortify his position ; and it is also true that where both parties to a contest for land claim from the same common title only, it is held that each will be estopped to deny the other's title.'' But this rule 1 Leases, O. ' Murphy v. Barnett, 1 Car. L. Rep. 2 Coke, Litt. 352 a. 106 ; Ives v. Sawyer, 4 Dev. & B. 52 ; ' 3 Hill, 513. Den d. Love v. Gates, Ibid. 363 ; Ken d. * 7 Wheat. 535. Johnson v. Watts, 1 Jones, 228 ; Carver ' 4 Barb. 180. v. Jackson, 4 Peters, 1, 83. 6 See ante, pp. 259, 260. 336 ESTOPPEL BY DEED. prevails where the common title is identical, and where the grantee has no other to rely upon.i Thus in Ives v. Sawyer, the plaintiff brought ejectment against the defendant, the plaintiff claiming as devisee of one under whom she showed the defendant to claim by a. defective deed ; and the defendant, having no other title, was estopped from setting up the plea that the ancestor of the devisor had no title. And the case was similar in Douglass v. Scott, so often cited. The case under consideration is not parallel, because the parties, though claiming from a common source, do not claim by the same title ; the first grantee claiming by a deed executed before the grantor had either title or seisin, and the second by a deed exe- cuted after he had acquired both. Besides, in Ives v. Sawyer, the reason of the defendant's defeat was because his deed was defec- tive ; had his conveyance been perfect in form, he must have prevailed, without trying to impeach the ancestor's title. Nor in the present case does the second grantee seek to impeach the grantor's title; his own claim requires him to uphold it. He seeks to show that, as his grantor is admitted to have had no title when the first deed was executed, the first grantee took nothing under it. Again, if the second grantee is in privity with the common grantor, it should follow that the land should be liable in his hands to answer in an action on the covenants of the deed, in case of a refusal to give up the possession, the same as if the grantee were an heir ; but no one would hazard the statement of such a propo- sition. The difference between a purchaser (without notice) and an heir claiming under the grantor only is manifest. The latter is bound as a privy because he gets the estate without cost ; and it is right therefore that he should stand in the situation of his ancestor. A purchaser, however, pays value for the estate ; and while he ac- quires no better title than his grantor appears to possess, he may well be considered as freed from the effect of any secret obligations as to the property by which his grantor may be bound. In other words, the land, or its equivalent in value, should stand for the liabilities of the owner (grantor). The heir takes it without put- ting any thing in its place ; hence it is subject in his hands to the burdens of the ancestor. The grantee puts an equivalent in its place ; hence it is not necessary or just that the land should be 1 Collins V. Bartlett, 44 Cal. 371. TITLE BY ESTOPPEL. 337 bound in his hands ; at least, without notice. In a word, the heir represents the ancestor and continues Ms estate ; a purchaser does not represent his vendor. It is a sufficient protection to one wlio has been so rash as to purcliase before tlae grantor has a title, that he can call upon his grantor to make a further assurance upon acquiring title, or, if he has already sold to another, that he may enjoin him from passing the deeds and giving possession,^ or, if too late for this, that he may maintain an action upon the covenants of his deed. It is certain that a purchaser without notice is not bound by an estoppel in pais resting on his vendor ; ^ and no dif- erence between such a case and an estoppel by deed can be seen. But, while we reach the conclusion that a conveyance by one having neither title nor seisin cannot operate against a subse- quent purchaser whose deed is executed after title is obtained,^ the situation of the grantee of a disseisor without title is very differ- ent. Such a case comes within the terms of the Statute of Uses, and the grantee acquires a legal estate, though by wrong. And if the grantor should afterwards acquire title, and then make a new conveyance, the second grantee would take nothing of which he could avail himself; not on the ground that the new title directly passed to the first grantee, for that could no more be effected in this case, it would seem, than in the other. But the reason is, that the grantor has now no seisin out of which to serve a use in the second grantee ; and the Statute of Uses, therefore, cannot operate to give him a legal estate. Nor could he recover the land in the name of his grantor, for his grantor is estopped by his previous deed. Besides, the second conveyance, being executed while another is in adverse possession, is void as to him and those claiming under him under the champerty law.* The first grantee, however, has not a perfect title, as has been intimated, though he has nothing to fear from any one claiming title from his grantor. He is still in danger of the creditors of his grantor, or, if the conveyance was made by an heir, of the creditors of his grantor's ancestor ; and his only safety, at best, 1 See Theobalds v. Duffoy, 9 Mod. 102. corded ; though, according to Mr. Rawle, 2 Thistle V. Buford, 50 Mo. 278, 281 ; as has been said, the registration of the Shaw V. Beebe, 35 Vt. 204 ; Snodgrass v. first grant before the second was made Kicketts, 13 Cal. 359. would make no difference. Several re- 3 We are speaking of the case apart cent cases, however, are contra. See from the effect of the registry laws, sup- ante, p. 326. posing both deeds to have remained unre- ■> 3 Washb. Keal Prop. 293. 22 338 ESTOPPEL BY DEED. lies in going into chancery and calling upon his grantor to mate a further assurance. And there may be doubt whether even such assurance would be effectual against creditors, unless it were founded upon a new consideration. We have thus attempted to show that our modern assurances with warranty do not possess the efficacy of the ancient feoffment in respect of after-acquired estates. But there is another differ- ence which is worthy of note. At common law there was proba- bly no case in which the donor was precluded from setting up a subsequent interest where he could not be met by a rebutter ; the ground of which was the prevention of a circuity of action. The estoppel, it is true, indicated the direct passing of the after- acquired estate ; but there was always connected with it this doc- trine of rebutter. At the present day there are many instances of estoppel upon grantors where there can be no rebutter. Mr. Rawle has collected four classes of cases of this kind, which he distributes as follows : 1. Where the questton has arisen between the assignees of the original title and the assignees of that subsequently acquired. 2. Where a married woman has been held (as she has in some States ^) to be estopped by joining with her husband in the covenants of the deed. 3. Where the grant is made by the State ; the courts generally holding that the State will be estopped by the covenants, though not liable to an action upon them. 4. Where the covenantor has been adjudgedra bank- rupt ; in which case, it is held that, although his discharge in bank- ruptcy may be a release from liability on his contracts, yet he will be precluded by his covenants from asserting title.^ And in the same connection Mr. Rawle mentions another case where there is held to be an estoppel apart from rebutter ; namely, where the covenants are barred by limitation.^ In none of these cases is there any right of action ; and there- fore the doctrine of rebutter cannot be applied. But it does not follow that an admission of the correctness of some of these posi- tions drives us to an acceptance of the doctrine that future estates directly pass in such cases as soon as acquired. In most of the cases under the heads given by Mr. Rawle, the point was not nec- essarily raised. The question was between grantor and grantee or their privies, while almost the only way that the point could arise would be in a contest between purchasers before and after 1 Ante, p. 245. 3 Cole v. Raymond, 9 Gray, 217. 2 Kawle, Covenants, 401-403 (4th ed.). TITLE BY ESTOPPEL. 339 title acquired. Between grantor and grantee it is well enough, perhaps, in a contest for the new estate, to say that it enures and passes to the grantee. It might as well be so in such a case ; the grantor would be no worse off, and the grantee no better. The only case of the four which this explanation will not reach is the first. That, in reality, is the case we have been consider- ing in the main in the preceding pages ; and we have endeavored to show that the new title passes to a subsequent purchaser with- out notice. And Mr. Rawle, upon a learned and elaborate exami- nation of the subject, reaches the same conclusion upon a different Ime of reasoning.i And so does the American editor of Smith's Leading Cases in his notes to the Duchess of Kingston's Case.^ It should be added, also, that the covenants considered in many of the cases coming within the above category were covenants for title merely, such as seisin and right to convey. Now it would seem that covenants of this kind, so far as the question of estop- pel is concerned, are of no greater effect than a specific recital of the facts. The only difference is, that by putting the statement of facts into the form of a contract there arises a right of action for the breach.^ The covenant in reality is only a recital with an agreement to respond in case of its falsity. 5. Personal Property. The question has been raised whether the doctrine of title by estoppel is applicable in the case of a simple sale of personal prop- erty ; and although it has been thought to be so -applicable in South Carolina,* and in New York,^ the better opinion seems to be the other way.^ Mr. Baron Parke doubted the doctrine in Bryans V. Nix ; '' and the American editors of Smith's Leading Cases, at the point just referred to, add that the law that no interest can pass, either in lands or chattels, which is not vested at the time when it is granted or sold, would be futile if its operation could be evaded by construing the mere grant or sale as an estoppel. It is clear, as we have said, that a purchaser without notice is not bound by an estoppel resting on his vendor.^ 1 Rawle, Covenants, 427 et seq. (4th ed.). * Frazer v. Hilliard, 2 Strob. 309. 2 2 Smith's L. C. 720 (6th Am. ed.). « Gardiner v. Suydam, 7 N. Y. 357, 1 QtuBre, if there is even this differ- 363. See Kimberly v. Patchin, 19 N. Y. enee ; for why might not an action of 330, 339. deceit lie upon a false recital, in a ease " 2 Smith's L. C. 742 (6th Am. ed. ). otherwise proper, as well as for a verbal ' 4 Mees. & W. 775, 794. misrepresentation t ^ Ante, p. 337. 340 ESTOPPEL BY DEED. CHAPTER XII. RELEASE OP DOWER. The rule that a party shall not be permitted to dispute his deed applies to the case of a married woman who relinquishes her right of dower in the lands of her husband.^ In the case of Stearns v. Swift, the wife had joined with her husband " in token of her relinquishment of dower," when in fact the husband had previously parted with all his interest in the premises to the grantee in the present deed ; and this deed con- tained no words of grant on the part of the wife. The court held that she was estopped to claim dower. Mr. Justice Wilde said that it was no valid objection to the operation of the deed, on the part of the wife, that her husband had no right or title to the land at the time of its execution. It was not essential that the sale by the husband, and the relinquishment of dower by the wife, should be made by the same deed, or at the same time.^ Nor was it any objection that the deed of the wife was a mere release, without words of grant ; for it operated by way of estoppel, and not by way of grant. Where the husband conveys his wife's land in his own name only, and the wife merely affixes her signature and seal to the deed, in token of her relinquishment of all her right in the bar- gained premises, she is not estopped to claim the land aftar her husband's death .^ Chief Justice Shaw, in the case cited, said that by law and usage the deed of the husband and wife, conveying' the wife's estate, had been deemed sufficient ; but it had also been steadily held that, to have this effect, the wife must have joined in the deed ; that is, it must appear that both husband and wife were parties to the efficient and operative parts of the instrument of conveyance, and that it was not sufficient that her name was 1 Stearns v. Swift, 8 Pick. 532 ; Farley tlie liusband in the. deed, see Lothrop u. V. EUer, 29 Ind. 322 ; Uslier w. Richard- Foster, 51 Maine, 367. son, 29 Maine, 416. That the wife is not 2 Fowler v. Shearer, 7 Mass. 14. estopped to claim dower without a. release ' Bruce v. Wood, 1 Met. 542. of the same, even though she join with RELEASE OF DO WEB. 341 annexed, as expressing her assent to the act of her husband, and •without words expressing her formal participation in the granting part of the deed.^ The question was considered by the Supreme Court of Ohio, in Woodworth v. Paige,^ whether a wife who releases dower in a deed made without consideration, and to defraud her husband's creditors, was estopped to claim dower against a purchaser, for a valuable consideration, from the grantee. The case did not turn upon this point ; but the court examined the question, and expressed the opinion that there was no estoppel.^ ' Lithgow V. Kavenagh, 9 Mass. 161 ; Powell V. Monson & M. Co., 3 Mason, 347; Lufkin v. Curtis, 13 Mass. 223; Eaymond r. Holden, 2 Cush. 264. 2 5 Ohio St. 70. ' " It would seem obvious," said Thur- man, C. J., in delivering judgment, "that if the deed of the husband and wife was executed for a sufficient consideration, and was invalid only by reason of the in- tent to defraud creditors, she ought to be barred of her dower as against the grantee and his privies. For as between her and them, there is no reason why her release, made for a sufficient consideration, should be avoided. But the c4se is quite differ- ^t, I apprehend, where there is no con- sideration to uphold the deed ; and it can only be upheld by the application of thf doctrine that, as between fraudulent grant- or and grantee, the title of the latter is good. Por why, and in what sense, is the deed fiiaudulent ? And why is it that the title of the grantee, who has paid no con- sideration, is nevertheless good? It is fraudulent simply because it is an attempt to place the property beyond the reach of the husband's creditors ; and the title of the grantee is good, except as against the creditors, simply because no court will aid a party to avoid his executed contract made for a fraudulent purpose. But so far as the wife is concerned, she places nothing beyond the reach of the creditors to which they are entitled. It is the hus- band's estate alone, and not her dower right, that is liable for his debts, and that estate he can convey without her joining in the deed. Her execution of the deed adds nothing to its efficacy so far as his estate is concerned ; it simply releases her dower, which the creditors have no right to touch. How, then, can she be said to be a fraudulent grantor? "Whom does she defraud, either by the deed or by avoiding it so far as to claim dower? Not the creditors, for they had no right to her dower. Not the grantee, for he paid no consideration for the conveyance. Not a purchaser with notice from the grantee, for such a purchaser is in no better con- dition than the grantee himself. How, then, can it properly be said that the deed is her executed, fraudulent contract or conveyance, against which she ought not to be relieved, when its execution does not, and cannot, defraud anybody ? " PART III. ESTOPPEL BY MATTEE IN PAIS. PART III. ESTOPPEL IN PAIS. CHAPTER XIII. PRELIMINARY VIEW OP ESTOPPEL IN PAIS. We have now reached the extensive division of oiir subject termed estoppel by matter in pais, otherwise denominated estoppel in fact, and, in one of its branches, equitable estoppel. And it is called estoppel in pais in distinction from the other classes of estoppel, because the preclusion arises from matter of fact, evi- denced neither by record of adjudication nor by deed. An estoppel by matter in pais may be deiined as an indisputable admission, arising from the circumstance that the party claiming the benefit of it has, while acting in good faith, been induced, by the voluntary intelligent action of the party against whom it is alleged, to change his position. And the parties may have been equally innocent in effecting this change of position, or they may not have been equally innocent. The words in italics will indicate the general division of the subject. Estoppel in the first case, in its ordinary aspect, flows from a contract which has been executed on the part of the one claiming the estoppel ; in the second case, it flows from an in- tentional misrepresentation or concealment by the party estopped, regardless of the existence of any contract between the parties. And in either case the estoppel has reference to a representation express or implied, and precludes a denial of its truth. We shall find, as we proceed with this subject, especially in considering the first branch of it, a very marked resemblance, in some particulars, to the preceding subject of Estoppel, by Deed ; ESTOPPEL IN PAIS. while in other particulars the contrast will be equally strong, both with that and the subject of Part I. "We shall notice the essential feature of a change of position, to which the party estopped has contributed ; while, on the other hand, we shall find a different set of rules in relation to parties under disability, from any that have heretofore appeared. "We shall observe, also, the appearance of the additional fact, in the chapter entitled Estoppel by Conduct, of misrepresentation or concealment, by which that branch is marked and separated from the rest. Before proceeding, however, to the consideration of these branches of the subject, it is proper to take a glance at the estop- pel in pais of the early common law. Lord Coke gives the fol- lowing instances in which the doctrine arose : By livery, by entry, by acceptance of rent, by partition, and by the acceptance of an estate.^ These acts in pais possessed the same conclusive charac- ter as the estoppel by record or by deed. The feoffment itself, at one time, was an act in pais, and possessed a higher effect as an estoppel than the deed which was employed to perpetuate its existence, or to transfer a reversion in the same land when held by a tenant of the feoffor.^ But this verbal form of conveyance was terminated by the Statute of Frauds. The estoppel arising in cases of partition has already been considered ; ^ estoppel by livery and by entry have become obsolete, at least in America ; while, aside from the case of partition, only one of the instances mentioned by Coke, estoppel by acceptance of rent, prevails at the present day. And of this it is important to remark that its character is widely different from what it was in the time of Coke. The only rule of estoppel known at this early period of the law, as has been pointed out by an accomplished writer,* was that by deed. The estoppel by the acceptance of rent, as known to Lord Coke, occurred where the landlord accepted rent from a tenant, who held over after the expiration of a lease by deed.^ Such an estoppel depended upon the prior existence of a deed ; while at the „ present day it is immaterial how the tenure arose, as will here- after appear. 1 Inst. 352 a. the Estoppel of a Tenant to deny his 2 2 Smith's L. C. 742 (6th Am. ed.). Landlord's Title, understood to have been ' Ante, p. 306. written by Mr. Joseph Willard, of the < 5 American Law Review, p. 1 (Oc- Boston bar. tober, 1871). A valuable article upon " 2 Black. Com. 209 ; 8 lb. 175. PRELIMINARY VIEW OF ESTOPPEL IN PAIS. 347 It will thus be seen that the estoppel in pais of the present day has grown up almost entirely since the time of Lord Coke, and embraces cases never contemplated in that character by him or by the lawyers of even much later times. By analogy to the rule that a tenant shall not dispute the title of his landlord (and even this rule did not prevail in Coke's day ; ^ the only estoppel of a ten- ant being by, and by virtue of, a deed, as we shall see), a some- what similar estoppel has been introduced in the case of bailment, which forbids a bailee, in general terms, to dispute his bailor's title ; and other cases of a similar character have arisen. But the most important addition to this branch of the law has been the class of estoppels by conduct. At the present day no subject is more constantly before the courts than this. We now proceed to notice the Estoppel upon Persons holding Relations of Duty to Others, which will include the cases of ten- ants, bailees, and the like. 1 Moffat V. Strong, 9 Bosw. 57, 65, per Woodruff, J. ; Duke v. Ashby, 7 Hurl. & N. 600, 602. PoUock, C. B. 348 ESTOPPEL IN PAIS. CHAPTER XIV. ESTOPPEL UPON PERSONS HOLDING RELATIONS OP TRUST TO OTHERS. We shall first consider the most important division of this chapter. 1. Ustoppel of Tenant to deny Landlord's Title.^ We have already alluded to the fact that the estoppel now pre- sented is one of modern origin.^ In the time of Lord Coke, the only way in which a tenant could be estopped to deny the title of his landlord was by the acceptance of a sealed lease. That this estoppel took its rise from the seal, and differed in origin from the modern estoppel, is evident from the fact that, in the case of a lease by deed-poll, the estoppel was confined to the party sealing ; while it is quite certain that at the present time it is immaterial to the existence of the estoppel whether the lease be by deed-poll or by indenture, or even whether there be any written lease at all. And again the estoppel terminated with the expiration of the lease ; while at the present day the estoppel continues until the surrender of poss'ession. Moreover, even though there was a lease by indenture, no estop- pel arose against the tenant", except in actions of which the demise was the gist, such as covenant, or in the avowry in replevin, and similar cases. It arose only upon the indenture, and then only when the indenture was specially pleaded or replied to the plea of nil haluit in tenementis? The estoppel could not, therefore, arise in debt for rent ; for the indenture could not be the foundation of such an action. " How narrow and technical the distinction," says the writer in the American Law Review, already referred to, " established by this rule was, will appear on referring to the i The estoppel upon'' the landlord has shall draw from it considerably in the already been presented, under Title by opening pages of this chapter; and we Estoppel. Ante, pp. 290, 294. recommend a careful reading of it. " Ante, pp. 346, 847. See also the article » Palmer v. Ekins, 2 Ld, Eaym. 1550 ; already cited from the 6th Am. Law Eer. Veale v. Warner, 1 Wms. Saund. 825, n. Without continually citing this article, we 4; Syllivan v. Stradling, 2 Wils. 208. UPON PERSONS HOLDING RELATIONS OP TRUST. . 349 ancient precedents of debt for rent. In Carson v. Paunt,^ the declaration avers a demise, setting out specifically the date, term, premises, and rate of rent ; yet nil habuit, &c., was pleaded, and issue was joined thereon. In Offley v. Ormes,2. the indenture is set out in full ; yet nil habuit, &c., was a good plea. . . . Indeed, the entire distinction between the pleading when estoppel would, and when it would not, arise, seems to have been found in the technical averment of the breach; that in debt concluding that such an amount had accrued and was due, &c. ; and that in cove- nant, that the covenant recited had been broken, &c." It is quite clear, then, that the tenant's estoppel of the present day is not the same as that of the early common law. It seems conclusive, also, against the idea that the modern estoppel origi- nated in the feudal tenures,^ that the feudal system contemplated no less an estate than a freehold ; and the extremely flexible and varied character of the doctrine prevailing at present is in strong contrast to the narrow technical rules of the feudal tenures. The modern origin of the present estoppel is confirmed by the cases. In the familiar case of Doe d. Knight v. Smythe,* — an action of ejectment, — Dampier, J., said: "It has been ruled often, that neither the tenant, nor any one claiming under him, can dispute the landlord's title. This, I believe, has been the rule for the last twenty-five years, and, I remember, was 'so laid down by BuUer, J., on the Western circuit." The case referred to was perhaps Doe d. Bristow v. Pegge,^ decided in 1785, in which BuUer, J., said: "An objection has been taken at the bar, that the plaintiff in ejectment must recover by the strength of his own title. The old cases certainly say so ; but for the last forty or fifty years constant exceptions to this rule have been admitted. One case, which is received as clear law, is that of a tenant who cannot set up the title of the mortgagee against the mortgagor, because he holds under the mortgagor, and has admitted the title. There was a case before me at Guildhall, and I believe another upon the Oxford circuit, of the same nature, where a lessee for years had got possession of some mortgage deeds, and endeavored to set up that title against the mortgagor ; but though this showed that the plaintiff had no right to recover against the mortgagee, 1 1 Lilly, Ent. 168 (1698). * 4 Maule & S. 347 (1816). 2 lb. 179. 5 Keported in note, 1 T. B. 758. » 1 Washburn, Real Prop. 356. 350 ESTOPPEL IN PAIS. yet I permitted him to do so in that instance, and the decision was acquiesced under." It seems, then, that the origin of the rule in ejectment cannot be traced further back than to the middle of the last century ; and the writer in the Eeview, after mention- ing this fact, states that in actions for use and occupation the. rule was held a quarter of a century earlier. ■ It is also shown by the same writer that the doctrine did not originate from the statute passed in 1738, for the relief of landlords,! as was supposed by Mr. Justice Woodruff in Mof- fat V. Strong,^ and this appears from the fact that in Lewis v. Willis,^ tried in 1752, the case of Prichard v. Houlditch* was referred to, to sustain a demurrer to a plea of nil habuit in tene- mentis in indebitatus assumpsit for use and occupation, — a case tried twelve years prior to the passage of the act. In Gibson v. Kirk,^ Lord Denman says that assumpsit for use and occupation was simply protected by the statute from being defeated by proof of a certain rent under a parol demise or agreement not under seal, and that before the statute actions of assumpsit for the occupation of land had been frequently held maintainable.® The fact is also mentioned that delt for use and occupation antedated the statute. The conclusion, therefore, is that the origin and character of the modern estoppel of the tenant is to be found in this ancient action of assumpsit for use and occupation. In this form of action, what was sought to be recovered was, not technically rent, but 1 It was enacted by § 14 of this stat- replevin to avow and make cognizance ute, that, " to obTiate some difficulties generally that the plaintiff in replerin, or that may at times occur in the recovery other tenant of the lands and tenements of rents, where demises are not by deed, whereon such distress was made, enjoyed it shall and may be lawful to and for the the same under a grant or demise at such landlord, where the agreement is not by », certain rent during the term wherein deed, to recover a reasonable satisfaction the rent distrained for incurred, which for the lands, tenements, and heredita- rent has been and still remains due, . . . ments held or occupied by the defendant, without setting forth further the grant, in an action on the case [assumpsit] for terms, demise, or title of the landlord." the use and occupation of what was so 11 Geo. 2, c. 19. held and enjoyed ; and if, in evidence, on ^ 9 Bosw. 57, 65. the trial of such action, any parol demise ' 1 Wils. 314. or agreement, not being by deed, whereon * Hil. T. 13 Geo. 1 (1727). a certain rent was reserved, shall appear, ' Q. B. 840, 855. the plaintiff in such action shall not, there- ^ See also Churchward v. Ford, 2 Hurl, fore, be nonsuited, but may make use & N. 446 ; Curtis v. Spitty, 1 Bing. N. C. thereof as an evidence of the quantum of 15 ; Beverly v. Lincoln Gaslight Co., 6 damages to be recovered." And by § 22, Ad. & E. 839, note ; Egler v. Marsden, 5 " It shall be lawful for all defendants in Taunt. 25. UPON PERSONS HOLDING RELATIONS OP TRUST. 351 compensation from day to day for actual enjoyment. But to the maintenance of the action the relation of landlord and tenant must be established ; and, when established, the modern estoppel in pais arises. Enjoyment ly permission is the foundation of the action, and is, therefore, the foundation of the rule that a tenant shall not be permitted to dispute the title of his landlord. If we have succeeded in bringing out clearly the origin of the modern tenant's estoppel, we shall be prepared to proceed to an examination of the cases. Let it, then, be borne in mind that two conditions are essential to the existence of the estoppel : first, possession ; secondly, permission ; and that when these conditions are present the estoppel arises.^ It will now be an easy matter to dispose of some of the cases. In Davis v. Tyler,^ the plaintiff brought replevin for taking his goods. The defendant avowed the taking as a distress for rent due. The plaintiff pleaded to the avowry that the land was not the defendant's ; to which the defendant replied, by way of estop- > pel, that the plaintiff had accepted from the defendant a written lease for the premises, signed by both parties^ and that the plaintiff occupied the premises under the lease. There was a demurrer to the replication, on the ground that a sealed lease had not been alleged ; and the demurrer was sustained. The court said that no intrument in writing, not under seal, could be pleaded as an estoppel ; and that the defendant, therefore, should not have replied the unsealed lease by way of estoppel, but should have taken issue upon the allegation that the premises were not his freehold. The infirmity of this case readily appears. The court proceed upon the assumption that the seal is the foundation of the tenant's estoppel, evidently having in mind the estoppel of the early com- ' 1 It has been suggested, and with this day. There would not be much ap- much soundness apparently, that the es- pearance of justice in holding that where toppel will arise even if there appears no one has taken a written lease of premises, entry or possession by the tenant, if he and agreed to pay the rent, but has not does not show that he could not get pos- thought proper to arail liimself of the session. 5 Am. Law Rev. 16 ; Varnam right he had thus contracted for by going 17. Smith, 15 N. Y. 327, 331. In this case, into possession, where he might have Denio, C. J., observed: "If the defend- done so without hindrance from any one, ant, in his answer, had confined himself he can defend against his engagement by to a denial that the plaintiff, at the time showing that there was a defect in the of the demise, had any estate in the prem- lessor's title, and that he was not really ises, the question would be presented seized of the land." whether the ancient rule of the common 2 ig Johns. 490. law, to which I have referred, prevails at 352 ESTOPPEL IN PAIS. mon law. And the same remark- is applicable to Davis v. Shoe- maker,! and to all that class of cases. It is worthy of notice, however, that the case just cited was an action of debt for rent; and it was for a long time supposed in England that in this action nil hahuit was a good plea.* There is ground for doubt whether such a doctrine would now be held in England.^ And it is quite clear that it does not prevail at the present day in America.* In the recent case of Page v. Kinsman,^ the position was taken that the estoppel upon a tenant holding under a lease by indenture did not outlast the term ; but that after the expiration of the term the tenant might set up his own title to the premises, without giv- • ing back the possession. But the court in this case, misconceiving the true origin of the modern doctrine, rest their decision upon the rule in Coke, that " if a man take a lease for years of his own land, by deed indented, the estoppel doth not continue after the term ended. For by the taking of the lease the estoppel doth grow, and consequently by the end of the lease the estoppel deter- mines."^ The seal being the efficient element of estoppel in the early common law, the estoppel was removed when, by the expira- tion of the term, its power termi^jated. Now permissive possession being the ground of the modern estoppel, it is clear that the estop- pel will prevail so long as such possession continues.' And the authorities upon this point are numerous.^ We proceed now to a more detailed examination of the modern doctrine of the tenant's estoppel, and, as heretofore, by a presen- tation of the cases. The rule that the estoppel of a tenant depends upon the existence of a seal having become obsolete, it is plain that the doctrine of mutuality, in the case of competent parties, is fully applicable to the modern relation of landlord and tenant. And as this relation 1 1 Eawle, 135. Mackenzie, 5 L. T. n. s. 20 ; s. c. 10 2 Syllivan v. Stradling, 2 Wils. 208; Com. B. n. s. 870 (Am. ed.). Smith V. Scott, 6 Com. B. n. s. 771. « Coke, Litt. 47 b. Obiter. 1 There were other matters iiiTolved 3 See 5 Am. Law Rev. 15. in the case, however, and the decision was * Moore v. Beasley, 3 Ohio, 294 ; Gray in fact correct, though the above errone- . V. Johnson, 14 N. H. 414 ; Varnam v. ous ground was taken. Smith, 15 N. Y. 327. 8 gee Bailey w. Kilburn, 10 Met. 176; 6 43 N. H. 328. See Carpenter v. Miller v. Lang, 99 Mass. 13 ; Doe d. Bui- Thompson, 3 N. H. 204 ; Gray u. John- len v. Mills, 2 Ad. & E. 17 ; Fleming v. son, U N. H. 421 ; Russell v. Fabyan, 27 Gooding, 10 Bing. 549 ; 5 Am. Law Rev. N. H. 537 ; Accidental Death Ins. Co. v. 21, 22, and cases cited. UPON PERSONS HOLDING RELATIONS OF TRUST. ■ 353 is one of contract, it follows that the same rules concerning the competency of parties prevail here as in the case of estoppels by deed. A lease, like all other contracts, is only binding upon parties sui juris ; and persons under disability, not being bOund by the contract, are not estopped to deny its validity. But, on the other hand, since a contract made with a person under disability, when not absolutely void, is avoidable only by the incompetent party, and binding upon the other, the latter, in. the case of a tenancy, will be estopped to deny the validity of the lease, until its obligatory force is repudiated by the opposite party .^ In the case first cited, a parol gift of land ha-d been made by i third person to an infant, and the infant's mother had been put in pos- session under an agreement with the third person to hold the land for her son ; and the court held that, though the technical relation of landlord and tenant liad not been created, the mother was still estopped, before the surrender of possession, from denying her son's title. Payment of rent is evidence of permissive occupation, and, when unaccompanied by fraud or mistake, establishes tlie relation of land- lord and tenant.^ In the case first cited, an action of ejectment, it appeared that, upwards of thirty years before, the defendant had enclosed a piece of waste ground, of which one Trafford was owner. Subsequently the plaintiff bought the land of Trafford, and several years afterwards demanded rent of the defendant, who paid it. Six years later the plaintiff gave notice to quit, with which the defend- ant refused to comply, claiming that he had a right to the close. The court held the latter estopped by the payment of the rent.^ The doctrine of privity prevails here also, and is illustrated in Doe d. Bullen v. Mills.* Certain premises were in the possession of a lessee under an indenture from Bullen, the plaintiff. Subse- quently the defendant laid claim to the premises, and offered the 1 Eussell V. -Erwin, 38 Ala. 44. See ' " The payment of rent," said Hoi- Grant V. White, 42 Mo. 285. royd, J., " was an acknowledgment that 2 Doe d. Jackson v. Wilkinson, 3 Bam. the occupation was by permission. Had & C. 413; Cooper v. Blandy, 4 Moore & the defendant known that the lessor of the ' S. 562 ; Dunshee c. Grundy, 15 Gray, plaintiff could not otherwise prove a ten- 314; Whalin v. White, 25 N. Y. 462. ancy, it is probable that he would not Payment of rent may also be conclusive have paid the rent ; but, having paid it, evidence that the tenant is an assignee of the tenancy is acknowledged." a lease. Williams v. Heales, Law E. 9 C- * 2 Ad. & B. 17. P. 177. 23 854 ESTOPPEL IN PAIS, lessee £20 if he would surrender to him. The offer was accepted, and the defendant took possession. The plaintiff now brought an action of ejectment by reason of a forfeiture caused by the non- payment of rent by the original lessee ; and the defendant at- tempted to prove his own title to the land. The court refused to allow him to do so. Taunton, J., said that the defendant, having paid £'20 for the lease, and then having taken possession, had put himself in the situation of an assignee of that lease, and was as much estopped from disputing the title of the landlord as the im- mediate lessee. Patterson, J., said that the act of the defendant by which he was let into possession was either an act of collusion to enable him to dispute the landlord's title, or it was a purchase by him of the lessee's interest ; and in either case the defence was inadmissible.^ If the tenant sublet the premises, the sub-lessee cannot dispute the title of the original lessor.^ In Barwick v. Thompson, just cited, the master of a school, holding under the mayor and alder- men of the borough, in their capacity of guardians and governors of the school, demised the school-lands to the defendants, who paid rent to the master. In an ejectment by the mayor and aldermen, the defendants contended that they did not hold under the plain- tiffs, but under the master ; but that even if they held under them, there was no reason why they should not be permitted to inquire into the validity of their title, since all the evidence of title had been given by the master, and that in this respect the case differed from the ordinary one where a tenant was not permitted to impeach his landlord's title. But the court were of opinion that, as the defendants held under the master, who had been appointed by the mayor and aldermen, they ought not to dispute the title of the latter, and that it was immaterial whether the defendants held immediately under the mayor and aldermen, or under the master who claimed under them. The doctrine of privity is well illustrated in a recent case in the English Common Pleas.^ The action was ejectment under the following circumstances. The plaintiffs let land to one Budd, who continued to hold over and pay rent for several years after the expiration of the plaintiffs' title, which occurred in 1859. In 1863 1 See Doe d. Knight v. Smythe, 4 3 London & Northwestern R. Co. o. Maule & S. Sit. West, Law R. 2 C. P. 553. 2 Barwiok.w. Thompson, 7 T. R. 488. UPON PERSONS HOLDING RELATIONS OP TRUST. 355 Budd sublet the premises to the defendant, who paid rent to him. In 1864 the plaintiffs gave notice to Budd to quit, which he did. There was no evidence that the defendant had paid rent to any one subsequently to that date. Judgment was given for the plaintiff.i The main doctrine of this subject, that a tenant cannot, while in possession, set up an outstanding title to overthrow the title of one under whom he holds, is illustrated in Doe d. Ogle v. Vickers.^ This was ejectment for land in Shropshire. The facts were these. In 1824 the defendant executed a mortgage in fee to the plaintiff of the premises in question. Subsequently other parties brought ejectment for two undivided thirds of the premises against the de- fendant, who remained in possession, claiming by title anterior to the mortgage mentioned. The plaintiffs in that case obtained judg- ment subject to the award of a barrister, who was to direct what sort of lease should be executed by the successful parties to the de- fendant. The arbitrator awarded a lease, which was executed, and which had not expired at the commencement of the present action. The defendant, having suffered judgment as to one third, con- tended that the plaintiffs could not recover the other two undivided thirds, as the defendant held them by a title acquired subsequently to the mortgage, and upon which the mortgage could not operate. But judgment was given for the plaintiff.^ 1 Willes, J., said : " It seems to me a mere stranger who does not even allege that the question is whether, if Budd had that he has any title himself, we ought to been the defendant, instead of West, he conclude, if necessary, that Budd intend- could have resisted this ejectment, for ed to remain tenant to the plaintiffs after West came in under Budd ; and since 1859, and that there was, therefore, a new no change has taken place in the right of tenancy in law from year to year created, the different parties since his tenancy subsequently to the year 1859. He, commenced, he cannot dispute that the therefore, could not have disputed the rights of Budd have duly vested in him. plaintiffs' title, and neither can the de- Would then Budd be able to dispute the fendant." See also, as to privity, Blake plaintiffs' title ? If his tenancy had com- v. Sanderson, 1 Gray, 332 ; Lunsford u. menced after 1859, when the land is Alexander, 4 Dev. & B. 40 ; Rennie v. alleged to have vested in the adjoining Robinson, 1 Bing. 147 ; Doe d. Wheble v. owner, there is no doubt that he would Fuller, 1 Tyr. & G. 17. have been estopped from doing so, since ^ i Ad. & E. 782. n tenant cannot dispute his landlord's ' See Doe d. Hurst v. Clifton,. lb. 809, title, except by showing that such title 818, holding that the case is not different has terminated since the commencement where the deed is set up by a mere nomi- of the tenancy. In this case, the answer nal party, for the benefit, in reality, of the is to be found in a conclusion of fact, mortgagor, namely, that as the question is raised by 356 ESTOPPEL IN PAIS. In a case in the English Common Pleas,i the defendant to an avowry for rent pleaded that " before the lessor (who claimed title nnder a pretended agreement between him and one T. R.) had any thing in the premises, and before the demise by the lessor to the lessee,. T. R. mortgaged them in fee to J. C. ; that the mort- gage being forfeited, notice of the forfeiture being given to the lessee, and the lessee having been required to attorn, and having attorned to the mortgagee, he distrained for the rent, when the lessee paid him to save the goods from being sold." The court held the plea bad.^ If a person make an acknowledgment of a tenancy through mis- take or ignorance, he will not be estopped to dispute the lessor's title.^ In the case first cited, a tenant filed an interpleader against two ,sets of persons who claimed to be respectively devisees and co- heirs of his original landlord ; and the court granted an injunction to stay proceedings at law by one of the parties for the recovery of rent, on payment into court of the sum due, though it appeared that the plaintiff had acknowledged in writing the title of the party suing at law, and had paid rent to him for nearly two years after • Achorne v. Gomme, 2 Bing. 54. 2 Beat, C. J., having stated that the plea amounted to a plea of nil habuil in tenementis, said that it had been urged that what had been done by the plaintiff was equivalent to payment, and that the plea was nothing more than a special plea of riens in arrear ; " but if so," said he in reply, " it may be equally contended that non tenuit is a plea of riens in arrear. Now it is quite clear that a party cannot plead indirectly that which he cannot plead directly; he cannot, by adding words, effect that which he would not be per- mitted to effect if it was stated simply ; and the rule which prohibits a tenant from disputing in a court of law the title of his landlord is a wise rule, tending to general convenience, especially when there is another court in which he may insist on any equities which the case may involve. I am aware that there is a qualification of this rule, if qualification it can be called, and that there are cases in which the tenant has been permitted to show that the landlord could not justify a distress. In all of them, however, the right of the landlord to demise has been admitted, and the plea has been, either that his title has since expired, or that the tenant has been compelled to pay sums which he was entitled to deduct fi-om the rent. These cases, therefore, rather con- firm than impeach the general rule ; but the tenant here broadly disputes the lessor's right to demise." The Chief Justice probably referred, among other cases, to Taylor v. Zamira, 6 Taunt. 524, as to which Park, J., said : " In Taylor v. Zamira, the land was expressly subjected to distress by a charge created before the lessor's title commenced. In the present case, unless the tenant had attorned, though the mortgagor might have evicted, he could not have distrained." s Jew V. Wood, Craig & P. 185 ; Doe d. Plevin ». Brown, 7 Ad. & E. 447 ; Cor- nish V. Searell, 8 Barn. & C. 471 ; s. o. 1 Man. & E. 703; Rogers v. Pitcher, 6 Taunt. 202; Gravenor v. Woodhouse, 1 Bing. 38. UPON PERSONS HOLDING RELATIONS OP TRUST. 357 the death of the original landlord, it appearing that this had been done in ignorance of the fact that the title was in disputei^ lu Fenner v. Duplock,^ replevin was brought for goods dis- 1 " It appears to me well established," observed Lord Chancellor Cottenham, " by the uniform current of all the cases (for there is not that discrepancy between the cases which was suggested), that the rule of law is, that after the death of the person to whom the occupier became tenant, the tenant may require the per- son claiming under the original lessor to prove his title under such original lessor ; and that although the tenant has paid rent to the person so claiming under the original lessor, he is not precluded from so doing by the payment of rent, and other acts which might under other cir- cumstances amount to an attornment. Several cases were cited. Sogers v. Pitcher, 6 Taunt. 202, was one. That was a case of mere mistake as to the title of the party to whom the rent was paid. There was no misrepresentation by the party so obtaining the rent ; it was a mere misapprehension, and the payment of rent under such misapprehension was not considered as altering the situation of the tenant. He was permitted to call upon the person claiming his land to prove his title. Fenner v. Duplock, 2 Bing. 10, proceeded entirely upon the tenant's ignorance of the title of the party who claimed the rent. Gregory v. Doidge, 3 Bing. 474, is a still stronger case. There does not appear to have been any misap- prehension; the tenant had deliberately acknowledged the party claiming as his landlord, and made an agreement with respect to the rent upon that footing. But this, proving to have been done in ignorance of the title of the other party claiming, was held not to bind the tenant. The case of Hopcraft v. Keys, 9 Bing. 613, has no direct application; that de- cision having proceeded upon this, that the occupier did not hold under the party who claimed the rent, that party having been evicted by a title paramount, and the occupier having commenced a new tenancy under the party who so evicted his prior landlord. The case of Doe d. Plevin V. Brown, 7 Ad. & E. 447, was a case of attornment made by the direction of the person under whom the tenant held. The title was disputed by his assignee; but Lord Denman, in holding that the tenant was at liberty to dispute the title of the person to whom he had attorned, says that it was competent for him ' to explain and render inconclusive acts done under mistake or tlirough mis- representation ; ' putting, therefore, mis- take and misrepresentation for that pur- pose upon the same footing. " So far, I think, it was admitted at the bar that the cases were uniform. But a ease was re- ferred to. Hall V. Butler, 10 Ad. & E. 204, which, it is contended, establishes a dif- ferent doctrine. Now, I think the doctrine of that case is by no means inconsistent with the former cases, but completely and entirely consistent with them. In that case the tenant took possession and held under a person named Nevitt, who after- wards directed the tenant to pay his rent in future to the defendant, Butler. An- other person then claimed by title para- mount to Nevitt. Butler, the defendant, was entitled to stand in Nevitt's place; and the tenant, who could not dispute Nevitt's title, was held to be equally pre- cluded from disputing Butler's. The judges put it upon this ground, either that the defendant, Butler, ratified the demise, or that there was a fresh demise by him ; and, in either case, the tenant could not dispute Butler's title. Now it will be observed that in either case the tenant was disputing the title of the person from whom he derived his ten- ancy, and not the title of a party claiming through such person. There is nothing, therefore, at all inconsistent in the doctrine of that case with the doctrine of all the preceding cases.'' 2 2 Bing. 10; B. c. 9 Moore, 38. 358 ESTOPPEL IN PAIS. trained for rent. The defendants avowed for a year's rent of a cottage and land held by the plaintiff as tenants to one of the defendants. It appeared that Duplock bought the premises of one Collins, who took them under a will. Duplock leased to the plaintiff, who paid rent until the death of Collins. At this time a third person claimed the premises, alleging that Collins had only a life-estate under the will. He demanded rent of the plaintiff, who paid it, and refused to pay longer to Duplock. Subsequently, however, upon distress, he paid again to Duplock for some time, when the third person renewed his claim. The plaintiff acquiesced again, and again refused to pay to Duplock, who now made the distress which caused the present replevin. The jury were induced to believe that Duplock knew that he had only an estate for the life of Collins, and that the plaintiff, though aware of the claim of the third party, had paid the rent to Duplock in ignorance of the precise nature of the claim, and in ignorance that Duplock's estate expired at the death of Collins. A verdict was therefore found for the plaintiff; and it was now moved that it should be set aside, on the ground that tlie payment of rent to Duplock by the plaintiff, after he became aware of the adverse claim, was an acknowledg- ment of Duplock as landlord, equivalent to a new taking. But the court held otherwise.^ The rule is not different where the possession has been obtained by fraud.^ The case cited was an ejectment, in which it appeared that the defendant applied to the plaintiff, then in possession of the premises, for the privilege of getting vegetables from the garden ; and that, having obtained the keys, he fraudulently took possession and set up a claim to the land. The court refused to hear it.^ 1 Best, C. J., referring to the general such circumstances 1 There is no ground principle that the tenant may show that whatever for saying that any attornment his landlord's title has expired, said ; " Yet tooli place. Payment of rent may indeed if lie enters on a new tenancy, he shall be be evidence of an attornment ; but before bound ; but before he can be so bound, it we can decide whether an attornment has must appear that he was acquainted with talten place, we must loolc at the oircum- all the circumstances of the landlord's stances, and see whether they do or not title. The landlord, before he enters into rebut the presumption of an attornment, any new contract, must say openly, ' My and the circumstances of the present case former title is at an end ; will you, not- repel any such presumption." withstanding, go on ? ' The defendant in ^ Doe d. Johnson v. Baytup, 3- Ad. & the present case knew that his title was E. 188 ; s. c. 4 Nev. & M. 837. at an end; was it honest in him to persist 3 Mr. Justice Patterson said : "In the in his claim, and to call for rent under case of a person who has become tenant. UPON PERSONS HOLDING RELATIONS OP TRUST. 359 The tenant or his assignee is not estopped to explain the cir- cumstances under which he has made an attornment to the plaintiff. In Doe d. Plevin v. Brown ,i an ejectment was brought against the assignees in bankruptcy of John Piatt, who had demised to Joseph Piatt. Subsequently John, becoming embarrassed, assigned the premises to the plaintiff. He then told Joseph of the assignment, and requested him to give the plaintiffs an acknowledgment; whereupon Joseph gave the plaintiffs a shilling, and agreed in writing with them to surrender possession to them. Soon after this a fiat in bankruptcy was issued, and John was declared a bankrupt, the defendants being appointed his assignees. Tlie latter now disputed the validity of the transaction by which the premises were assigned to the plaintiffs. But it was insisted for the plaintiffs, that, as the defendants had come in to defend as landlords of Joseph, they were in no better condition than he ; and that he, after the payment of the shilling and signing the memorandum by which he agreed to deliver possession to the there is no doubt as to the law. Doe d. Knight V. Lady Smythe, 4 Maule & S. 347, shows that he must first give up pos- session to the party by whom he was let in, and then, if he, or any one claiming by him, has a title aliunde, that title may be tried by ejectment. It was held in that case, not that the party claiming as landlady to the tenant was altogether estopped from trying the right, but that the tenant must first restore possession. If the defendant here has any right, she might in the first instance have brought ejectment, or have entered on Mrs. John- son and disseized her, and Maintained the possession. But she takes neither course. She fraudulently obtains permission to go upon the premises, and then turns upon the lessor of the plaintifi", and insists upon holding the land. The rule as to claim- ing title, which applies to the case of a tenant, extends also to that of » person coming in by permission as a mere lodger, or as a servant." Mr.. Justice Coleridge said that there was no distinction between the case of a tenant and that of a common licensee. The licensee, by asking permission, ad- mitted that there was a title in the land- lord. " Suppose," he proceeded to say, " that under the license an undisturbed possession were enjoyed for some con- siderable time, and an action were brought for use and occupation, could the licensee dispute the licensor's right of action ? The law would imply a tenancy under such circumstances. Then, if there be no distinction between the cases of a, licensee and a tenant, do the circum- stances here present an irresistible case of license ? Here is a party quietly in pos- session. The defendant comes and asks for the key. If she had intended to make a claim of title, she might have come as a trespasser to disseize', and, having entered, might have stood upon her right. But here that was not done ; and under the circumstances of this case, the de- fendant, before she could dispute the title, was bound to put the lessor of the plaintiff in the situation in which she stood before the leave was granted." 1 7 Ad. & E. 447. 360 ESTOPPEL IN PAIS. plaintiffs, was estopped from disputing their title. But the court ruled otherwise.^ The case of Hopcraft v. Keys ^ well illustrates the doctrine that there is no estoppel upon a tenant to show that his landlord's title has expired. The action was replevin, to try the validity of a dis- tress for rent. Issue was joined on the plaintiff's plea of non tenuit. The facts were these : Hopcraft was let into possession of the house by Hawkins, February 12, 1831, as tenant for a year; and the house being unfinished, Hawkins undertook to finish it by a certain time, and to give Hopcraft the option of a lease at the end of the year. Hawkins had no other title to the premises than an agreement with one Kent, bearing date September 17,^1830, by which Kent agreed to grant him a lease after Hawkins should have finished the houses described in the agreement ; reserving to himself an express power of re-entry, and avoiding the agreement 1 Lord Denman, in delivering the judg- ment, said: "No general rule, when rightly understood, is more important, or more strictly to be observed, than that which precludes the tenant from disputing the title of his landlord ; and we may eon- cede that, in the present case, the defend- ants stood in the same situation as Joseph Piatt, and could avail themselves of no defence which was not open to him. But be had not received his possession first from the lessors of the plaintiff, nor was any attempt made to question that title under which he had received possession. Assuming that the one shilling was paid by way of acknowledgment, . . . still it was paid, in the first instance, upon the request and under the representations made by John Piatt, and the memoran- dum signed onjy as a consequence of that payment, and upon the faith of the same representations. If at the very time when John Piatt informed Joseph of the assignment of the lessors of the plaintiflT he had committed an act 'of bankruptcy, and that assignment which he represented as valid was in truth void, he was prac- tising a fraud on Joseph ; and no case has decided that it would not be open to Jo- seph to explain under what circumstances he made any attornment or other ac- knowledgment. Gregory v. Doidge, 3 Bing. 474, is a strong and direct authori- ty to the contrary. There was both the fact of one shilling paid as an acknowl- edgment of Doidge's title, and an agree- ment with him, after a statement of the amount of rent, to depasture some of his cattle in part payment of the rent. But this was done on the representation of Doidge's brother, and in ignorance of a defect in his title ; and the Court of Com- mon Pleas was clearly of opinion that, under these circumstances, the plaintiff, not having come into possession under Doidge, might show that he was not his landlord. Had even John Piatt been the lessor of the plaintiff, it would have been open for Joseph to have shown a cesser of his title before the day of demise ; for that would have been consistent with, the accepting possession from him. Upon the broad principle, however, that it is always open to a party, not guilty of laches, to explain and render inconclusive acts done under mistake or through mis- representation, we think this inquiry properly gone into." 2 9 Bing. 613. UPON PERSONS HOLDING RELATIONS OP TRUST. 361 if the houses were not completed within six months from the date of the agreement. The houses were not finished within the time, and Kent, on the 2d of April, before any rent was due from Hop- craft to Hawkins, re-entered for the condition broken, and turned out all the tenants, Hopcraft among them. Kent thereupon put a man in possession of the house which had been occupied by Hopcraft. The house was subsequently finished, vacated, and leased again to Hopcraft by Kent, upon a new agreement and for a different rent. The Chief Justice, with whom the other judges concurred, said that it was competent for the plaintiff" to show that his landlord had a defeasible title only, and that such title had been actually defeated before any rent became due, and that the rule of estoppel could not apply to the case where the tenant had been actually turned out of possession, and kept out a considerable time, and had afterwards entered under a new agreement, made bona fide, with another person. The case of Claridge v. Mackenzie ^ considers the subject of a new taking or letting into possession. The action was trespass for two distresses for rent. The facts in brief were, that the plaintiff", having derived possession from a third person, paid rent to the defendant, who was in fact a termor. After the latter's term had expired, but not to the knowledge of the plaintiff", the plaintiff" entered into an agreement with the defendant for a tenancy, and in pursuance thereof paid rent to him. The court held that the plaintiff" was not estopped to show that the distresses complained of were illegal, on the ground that the defendant's title had expired.^ 1 4 Man. & G. 143. the defendant's interest, he continued to - Chief Justice Tindal came to this occupy, as tenant by sufferance, under conclusion upon two grounds : First, that the party who was entitled to the inter- there was no new taking of the premises mediate term of three quarters of a year, by the plaintiff, or any letting into pos- The witness Richards speaks of a new session by the defendant ; and, second- agreement having been entered into be- ly, that even assuming there was a new tween the plaintiff and the defendant, that taking or letting into possession, the jury the former should continue in possession had found that the transaction had taken as tenant to the latter ; but there was no place without a knowledge, on the part of new possession given by the defendant ; the plaintiff, of the circumstances. she was in no way prejudiced ; she could "Upon the first point," said he, "I not have turned the plaintiff out of pos - think it was competent for the plaintiff to session; and before their agreement, if show that the defendant's title had ex- she had brought her ejectment, the plain- pired. The plaintiff was in possession of tiff might have shown that she had no the premises ; and after the expiration of title, and that the title was in some one 362 ESTOPPEL IN PAIS. It is well settled that a tenant in possession, even after the expiration of his lease, cannot deny his landlord's title, without either surrendering possession to him, or attorning, or at least giving notice to his landlord that he shall claim under another and a valid title.^ In Morse v. Goddard, just cited, the plaintiff sued for a month's rent, and the defence was that the tenant had been ousted by persons having a paramount title, before the commencement of the time for which the rent was claimed. The defendant offered to show that persons having a valid title, paramount to that of the defendant and his lessor, the plaintiff, and having an immediate right of entry, and of possession under it, made an actual entry on the premises, and required the defendant to pay rent to them from the time of such entry, or quit the premises. But it was objected that a tenant could not conjtest his landlord's title, or set up a paramount adverse title in a third person. The court, however, received the evidence. ^ else. It is not like the case of a person letting another into possession of vacant premises ; it is in fact a remaining in pos- session of premises which had been for- merly occupied by the tenant. ... In effect, all that the plaintiff proposes to do in this case is, to show that the defendant at one time had a good title, which has since expired." Mr. Justice Coltman said : " If the plaintiff was not let into possession by the defendant, it is clear that he is not pre- cluded from showing that her title is at an end. What, then, is the meaning of being let into possession ? The plaintiff, it is admitted, was not let into corporeal possession by the defendant ; he had been let in by Tillbury, quite independently of Mackenzie. But then it is argued that in July, 1838, the plaintiff entered into an agreement to. take the premises from the defendant ; and I think that such must be considered to be the result of the evi- dence. And if she had a legal right at that time, and might have turned the plaintiff out of possession, I am not pre- pared to say but that he must have for- mally surrendered to the defendant. But the infirmity of the defendant's case con- sists in this, that at the time of this agree- ment she had, in fact, no power to turn the plaintiff out of possession, and I think, therefore, that he cannot be said to have been let in by her. The question then is. Was this agreement made under a mistaken notion as to the facts 1 This point was properly left to the jury, and they have found in the aflSrmative." 1 Miller v. Lang, 99 Mass. 13, per Gray, J. ; Hilbourn v. Fogg, lb. 11 ; Morse v. Goddard, 13 Met. 177. 2 Chief Justice Shaw, speaking for the court, observed that the general doctrine of estoppel upon a tenant was not incon- sistent with another rule, that where there is an eviction or ouster of the lessee, by title paramount, which he cannot re- sist, it is a good bar to the demand for rent, on the plain ground of equity, that the enjoyment of the estate is the con- sideration for the covenant to pay rent, and when the lessee is deprived of the benefit he cannot be held to pay the compensation. Bacon's Abr. Rent, L. ; Cruise's Dig. Tit. 28, c. 3; "It is not enough, therefore," the learned Chief Justice proceeded to say, "that a third party has a paramount title; but to ex- UPON PERSONS HOLDING EELATIONS OF TRUST. 363 The instruction to the jury had been that if the defendant, bona fide, had yielded possession of the premises to the third persons, to prevent being actually expelled, of which the plaintiff had notice, and if, upon the evidence, the third persons had a good title, para- mount to that of the defendant and of the lessor, and the right of immediate possession, then their entry was equivalent to an actual ouster, and was a good and available defence to the action of rent. And this instruction was held right.i The settled doctrine, in this country at least, is in accordance with the above case of Morse v. Goddard, that a constructive evic- tion is sufficient to remove the estoppel of the tenant.^' A different rule, however, at one time prevailed in the courts of New York. It was even supposed, in some of the cases, that an eviction under legal process was necessary to produce this result;^ and later, when this position was abandoned, it was still insisted that there must have been an actual entry and expulsion.* But this position is not now upheld.^ cuse the payment of rent, the defendant must have been ousted or evicted under that title. Hunt i>. Cope, 1 Cowp. 242; Pendleton v. Dyett, 4 Cowen, 581. But an eviction under a judgment of law is not necessary. An actual entry, by one having a paramount title and present right of entry, is an ouster of the tenant. He cannot lawfully hold against the title of such party. He is not bound to hold unlawfully, and subject himself to an ac- tion, and is not, therefore, compellable to resist such entry. Hamilton v. Cutts, 4 Mass. 349. So when an execution cred- itor is put into possession by the sheriff, under the levy of an execution, he has the actual and exclusive possession, and may maintain trespass. Gore v. Brazier, 8 Mass. 523. There is a recent case which seems to us alike in principle. Smith V. Shepard, 15 Pick. 147. A mort- gagor in possession made a lease for years, reserving rent. Afterwards the mortgagee, having a paramount title, en- tered, as he lawfully might, with right to take the rents and profits. In a suit by lessor against lessee for rent, such entry under a paramount title was held to be an ouster, and a good bar to the action." But where the third person merely for- bade the tenant to pay rent to his lessor, demanding it herself, but without avail, and had even brought a writ of entry which had not been tried, it was held that the tenant could not set up the title of such person, in an action by the landlord to recover possession. Hawes v. Shaw, 100 Mass. 187. See also Hardy v. Aker- ly, 57 Barb. 148. 1 Shaw, C. J., said that it was to be understood that when a tenant thus re- lied on an ouster in pais, without judg- ment, he had the burden of proving the validity of the elder title, the actual entry under it, and that he acted in good faith, and without collusion with the party en- tering. See Winstell v. Hehl, 6 Bush, 58. 2 Grist V. Hodges, 3 Dev. 198 ; Eoss v. Dysart, 33 Penn. St. 452; Simers v. Sal- tus, 8 Denio, 214 ; Greenvault v. Davis, 4 Hill, 643; Whalin v. White, 25 N. Y. 462, 465. " Lansing u. Van Alstyne, 2 Wend. 563, note ; Webb «. Alexander, 7 Wend. 281 ; Greenby v. Wilcocks, 2 Johns. 1. * Waldron v. McCarty, 3 Johns. 471 ; Kortz V. Carpenter, 5 Johns. 120 ; Kerr v. Shaw, 13 Johns. 236. * Simers v. Saltus, supra ; St. John v. Palmer, 5 Hill, 599 ; Greenvault v. Davis, 364 ESTOPPEL IN PAIS. Some doubt has been raised in a recent English case ^ whether this be the law in England ; but it has been distinctly so declared in one case,^ and evidently so considered in others.^ And it has been said that the law must be regarded as settled in England in this way.* There has been some conflict upon the important question, whether a tenant taking a lease of land of which he was already in possession may deny his lessor's title. It is agreed in all the cases, that if the tenant was induced to take the lease by mistake, fraud, or misrepresentation on the part of the lessor, he may dis- pute his title.^ But the conflict arises in cases in which there is no such element. In New York and Kentucky it is held that the estoppel prevails ; ^ while in California the contrary doctrine has been held in two recent cases, upon great consideration.'' But supra ; Whalin v. White, supra. In Cali- fornia it is held that a tenant cannot ju9» tify an attornment to one who has re- covered the land under an ejectment against the tenant If the landlord were not notified to come in and defend. Doug- las V. Fulda, 45 Cal. 592. 1 Delaney v. Fox, 2 C. B. n. s. 768. Per Cockburn, C. J. 2 Poole B. "Whitt, 15 Mees. & W. 571, 577. 5 Doe d. Higginbotham v. Barton, 11 Ad. & E. 307 ; Hawkes v. Orton, 5 Ad. & E. 367; Emery v. Bamett, 4 Com. B. N. B. 423. * 5 Am. Law Eev. 85. 6 Miller v. McBrier, 14 Serg. & R. 382; Swift V. Dean, 11 Vt. 323 ; Shultz v. El- liott, 11 Humph. 183 ; Franklin v. Merida, 35 Cal. 558, 671. 6 Jackson v. Ayres, 14 Johns. 224 ; Prevot V. Lawrence, 61 N. Y. 219 ; Mc- Connell o. Bowdry, 4 T. B. Mon. 392 ; Patterson u. Hansel, 4 Bush, 654. See also Lucas v. Brooks, 18 Wall. 436. ' Tewksbury v. Magraff, 33 Cal. 287; Franklin v. Merida, supra. Sawyer, C. J., dissented in both cases. In delivering the opinion of the court in Franklin v. Merida, Mr. Justice Sanderson said : "The doctrine [of estoppel] is a harsh one, and is never to be applied except when to allow the truth to be told would consummate a wrong to the one party, or enable the other to secure an unfair advantage. If A, being in possession of land, deliver the possession to B, upon his request and upon his promise to re- turn it, with or without rent, at a specified time, or at the will of A, B cannot be al- lowed, while still retaining possession, to dispute A's title, because to allow him to do so would be to allow him to work a wrong against A by depriving him of the advantage which his possession afforded him, and with which he would not have parted but for the promise of B that he would hold it for him, and in his place and stead. But the maxim, ' Cessante ratione legis, cessat ipsa lex,' must not be overlooked, — ' Beason is the soul of the law, and when the reason of any particu- lar law ceases, so does the law itself.' If B is in possession, and takes a lease from A, the latter parts with nothing, and the former has obtained nothing by the trans- action. If, however, either has gained any thing, it is A. He lias gained rent, and, in the event of a controversy, a prima facie case as against B without proof of title, while B's case is weakened by so much as a prima facie case is worth. A may have gained more, for he may have severed an adverse possession, and stayed the running of the Statute of Limitations ; for there can be no adverse possession while the lease subsists, or until there UPON PERSONS HOLDING RELATIONS OP TRUST. 365 even in that State it is held that the estoppel arises if the tenant do not prove a paramount title either in himself or in some one under whom he claims.^ has been an open repudiation and dis- avowal of tlie tenancy by B. A's right to sue for possession is postponed, it is true. In that respect only is his relation to the property affected by the transac- tion, except beneficially ; but for the pos- session which he might have obtained, the rent promised by B is a legal equiva- lent. Having thus obtained no advantage over A by the transaction, why should B be estopped from showing precisely what he would have been permitted to show had the transaction never occurred ? If A is thus in no worse plight than he was before the transaction, upon what princi- ple in law or ethics can the truth be kept back ? Upon what rational ground, either in an action upon the lease for rent, or in an action for the possession, should B be denied the right to show that A had no title, and, therefore, no right to the rent or possession. If B has promised to pay rent, or hold the possession for it, lie hav- ing no title, where is the consideration for B's promise ? Suppose the title is in C ; B is then legally bound to pay the value of the use and occupation to C, and sur- render to C, notwithstanding the lease from A. If, then, he cannot be allowed to dispute A's title, B can be legally made to pay rent to A, and the value of the use and occupation to C. The doc- trine of estoppel between landlord and tenant was never designed to work such a result. It was designed merely as a shield for the protection of the landlord, and not as a sword for the destruction of the tenant." Further on the learned judge proceeds to say tliat the precise question is, "whether the bare possession of the ten- ant, at the time the lease is given and taken, is sufficient to take the case out of the operation of the general rule that the tenant cannot dispute the landlord's title, or whether there must be, in addition to the possession of the tenant, some force, fraud, misrepresentation, or mistake in- duced by the landlord, beyond what is implied in the transaction itself, (a) by which the tenant was influenced to take the lease. The latter view is maintained by counsel, while in Tewksbury v. Ma- graff we declared the former. "Counsel does not 'claim that force, &aud, misrepresentation, &c., are not of themselves, irrespective of the fact of possession, sufficient to take the case out of the operation of the general rule. If they are, and of that there can be no doubt, it follows that, on the score of principle, the fact of possession is a false quantity for all the purposes of the ques- tion. If the bare possession of the tenant is not enough, and force, fraud, misrep- resentation, and the like, are of them- selves enough to take the case out of the operation of the general rule, obviously tlie fact of possession is then wholly im- material, and constitutes no quantity in the problem to be solved. So, on the score of logic, the argument, if it proves any thing, proves too much. "But it is said that Tewksbury v. MagraflT goes further than any previous case has gone, and that it cannot be main- tained upon authority. That there are cases where it has been held that the bare possession of the tenant at the letting does not relieve him from the estoppel, cannot be denied ; nor can it be denied, as we shall presently see, that there are cases the other way. The latter, in our judgment, accord with the reason upon which, as we have seen, the estoppel is founded, but the former do not. , " Of the cases which declare a doctrine contrary to the one entertained by us. (a) That is, the giving and receiving a, title not the landlord's. 1 HoUoway v. Galliac, 47 Cal. 474. 366 ESTOPPEL IN PAIS. The doctrine of the California cases seems at first to derive some support from a late English case, in which it was held that, when there are two classes : first, those in which the facts presented the dry ques- tion whether th& bare possession of the tenant at the letting relieves him from the estoppel ; and, second, those in which the dry question was not presented by the facts, and the doctrine was announced merely in the course of discussion. The latter are entitled to no consideration as precedents. For the former only can that distinction be claimed. Of them only two have been called to our attention in which the decision turned upon a bare possession by the tenant at the time of the letting, — McConnell v. Bowdry's Heirs and Widow, 4 T. B. Mon. 392, and Jackson a. Ayres, 14 Johns. 224. In neither case was the reason upon which the estoppel is founded considered or applied. In each the court merely stated what it considered to be the rule ; and the latter case, as the report shows, was submitted without argument. Such cases are far from satisfactory, and are not to be received as conclusive of the law. The remaining cases upon which the respondent relies are entirely con- sistent with the rule announced by us in Tewksbury v. Magraff. " In Hall V. Butler, 10 Ad. & E. 204, N., having no title to certain premises, let them by parol and received rent. After- wards another claimant, B., demanded the rent ; and N., being satisfied with B.'s title, informed his tenant, in B.'s presence, that he had given up the premises to B., who was now the landlord, and that the rent was thenceforth to be paid to B. The tenant acquiesced, and, when B. de- manded the next quarter's rent, paid part of it on account. Lord Chief Justice Denman, Mr. Justice Littledale, and Mr. Justice Patterson, all delivered opinions to the effect that the tenant was estopped, but put their conclusions upon somewhat diiferent grounds. Lord Denman put his judgment upon two grounds j first, that N. was to be considered as the agent of B., and therefore that the entry of the tenant was under B.'s title ; and, second, that there was a fresh demise by B., un- accompanied by any misrepresentation as to the title of B. In this latter ground, Lord Denman implied merely that the possession of the tenant, of itself, made no difference in the result. Mr. Justice Patterson, however, recognized the con- trary doctrine. He said: "There is a distinction between disputing the title of one who has actually let the party into possession, and of one who afterwards claims to be entitled. In the latter case, the tenant may generally dispute it, by showing title in another." He then adds : "I am not sure that it [the transaction between N. and the tenant] may not be as an original taking from B. himself; for N. treats himself as the agent of B., who adopts the demise." This common ground must be considered as the ground upon which the judgment in the case rests, in which view the case is entirely consistent with the rule in this court. " Ingraham v. Baldwin, 9 N. Y. 45, was a case where the tenant entered under the lease, and the landlord afterward conveyed to the plaintiff, to whom the tenant then attorned, and it was held that the tenant could not dispute the title of the plaintifT. Instead of being at war with Tewksbury v. MagrafE, this case is entirely consistent with it. We there held that in such a case the tenant could dispute only the derivative title. By so doing he does not deny the title of his landlord, but merely that the plaintiff' has become the grantee of his landlord. But beyond that he cannot go ; for to do so would be to dispute the title under which he entered. " The other cases are where extrinsic misrepresentation and the like, on the part of the landlord, accompanied the posses- sion of the tenant at the letting, when it was held that the tenant was not estopped. Hall V. Benner, 1 Penu. 402 ; Hamilton v. Marsden, 6 Binn.46; Brown v. Dysinger, 1 Rawle, 408 ; Miller v. McBrier, 14 Serg. UPON PERSONS HOLDING RELATIONS OP TRUST. 367 a person in possession of land under a good title became tenant, by attornment, to another, under an arrangement for an assignment — & R. 382; Swift i>. Dean, 11 Vt. 823; Shultz V. Elliott, 11 Humph. 183. Of them it is sufficient to say that they are not au- thority upon the question in hand. They establish the proposition that a tenant who was in possession at the time he took his lease, and who was induced to take it by unfair means, may dispute his landlord's title, — a proposition wliicli no one disputes. Because they do that, how- erer, they cannot be taken as negatively establishing the proposition that the ten- ant cannot dispute the title of his landlord solely upon tlie ground that he was in possession when he took the lease. . . . " We now come to those cases by which, as. we consider, the rule in Tewks- bury V. MagrafE is sustained. Chettle v. Pound, 1 Ld. Kaym. 746, was action of debt for rent. Upon nil debet pleaded, the plaintifiFgave in evidence a note in writing, by which the defendant had agreed to hold for one year, rendering rent of fifteen, pounds sterling. The plaintiflf was grantee of a reversion expectant upon an estate for life, and the tenant for life was dead at the time the note was given. The grant to the plaintiflF was made forty years before, and he had never been in possession. The defendant offered to prove a grant of the reversion prior to that of the plaintiff, and thus show that the plaintiff had no title at the time the note in writing was given ; and it was ruled by Mr. Chief Justice Holt that the defendant could do so, because the plaintiff had never been in possession ; but if he had, that then the defendant could not have given the prior grant in evidence without having been evicted. There was no pretence that the note in writing, by which the defendant had agreed to hold for the plaintiff, had been obtained by any unfair means, not im- plied in the transaction itself, and the case turned wholly upon the bare fact that the defendant did not receive the possession from the plaintiff. " Rogers «. Pitcher, 6 Taunt. 202, was replevin for property distrained for rent. The plaintiff was in possession, and the defendant obtained a judgment and elegit against a moiety of the premises, and thereafter the plaintiff had paid rent for such moiety. The defendant, on whom the issue of tenancy lay, proved the pay- ment of rent and rested. The plaintiff proposed to answer it by showing that the defendant was not, at the time the rent was paid, or then, legally entitled to the rent; to which the defendant objected upon the ground that by the payment of the rent the plaintiff had acknowledged the defendant as her landlord, and was now estopped from contesting his title. It was held that the plaintiff was not estopped. There was no pretence of any extrinsic misrepresentation, or the like, on the part of the defendant, by which the plaintiff had been induced to pay rent. There was, therefore, no ground for the rule adopted, except the possession of the plaintiff before and at the time of the at- tornment ; although there is, as we admit, language in the opinions of the judges which, unless read by the light of the facts of the case, might lead to the inference that the case included express misrepre- sentation or the like. But it is well un- derstood that, on the score of authority, it is the facts and the judgment thereon which constitute the case, and not the mere language of the court in announcing its conclusions. " Gravenor v. Woodhouse, 1 Bing, 38, was also an action of replevin for property distrained for rent. At the trial the de- fendant put in a written attornment, by which the plaintiff, being in possession at the time, as the attornment upon its face showed,' agreed to hold for one year, and from year to year, at a yearly rent of sev- enty pounds sterling, without prejudice to any right or claim of his own to the prem- ises. It was objected, on the part of the plaintiff, that the language of the avowries was not sustained by the attornment, and ESTOPPEL IN PAIS. ■which had never been perfected — between the original lessor and the party to whom the attornment was made, he would not be evidence was offered of a feoffment made to the plaintiffby a person under whom the defendants claimed, and of certain letters from that person containing expressions which were said to be adverse to the de- fendants. The court, however, thought the avowries sustained by the language of the attornment, and rejected the evi- dence, upon the ground that the plaintiff could not dispute his tenancy, after hav- ing made the attornment in question. There was no pretence, so far as the case shows, that the attornment had been ob- tained by any unfair means, not implied in the transaction, on the part of the defendants. The judgment went against the plaintiff, and there was, therefore, no ground for a new trial, except the fact that the plaintiff was in possession when he attorned. A new trial was, neverthe- less, granted ; the court holding that the attornment did not estop the plaintiff. " Cornish v. Searell, 8 Barn. & C. 471, was assumpsit for use and occupation. A being tenant under B, and a sequestration having issued out of chancery against B, signed the following instrument : ' I hereby attorn and become the tenant of C and D, two of the sequestrators named in the writ of sequestration, issued in the said suit in chancery, and to hold the same for such time and on such conditions as may be subsequently agreed upon.' It was held, first, that this was an agreement to be- come tenant, and required a stamp ; and, second, that A, not having received pos- session from C and D, might dispute their title. So far as the statement of facts as given by the reporter shows, there was in this case no suggestion of unfair means not intrinsic, on the part of C and D, by reason of which A was induced to attorn to them. Yet it has been said that it was a case of mistake. This statement has no foundation whatever in the facts of the case, and rests entirely upon a single word found in the opinion of Mr. Justice Bayley, who said : ' As sequestrators, they [the plaintiffs, C and D] have no legal right to receive the rents. It has been said that the defendant, having agreed to become tenant to the plaintiffs, cannot dispute their title. If the defendant had received possession from them, he could not dispute their title. In Rogers v. Pitcher and Gravenor v. Woodhouse, the distinction is pointed out between the case where a person has actually received possession from one who has no title, and the case where he has merely attorned by mistake to one who has no title. In the former case, the tenant cannot (except under very special circumstances) dispute the title ; in the latter he may.' The claim that the case was one of mistake is founded solely upon the use of the word ' mistake ' in the foregoing passage. There was no mistake whatever as to the title of C and D. There could be none ; for the instru- ment which was signed by A showed upon its face that they were only sequestrators, and therefore without legal claim to the rents. It cannot be supposed that a per- son in possession will knowingly take a lease from a party who has no title to the premises, and it is not, therefore, a forced use of language to speak of it as a ' mis- take ; ' and it is in that sense that we understand Mr. Justice Bayley. But, were it otherwise, the incautious use of words by the court cannot override the facts of the case, or limit the force of the judg- ment. It is very plain that A signed the instrument with his eyes open, knowing all the facts and circumstances, and that it was considered that he was estopped by that act. " In Jackson i>. Cuerden, 2 Johns. Cas. 863, the defendant A, being in possession under B, the supposed proprietor, applied by letter to C as the real owner to pur- chase, and requested to be considered as a tenant. In ejectment by C against A, it was held that the latter was not estopped by his letter from showing that his letter was grounded on a mistake, or that the fee UPON PERSONS HOLDING RELATIONS OP TRUST. 369 required, after the termination of the lease, to give up the posses- sion before he could dispute the lessor's title,^ Without express- ing any opinion as to how the case might have been during the continuation of the lease, Erie, C. J., said that he could find no authority for the doctrine that a person taking a lease of his own land was not entitled, at the expiration of the term, to dispute the title of his lessor.^ But it would seem to be a sufficient ground upon which to sustain the case, that the assignment was not per- fected. In a similar case recently before the Supreme Court of Massa- chusetts,3 the tenant was held estopped to set up the title of a third person, though it appeared that he was ignorant of her title when he made the attornment, and though she had forbade him to pay rent to the plaintiffs, demanding that it should be paid to herself. It did not appear, however, that he had ever attorned to her, or that he had renounced his tenancy under the plain- tiffs. So, too, in another recent case* in the same State, a de- fendant in a suit for possession was not allowed to prove that he had been in possession in right of his wife, prior to taking a lease from the plantiff, and that before the end of the term he had given notice to the plaintiff that he should renounce his title, and claim existed in himself or out of the plaintiff. See probability not only justifies, butrequires, also Jackson v. Spear, 7 Wend. 401. the courts to look behind the lease, and " In all cases where a party out of pos- unearth the truth. As already suggested, session seeks a taking and holding under the doctrine of estoppel was not designed himself by another in possession, from the to secure to anyone an advantage over Tery nature of the case there must be a, another, but to prevent such a result, and representation by him that he is the owner, to maintain the status which existed at The bare proposition to lease involves the outset ; to protect the landlord in his such a representation ; and if he be not actual possession against the trickery or the owner, the representation is false, sharp practice of the tenant, not to en- If, under such circumstances, a party in able him to impose upon the tenant, and possession takes a lease, his act can be thereby to obtain that which before he accounted for upon no rational theory, had not." except that he was influenced, by this ex- • Accidental Death Ins. Co. v. Macken- press or implied representation. When, zie, 10 Com. B. n. s. 870, Am. ed. ; s. c. therefore, in the opinions of the judges, 5 Law T. n. s. 20. such expressions are used, their sense is ^ See also Shelton 51 Penn. St. 499. * " At first sight," said Agnew, J., for the court, " this might seem compe- tent, but a close inspection discloses a direct conflict with the rule that a tenant shall not dispute the title of his landlord as it was when he took the lease. It was Martin who let the premises to Holt. The relation of landlord and tenant, by the terms of the lease, was exclusively be- tween them. The covenants were those of Martin and Holt alone, and the sealing and delivering also. Upon any breach of the lessor's covenants, the action would lie against Martin and no other. Martin simply described himself as 'agent,' — no more, no less, — and it is thought this opened the door to the proof. But agent for whom, or for what ? We are not in- formed. Was he a mere agent without an estate ; or, himself holding the legal title, was he an agent for purposes con- nected with the title he held 1 None of these appear by the lease. And if agent for others, were they the same persons indicated in the ofler? If not, clearly Martin could rebut the proof offered. His calling himself agent was no admis- sion of title in the persons named in the offer. Thus it was a direct attempt to deny the title of Martin ; for, if compe- tent, it showed title in third persons, and brought on directly a conflict upon the title of Martin, and not upon the mere termination of the lease." UPON PERSONS HOLDING RELATIONS OP TRUST. 381 That the doctrine that the tenant cannot dispute his landlord's title is not confined to the action of ejectment was decided in De- laney v. Pox.i This case was an action of trespass upon certain premises. The defendant pleaded liberum tenementum, and a spe- cial plea showing a tenancy of the plaintiff under him, and its deter- mination by notice. The plaintiff gave evidence that at the time she was let into possession by the defendant he had no title, but that the title was in a third person, to whom the plaintiff under a threat of distress paid rent. It was objected that she was estopped from disputing the defendant's title ; but counsel on the other side contended that the rule of estoppel was confined to the action of ejectment, and did not apply to trespass.^ The court decided in favor of the defendant. Cockburn, C. J., said that, upon principle, there was no distinction between the case of ejectment and the present case. There could be no substantial difference between the landlord's asserting his title by bringing ejectment at the imme- diate expiration of the term, and his asserting it in defence of an action of trespass at a future period. On the other hand, there had not even been a constructive eviction in the case ; and, even if there had been, he doubted whether such an eviction could be con- sidered as a determination of the landlord's title.^ The doctrine of the tenant's estoppel prevails against one who is in possession of land under a mere license.* It is said that if a person take possession of land under a mort- gagee, not as his tenant, but as devisee of the mortgagor, to keep possession, keep the fences in repair, pay the taxes, and enjoy the rents and profits, without paying rent, and not recognizing an ab- solute title in the mortgagee, he will not be estopped to dispute tlie mortgagee's title .^ It is within the doctrine of these cases that a tenant by the curtesy cannot allege that the title of his wife was defective.^ The case cited was an action of waste, alleged to have been committed by the defendant, occupying as tenant for life. The plaintiff claimed title under a deed from the defendant's wife. It appeared 1 2 Com. B. N. B. 768. and probably also in England, see ante, 2 Eeferring to the language of Pollock pp. 363, 364. C. B., in Watson u. Lane, 11 Ex. 769, * Glynn u. George, 20 N. H. 114 ; ante, citing Heath, J., in Ogle . Birnie, 7 Bing. 339, and Hawes v. Watson, 2 Barn. & C. 540, in which a bailee who, by at- torning to a purchaser of the goods, has in effect represented to him that the property has passed to him, though such was not the fact, and has thereby induced him to alter his position and pay the price to his vendor, has been held estopped from denying the property of the person to whom he has thus attorned, by setting up a. title in a third person inconsistent with the representation on which he had induced the plaintiff to act. We in no way question that those cases were rightly decided. But in all these cases the estop- pel proceeded upon the representation, which was analogous to a warranty of title for good consideration to the pur- chaser. Now, in the ordinary class of bailments, such as the present, the repre- sentation is by the bailor to the bailee that he may safely accept the bailment ; and so far as any weight is to be given to the representation, it makes against the estoppel. This is pointed out by Parke, B., in Cheesman v. Exall, 6 Ex. 341 [supra, p. 384], in the case of a pledge, and is indicated as one of the grounds on which the judgment of the Court of Com- mon Pleas proceeded in Sheridan v. The New Quay Company, 4 Com. B. n. s. 618, which was the case of a carrier. The po- sition of an ordinary bailee, where there has been no special contract or misrepre- sentation on his part, is very analogous to that of a tenant who, having accepted the possession from another, is estopped from denying his landlord's title, but whose estoppel ceases when he is evicted by title paramount. This was decided as early as the 44 Eliz., in Shelbury v. Scotsford, 1 Yelv. 22. Then the plaintiff sued in assumpsit against the bailee of a horse for the breach of his contract to redeliver it. The defendant pleaded that J. S., the true owner of the horse, took it from the de- fendant. After verdict for the defendant, the plaintiff moved in arrest of judgment; but 'by Fenner and Yelverton, contra, 2S 386 ESTOPPEL IN PAIS. A case of this kind was recently tried in the Supreme Court of Michigan.! It appeared that the plaintiff below and one Samuel Sinclair, a brother of the defendant, had been in partnership as sutlers in the army, and that Samuel went home and did not return ; that thereafter the plaintiff continued the business in his own name, claiming to have bought out his partner. Subse- quently the defendant induced the plaintiff to allow him to take away and put on deposit in bank a portion of the funds, to be kept subject to the plaintiff's order. The plaintiff afterwards inquired of the defendant whether he had made the deposit as agreed, whereupon the defendant claimed the money as his own ; and this resulted in the present action. The court held that the defendant crfuld not question the plaintiff's right to the money .^ for the matter alleged by the defendant does in law discharge the promise, by rea- son of the former property of the horse in J. S. ; and then it is, as it were, an eviction of the horse out of the defend- ant's possession, which discharges the promise, as well as an eviction of the les- see for years discharges all rents, bonds, and covenants in any sort depending upon the interest.' In Wilson v. Anderton, 1 Barn. & Ad. 450, Littledale, J., without referring to Shelbury v. Scotsford, but evidently having it in mind, states the law to the same effect. And accordingly, in Hardman ii. Willcoek, 9 Bing. 382, in Cheesman o. Exall, 6 Ex. 841, and in Sheridan v. The New Quay Company, 4 Com. B. N. s. 618, a bailee was permitted, under circumstances similar to the pres- ent, to set up the^Ms tertii. It is true that in the first two of these cases the plaintiffs had obtained the goods by a fraud upon the person whose title was set up, whilst in the present case there is nothing in the evidence to show that the plaintiff, though a wrong-doer, did not honestly believe that he had the right to distrain. But we do not think that this circumstance alters the law on the subject. The position of the bailee is precisely the same, whether his bailor was honestly mistaken as to the rights of the third person, or fraudulently acting in derogation of them. We think that the true ground on which a bailee may set up the jus tertii is that indicated in Shelbury v. Scotsford; viz., that the estoppel ceases when the bailment on which it is founded is determined by what is equivalent to an eviction by title para- mount. It is not enough that the bailee has become aware of the title of a third person. We agree in what is said in Bet- teley v. Eeed, 4 Q. B. 511, that ' to allow a depositary of goods or money who has acknowledged the title of one person, to set up the title of another who makes no claim or has abandoned all claim, would enable the depositary to keep for himself that to which he does not pretend to have any title in himself whatsoever.' Nor is it enough that an adverse claim is made upon him, so that he may be entitled to relief under an interpleader. We assent to what is said by Pollock, C. B., in Thome v. Tilbury, 3 Hurl. & N. 534, 537, that a bailee can set up the title of another only 'if he depends upon the right and title, and by the authority of that person.' Thus restricted, we think the doctrine is supported both by principle and authority, and will not be found in practice to pro- duce any inconvenient consequences." 1 Sinclair v. Murphy, 14 Mich. 392. ^ Campbell, J., dissented. Mr. Justice Cooley, speaking for the majority, said : " The dealing of the defendant was not with any partnership, but with the plain- tiff as an individual ; and having agreed UPON PEESONS HOLDING RELATIONS OF TRUST. 387 No principle of law indeed can be found which permits a debtor for goods sold, or for money lent or deposited, to set up as a de- fence against the claim of his creditor that his title to the goods sold, or money lent or deposited, is defective or wrongful. That question is of no concern to the purchaser or borrower, unless the third party who claims to have been despoiled of his goods or money will proceed, by process of law, to enforce his rights. It is never permitted a debtor to volunteer, by plea or answer, the protection of the claims of those with whom he has had no dealings, to defeat his liability for the performance of his contracts.! The delivery of the proceeds of goods sold by a bailee rests upon similar principles. In Osgood v. Nichols,^ the plaintiff sued the defendant for money had and received for goods intrusted to him by the plaintiffs, and sold by him as auctioneer. The defend- ant offered to show property in himself, but the evidence was excluded.^ But it is held that the estoppel does not prevail against a vendee of the bailee.^ to account for the moneys to the plaintiff, ■ he cannot be permitted to retain them in violation of this understanding, while the plaintiff litigates with him the right of some third person to an interest therein, a right in which the defendant is in no way concerned. Whether Samuel Sinclair still continued a partner or not would be im- material in any controversy between the plaintiff and mere wrong-doers ; for having the rightful possession of the property, as well as an interest in it, he would be en- titled to maintain his possession against any one asserting no right in himself; and there can be no doubt that this pos- session and interest would be ample con- sideration to support the promise of any one who, on receiving any of the property from him, should promise to return it. Defendant does not claim to have acted on behalf of Samuel Sinclair in obtaining this money; nor does his testimony show that his agency would have warranted any interference in the business. As to the dealings between the plaintiff and Samuel Sinclair, the defendant was, in law, a stranger; and he has no right to draw them into controversy for the purpose of defence to his own contract." 1 Lund V. Seaman's Bank, 37 Barb. 129, Leonard, J. See Placer County v, Astin, 8 Cal. 303; Hayden i. Davis, 9 Cal. 678; King v. Richards, 6 Whart. 418 ; Hardman v. Willcock, 9 Bing. 382 ; Rogers v. Weir, 34 N. Y. 463. An officer who has levied upon goods and claimed to hold them as the plaintiff's is not estopped, in trespass for carrying the goods away, to deny that they are the plaintiffs property. Roberts v. Went- worth, 5 Cush. 192. 2 5 Gray, 420. 8 The court, by Metcalf, J., said: " We are of opinion that the evidence which the defendant offered at the trial was not admissible, either as a defence to the action or in reduction of damages. The goods were intrusted to him for sale as an auctioneer, and he received and sold them in that capacity. He made no * McFerrin v. Perry, 1 Sneed, 314. 388 ESTOPPEL IN PAIS, A wharfinger who agrees to hold goods for the plaintiff, under a delivery order frona a vendee of the defendant wharfinger, can- not resist trover for them on the ground that they have never been separated from bulk, and that therefore no property passed to the person delivering.^ And so a receiptor for goods attached by an officer is estopped in trover for the goods to set up a title to them.^ 4. Assignees and Licensees of Patents. The assignee of a patent, who has acted under it, and received profits from the sale of the patented article, will not be permitted to deny the validity of the patent in an action by the patentee to obtain an account.^ In the case cited, the court say that the defendants, under an agreement for the manufacture and sale of the patented article, having actually received profits from sales of the patented machine, which profits the defendants did not show to have been in any way liable to be affected by the invalidity of the patent, its validity was immaterial. But the court proceeded to say that the defendants were estopped from alleging that in- validity. They had made and sold the machines under the com- plainant's title, and for his account ; and they could no more be allowed to deny that title and retain the profits to their own use than an agent who has collected a debt for his principal could insist on keeping the money upon an allegation that the debt was not justly due. The invalidity of the patent did not render the sales of the machine illegal, so as to taint with illegality the obli- gation of the defendants to account. Even when money had been received, either by an agent or a joint owner, by force of a contract which was illegal, the agent or joint owner could not protect him- self from accounting for what was so received by setting up the illegality of the transaction in which it was paid to him.* claim on them as his property until he 548; 8. o. 2 Hurl. & C. 164; Knights v. was called upon for the proceeds of the WiflFen, Law E. 5 Q. B. 660. The point sale. And it neither appears, nor is sug- is further considered in the chapter on gested, that he acted in the sale under Estoppel by Conduct, post. any ignorance or misapprehension of his ^ Dezell v. Odell, 3 Hill, 216 ; post. own rights. If the goods were his, he ' Kinsman v. Parkhurst, 18 How. 289. purposely misled the plaintiff, and is es- * " Thus," said the court, " when a topped to make the defence which he vessel engaged in an illegal trade carried now offers." freight which came into the hands of one 1 Woodley v. Coventry, 9 Jur. n. 8. of the part-owners, and on a bill filed by UPON PERSONS HOLDING EELATIONS OP TRUST. But a licensee of a void patent may of course set up a want of consideration in an action on the notes given for the use of the patent.^ 5. Executors and Administrator b. It is a general principle of law that an executor or administrator of property into possession of which he has been let under the will or letters of administration is, like a tenant, estopped while he continues in possession from disputing the title of his testator or intestate. And this is true even of the widow of such represent- ative of the estate, when claiming under a title of her husband.^ The property must be surrendered and administration abandoned before the estoppel is removed. In a recent case ^ the question was raised, whether an adminis- trator who finds property among the assets of the estate, takes possession of it as the property of the estate, and sells it, having no claim to it himself, and no other person making claim to it, can relieve himself from liability to the estate by setting up a claim adverse to the estate. It was held that he could not. The doctrine upon which the decision was based was, that a trustee, who receives property as assets of the trust, cannot resist his lia- bility on the ground of an adverse title which has never been asserted against him. The court remarked that it might be that a trustee would not be estopped from setting up his own title by the acceptance of a trust in ignorance of his title, or through mistake, when he had done no act which it would be prejudicial to the bene- ficiaries for him to gainsay.* And so, perhaps, a trustee, notified of an adverse claim, would not be required to surrender the assets until that claim was settled. But these principles did not touch the point in the present case. The administrator did not pretend to have any right to the cotton, or that anybody else was claiming it. The case was an open and undisguised attempt by a trustee the other part-owner for an account, the the insurance, but the plaintiff recovered." defendant relied on the illegality of the See also McBlair v. Gibbes, 17 How. 232, trade, but it was held to be no defence. 236 ; McMicken v. Perin, 18 How. 507. Sharp V. Taylor, 2 Phil. Ch. 801. So i Saxton v. Dodge, 57 Barb. 84. in Tenant v. Elliot, 1 Bos. & P. 3, the ' Benjamin u. Gill, 45 Ga. 110 ; Fitts defendant, an insurance broker, having v. Cook, 5 Cush. 596, 601; 1 Jarman, effected an illegal insurance for the plain- Wills, 13. tiff, and received the amount of a loss, ' Irby v. Eitchell, 42 Ala. 438. endeavored to defend against the claim of < Mc Williams v. Eamsay, 23 Ala. 813. his principal by showing the illegality of 390 ESTOPPEL IN PAIS. to avail himself of his trust to make a personal profit out of an implied defect in the title to the property" which had come to his hands. It was to the credit of the law that it did not tolerate such a thing.^ ' In the case of MeWilliams «. Earn- say, above cited, the court held that where an administrator returns chattels in his inventory, as belonging to the estate, and hires them out, taking notes payable to himself, as administrator, he is not estopped thereby to amend his inventory and leave them out, if they do not in fact belong to the estate. But where an ad- ministrator, who was also guardian of the intestate's heirs, charged himself as ad- ministrator with a fund, and failed to credit himself with its payment to him as guardian, and, in an attempted settle- ment of his account as guardian, refrained from charging himself therein with the fund, it was held in an action on his bond, as administrator, for the recovery of the fund, that he was estopped to deny that he held the fund as administrator. Wil- son V. "Wilson, 17 Ohio St. 150. COMMERCIAL PAPEB. 391 CHAPTER XV. COMMERCIAL PAPER. Under this head we propose to consider, first, the warranty of genuineness implied by the acceptance of a bill of exchange, and the indorsement of a bill of exchange or a promissory note ; secondly, the warranty of capacity implied in the acceptance of a bill, or the making of a note ; thirdly, the certification of checks ; SluA, fourthly, the case of a transfer by an indorser after his lia- bility has been fixed. 1. Warranty of Genuineness.'^ The acceptance and the indorsement of commercial paper gives rise to a kind of estoppel which is neither to be classed under the cases presented in the preceding chapter, nor with those to be presented in the chapter on Estoppel by Conduct. The doctrine, stated in general terms, is this, — that tlie acceptance of a bill and the indorsement of a bill or note are a conclusive admission, in favor of a bona fide holder for value, tliat the signature of the drawer in the one case, and of all the prior parties in the other, is genuine. The doctrine is not a branch of that presented in the preceding chapter, for there is wanting the relation of trust which connected the cases there considered. It does not belong to the chapter on Estoppel by Conduct, for there is here no intentional misrepre- sentation — no representation beyond that necessarily involved in the contract itself — by which that chapter will be separated from tiie rest. But the parties here, as in the preceding chapter, are equally innocent, and the subject is therefore allied to that from which we have just passed. The leading case upon the effect of accepting a bill of exchange is Price v. Neal.^ This was an action on the case by Price to 1 See Redfield & Bigelow's L. C. 59- 2 3 Burr. 1354. 63, and 643-B70. 392 ESTOPPEL IN PAIS. recover from Neal the amount paid him on two bills of exchange, of which Price was drawee. One of the bills had been paid by Price without acceptance ; the other was duly accepted and paid at maturity. Both bills had been forged. It was held that the action could not be maintained. Lord Mansfield said that it was incumbent upon the plaintiff to be satisfied that the bill drawn upon him was the drawer'' s hand before he accepted or paid it ; but it was not incumbent upon the defendant to inquire into it.^ Here was notice given by the de- fendant to the plaintiff of a bill drawn upon him, and he sends his servant to pay it and take it up. The other bill he actually ac- cepts, after which acceptance the defendant innocently and hona fide discounts it. The plaintiff lies by for a considerable time after he has paid these bills, and then finds out that they were forged ; and the forger comes to be hanged. He made no objection to them at the time of paying them. Whatever neglect there was, was on his side. The defendant had actual encouragement from the plain- tiff himself for negotiating the second bill, from the plaintiff's having without any scruple or hesitation paid the first ; and he paid the whole value, hona fide. It was a misfortune which had happened without the defendant's fault or neglect. If there was no neglect in the plaintiff, yet there was no reason to throw off the loss from one innocent man upon another innocent man ; but in this case, if there was any fault or negligence in any one, it was in the plaintiff, and not in the defendant.^ That the doctrine of warranty applies to an indorser appears from the case of the State Bank v. Fearing.^ This was an action of assumpsit on a promissory note made by Charles Brown, payable to Thomas Jackson, Jr., and indorsed with the name of the payee and of the defendant. It was agreed that the signatures of Brown, the maker, and of the defendant, the second indorser, were genuine, and that it could be proved, if the evidence were admissible, that the indorsement of the name of Jackson, the payee, was forged ; that the note was presented by Brown to the plaintiffs for discount, 1 But where, by usage or agreement, 2 A fortiori, one wlio admits that an such duty is devolved upon the holder, it acceptance is in his own handwriting, and is held that the case will be different, thereby induces another to take the bill, Ellis V. Ohio Life Ins. Co., 4 Ohio St. 628. is estopped to deny the genuineness of See National Bank v. Bangs, 106 Mass. the acceptance. I^each v. Buchanan, 4 441. The point will be more fully noticed, Esp. 226. post, pp. 407 et seq. 8 ig Pick. 533. COMMERCIAL PAPER. 393 in the usual course of business, and discounted by them for him ; that both parties were ignorant of the forgery at the time ; and that due notice was given of the non-payment of the note. The court held the evidence inadmissible.^ It will be noticed that the case of Price v. Neal, presented ' Chief Justice Shaw, who delivered the opinion of the court, said : "In gen- eral, it is not necessary for the holder to prove the signature of any party prior to the party whom he sues. The reason seems to be obvious that the party de- fendant, by his indorsement, has admitted the ability and the signature of all prior parties. . . . The effect of the engage- ment of the indorser is, that if the prior parties do not pay the note according to its tenor, upon due presentment, upon notice to him, he will. It is, therefore, a rule upon this subject, that the plaintiff is under no obligation to prove the signa- ture of those prior to the party intended to be charged. It is very different where he claims against the acceptor of a bill or maker of a note. They respectively promise to pay to the payee or his order, and until he has made such order by his indorsement the plaintiff can establish no title, and to prove such order he must prove the genuineness of his signature." This doctrine as to the right of an acceptor or indorser to deny the gen- uineness of the signatures of parties is firmly established in the law. Horts- man v. Henshaw, Eedfield & Bigelow's L. C. 57, and note; s. c. 11 How. 177; Coggill V. American Exchange Bank, 1 Comst. 113 ; Canal Bank v. Bank of Albany, 1 Hill, 287 ; Crichlow v. Parry, 2 Camp. 182 ; Story, Promissory Notes, § 380, and cases cited. In the section cited, Mr. Justice Story seems to rest the doc- trine of the indorser's warranty upon grounds of estoppel. " This proceeds," he says, " upon the intelligible ground that every indorser undertakes that he possesses a clear title to the note, de- duced from and through all the ante- cedent indorsers, and that he means to clothe the holder under him with all the rights which by law attach to a regular and genuine indorsement against himself and all the antecedent indorsers. It is in this confidence that the holder takes the note, without further explanation ; and if each party is equally innocent, and one must suffer, it should be he who has misled the confidence of the other, and by his acts held out to the holder that all the indorse- ments are genuine and may be relied on as an indemnity in case of the dishonor thereof." In other places the learned' writer speaks of the indorser's warranty as applying to all prior signatures. Prom- issory Notes, §§ 135, 387. See also Story, Bills of Exchange, §§ 111, 225, 412. The question arose in MacGregor v. Rhodes, 6 El. & B. 266, whether an indorser could deny the indorsement to himself; audit was held he could not. " The declaration alleges," said Campbell, C. J., "that Pinkney drew a bill payable to his order, and indorsed it to the defendants, and that the defendant indorsed it to the plaintiff, and that it was presented and dishonored. The plea admits all these allegations, except the allegation of the indorsement by Pinkney to the defend- ants. Are the defendants, who admit that they indorsed to the plaintiff, at liberty to deny that Pinkney indorsed to them ? The issue would be idle. Whether Pinkney indorsed to the de- fendants in blank or specially, the fact of the indorsement by the defendants would at the trial be conclusive evidence of Pinkney's indorsement to them, and would estop them from showing what purported to be Pinkney's indorsement was a forgery. The request is to pay to the order of the payee. When a man in- dorses such a bill, he undertakes that, if the party requested do not pay, he will ; and he cannot deny that the payee has made the order." 394 ESTOPPEL IN PAIS. above, was an action to recover money paid by the drawee ; and the question has arisen, whether the holder can enforce payment by tlie drawee after acceptance.^ No direct answer was given in the case cited. But indirect authority is not wanting uppn the point ; and it is to be inferred that he can, from the ;-ule as to the misuse of blank acceptances and blank indorsements.^ It is clearly held in these and other ^ cases that one who intrusts his name to another on a blank piece of paper will not be permitted to allege, against an innocent holder, that it has been filled out with a sum larger than that agreed upon with the party to whom the blank signature was given. The acceptor of a bill of exchange is not estopped to deny the genuineness of an indorsement, even of the payee's name, on the paper at the time of acceptance, if the indorsement was- made after the paper had passed out of the drawer's hands ; and money paid by the acceptor even to an innocent holder, under a forged indorsement, may be recovered if seasonable notice of the forgery be given.* Such a case was presented in Canal Bank v. Bank of Albany, just cited. The plaintiffs had paid to the defendants a draft drawn on them, payable to one Bentley, whose indorsement had been forged, and the defendants were innocent holders for value. The court held the plaintiffs entitled to recover the money .^ 1 Levy V. Bank of United States, 1 177 ; ». c. Redfield & Bigelow's L. C. 57 ; Binn. 27. Beeman u. Duck, 11 Mees. & W. 251. 2 Mather u. Maidstone, 18 Com. B. See also ante, p. 393, note. 273; Russell i^. LangstafFe, 2 Doug. 514; " " On the merits," said Cowen, J.,for CoUis y. Emett, 1 H. Black. 313; Sehultz the court, "there was nothing in the V. Astley, 2 Bing. N. C. 544 ; Mountague nature of the tr.ansactiou to conclude the V. Perkins, 17 Jur. 557 ; s. c. 22 Eng. L. plaintiffs against showing the forgery. & E. 516 ; Cruchly v. Clarence, 2 Maule They had done no act giving currency to & S. 90 ; Violett v. Patten, 6 Cranch, 151 ; the bill on the strength of Bentley's Mitchell V. Culver, 7 Cowen, 336 ; Me- name. Even had they accepted it on the chanios & F. Bank v. Schuyler, lb., notes ; day when it was drawn, the defendants Van Duzen v. Howe, 21 N. Y. 531 ; Ward could have holden them concluded only u. Allen, 2 Met. 53 ; Putnam w. Sullivan, in respect to the genuineness of ther 4 Mass. 45. drawer's name, he being their immediate ' See Griggs v. Howe, 31 Barb. 100 ; correspondent. Chitty, Bills, 336, 7th Young V. Ward, 21 111. 223. See Belknap Am. ed. And the act of payment could V. National Bank of North America, 100 amount to no more. Ibid. Neither ac- Mass. 876. ceptance nor payment, at any time nor * Canal Bank v. Bank of Albany, 1 under any "circumstances, (a) is anadmis- Hill, 287 ; s. c. Redfield & Bigelow's L. sion that the first or any other indorser's C. 643; Hortsman v. Henshaw, 11 How. name is genuine. Chitty, Bills, 628, 7th (a) This must be taken with some caution. See Hortsman v. Henshaw, infra. COMMERCIAL PAPER. 895 A different rule, however, prevails if the drawer of a bill put it into circulation with the name of the payee indorsed.^ Horts- man v. Henshaw was such a case. Fiske and Bradford, a firm in Boston, drew their bill of exchange on Hortsman of London, payable to Fiske and Bridge. The drawers, or one of them, placed the bill in the hands of a broker, with the names of the payees indorsed upon it, for negotiation ; and it was sold to the defendants, hona fide, and for full value. They transmitted it to London, where it was presented, accepted, and paid at maturity. It turned out that the indorsement of the payee's name was forged ; whereupon the present action was brought to recover the money paid. And the court held that the plaintiff was not entitled to recover .^ Am. ed. In point of title, then, the case of the defendants was the same as if the name of Bentley had not appeared on the bill. They have obtained money of the plaintiffs without right, and on the ex- hibition of a forged title as a genuine one. The plaintiffs paid their money on the mistaken belief, thus induced, that the name was genuine." 1 Hortsman v. Henshaw, 11 How. 177 ; Ford 1). Meacham, 3 Hill (S. C), 227; Burgess v. Northern Bank of Ky., 4 Bush. 600 ; Coggill V. American Exchange Bank, 1 Comst. 113. See Redfield & Bigelow's L. C. 57-63. '■i Taney, C. J., who delirered the opinion, said: "The general rule un- doubtedly is, that the drawee, by accept- ing the bill, admits the handwriting of the drawer, but not of the indorsers. And the holder is bound to know that the previous indorsements, including that of the payee, are in the handwriting of the parties whose names appear upon the bill, or were duly authorized by them. And if it should appear that one of them is forged, he cannot recover against the acceptor, although the forged name was on the bill at the time of the acceptance. And if he has received the money from the acceptor, and the forgery is after- wards discovered, he will be compelled to repay it. " The reason of the rule is obvious. A forged indorsement cannot transfer any interest in the bill ; and the holder, therefore, has no right to demand the money. If the bill is dishonored by the drawee, the drawer is not responsible. And if the drawee pays it to a person not authorized to receive the money, he can- not claim credit for it in his account with the drawer. " But in this case the bill was put in circulation by the drawers with the names of the payees indorsed upon it. And by doing so, they must be understood as afBrming that the indorsement is in the handwriting of the payees, or written by their authority. And if the drawee had dishonored the bill, the indorser would undoubtedly have been entitled to recover from the drawer. The drawers must be equally liable to the acceptor who paid the bill. For having admitted the hand- writing of the payees, and precluded themselves from disputing it, the bill was paid by the acceptor to the persons au- thorized to receive the money, according to the drawer's own order. "Now the acceptor of a bill is pre- sumed to accept upon funds of the drawer in his hands, and he is precluded by his acceptance from averring the contrary in a suit brought against him by the holder. The rights of the parties are, therefore, to de determined as if this bill was paid by Hortsman out of the money of Fiske 896 ESTOPPEL IN PAIS. A similar question arose in 1847 in Coggill v. American Ex- change Bank.i In that case, one of the drawers of the bill forged the payee's name, and then procured it to be discounted ; and at maturity the plaintiff, the drawee, paid it. On discovering the forgery, he sued the defendant, a bona fide'\\o\AQV, to whom he had paid the bill, to recover the sum paid. The court held that the action could not be maintained, but based their decision on the fact stated in the report, that the payee had no interest in the bill, comparing it to a bill, drawn to a fictitious person, such a bill being in effect payable to bearer.^ The point made in Hortsman V. Henshaw was not noticed, — that, in such case, the drawer is estopped to deny the genuineness of the indorsement.; that he is thus liable to the lona fide holder ; and that, therefore, the drawee is entitled, on payment, to a credit against the drawer. Whence it would follow that it is immaterial that the payee had no interest in the bill, when the drawer himself puts it into circulation bear- ing the payee's indorsement. But according to Coggill v. American Exchange Bank, explaining on this point Canal Bank v. Bank of Albany,^ if the payee owned the forged bill, the acceptor would be entitled to recover the sum paid to the holder. The two cases cannot be reconciled, unless the language of the court in Horts- man V. Henshaw is used with reference to the case of a payee having no interest in the bill. But that cannot be true ; for how, then, could it be said that in such case the drawee has paid to one not entitled to receive the money ? The case clearly covers the whole ground of a payee who owned the bill and of one who had no interest in it. and Bradford in his hands. And as Fiske defend himself against a bona fide in- and Bradford were liable to the defendants -dorsee. The insolvency of the drawer (a) in error, they are entitled to retain the can make no difference in the rights and money they hare thus received. legal liabilities of the parties." " We take the rule to be this : When- i 1 Comst. 113. ever the drawer is liable to the holder, ^ Cooper v. Meyer, 10 Barn. & C. 468 ; the acceptor is entitled to a credit if he ». o. 5 Man. & R. 387; Vere v. Lewis, pays the money ; and he is bound to pay 3 T. E. 182 ; Minet v. Gibson, Ibid. 481 ; upon his acceptance, when the payment =. c. 1 H. Black. 569 ; CoUis v. Emmett, will entitle him to a credit in his account 1 H. Black. 313 ; Phillips v. Thurn, Law with the drawer. And if he Accepts E. 1 C. P. 463 ; Plets v. Johnson, 8 Hill, without funds, upon the credit of the 112. drawer, he must look to him for in- ' Ante, p. 394. demnity, and cannot, upon that ground, (a) Which was the case here. COMMERCIAL PAPER. 397 The cases further show that the drawee may deny the genuine- ness of the indorsement, if the forgery occurred after the bill passed out of the drawer's hands ;i and this is the line of dis- tinction drawn in Hortsman v.. Henshaw. This may have escaped the notice of tlie learned judge ^ who delivered the opinion of the court in Coggill v. American Exchange Bank. The case of Beeman v. Duck^ presents another phase of the doctrme of estoppel upon the acceptor of a bill. This was an action of assumpsit upon a bill of exchange purporting to be drawn on the defendant by Bradshaw and Williams, an existing firm, payable to tlieir order; the paper being accepted by the defendant, and indorsed by Bradshaw and Williams to the plaintiff. The drawing and indorsement (in the same handwriting) were forgeries. There was a plea traversing the drawing of the bill ; but this fact was not brought to the notice of the court below, until the jury had given their verdict upon what had been regarded the principal point in dispute. The question now arose upon the validity of the plea referred to, in an application by the plaintiff for a new trial. The court held that if the bill was accepted and negotiated by the acceptor with knowledge of the forgery, he was estopped to deny the genuineness of the indorsement as well as that of the drawing. But they inclined to the opinion that if he were ignorant of tlie forgery he would not be precluded from deny- ing the genuineness of the indorsement, though it was in the same hand as that of the drawer's signature.* 1 Burchfield o. Moore, 3 EI. & B. 683 ; absolute for a new trial, as the question Talbot V. Bank of Kochester, 1 Hill, 295 ; as to .the identity of the signature has not Young V. Grote, 4 Bing. 263. been submitted to the jury. " Mr. Justice Bronson. " But on the part of the defendant it is ' 11 Mees. & W. 251. insisted that the case of Cooper v. Meyer * " On the argument before us," said is distinguishable from the present, for Mr. Baron Parke, " it was contended by there the drawers were flctitidus ; here the plaintiff's counsel that the drawing they really existed, though their signature being a forgery, the defendant, by his was forged ; and that in such case the acceptance, had undertaken to pay to any acceptor, though he admits that the bill one who held the bill by an indorsement was drawn by the parties by whom it in the same handwriting, according to the purports to be drawn, does not admit the principle laid down in Cooper v. Meyer, indorsement by the same parties, — a 10 Barn. & C. 468 ; s. o. 5 Man. & E. 887 ; doctrine which is clearly established as to and it was said there was evidence in the bills wherein the signature is not forged, case that the signatures in drawing and Robinson v. Yarrow, 7 Taunt. 455. In indorsing were those of the same person, analogy to that case, the defendant, it is If this were so, the rule ought to be made said, admits, by his acceptance, that the 398 ESTOPPEL IN PAIS. We have already intimated that the warranty, and therefore the estoppel, of the drawee, by acceptance or payment, extends only to the signature.^ We must now present the important doctrine more fully. The point arose in Bank of Commerce v. Union Bank.2 This was assumpsit to recover $1,005 paid by the plain- tiffs upon a bill of exchange drawn upon them, payable to the order of J. Bonnet, and by him indorsed ; after which it passed into the hands of the defendants' principal, bona fide, and for value. It appeared that the draft was originally drawn payable to the order of J. Durand, for one hundred and five dollars, and that afterwards the name " Durand " was altered to " Bonnet," and the word " hundred " to " thousand." And in this altered condition it had be6n paid by the plaintiffs to the defendants. It was argued for the defendants that there was no rule that the banker must know the handwriting of his customer as to the sig- nature, but that the rule was, that the banker should take care not to pay away his customer's money without sufficient authority for the purpose, and that it was the banker's duty to see that the bill was genuine in all respects. The attempt to establish the principle that a different degree of scrutiny was required in examining the body of the draft by the person on whom it was drawn, from that required in- examining the signature of the drawer, was fallacious, and ought to be discountenanced. But the court held the plain- tiffs entitled to recover, on the ground that it could not be pre- bill was drawn in the name of Bradshaw 1 H. Black. 481, and Bennett v. Farnell, and Williams by themselres, or some 1 Camp. 130, 180 c, which cases had not agent authorized to draw in their name ; been cited, or this question raised, in but it does not admit that it was indorsed Cooper v. Meyer, by themselves, or some agent authorized i Ante, p. 391. to indorse, which is a different species of 23 Comst. 230. We take pleasure in authority. And we cannot help thinking correcting a criticism on this case in our there is great weight in that argument, if note to Hortsman v. Henshaw, Redfleld & the defendant accepted the biU in igno- Bigelow's L. 0. 62. See also Ibid. 662. ranee of the forgery ; but if he knew it, A further examination of Bank of Com- and intended that the bill should be put merce v. Union Bank has revealed the into circulation by a forged indorsement, fact, not referred to by the court, that in the name of the same firm, by the same the amount of the draft in controversy party, who drew it, the case seems to fall had been wntten out, instead of given in within the principle of that of Cooper v. figures, as the head-note of the case indi- Meyer." cates. There would, therefore, seem to The learned baron added that there have been no negligence in the drawer, as was some doubt whether the bill should was the fact in Young v. Grote, 4 Bing. not have been declared upon as payable 253 ; and the decision is consequently to bearer, according to Gibson v. Minet, correct. COMMERCIAL PAPER. 399 sumed that the acceptor was familiar with the handwriting of the body of the bill.i There is another plain ground upon which this ruling may be based. The liability assumed by the drawer was to the extent of ^105 only ; and at the utmost, had there been no forgery of the payer's signature, the acceptor would not have been entitled to a credit of more than that amount in his account with the drawer by the payment of the bill. And this being so, he could have recovered, even in the case mentioned, the rest of the money paid.2 This is on the hypothesis that the draft had been paid to the party to whom the drawer directed ; but it was not so paid. It was paid to one not authorized to receive the money, and whose only claim was through a forgery. The acceptor, therefore, would be entitled to no credit against the drawer by payment, and hence would not have been bound to pay the bill at maturity. He was, then, clearly entitled to recover the sum as money paid under mistake.^ The case presented is amply supported also by the authorities.* If, however, the drawer of the bill has contributed, by his negli- 1 " There is no ground," said Buggies, J., speaking for the court, " for presuming the body of the bill to be in the drawer's handwriting, or in any handwriting known to the acceptor. In the present case, that part of the bill is in the handwriting of one of the clerks in the office of the Canal and Banking Company in New Orleans. The signature was In the name and hand- writing of the cashier. The signature is genuine. The forgery was committed by altering the date, number, amount, and payee's name. No case goes the length of saying that the acceptor is presumed to know the handwriting of the body of the bill, or that he is better able than the indorsers to detect an alteration in it. The presumption that the drawee is ac- quainted with the drawer's signature, or able to ascertain whether it is genuine, is reasonable. In most cases it is in con- formity with the fact. But to require the drawee to know the handwriting of the residue of the bill is unreasonable. It would, in most cases, be requiring an im- possibility. Such a rule would be not only arbitrary and rigorous, but unjust. The drawee would be answerable for neg- ligence in paying an altered bill, if the alteration were manifest on its face." An acceptor is not estopped to show that the bill is a foreign one, contrary to its date. Steadman w. Duhamel, 1 Com. B. 888. 2 Hortsman v. Henshaw, ante, p. 395. ' Ibid. See Belknap v. National Bank of North America, 100 Mass. 376. * National Park Bank v. Ninth National Bank, 46 N. Y. 77 ; Worrall v. Gheen, 39 Penn. St. 388 ; Bruce v. Bruce, 5 Taunt. 495; Jones v. Ryde, Ibid. 488; Hall v. Fuller, 5 Barn. & C. 750. See also Young u. Grote, 4 Bing. 253 ; Pagan v. Wylie, Boss, L. C. Bills & Notes, 194 ; Graham u. Gillespie, Ibid. 195 ; Wilkinson v. John- son, 3 Barn. & C. 428. But it is no defence to the acceptor of a bill that the date of it was altered by the drawer Je/bi-e accept- ance, though done while the paper was in full force and effect. Langton v. Lazarus, 5 Mees. & W. 629. See Ward v. Allen, 2 Met. 53. 400 ESTOPPEL IN PAIS. gence, to the mistake of the drawee, the drawee, upon payment, will be entitled to credit the sum paid against the drawer ; ^ and he could not, therefore, recover from the holder of the paper the sum paid him. Acceptance also conclusively admits the -procuration to draw in the case of a bill drawn by procuration ; but it does not admit a procuration to indorse, though the indorsement be by the same agent.^ In Robinson v. Yarrow, cited in the note, Staeben & Co. authorized one Henry to draw on the defendant, which he did, per proc, making the bill payable to the order of the drawers, by whom it was indorsed to the plaintiff, per proc. The defendant accepted the bill, and now resisted the payment. The question was, whether the plaintiff was bound to prove the procuration to indorse ; and it was held he was. " The mere acceptance," said Park, J., " proves the drawing, but it never proves the indorse- ment. It is not at all necessary that a power given to draw bills by procuration should enable the agent to indorse by procuration ; the first is a power to get funds into the agent's hands, the other to pay them out." The effect of an acceptance for honor seems to be somewhat different. In Wilkinson v. Johnson,^ the plaintiffs had accepted certain bills for the honor of certain indorsers (H. & Co.), and paid over the money to the defendants, who had been the holders of the bills. The fact was discovered on the same day that the bills were forgeries, the names of the indorsers, H. . Smith, 7 Pick. 291 ; the plaintiff has a right to maintain Hardy v. Waters, 38 Maine, 450. the action." Kitchen v. Bartsch, 7 East, * Burke v. Allen, 29 N. H. 106. Peas- 53, was distinguished on the ground that lee v. Robbins, 3 Met. 164. there the drawer, who was the bankrupt, ' Byles, Bills, 193 ; Smith v. Marsack, himself brought the action. Wightman, 6 Com. Bi 486, 501, ante, p. 409, explain- J., said that the answer which availed ing Connor v. Martin, 1 Strange, 516. against him as a plaintiff could not serve ^ Byles, Bills, 193; 1 Parsons, Notes an acceptor who, of his own authority, and Bills, 321. had made the bill of the bankrupt negoti- ' Supra. 412 ESTOPPEL IN PAIS. the note by showing that the indorsement was void.^ The prin- cipal ground taken in Burke v. Allen was that there was an essen- tial difference between the contracts of infants and those of insane persons. In the case of infants, the law presumed merely lack of discretion, prudence, and experience ; while in the case of lunatics there was an actual lack of capacity to compare, reflect, and de- cide ; a want of power to understand the consequences of an act, and often even to know what was done. Indorsement implies a warranty of the capacity of all prior parties ; and this is not affected by the fact that the indorsee may know that one of the prior parties is in fact incompetent.^ The case cited was an action by the indorsee of a note against an indorser. The note had been executed by two married women, of which fact the plaintiff had been aware when he took the paper. The incapacity of the makers to contract was now alleged in de- fence by the indorser ; but judgment was given for the plaintiff. So, too, the guarantor of a bond will be estopped to deny the competency of the makers of it.^ 3. Certifioation of Chechs. The certification of checks, and the like cases, bear a close analogy to those above considered. The question of estoppel arises where the teller or cashier of a bank certifies verbally or in writing* that a check or draft drawn upon the bank, or a note payable at the bank, is " good," and the party presenting the paper, relying upon the certification, has been led to change his position or course of action. In the case of Irving Bank v. Wetherald," the mistake in the state of funds of the party whose note was certified as good was discovered on the very day whea the certificate was given, and immediate notice was given to the presenting bank, and proper steps taken to charge the defendants, who were indorsers. The action was by the certifying bank, which had become the holder, against the indorsers ; and it was held that the defendants were liable.^ 1 But quxere if this would hold true ' Remsen v. Graves, 41 N. Y. 471. where the plaintiff had taken the paper * Irving Bank v. Wetherald, 36 N. Y. properly from an intermediate indorsee of 335. the payee ? * Supra. 2 Erwin v. Down, 15 N. Y. 575. * In delivering judgment in this case, COMMERCIAL PAPER. 413 In Massachusetts, it is held that the certification of checks is not within the inherent power of the office of teller, so as to bind the bank to pay the amount of it to any person who may become a bona fide holder.i But in New York it is held that a bona fide holder for value of a negotiable check certified to be good by the paying teller of the bank on which it is drawn, whose authority to certify is limited to cases where the bank has funds of the drawer to meet the check, can recover of the bank the amount of the check, though the drawer had no funds in the bank, and the certification by the teller was in violation of his duty.^ And this decision has been followed in the Supreme Court of the United States in a very recent case,^ which was argued by some of the most eminent counsel in the country.* Hunt, J., said : " Both the judge at the circuit and the general term were of the opinion that the notice by the plaintiffs to the Seventh Ward Bank [which had presented tlie paper] of the mistake in certifying Wilson's check to be good, before any steps had been taken or any measures omitted by the Serenth Ward Bank, and while there was still time to fix all the parties upon the note, relieved the plaintiffs from their liability on the certificate. In this opinion I concur. Such a certificate possesses no extraor- dinary or hidden power. It would impose no greater liability than its terms fairly require. . . . The correctness of this cer- 'tificate is a matter which the certifying .bank has the means of knowing, and is bound to state correctly. If the present- ing bank relies upon its accuracy, and fails to charge the indorsers, as upon non- payment on presentation, the certifying bank is estopped from denying the truth of its statement. Having asserted, of its own knowledge, that the maker has funds in its bank to meet the note, and the pre- senting bank having omitted to charge its indorsers in reliance u-pSa such statement, the certifying bank will not be permitted to go behind its own statements. The teller of the bank is the proper officer to make this statement, and his statement binds the bank, whether accurate or erro- neous. Meads v. Merchants' Bank of Al- bany, 25 N. Y. 143 ; Farmers' & M. Bank «. Butchers' & D. Bank, 16 N* Y. 125. " In the present case, the Irving Bank discovered its error in stating that it had funds for the payment of Wilson's note in sufficient time to prevent any loss in con- sequence of the error. It immediately notified the Seventh Ward Bank of the error, and in time to enable it to make a presentment, if necessary, and to charge the indorsers. No damage, therefore, could accrue to the latter bank from the erroneous information. They were bound to accept and to act upon the corrected information, if there were time and op- portunity so to do. I agree with the courts below that the plaintiffs might have stopped at that point, and there would have been no liability on their part to the Seventh Ward Bank." 1 Mussey v. Eagle Bank, 9 Met. 306 ; s. c. Redfield & Bigelow's L. C. 721. 2 Farmers' & M. Bank v. Butchers' & D. Bank, 16 N. Y. 125; s. o. Redfield & Bigelow's L. C. 727 ; Continental Nat. Bank v. Nat. Bank of the Commonwealth, 50 N. Y. 575. ' Merchants' National Bank v. State National Bank, 10 Wall. 604. * In the New York case above referred to, Mr. Justice Selden, who deUvered the opinion, having remarked that in the case of funds a certification by the teller would be proper, said : " But it is insisted that 414 ESTOPPEL IN PAIS. In the case referred to, decided by the Supreme Court of the United States,^ the checks had been certified as good by the cashier his power extended only to cases where the bank had funds in hand, he having been expressly prohibited from certifying in the absence of funds, and hence that the bank is not bound. It may be doubted whether such a prohibition adds any thing to the restricljons which would otherwise exist upon the powers of the agent. A teller acting under a general power to certify cheeks would be guilty of an ex- cess of authority, and a clear violation of duty, if he certified without funds. " The powers of the cashier himself, or other principal financial officer of the bank, would no doubt be subject to the same limitaJ;ion. To certify a check when the bank has no funds to meet it, is to make a false representation ; and neither the incidental power of the cashier, nor a general power conferred upon any other officer, could be construed to authorize that. Hence, if a bank is holden, in any case, upon a certificate of its cashier that a check is good, when it has no funds of the drawer, it is not because the cashier is deemed authorized to make such a cer- tificate, but because the bank is bound by his representation, notwithstanding it is false and unauthorized. " It would seem, therefore, that the defence insisted upon here would have been equally available if the cliecks in question had been certified by the cashier himself. It might then have been urged with truth that the cashier had violated his duty, and exceeded the proper limit of his powers, in making the certificate ; and if the argument be sound, that the principal is in no case bound unless the act of the agent is within the powers either actually or apparently conferred upon him, the bank would not be holden in such a case. . . ■ " It will be seen that, if these views are correct, the present case does not turn in any degree upon the rules applicable to special agencies, but that the question would have been precisely the same if the check had been certified by the cashier or other principal financial officer of the bank. As they may, however, admit of doubt, I shall treat the case as one of an agency specially restricted, and shall simply inquire whether a bonajide holder, for value, of a negotiable check, certified by a, special agent, whose authority is limited to cases where the bank has funds of the drawer in hand, can enforce pay- ment of the check, provided the bank has no such funds. . . . The defence assumes that principals are bound only by the au- thorized acts of their agents, and admits of no qualification of this general rule, except where the agent has been appar- ently clothed with an authority beyond that actually conferred. But this prop- osition is too broad to be sustained. Principals have been repeatedly held re- sponsible for the false representations of their agents, not on the ground that the agents had any authority, either real or apparent, to make such representations, but for reasons entirely di6ferent. In Hern v. Nichols, 1 Salk. 289, the leading case on the subject, where an agent, au- thorized to sell a quantity of silk, had made certain fraudulent representations by which the purchaser was deceived, the principal was held liable. Lord Holt there said : ' Seeing somebody must be loser by this deceit, it is more reasonable that he that employs and puts a confi- dence in the deceiyer should be a loser, than a stranger.' The principle of this case has never, I think, been overruled, but, on the contrary, has been repeatedly approved and confirmed. It will be found directly applicable to the present case. The certificate of the teller is a positive representation that the bank has funds to meet the check. If that representation is false, who ought to bear the loss ■! The 1 Merchants' National Bank v. State National Bank, 10 Wall. 604. COMMERCIAL PAPER. 415 of the bank. Mr. Justice Swayne, in delivering the judgment, observed that estoppel in pais presupposes an error or a fault, reasoning of Lord Holt, in the case of Hern v. Nichols, applies here with pe- cuhar force. The bank selects its teller, and places him in a, position of great re- sponsibility. The trust and confidence thus reposed in him by the bank leads others to confide in his integrity. Persons having no voice in his selection are obliged to deal with the bank through him. If, therefore, while acting in the business of the bank, and within the scope of liis em- ployment, so far as is known and can be seen by the party dealing with him, he is guilty of misrepresentation, ought not the bank to be held responsible t It is worthy of consideration that the fact misrepre- sented in this case is not only one pe- culiarly within the knowledge of the agent, but one with which he is made ac- quainted by means of the position in which he is placed by the bank, and which it is his especial province and duty to know, and which could scarcely be de- finitively ascertained except by application to him. These circumstances would seem to bring the case decidedly within the principles adopted in Hern v. Nichols, and in tlie subsequent decisions based upon that case. "This conclusion is in no respect in conflict with that doctrine of the law of agency which makes it the duty of all persons dealing with a special agent to ascertain the extent of his powers. It is conceded that every one taking the checks in question would be presumed to know that the teller had no authority to certify without funds. But this knowledge alone would not apprise him that the certificate was defective and unauthorized, To dis- cover that, he must not only have notice of the limitations upon the powers of the teller, but of the extrinsic fact that the bank had no funds; and as to this ex- trinsic fact, which he cannot justly be presumed to know, he may act upon the representation of the agent. There is a plain distinction between the terms of a power and facts entirely extraneous, upon which the right to exercise the au- thority conferred may depend. One who deals with an agent has no right to con- fide in the representation of the agent as to the extent of his powers. If, there- fore, a person, knowing that tlie bank has no funds of the drawer, should take a, certified check, upon the representation of the cashier or other oflicer by whom the certificate was made that he was au- thorized to certify without funds, the bank would not be hable. But in regard to the extrinsic fact, whether the bank has funds or not, the case is different. That is a fact which a stranger, who takes a check certified by the teller, cannot be supposed to hare any means of knowing. Were he held bound to ascertain it, the teller would be the most direct and re- liable source of knowledge, and he already has his written representation upon the face of the check. If, therefore, one who deals with an agent can be permitted to rely upon the representation of the agent as to the existence of a fact, and to hold the principal responsible in case the rep- resentation is false, this would seem to be such a case. " It is, I think, a sound rule, that where the party deaUng with an agent has ascer- tained that the act of the agent corre- sponds in every particular, in regard to which such party has or is presumed to have any knowledge, with the terms of the power, he may take the representa- tion of the agent as to any extrinsic fact which rests peculiarly within the knowl- edge of the agent, and which cannot be ascertained by a comparison of the power with the act done under it. The familiar case of the giving of a negotiable partner- ship note, by one of the partners, for his own individual benefit, affords an apt illustration of this rule. Each of the partners is the agent of the partnership as to all matters within the scope of the partnership business, and can bind the 416 ESTOPPEL IN PAIS. implying an act in itself invalid. The rule proceeded upon the consideration that the author of the misfortune should not himself firm by making, indorsing, and accepting bills and notes in such business ; but he has no more authority than a mere stran- ger to execute such paper in his own business, or for the accommodation of others. If he gives the partnership note or acceptance for his own debt, it is void in the hands of any party having knowl- edge of the consideration for which it is given ; but when negotiated to a bona fide holder, the firm is precluded from ques- tioning the authority of the partner, and is efiFectually bound. The cases in this State, by which this doctrine is illus- trated and established, are numerous and uniform. Livington v. Hastie, 2 Caines, 246; Lansing u. Galne, 2 Johns. 300; Laverty v. Burr, 1 Wend. 529 ; Williams K. Walbridge, 3 Wend. 415 ; Boyd v. Plumb, 7 Wend. 309 ; Gansvoort v. Wil- liams, 14 Wend. 133 ; Joyce v. Williams, lb. 141; Wilson u. Williams, lb. 146; Catskill Bank v. Stall, 15 Wend. 864; B. c. 18 Wend. 466. " It will be found difficult to distin- guish these eases in principle from that now before the court. Every person tak- ing the negotiable note or acceptance of a partnership, executed by one of the part- ners in the name of th'e firm, is bound to know the extent of the partner's authori- ty to bind the firm ; but this obligation does not extend to the consideration for which the note or acceptance was given. If given for the private debt of one of the partners, or for the accommodation of third persons, all the cases agree that the burden of proving the holder's knowledge of that fact rests upon the partnership. That the execution is by an agent is as apparent upon the face of the paper in such cases as in that of a certified check ; because a partnership can only act in its partnership name through agents. . . . " The question is not, in such cases, whether the principal is bound by the un- authorized act of the agent, but whether he is estopped by the representation of the agent from disputing facts which show that the act was authorized. 'There is no analogy between these partnership cases, or the case before the court, and cases where the paper is -forged. The fact of the agency, and the trust and con- fidence reposed by the principal in the agent, create a broad line of distinction between them; and It is this trust and confidence which constitute the founda- tion of the liability, and which justify the party dealing with the agent in rely- ing upon his representation in respect to facts especially within the agent's knowl- edge. The giving a note in the partner- ship name, by one of the partners, is a virtual representation that it is given in the partnership business, and, if negoti- able, the representation is deemed in law to have been made to every subsequent hona fide holder of the note. The State of Illinois V. Delafield, 8 Paige, 527 ; s. o. in error, 2 Hill, 159, is another illustra- tion of the same principle. An agent of that State was authorized to dispose of certain bonds, but was not to sell them below par or on credit. He sold them to Delafield on time and at a sacrifice. The State filed a bill against Delafield for re- lief, and applied to the Court of Chancery for an injunction to restrain the defendant from negotiating the bonds, on the ground that, if negotiated, the State would be liable to pay them. The defendant's coun- sel insisted that if the bonds were void in the hands of Delafield.they would be equal- ly so in the hands' of any person to whom he might transfer them. The chancellor, nevertheless, granted the injunction, say- ing that, if the securities should pass into the hands of a bona fide holder, the State would be equitably and legally bound to pay them. On appeal to the Court for the Correction of Errors, the decision of the chancellor was affirmed by a nearly unanimous vote. It would be difficult, I think, to discover any valid distinction in principle between this case and the one COMMERCIAL PAPER. 417 escape the consequences, and cast the burden upon another.^ The cashier had gone to the paying bank ; and, upon the faith of his acts and declarations, the bank had parted with its money. The misfortune occurred through the cashier of the certifying bank, and- the loss should fall upon that bank. In a subsequent portion of his opinion, the learned judge said that by the law merchant of this country the certificate of the bank that the paper is good was equivalent to acceptance. It implied that the check was drawn upon sufficient funds in the hands of the drawee, that they had been set apart for its satisfaction, and that they should be so applied whenever the paper was presented for payment. It was an undertaking that the check was good then, and should continue good ; and this agreement was as binding on the bank as its notes of circulation, or a certificate of deposit pay- able to the order of the depositor. The object of the certification was to enable the holder to raise money ; the transferee took it with the same readiness and sense of security that he would have taken the notes of the bank ; and it was available to him for all the purposes of money. The certifying bank intended these con- sequences, and it was liable accordingly.^ Any language, it has been said, whether verbal or written, employed by an officer of a banking institution, whose duty it is to know the financial standing and credit of its customers, repre- sentiug that a check drawn upon it is good, and will be paid, estops the bank thereafter, as against a bona fide holder of the check, from denying the want of funds to pay the same.^ 4. Transfer hy Indorser after Liability fixed. A case of estoppel arises also where an indorser, whose liability has been fixed by notice of non-payment, again becomes possessed we are considering. The purchaser of in support of the ruling : Bickford w. First the bonds from Delafield ,would, equally National Bank, 42 111. 238 ; Willets v. with Delafield himself, be presumed to Phoenix Bank, 2 Duer, 121 ; Barnet v. know the limits of the authority con- Smith, 30 N. H. 256 ; Farmers' & M. ferred upon the agent; but it must have Bank v. Butchers' & D. Bank, 14 N. Y. been held that he would not be bound to 624; s. c. 16 N. Y. 125; Meads v. Mer- inquire as to the extrinsic facts attending chants' Bank, 25 N. Y. 143 ; Brown v. the sale or negotiation of the bonds." Leckie, 43 111. 497 ; Girard Bank w. Bank See post, p. 419 et seq. of Penn., 39 Penn. St. 92. See also 1 Swan a. North British, &c. Co., 7 Clarke National Bank v. Bank of Albion, Hurl. & N. 603; Hern v. Nichols, 1 Salk. 52 Barb. 592. 289. ' Pope V. Bank of Albion, 59 Barb. 2 The following authorities were cited 226, 238. Per Barnard, J. 27 418 ESTOPPEL IN PAIS. of and negotiates the paper, upon a representation of due notice of dishonor. The late case of St. John v. Eoberts ^ will illustrate the point. This was an action against the defendants as indorsers of a promissory note, payable to the defendants. Before the note matured it was indorsed by the defendants and deposited in bank ; and on maturity payment was demanded of the maker, and, being refused, the paper was protested, and due notice given to the defendants. They then placed the note, with the protest annexed, in the hands of an auctioneer for sale. He sold it to the plaintiff, who paid the price and received the note. Judgment was given in the court below for the defendants, on the ground that there had been no new demand of payment of the note of the maker, and notice thereof to the indorsers, after the transfer and delivery , of the note to the plaintiff. But this judgment was reversed in the Court of Appeals.^ 1 31 N. Y. 441. " " The Superior Court," said Daries, J., in delivering the opinion, "treated the case as if there had been a new contract by the defendants of indorsement, at the time of the transfer and delivery of the note to the plaintiff. It is well settled that when a note, once due, is indorsed and transferred, the indorser cannot be made liable upon his contract of indorse- ment, unless there has been, subsequent to such indorsement and transfer, a de- mand of payment of the maker, and notice to the indorser. Leavitt v. Putnam, 3 Comst. 494. In this case there was no new contract of indorsement on the trans- fer and delivery of this note to the present plaintiff. The indorsers themselves put this note upon the market, after they had been legally and duly charged thereon, and made liable as indorsers thereon, with the evidence of such liability attached. Such act of theirs was a representation of their liability on the note, and they are now estopped, in good faith and sound morals, from denying such liability. The plaintiff purchased the note as thus pre- sented, and they have received the amount of the purchase-money, and should not be permitted to deny their liability." After referring to Williams v. Mathews, 2 Cowen, 252, as a case so nearly analo- gous as to be decisive on authority, the learned judge proceeded to say : " In the present case, the plaintiff dealt with Nioolay, the auctioneer, the presumptive holder of the note, and the plaintiff had no actual notice, or any notice to put him on inquiry, as to who was the holder or seller of the note. He had a right to assume that all the parties to the note were bound for its payment, and In this faith he made the purchase of it. . . . We place our judgment in this case upon the ground that the defendants are estopped by their acts from controverting their liability upon the note, as indorsers thereof." An indorser may also be held liable by his conduct, though he has in fact been discharged for want of notice. Libbey v. Pierce, 47 N. H. 309. CORPORATIONS. — AGENCY. — PARTNERSHIP. 419 CHAPTER XVI. CORPORATIONS. — AGENCY. — PARTNERSHIP. We do not propose to enter upon an elaborate examination of the doctrine of ultra vires, or of the powers of agents or partners, but rather to refer to some of the leading and most important cases upon the relation of these subjects to estoppel, and from them to deduce a few general rules, leaving the rest for other and more appropriate works. What we shall have to say here will, moreover, concern only the question of existence and powers ; for where there is no dispute concerning the existence of the corporation, or the agency, or the partnership, or the power of either to perform the act out of which the conclusion is alleged, but the sole inquiry is whether the act or representation has generated an estoppel, the decision of the case must depend upon the ordinary principles of estoppel. In the recent case of Webb v. Heme Bay Commissioners,^ it appeared that the defendants had been incorporated as commis- sioners for the purpose of improving the town of Heme, and that they had been empowered to levy rates and to borrow money. For securing the payment of the loans they were authorized to issue debentures, in a prescribed form, bearing interest, and capable of assignment. The commissioners bought bricks for the purposes of the act from one Halket, one of the commissioners, contrary to the terms of the act, which imposed a penalty in such case. In order to provide for payment, they executed debentures in the pre- scribed form ; and P. H. assigned them to the plaintiff for value, without notice of the circumstances. The commissioners having made default in the payment of interest, the present proceedings were instituted to compel them to apply their funds in this way ; and the plaintiffs were held entitled to the remedy, the defendants being estopped to deny the validity of the debentures.^ 1 Law E. 5 Q. B. 642. defendants are estopped from disputing 2 Lord Coekburn, C. J., said : " I pro- the validity of the debentures in question, ceed entirely upon the ground that the It is true the "commissioners have . . . 420 ESTOPPEL IN PAIS. In Dooley v. Cheshire Glass Company ,i which was an action of contract against a corporation, the same defence was alleged, that the corporation had never been duly organized. But the court refused to allow the proof. However the fact might have aifected the corporation, had they been plaintiffs seeking the aid of the law to enforce a contract,^ at all events, the court observed, the corporation could not set up a defect in their organization to defeat a recovery against them. Objections of this kind were not to be favored when made by a company holding themselves out as a cor- poration, and contracting liabilities as such.^ In Stoddard v. Shetucket Foundry Company,* a corporation was sued by a stockholder for his share in a dividend declared by the directors. The defendants denied their liability on the ground that the directors had no right to declare the dividend in question. The other stockholders had received and retained their shares. There was evidence tending to show that the dividend in question power only to borrow money, and it may be that, under the power to borrow, they were not authorized to give debentures for the purpose of paying for goods and materials supplied to them for the pur- poses of the town. But the commission- ers gave to Halket, in respect of the bricks which they got from him, de- bentures . . . which purport upon the face of them to be debentures given for money advanced to them. Halket, to whom the debentures were originally given, has parted with them for a valuable consideration to the testator of the present plaintifis, who are in the position of assignees of the original holder, and we must take it as a fact that the assignees were perfectly ignorant of any illegality in the original transaction either as re- gards Halket being a commissioner, and, therefore, prohibited from entering into such a contract with the commissioners, or as to the fact of tbeir being debentures given for goods supplied, instead of for money advanced. Under these circum- stances, it is clear the principle laid down in Piokard v. Sears, 6 Ad. & E. 469, and Freeman v. Cooke, 2 Ex. 664, is immedi- ately applicable .to the present case, as well as the doctrine laid down in the judgment of this court in the case to which my brother Blackburn referred, Ee Bahia and San Francisco Railway Company, Law R. 3 Q. B. 584. ... I think the principle of all these cases is strictly applicable to this. How is a per- son who takes for a valuable considera- tion such debentures as these, upon an assignment regular in form, to know under what circumstances they were issued? The commissioners might be wrong in allowing these debentures to go forth, knowing that they might conie into the hands of an innocent holder for value, but, according to the principle of the cases cited, they are estopped from alleg- ing that the debentures were illegally issued." See ante, p. 413 et seq. 1 15 Gray, 494. ^ See post, p. 424. 5 But it is held that public officers are not estopped, when personally sued, to deny their authority to do an act which has been done in their public capacity. Day V. Green, 4 Cush. 433. See Fairtitle V. Gilbert, 2 T. R. 169. 4 34 Conn. 542. CORPORATIONS. — AGENCY. — PARTNERSHIP. 421 had not been earned, or, at all events, that it was not certain that it had been earned. The court refused to hear the defence.^ This seems to be a proper place to notice the case of municipal bonds, so far as the defence of illegality is concerned ; for, though these instruments are technically deeds, being under seal, the doc- trine of estoppel, as in the case of leases, does not, when applicable, seem to rest upon the seal, but rather upon matter in pais. Not- withstanding the seal, they are now regarded by the law as ordinary commercial paper, and are made subject to most of the rules per- taining to bills of excliange and promissory notes. It is a well-established rule that a municipal corporation which issues bonds purporting on their face to be executed in conformity with a statute is estopped to deny the truth of such representation when they have been put upon the market.^ The leading case upon this subject in the Supreme Court of the United States is Knox County v. Aspinwall, above cited. This was an action brought against the Board of Commissioners of Knox County,. Indiana, to recover the amount due on two hundred and eighty- four coupons, for a sum amounting to $17,040. The coupons had been attached to bonds payable to a railroad company or bearer, 1 In delivering judgment, Hinman, C. a dividend which every other stockholder J., said : " As it does not appear that any has received. We do not, therefore, as. statement of the affairs of the company between these parties, consider the ques- was made at the time, and as, moreover, tion whether the company was in a the dividend was made on the day when proper condition to declare so large a the balance of the unpaid subscriptions dividend as twenty-five per cent upon its to the capital stock was called for, and capital as of any importance. When the was, in fact, applied in part payment of other stockholders are willing to repay to these subscriptions in favor of all the the company the funds they assume they stockholders except the plaintiff, it would have withdrawn from it, they will stand not, perhaps, be an unreasonable infer- in a better condition to call upon the ence that the dividend was declared for court, by some proper application for the purpose of assisting the stockholders that purpose, to restrain the plaintiff to pay up their subscriptions to the stock, from withdrawing of the capital in th& without much reference to the fact shape of a dividend." whether it had been earned or not. But ^ Rogers v. Burlington, 3 Wall. 654 ;: however this may be, the dividend was Moran v. Miami County, 2 Black, 722 ;. duly declared in point of form, and all Knox County v. Aspinwall, 21 How. 539 ;, the other stockholders have had the Knox County v. Wallace, 21 How. 546 ;, benefit of it in its application to the part Bissell v. Jefferson ville, 24 How. 287. payment of their subscriptions to the See also Mercer County v. Hacket, 1 capital stock ; and we do not think that, Wall. 83 ; Gelpcke v. Dubuque, lb. 175 ;, as between the company and Mr. Stod- Meyer v. Muscatine, lb. 384 ; Van Host- dard, it is for the company now to say rup v. Madison, lb. 291 ; Cincinnati v. that he shall be deprived of the benefit of Morgan, 3 Wall. 275. 422 ESTOPPEL IN PAIS. each for $1,000, and represented the interest due on the bonds. The main ground of defence relied upon was, that the Board of Commissioners, the defendants, had no authority to execute the bonds or coupons ; but this defence was overruled.^ 1 In delivering the opinion of the court, Nelson, J., said : " The ground upon which the want of authority to ex- ecute the bonds in question is placed, is the alleged omission to comply with the requisition of the statute of 1849, in respect to the notices to be given of the election to be held on the first Monday of March, at which a vote was to be taken for or against a subscription of stock to the railroad company. It is insisted that an irregularity or omission in these notices had the effect to deprive the board of this authority, or rather furnish evidence that the power had never vested in it under the act; and further that the plaintiffs are chargeable with a, knowledge of all substantial defects or irregularities in these notices of the election, and not, . therefore, entitled to the character of bona fide holders of the securities. The act in pursuance of which the bonds were issued is a public statute of a State, and it is undoubtedly true that any person dealing in them is chargeable with a knowledge of it ; and as this board was acting under delegated authority, he must show that the authority has been properly conferred. The court must, therefore, look into the statute for the purpose of determining this question ; and upon looking into it, we see that full power is conferred upon the board to subscribe for the stock and issue of the bonds, when a majority of the voters of the country have determined in favor of the subscrip- tion, after due notice of the time and place of the election. The case assumes that the requisite notices were not given of the election, and hence that the vote has not been in conformity with the law. This view would seem to be decisive against the authority on the part of the board to issue the bonds, were it not for a question that underlies it ; and that is, Who is to determine whether or not the election has been properly held, and a majority of the votes of the county cast in favor of the subscription 1 Is it to be determined by the court, in this collateral way, in every suit upon the bond or coupon attached, or by the board of com- missioners, as a duty imposed upon it be- fore making the subscription? " The court is of opinion that the ques- tion belonged to this board. The act makes it the duty of the sheriff to give the notices of the election for the day mentioned, and then declares, if a majori- ty of the voters given shall be in favor of the subscription, the county board shall subscribe the stock. The right of the board to act in an execution of the au- thority is placed upon the fact that a ma- jority of the votes had beefi cast in favor of the subscription; and to have acted without first ascertaining it would have been a clear violation of duty ; and the ascertainment of the fact was necessarily left to the inquiry and judgment of the board itself, as no other tribunal was pro- vided for the purpose. . . . We do not say that the decision of the board would be conclusive in a direct proceeding to in- quire into the facts previously to the exe- cution of the power, and before the rights and interests of third parties had at- tached ; but after the authority has been executed, the stock subscribed, and the bonds issued, and in the hands of inno- cent holders, it would be too late, even in a direct proceeding, to call it in question. Much less* can it be called in question to the prejudice of a bona fide holder of the bonds in this collateral way." The learned judge proceeds to mention a further answer to the defence, in the fact that the purchaser of the bonds had a right to assume that the vote of the county, which had been made a condition CORPORATIONS. — AGENCY. — PARTNERSHIP. 423 In a late case in Connecticut,^ the plaintiffs brought an action of debt for the interest on certain bonds which had been issued by the defendant. There had been a defect in the action of the citizens in regard to the insurance of the bonds, but of this the plaintiffs were ignorant when they took them. The bonds had been publicly sold, with the general knowledge of the citizens of the place ; many of them had been deposited with the Treasurer of the State by sundry banks, as security for their circulation ; and the city had paid the interest regularly until July, 1859, the payments being reported at the annual city meetings. None of the citizens had taken any measures to prevent the sale of the bonds, or the pay- ment of the interest, or had given notice of any doubt as to their validity. The city was held estopped to dispute the validity of the bonds. Several cases cited in the note ^ were referred to by the court with approval. There is considerable conflict among the authorities upon the doctrine of the preceding cases ; but the tendency of the decisions, and, indeed, the decided weight of authority, sustain the positions there taken. The sound rule upon the subject we understand to be this : that a private corporation will be estopped to set up the defence of vltra vires in respect to all acts and contracts within the apparent scope of its powers ; and that both private and public corporations will be estopped to set up such defects in their estab- lishment or organization, or in the preliminaries to the execution of their acts, as are peculiarly within their own knowledge, notice of which cannot be justly imputed to the other party .^ The estoppel to allege the invalidity of the incorporation of a to the grant of the power, had been ob- Co., 31 Ala. 76 ; Shoemaker v. Goshen, tained, because the subscription had been 14 Ohio St. 569 ; Bissell v. Michigan So. made and the bonds issued. The bonds & N. Ind. R. Co., 22 N. Y. 258; Parish v. imported on then: face a compliance with Wheeler, lb. 494 ; Miners' Ditch Co. v. the law, and the holder was not bound to Zellerbach, 37 Cal. 543 ; Eaton v. Aspin- look further. Eoyal British Bank v. wall, 19 N. Y. 119. Turquand, 6 El. & B. 327 ; Moran v. Mi- * The reader is referred to a very clear ami Co., 2 Black, 722. statement of the subject in an article on 1 Society of Savings v. New London, UUra Vires, in the American Law Review 29 Conn. 174. for January, 1871. 5 Am. Law Rev. 272. 2 State V. Van Home, 7 Ohio St. 327 ; In Taylor v. People, 66 111. 322, it was Enox County Com. v. Aspinwall, 21 How. said that the general rule is, that the acts 539 ; Tash v. Adams, 10 Cush. 252 ; Gra- of an officer of a corporation prohibited ham V. Maddox, 6 Am. Law Reg. 595 ; by law are utterly void, and estop no one Gould V. Venice, 29 Barb. 442. See, also, whether officers or strangers. Montgomery v. Montgomery Plank Road 424 ESTOPPEL IN PAIS. company (within the above limits) in an action against it as a corporation is generally available by the corporation itself when suing upon a contract made in the corporate name, and with good reason. The execution of a contract with a person implies neces- sarily that he may maintain an action for its breach, that is, that he has the legal Capacity to sue therefor ; ^ otherwise the act would be idle. If, then, the contract be founded upon a lawful consider- ation, and be otherwise valid, the party whose competency it is desired to dispute may say that the defendant's mouth is closed to allege the supposed incompetency of the plaintiff ; just as in an action by an infant on a contract with an adult, the latter is not allowed to set up the plaintiff's incompetency. Each party to the contract admits the competency of the opposite party to sue ; and in the absence of fraud, or possibly mistake, this admission is conclusive.^ The execution of a mortgage to a corporation, therefore, is an admission of the competency of the corporation to enforce its rights thereunder ; and the instrument being under seal, the ad- mission, like a specific recital, is conclusive.^ The authorities are also decisive that the same rule prevails in the case of simple contracts.* And it is right that it should be so. If a party have no other objection to oppose to the enforcement of a contract than that the plaintiff is incompetent to sue, he should not be allowed to escape liability ; except where this incompetency is the result of something subsequent to the execution of the contract, as the bankruptcy of the party .^ I See Chicago & A. R. Co. v. Shea, 66 Ind. 268; Eppes v. Mississippi, &c. R. Co., 111. 471, a contract with a married woman. 35 Ala. 33 ; Worcester Med. Inst. v. Hard- So, where A is recognized by B as the ing, 11 Cush. 285; Congregational Soc. party to a contract with B, the latter can- «. Perry, 6 N. H. 16t ; Cochran v. Arnold, not deny the relation of the former. Cur- 58 Penn. St. 399 ; Ray v. Indianapolis tiss V. Waterloo, 38 Iowa, 266. Ins. Co., 39 Ind. 290; Lucas v. Greenyille '^ The admission of one's own compe- Assoc, 22 Oliio St. 339 ; Frost v. Frost- tency, however, is only of a prima facie burg Coal Co., 24 How. 278. But see character, as in tlie case of an infant, who Welland Canal Co. v. Hathaway, 8 Wend. Is under the special protection of the law, 480, a case of a foreign corporation, or (sometimes) of a corporation, which ' Whether one who has participated has surpassed the power granted it in its in the formation and business of a corpo- charter. ration de facto, is not estopped to deny 3 Franklin v. Twogood, 18 Iowa, 515. the incorporation of the company, qucere. ■1 Black River R. Co. v. Clarke, 25 N. Whipple v. Parker, 29 Mich. 369. See Y. 208 ; Eaton v. Aspinwall, 19 N. Y. 119 ; Swartwout v. Mich. Air Line R. Co., 24 Dutchess Cotton Manuf. Co. v. Davis, 14 Mich. 889, holding that there may be Johns. 238; MoBroom v. Lebanon, 81 such an estoppel. CORPORATIONS. — AGENCY. — PARTNERSHIP. 425 We shall dispose of the remaining subjects of this chapter in a few words. A partner is the agent of the firm, and the principles of agency will in general determine his powers. We shall there- fore make no division of the subjects of agency and partnership, but present them together. A partnership firm is bound by the false representations, if acted upon, of any of the copartners made within the scope of the busi- ness ; the innocent partners being equally liable with the guilty. In a recent important case,^ a partner had made a misrepresentation concerning the business of the firm, by which another was induced to advance money ; and the question was whether the innocent partners were liable for the fraud. The court held that they were so liable, being estopped to deny the truth of the representation. Mr. Justice Selden, in delivering the judgment, said that the cases must be considered as establishing the proposition that where the authority of an agent depends upon facts outside the terms of his powers, and which from their nature rest particularly within his knowledge, the principal is bound by the representation of the • agent, though false, as to the existence of the fact. There was no difference in this respect between the liability of the principal for the fraud of his agent, and that of a partnership for the fraud of one of its members. And the whole doctrine proceeded upon the ground that when one of two innocent persons must suffer by the act of a third person, he should suffer who had been the cause of the confidence reposed in such thii'd person. It was clear, the learned judge further remarked, that the entire class of cases in which it had been held that a partnership was liable to a bona fide holder upon a note fraudulently issued in its name by one of the partners, depended upon one common princi- ple. The mode in which the liability was enforced was by estoppel in pais. The agent or partner had made a representation as to a fact essential to his power, upon the faith of which the other party had acted, and the principal or firm was precluded from con- troverting the fact so represented.^ The doctrine has also been referred to estoppel in pais, that where one intentionally or negligently holds himself out as a part- ner of a firm ; or where a firm, after having sold out their business to another, suffer the purchaser to continue the business in the firm name, without any thing to indicate the change ; and the 1 Griswold v. Haven, 25 N. Y. 595. 8 See ante, p. 416. 426 ESTOPPEL IN PAIS. representation has been acted upon by others, without knowledge or notice of the truth of the matter, such party will .be- held liable to such persons. He will not be permitted to allege that he is not a partner in the firm.^ 1 Miles V. Furber, Law E. 8 Q. B. 77 ; Rice V. Barrett, 116 Mass. 312; Vlbbard V. Roderick, 51 Barb. 616 ; Conklin v. Barton, 43 Barb. 435; Sherrod v. Lang- don, 21 Iowa, 518. See Story, Partner- ship, § 64, and authorities cited. In Mitchell v. Ostrom, 2 Hill, 520, it was held that one who had signed a part- nership name as a " late firm '' was not estopped to deny his joint liability on the note. See, also, ShirrefFw. Wilks, 1 East, 48 ; Hawks v. Munger, 2 Hill, 200. Mere- ly subscribing one's name to the subscrip- tion book of a corporation does not estop the party to deny that he is a stockholder. Lathrop v. Kneeland, 46 Barb. 432. But if in addition to this he has paid calls and done other acts recognizing the validity of his subscription, he will be estopped to deny his membership. Boggs v, 01- cott, 40 111. 308. ACKNOWLEDGMENT OP RECEIPT IN PAROL. 427 CHAPTER XVII. ACKNOWLEDGMENT OF RECEIPT IN PAROL. That an acknowledgment of receipt is not generally conclusive evidence between the parties of the fact stated is clearly settled.^ This case first cited was an action by partners on a bill of exchange. The defendant, in proof of payment, gave in evidence a receipt. The receipt was in the name of the firm, and had been written by Farrar, one of the partners ; but the plaintiffs contended that it had not been given bona fide, but procured for the purposes of the cause. The question was left to the jury, and a verdict was returned for the plaintiffs. A motion for a new trial was overruled.^ 1 Farrar v. Hutchinson, 9 Ad. & E. 641; Skaife u. Jackson, 3 Barn. & C. 421 ; Graves v. Key, 3 Barn. & Ad. 313 ; Bowes V. Foster, 2 Hurl. &N. 779 ; Baker V. Union Mutual Life Ins. Co., 43 N. Y. 283; Sheldon v. Atlantic Fire & M. Ins. Co., 26 N. Y. 460; Insurance Company of Pennsylvania v. Smith, 3 Whart. 520 ; Pitt V. Berkshire Life Ins. Co., 100 Mass. 500 ; Miller v. Brooklyn Life Ins. Co., 2 Big. 35, 757. Contra, Providence Life Ins. Co. V. Fennell, 49 111. 180; Goit v. National Prot. Ins. Co., 25 Barb. 189 ; Young V. Mutual Life Ins. Co., 4 Bige- low, 1. But Goit o. National Prot. Ins. Co. was overruled by Baker t/. Union Mut. Life Ins. Co. (supra) ; and the state- ment in Young v. Mutual Life Ins. Co. was only a dictum. There is, however, some force in the distinction taken in this case, and in the case from 25 Barb, (see also Peck v. Vandenberg, 30 Cal. 23; Ashley v. Vischer, 24 Cal. 322), between the effect of an acknowledgment of re- ceipt as a simple receipt for money, and as constituting part of a contract " In the first aspect," say the court in Young V. Mutual Life Ins. Co., " and for collat- eral purposes, such as. the recovery of the money, the acknowledgments may be contradicted. In the second, and for the purpose of defeating the operation of the contract, they cannot be contradicted." As has been suggested in regard to ad- missions of receipt of consideration in sealed instruments, it is conceived that parties to a contract may bind themselves, by agreement therein aptly expressed, not to question an admission of receipt ; and that the rule on this point is merely a rule of interpretation. Ante, p. 284. A bill of lading does not estop the original parties to deny the shipment. Berkley v. WatUng, 7 Ad. & E. 29. 2 Lord Denman, who delivered the judgment, now said : " Mr. Cresswell cited Alner v. George, 1 Camp. 392 ; but that case is not directly applicable. There, no doubt existed that the receipt had been really given by the party whose claim it affected ; but it was alleged that third persons, who had an interest in the demand, were injured by the transaction. Lord Ellenborough held that the receipt was nevertheless binding. Here the ob- jection is, that the receipt, though signed by one of the firm for whom it is given, is a fraud upon the rest. In Benson v. Bennett, 1 Camp. 394, note, ... a re- ceipt, signed by the plaintiff, was pro- 428 ESTOPPEL IN PAIS. In another* case, Mr. Baron Martin said that Alner v. George, supra, was not law.^ The case cited was an action of trover. It appeared that the plaintiff, being in difficulty, and fearing his creditors, had agreed with the defendant, a creditor, that there should be a pretended sale of his goods to him. An invoice was accordingly made out, and a receipt given to the defendant for the sum stated to be the purchase-money, and possession was given the defendant. The plaintiff was allowed to recover.^ The case of Graves v. Key,^ above cited, was an action on a bill of exchange, on which was written a receipt for the full amount. In point of fact the money had not been paid by the acceptor or by the drawer, but had been paid by a person who had simply pur- chased the bill. The plaintiff recovered.^ This doctrine has recently been considered in the Court of Appeals of New York.^ The case cited was an action on a life-insurance policy. Acknowledgment of receipt of the premium, contrary to the fact, was embodied in and indorsed on the policy ; but this was held only prima facie evidence of payment. In this case, there was the additional circumstance of the ignorance of the plaintiff, to duced by the defendant, but he was proved to have obtained it from the plain- tiff by deception, and therefore it was held not binding. It appears to us that in all cases a receipt signed by a party, and produced afterwards to affect him, is evidence, but evidence only, and capable of being explained." 1 Bowes V. roster, 2 Hurl. & N. 779. 2 Mr. Baron Martin said : " In Alner V. George, Lord EUenborough said that a receipt in full was an estoppel ; and if that be so, there would be an estoppel here. But I apprehend that case is not law. The distinction between a receipt and a release has been long established. The fact of a release must be pleaded and put on the record. A receipt cannot be pleaded in answer to the action ; it is only evidence on a plea of payment ; and where a defendant is obliged to prove payment, a document not under seal is no bar as against the fact that no payment has been made ; for how can a jury find that payment was made when it was proved that none was ever made ? " 8 3 Barn. & Ad. 313. ■• Lord Tenterden said : " We all think, upon full consideration, that the - action is maintainable. It is not neces- sary for us to say what the effect of these indorsed memoranda of receipts would be, supposing that it were incompetent for the plaintiff to contradict or explain them by parol evidence ; because it seems to' us that the plaintifE may by law give such contradiction or explanation, and that in this case the parol evidence does satisfactorily explain the last memoranda made on each security, and shows dis- tinctly that the balance was not paid by either Almon or the defendants. A re- ceipt is an admission only ; and the gen- eral rule is, that an admission, though evidence against the person who made it and those claiming under him, is not con- clusive evidence, except as to the person who may have been induced by it to alter his condition. A receipt may therefore be contradicted or explained." ' Baker v. Union Mutual Life Ins. Co., 48 N. Y. 283. ACKNOWLEDGMENT OF RECEIPT IN PAROL. 429 whom the policy was made payable, of the fact of non-payment, and it was contended that she was thrown off her guard by the receipt, and might have herself paid the premium at the proper time and saved the policy ; but the circumstance was held immaterial. It may be worthy a g'Mcere, however, if this did not bring the case within the rule in the recent case of Knights v. Wiffen.^ In the Superior Court of New York this had been held an estoppel.^ Acknowledgment of receipt of premium in a policy of marine insurance forms an admitted exception to the above rule, for rea- sons peculiar to the transaction by which it is made ; and ordi- narily the acknowledgment is conclusive of the fact stated.^ So certain other peculiar receipts may, when acted upon by a third person, estop the party giving it to deny its purport.* Such a case was recently decided by Mr. Justice Miller, of the Supreme Court of the United States, on the circuit.^ In the case re- ferred to, it appeared that the defendants had given a warehouse receipt to Upham & Co. for eight hundred bushels of wheat. Upham agreed with the plaintiffs to sell them a larger quantity of wheat, and in part execution of this agreement assigned to the plaintiffs the above-mentioned receipt. The plaintiffs there- upon presented the receipt to the defendants, and demanded the wheat; and, being refused, they brought the present action. The defendants offered to prove that they had never received the wheat from Upham & Co., and that they had no such wheat as that mentioned in the receipt, but that they had issued the receipt as a security for money loaned. The evidence was held inadmissible.® 1 Law R. 5 Q. B. 660. court, referring to bills of lading and 2 1 Big. 595. warehouse receipts, " are sui generis. ' See Arnould, Insurance, 180, 181 (4th From long use in trade they have come ed.). The rule arises from the method of to have, among commercial men, a well- keeping the accounts between the broker understood meaning. And the indorse- and the assured. See lb. 179. ment or assignment of them as absolutely * Carr v. Miner, 42 111. 179 ; People v. transfers the general property of the Reeder, 25 N. Y. 302; Knights v. Wiffen, goods and chattels therein named as Law R. 5 Q. B. 660. But the party would a bill of sale. Austin w. Craven, claiming the estoppel must be justified in 4 Taunt. 644 ; Whitehouse v. Frost, 12 acting upon the receipt, and the party East, 614 ; White v. Wilks, 5 Taunt. 176 ; giving must have intended or contem- Conard v. Atlantic Ins. Co., 1 Peters, 386 ; plated that it would be acted upon. Kuhl Gardiner v. Suydam, 7 N. Y. 357 ; Gibson V. Jersey City, 8 C. E. Green, 84. v. Chillicothe Bank, 11 Ohio St. 311. 6 McNeil V. Hill, Woolw. 96. " When a warehouseman issues such 8 " Instruments of this kind," said the a receipt, he puts it into the power of the 430 ESTOPPEL IN PAIS. But the defendant in such cases has been held entitled to show that the receipt was given by mistake.^ So, too, under circumstances which would create an estoppel by conduct, an acknowledgment of receipt of money or property will become binding even between the parties ; as in the case of a re- ceipt given an attaching officer, with knowledge, for goods attached as the property of a third person, whereby the officer is prevented from levying upon other goods, and induced to leave those attached in the possession of the receiptor.^ holder to treat with the public on the faith of it. He enables him to say, and to induce others to belieye, that he has certain property which he can sell or pledge for a loan of money. If the ware- houseman gives to the party who holds such receipt a false credit, he will not be suffered to contradict the statement which he has made in the receipt, so as to injure a party who has been misled by it. This is within the most exact defini- tion of estoppel. If A gives to B his note for $100, although he has received no value therefor, and may defend against the note in a suit brought by B, yet if B sells the note to a third party, who does not know of the facts, A then must pay the note. Just so in the case of a ware- house receipt. If A issues such a paper to B, for articles which he has never re- ceived, a third party treating with B, on the faith of the statement and promise contained in the receipt, will hold A for the goods or their value. It is of no con- sequence what the transaction may be between the original parties, — whether the receipt, as is claimed here, was in- tended as a security for a loan, or was entirely false." See Griswold v. Haven, 25 N. Y. 595. 1 Second Nat. Bank v. Walbridge, 19 Ohio St. 419. See Blanchet v. PoweU's Co., Law E. 9 Ex. 74. 2 Dewey v. Field, 4 Met. 881 ; Dezell V. Odell, 3 Hill, 215 ; Dresbach v. Minnis, 45 Cal. 223; Bleven v. Freer, 10 Cal. 172; Gaff v. Harding, 66 111. 61. See Bullard v. Hascall, 25 Mich. 132 ; post. ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 431 CHAPTER XVIII. ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. The origin of the peculiar branch of estoppel now to be consid- ered — that by which a party and those in privity with him are estopped to deny the truth of representations made to and acted upon by another — we conceive to be found in the doctrine of equity ,1 that if a representation be made to another, who deals upon the faith of it, the former shall make the representation good, if he knew it to be false.^ Lord Eldon, in the case just cited, speaks of this as " a very old head of equity." ^ And the same principle had been adopted at law, as ground for an action of deceit, several years before this remark was made.* In order to justify the interposition of equity in the case men- tioned, it is necessary to establish, not only the fact of misrepre- sentation or concealment, but also that it has been in a matter of substance or of importance to the interests of the other party, and that it has actually misled him. For if the misrepresentation was of a trifling or immaterial thing, or if the party alleging it did not in fact trust in it, or was not misled by it, or if it was vague or inconclusive in its nature, or if it was upon a matter of opin- ion or fact equally open to the knowledge of both parties, and in regard to which neither could be presumed to trust the other, — in these and the like cases it is said that equity will not grant relief.^ We shall see, in the course of the present chapter, that these mat- ters are the key to the question of estoppel in pais ; and we shall find here the true extent and limits of the doctrine. We must now call attention to a few of the leading cases in which the doctrine of estoppel by conduct is defined; and we shall then pass on to a detailed examination of it. The first distinctive enunciation in England of this branch of 1 See Brewer v. Boston & W. R. Co., 5 ' Hence the terra " equitable estoppel " Met. 478, 483. often applied to this branch of the sub- 2 Evans v. Bicknell, 6 Ves. 174, 182; ject. SUm V. Croucher, 1 DeG. F. & J. 518; * Pasley v. Freeman, 3 T. R. 51. Lee V. Monroe, 7 Cranch, 366. « 1 Story, Eq. Jur. § 191. 432 ESTOPPEL IN PAIS. estoppel was made in the well-known case of Pickard v. Sears,^ — a case which bears much the same relation to this part of our subject as that of the Duchess of Kingston does to estoppel by record. The doctrine had, indeed, been foreshadowed and ap- plied in a few of the earlier cases ; ^ but in Pickard v. Sears it was first presented in its peculiar distinctive character. This was an action of trover for machinery, to which the de- fendant pleaded not guilty, and that the plaintiff was not pos- sessed, &c. Issue was taken upon the pleas. On the trial at nisi prius, before Lord Denman, it appeared that the plaintiff was the lega,l owner of the machinery under a mortgage from one Met- calf, and that the property had been levied upon, subsequently to the execution of the mortgage, as Metcalfs, and sold by the sheriff to the defendants. Notice of this mortgage was given by the plaintiffs to the defendants after the sale to them of the prop- erty. It further appeared that, after the seizure, the plaintiff had repeatedly conversed about the same with the witness, — who was the attorney of Hill, the plaintiff in the execution, — sometimes in Metcalfs presence, and had never made any claim to the goods, though he stated that Metcalf was his debtor for about £500, and frequently consulted with the witness as to the best way of dis- posing of the property ; that aTter a negotiation for sale had been made, the witness had advised the plaintiff and Metcalf to try to raise £1,000, to pay off the execution creditor, and the remainder to go to carry on the business ; that the plaintiff had named a party from whom it was attempted, but without success, to obtain the money ; and that the witness had told the plaintiff that the de- fendants were about to purchase the property. It was not disputed that the mortgage had been made in good faith, or that the defend- ants had purchased bona-fide, and without notice of the mortgage. A plea of leave and license having been refused, the defendants suggested that it should be left to the jury to say whether the plaintiff had concurred in the sale ; but his lordship was of opinion that there was no evidence of such concurrence, and directed the jury to find for the plaintiff, if they thought that the mortgage had been made bona fide. A verdict having been given for the plain- tiff, a rule for a new trial was now argued before Lord Denman, C. J., and Williams and Coleridge, JJ. 1 6 Ad. & E. 469. Graves party, because, substance, in White v. Walker, 31 111. 422, ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 441 Cases may arise, however, in which a promise should be held an^ estoppel, as perhaps where a right of action would otherwise exist in favor of the injured party. In such a case, the estoppel may sometimes be available to prevent a circuity of action. Thus, where a mortgagee of lands who had persuaded a son of the mort- gagor, after the death of the latter, and when the land was of little value, the son contemplating at the time a removal to another region, to remain on the land and take care of it, and support the family of his deceased father, upon a promise that the mortgage sliould never be enforced against the family, it was held that he would be estopped thereby after the lapse of several years, during which time the son had cultivated the land and cared for the family, and the land had grown valuable under his tillage, from taking any steps to foreclose the mortgage.^ Further, tlie misrepresentation must be plain, and not be a matter of mere inference or opinion.^ Certainty is essential to all estoppels.^ The courts will not easily suffer a man to be deprived of his property or security where he had no intention to part with it.* Thus, in Preble v. Conger, where it was claimed that certain mortgagees were estopped from asserting their mortgage against a subsequent purchaser of the mortgaged property, it was held that the evidence of the facts out of which the estoppel was claimed to have arisen should be very clear ; and that if it appeared that the purchaser, before purchasing, took a written agreement from the mortgagees as to the extent of their demand, he could not prove verbal statements and assurances at variance with it, without showing that there was a mistake in the written agreement. So, too, the representation or .conduct must have been such as would naturally lead to the action taken.^ 437 : Though a promise to forgive a debt, ' Faxton v. Faxon, 28 Mich. 159. or to forbear its collection, either tempo- " Belle of the Sea, 20 Wall. 421 ; John- rarily or for an indefinite period, unsup- son v. Owen, 33 Iowa, 512; Lawrence ported by any consideration, is ineffectual Univ. v. Smith, 32 Wis. 587. as a defence, viewed merely as an agree- " Coke, Litt. 352 b ; German v. Clark, meut; yet if the surety has been induced 71 N. Car. 417; Van Bibber v. Beirne, 6 by such an assurance to neglect any of W. Va. 168. the means which might have been used * Preble v. Conger, 66 111. 370. See for his indemnity, the promise may have Flower v. Elwood, lb. 438 ; Glazier v. that effect as an estoppel which it wants Streamer, 57 111. 91 ; Barron v. Cobleigh, as a contract, and amount to a defence 11 N. H. 559; Palmer v. Williams, 24 against any subsequent action brought by Mich. 328 ; Ripley ;'. Billings, 46 Vt. 542. the creditor. See Harris v. Brooks, 21 ' Hefner v. Yandolah, 57 III. 620. See Pick. 195. First Evang. Church v. Walsh, lb. 363. 442 . ESTOPPEL IN PAIS. Only parties and tlieir privies are bound by tlie representation, and only those to whom the representation is made or intended to influence, and their privies, may take advantage of the estoppel. If the act was res inter alios acta, there will be no estoppel.^ This appears from the case of Regina v. Ambergate, &c.. Railway Com- pany .2 This was a mandamus to compel the defendants to proceed with the building, of their railroad. The reply was that their capital stock had not been subscribed, and could not be obtained, and that they were forbidden by statute to exercise their powers in the mean time. To this the answer was made, by way of es- toppel, that the defendants ought not to be admitted to make this defence, because the company had acted under the compulsory clauses of their charter in another part of the line, where an arbitration had taken place in the form prescribed by the State. But the court observed that this was res inter alios acta, and could not operate as an estoppel between the prosecutors and the de- fendants. The above rule covers of course the misrepresentations of agents made in the scope of their employment. The principal in such case is estopped to deny the truth of the agent's statements, express or tacit, as if he had himself made tliem,^ subject to the same limitations that would prevail in the latter case. It is held that the acts and admissions of one of several admin- istrators, which amount to an estoppel against him, will work an estoppel against all.* In the case cited, one of three administra- tors had been present at a levy by an officer, and did not object to it, and afterwards encouraged the sale of the property. Sub- sequently the administrators brought a joint action of trespass against the officer for making the levy ; and the court lield that it could not be maintained. If there are several administrators, it was said, they are regarded in the light of an individual person. They have a joint and entire interest in the effects of the intestate, which is incapable of being divided ; and in case of death such interest vests in the survivor, without any new grant from the 1 But it is held that an act which estops estopped to make a claim upon the estate a principal will estop his surety. McCabe if there has been no concealment or im- V. Raney, 82 Ind. 309. But even in the position practised upon-the other parties, case of a compromise by deed of matters Walker v. Walker, 9 Wall. 743. concerning an estate, if one of the parties " 1 El. & B. 372. Is merely a formal party, receiving noth- 3 Sage v. McLaughlin, 34 Wis. 550. ing under the deed, he will not be < Camp v. Moseley, 2 Ha. 171.' ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 443 court. Acts done by one of several executors or administrators relating to the delivery, sale, or release of the testator's or intes- tate's goods, were the acts of all.i So it was said two of three executors or administrators might compromise a claim and release a debtor to the estate without the concurrence and contrary to the wish of the other.^ The Supreme Court of Massachusetts have expressed the opinion, that the doctrine of estoppel in pais has no applica- tion to married women or infants.^ A married woman, it was observed in Lowell v. Daniels, could make no valid contract in relation to her estate. Her separate deed of it was absolutely void. Any covenants in such separate deed would be likewise void. If she were to covenant that she was sole, was seized in her own right, and had full power to convey, such covenant would avail the grantee nothing. She could neither be sued upon them nor estopped by them. Her most solemn acts, done in good faith, and for full consideration, could not affect her interest in the estate, or that of the husband and children. The strongest pos- sible example of this, it was said, was presented in the case of Concord Bank v. Bellis,* in which it was held that where an estate was conveyed to a married woman, and she at the same time gave back a deed of mortgage to secure a part of the purchase-money, such deed of mortgage was wholly void. And a, married woman could not do by acts in pais what she could not do by deed. She could not by her own act enlarge her legal capacity to convey an estate. To say that pne might, by acts in the country, by admission, by concealment, or by silence, in effect do what could not be done by deed, would be practically to dispense with all the limitations the law has imposed upon the capacity of infants or married women to alienate their estates. Such was the reasoning of the court. Parties under disability, as infants and married women, cer- tainly are not estopped unless their conduct has been intentional and fraudulent.^ In Schnell v. Chicago, just cited, a bill was 1 Wheeler v. Wheeler, 9 Cowen, 34. with the facts. See, also, Bank of United 2 Murray v. Blatehford, 1 Wend. 583. States v. Lee, 13 Peters, 107; Drury ». 3 Lowell V. Daniels, 2 Gray, 161, 168 ; Foster, 2 Wall. 24 ; Glidden v. Strupler, Bemis v. Call, 10 Allen, 512, 517 ; Mer- 62 Penn. St. 400 ; Morrison v. Wilson, 13 riam v. Boston, &c., R. Co., 117 Mass. Cal. 494; Kangeley w. Spring, 21 Maine, 241, 244. So in Delancey v. McKeen, 1 130. Wash. C. C. 354. But it did not appear * 10 Cush. 276. in this case that the feme was conversant ' Eane County ». Herrington, 50 111. 444 ESTOPPEL IN PAIS. filed to restrain the defendants from setting up tlieir legal title to certain land. It appeared that this land had been sold to a party under whom the plaintiff claimed, by an administrator, for the purpose of raising money to educate one of the defendants, then fifteen years old, upon whom the title to the property had fallen by descent. The minor, it further appeared, had been desirous of being educated, and with her consent and that of her mother the latter was offered for sale ; and the purchaser, before buying, con- sulted botli the mother and daughter as to their wishes, and they expressed their consent to the sale. The land was thereupon sold for what was then deemed a fair price, and the proceeds Were partly applied to the education of the minor, and partly invested in other land, in her name, but at the sole direction of the admin- istrator. The court held that these facts were insufficient to work an estoppel upon the infant.^ In a recent case in Indiana,^ it appeared that an infant /erne covert joined with her husband in conveying her land to a railroad com- 232 ; Sehnell v. Chicago, 38 HI. 382 ; Da- vidson V. Young, lb. 146 ; Rogers v. Hig- gins, 48 III. 211 ; Sctiwartz v. Saunders, 46 111. 18; Brown v. Coon, 36 111. 243; Miles V. Leingerman, 24 Ind. 385; Mc- Coon V. Smith, 3 Hill, 147. 1 Mr. Justice Lawrence, in delivering judgment, said : " Undoubtedly an infant is responsible in damages for his torts and frauds. If he were to falsely allege himself to be of age, for the purpose of inducing anotlier person to purchase and take a deed of his lands, he would be liable to respond in damages for any in- jury which might result to the purchaser in consequence of tlie deceit. Wallace v. Morss, 5 Hill, 391. Contra, Brown v. McCune, 5 Sandf. 224. But this case, on this point, is not law. Eckstein v. Frank, 1 Daly, 334; Schumann «. Paradise, 46 How. Pr. 426. Whether he would be es- topped in a court of chancery from dis- affirming sucli a conveyance on his ar- riving at majority is a question which, upon the authorities, is by no means clear. There seems, however, to be only a technical reason why the doctrine of equitable estoppel should not, in such cases, be applied; and in a case of that character, we should be strongly inclined to hold the infant bound. But in the case at bar, the infant made no false statement to the purchaser, and perpe- trated no fraud. She simply consented to the sale of the land by the administrator. Now if an infant is not bound by the solemn and deliberate consent manifested by her own conveyance of her land, we do not know by what process of reasoning it can be made to appear that she is bound by her parol consent that another shall make the conveyance. The rights acquired by Newhall, under a sale by the administrator with the consent of Mar- garet [the minor], were certainly not greater, than if she had made the sale herself, and at the same time given her own deed for the land. Yet such a sale and conveyance, unaccompanied by false representations, would have given New- hall no legal or equitable title which Mar- garet wo,uld not be at liberty to disaffirm. So far as the alleged equitable estoppel is based upon the consent given to the sale, ■ the position of the appellant is clearly un- tenable." 2 Miles V. Lingerman, 24 Ind. 385. ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 445 pany, by which it was afterwards conveyed, without her knowledge, to the defendant. About ten years after the feme arrived at ma- jority, being still Covert she gave notice to the defendant of her intention to avoid the deed, and commenced an action to recover possession of the land. Some slight improvements had been made upon the land after the conveyance made by her ; but of this fact she -was ignorant. She had resided within four miles of the land for two years after arriving at age, and within ten miles of it down to the time of the trial. It was held that she was not estopped to claim the land. It had been insisted, the court observed, tiiat the deed of an infant could not be avoided in the hands of a subsequent grantee •who had purchased without notice of the minority of the original grantor. The position could only be sustained upon the doctrine of estoppel, for the grantor could convey no better title than he had ; and some act must be done, or there must be some omission, by the minor, after reaching majority, resulting in an injury which would render the avoidance of the conveyance a fraud upon the person in possession. Such was not the present case. This doctrine is also illustrated by Glidden v. Strupler.^ In that case, a married woman had with her husband executed an invalid agreement to convey her real estate. She received one year's in- terest and a small part of the purchase-money. Possession was taken under the agreement, and improvements made with her knowledge and tacit encouragement ; but no texpress fraud or act to mislead was committed. And the court held that these facts did nof raise an estoppel against the /ewe to claim the land.^ In cases of fraud, unmixed with contract, however, whether by concealment or active conduct, the current of authority runs (in opposition to the doctrine in Massachusetts, above stated) that a married woman may estop herself to deny the truth of her repre- sentation.2 jjj tj^g case first cited, it appeared that a contract had been made for the erection of a building by the husband upon the land of his wife, and with her knowledge and approbation. Though 1 52 Penn. St. 400. See, also, Rum- III. 18 ; Connolly v. Branstler, 3 Bush, felt V. Clemens, 46 Penn. St. 455. 702 ; Wright v. Arnold, 14 B. Mon. 6.S8 ; 2 Keen v. Coleman, 39 Penn. St. 299. Davis v. Tingle, 8 B. Mon. 539; Jones v. See, also. Wilt v. Welsh, 6 Watts, 9 ; Kearney, 1 Dru. & War. 134 ; Vaughan Penrose v. Curren, 3 Rawle, 351. v. Vanderstegen, 2 Drew. 363 ; Wright s Carpenter v. Carpenter, 10 C. E. v. Leonard, 8 Jur. N. s. 416. In re Lush, Green, 194; Schwartz o. Saunders, 46 Law E. 4 Ch. App. 591. 446 ESTOPPEL IN PAIS. knowing what was going on, she did not disclose her interest, or do any thing to prevent the work ; and the court now held that she was estopped to set up her rights in defence of an action to enforce a mechanics' lien on the building. In Connolly v. Branstler,i it appeared that the wife, at a public sale of the land of her husband, announced to the bidders that she would not claim dower against any person who should purdiase the premises. It was now held that she was estopped to set up her claim in favor of one who had bought the land on the faith of her declaration. In Drake v. Glover,^ the jury had been charged that if the de- fendant, a, feme covert, was present at a sale of her property by one assuming to act as her trustee, and assented to the sale, she was estopped to deny the trustee's authority ; and that if, without being present, she knew of the sale, and did not object to it, she was estopped to deny its validity. The court held the first charge cor- rect, and the second incorrect ; and they further said that, in case the sale was made by the husband, the silence must be fraudulent, and not the result of marital restraint.^ In McCullough v. Wilson,* the wife joined the husband in procur- ing a third person to purchase an invalid mortgage of the wife's separate estate ; and it was held that both parties were estopped to deny the validity of the mortgage. In a recent case in the Supreme Court of the United States,* it was held that there was no estoppel upon a married woman where she had, with her husband, signed an instrument meant for a mort- gage of her separate estate, but with blanks left for the mortgagee's name and the amount for which it was to be given, which were afterwards filled and the instrument given by the husband to a bona fide lender of money, without knowledge of the facts. It is clear that an action cannot be maintained at law on a con- tract made with a feme covert who falsely represented herself to be sole at the time ; the representation in such case not operating as an estoppel.® And a similar doctrine is held as to the false > 3 Bush, 702. Ex. 422; Cannam v. Farmer, 3 Ex. 698; 2 30 Ala. 382. Wright v. Leonard, 11 C. B. n. s. 258. ' Wilks V. Kilpatrick, 1 Humph. 54. In the case first cited, where a mar- * 21 Penn, St. 436. ried woman had induced the plaintiffs to 6 Drury v. Foster, 2 Wall. 24. loan money to her upon a false reprfe- ' Liverpool Association v. Fairhurst, 9 sentation that she was a single woman. ESTOPPEL BT CONDUCT, OR EQUITABLE ESTOPPEL. 447 representations of a minor concerning his age^liough another has been induced to contract with him on the faith of his statements.^ Cases are not wanting in which it is declared that the doctrine of estoppel in pais has no application whatever to infants.^ The case of Brown v. McCune, above cited, was, however, simply the case of an infant who had falsely represented himself to be of age,'and thereby obtained the goods for which the suit was brought. It was of course held that the action could not be sustained ; it sounded in contract. In Ackley v. Dygert,* it appeared that no one had been influenced by the representations of the infant ; and the case is, therefore, not an authority for the statement made in it that an infant can do no act which will work an estoppel upon him. The next case referred to * is hardly an authority, either, for so and to recoTer which she and her hus- band were sued upon a promissory note given by her for the amount, the court, Pollock, C. B., said : " A feme covert is unquestionably incapable ot binding her- self by a contract; it is altogether void, and no action will lie against her husband or herself for the breach of it. J3ut she is unquestionably responsible for all torts committed by her during coverture, and the husband must be joined as a defend- ant. They are Uable, therefore, for frauds committed by her on any person, as for any other personal wrongs. But when the fraud is directly connected with the contract with the wite, and is the means of eltecting it, and parcel of the same transaction, the wife cannot be responsi- ble, and the husband sued for it together with the wife. "Xf this were allowed, it is obvious that the wife would lose the procectioh which the law gives her against contracts made by her during coverture ; for there is not a contract of any kind wliich a feme covert could make, whilst she knew her husband to be alive, that could not be treated as a fraud. Por every such con- tract would involve in itself a fraudulent representation of her capacity to sue. Accordingly it has been held in the case cited, and so much commented upon dur- ing the argument (Cooper v. Witham, 1 Lev. 247 ; s. c. 1 Sid. 376), that the wife could not be bound in such a, case. It is true that Twisden, J., assigned another reason, viz., that the wife having repre- sented herself to be sole, and induced the plaintiff to marry her, it was a felony in her, and so no action could lie till the felony was tried; but it was said that if the wife had been pardoned, by which that objection was removed, yet it seemed the action would not lie, and the reason was that it sounded in contract." ,The same doctrine is held in Keen v. Coleman, 89 Fenn. St. 299; Keen w. iiart- man, 4B Penn. St. 497. i Jolmson 17. Pye, 1 Sid. 258 ; s. c. 1 Keb. 913; Bartlett v. Wells, 1 Best & S. 83B; IVIerriam v. Cunningham, 11 Gush. 40 ; Burley v. BusseU, 10 N. H. 184, ex- plaining i'ltts V. Hall, 9 N. H. 441. But see Kilgore v. Jordan, 17 Tex. 341. 2 Brown v. MeCune, 6 Sandf. 224 ; Ackley v. Dygert, 33 Barb. 17S, 193 j Lackman v. Wood, 25 Cal. 147, 153 ; Morris v. Wait, 2 Rich. 148. See McCoon V. Smith, 3 Hill, 147. 8 33 Barb. 176. , * Lackman v. Wood, 25 Cal. 147. 448 ESTOPPEL IN PAIS. broad a proposition ; for there the court observed that the facts upon which the estoppel of the infant was based had not been proved. In Norris v. Waiti^ which is a direct authority against the estoppel, the court admit that if an infant be guilty of a fraud and be proceeded against ex delicto, he will be answerable.^ The authorities, on the other hand, are not few or obscure, which maintain the proposition that if an infant, of years of discretion, having a right to an estate, encourage a purchaser to buy it of another, without asserting any claim to it, the purchaser will hold it against the infant.^ We are inclined to think this the correct doctrine ; and that both infants (of years of discretion) and married women mai/ be estopped to set up a claim to their property against a purchaser. Both are liable, when properly sued, as we have seen, for their torts in an action ex delicto; and in an action for a fraudulent representation of title, whereby the plaintiff was induced to expend money for the purchase of property belonging in reality to the defendant, the measure of damages must of course be the sum paid. Now, to prevent a circuity of action (which indeed is the ground of many estoppels, if not also of this very class of equitable (Estoppels), it is but right, on analogy, that the infant or feme should be rebutted when proceeding to regain possession. Cer- tainly this would seem proper, when the party so proceeding has no other property with which to answer the purchaser for the deceit.* We do not say that the test of the existence of an estop- pel by conduct depends upon the existence of a right of action for deceit ; but we apprehend that, while there may be an estoppel 1 2 Eich. 148. be noticed, are more strongly in favor of 2 Wood V. Vance, 1 Nott & MoC. 197. the estoppel than those at law. 3 Sugden, Vendors, 743 (14th Eng. * As to real estate, another question ed.); Overton v. Banister, 3 Hare, 503; arises, to wit, the Statute of Frauds. If Esron v. Nicholas, 1 DeG. & S. 118 ; Hall it should be found, for instance, that the V. Timmons, 2 Rich. Eq. 120 ; Whitting- infant or feme had held out the vendor ton V. Wright, 9 Ga. 23 ; Irwin v. Merrill, as having authority to make tlie sale, Dud. 72; Thompson v. Simpson, 2 Jones thus constituting him agent and making &Ii. 110; Story, Equity Jur. § 380. See, the owner tlie real seller, the result would also, Stokeman v. Dawson, 1 DeG. & S. be that the latter could afterwards claim 90; Wright v. Snow, 2 DeG. & S. 321; the property if the transaction were ver- Unity Joint Stock Assoc, v. King, 3 DeG. bal ; as it would be void under the stat- & J. 63. The cases in chancery, it will ute. ESTOPPEL B.Y CONDDCT, OR EQUITABLE ESTOPPEL. 449 ■without this right of action in some cases,^ the estoppel always arises where the action of deceit is maintainable. That the doctrine of privity prevails here was determined in Wood V. Seely.2 In this case, one ShoemaJjer, under -whom the plaintiff claimed, had been induced by the defendant to purchase and pay the full value of certain land upon the representation that the defendant had no interest in the land. It was now contended on behalf of the latter, in support of a claim of interest in the land, that the estoppel was personal, and that Shoemaker alone could avail himself of it ; but the court held otherwise.^ The doctrine is illustrated also in Parker v. Crittenden.* In this case, the plaintiff bought a hack in the possession of a third person, as belonging to him. The real owner was present, and ' assented to the sale. Subsequently it was attached as his, in the I hands of the plaintiff, who now brought replevin. The court held him entitled to recover. The defendants, it was remarked, by claiming through the owner under the attachment, were privies ia estate with him, and bound by tlie same estoppel. By analogy to the position heretofore taken concerning the rela- tion of grantor and grantee in conveyances of real estate, it would seem that a purchaser of goods is not a privy in estate or otherwise 1 Piekard v. Sears, 6 Ad. & E. 469; grantee of the immediate purchaser. Es- Gregg V. Wells, 10 Ad. & E. 90 ; Niven toppels by record and by deed, as is well V. Belknap, 2 Johns. 578. Cases of mere known, run in favor of, and against, the silence would not, according to high au- privies in estate of the immediate parties- thority, furnish ground for an action of to the estoppel, as well as for and against deceit. Peek v. Gumey, 43 Law J. Ch. the parties personally ; and I see no rea- 19, House of Lords. son why estoppels in pais should not be 2 32 N. Y. 105. within the rule, as they clearly are within 3 Denio, C. J., in delivering judgment, its principle. Cases of dedication oftem said : "I am of opinion, on the contrary, rest upon the principle of estoppels irf that the plaintiff, or the owner of the land pais; it being considered fraudulent om under Shoemaker's title, holding under the part of one dedicating his land toi mesne conveyances from him, is equally public uses to retract, to the prejudice' entitled to avail himself of the equitable of parties who have purchased on the bar. In some of the cases referred to, faith of such dedication. It has fre- relief was given to the grantee of the quently been held that the estoppel at- party defrauded. Such was the case of taches itself to the land, and can be Town V. Needham, 3 Paige, 545. In asserted on behalf of the grantee of the Jones V. Powell, 6 Johns. Ch. 194, where immediate purchaser." Hills v. Miller, a right of dower was relieved against, on 3 Paige, 254 ; Watertown v. Cowen, 4 the ground that a collateral compensa- Paige, 610 ; Child „. Chappell, 9 N. Y. tion had been made by the testamentary 246. trustees of the husband, the party to * 37 Conn. 148. whom the relief was adjudged was a 29 450 ESTOPPEL IN PAIS. with his vendor, so as to be aifected by an estoppel in pais vesting on the vendor in respect of the goods. Thus, if a person stand by and allow his goods to be sold as the goods of another to one who does not take possession, and the actual owner afterwards sell the same to another person for value and without notice of the previous transaction, it would seem that the latter would be entitled to the goods as against the first purchaser ; unless the jury should find that the conduct of the owner at the first sale was such as to amount to the grant of an authority to the seller to sell the prop- erty. In the latter case, the title would pass to the first purchaser. But it is apprehended that, if the facts did not show or the jury find an agency, the title would not pass. The owner would simply be precluded from setting up title against the purchaser. It is not the ofiice of an estoppel to pass a title. The title remains, but it cannot be asserted against the party who acted upon the false representation. As to others it may be asserted or conveyed ; and a purchaser, not being a privy, according to the analogies of the case, is not estopped to assert title to the goods. This is certainly true of a purchaser under an execution against, the real owner.^ If the representation has been procured by fraud, there will be no estoppel upon the party making it, it would seem, though he made it with the full intention that it should be acted upon.^ In Wilcox V. Howell, just cited, an action was brought to foreclose a mortgage, executed by the defendant to one Picard, and by him assigned to the plaintiff. It was proved that the mortgage had been procured by fraud ; but it also appeared that the defendant had given a certificate, which was delivered to the plaintiff with the mortgage, that the security had been given " for a good and valid consideration to the full amount thereof, and that the same was subject to no offset or defence whatever." But it appeared that this certificate had also been procured by the mortgagee by fraud, and that it was not given to induce the plaintiff to buy the mortgage or to enable the mortgagee to negotiate it ; on the 1 Richards v. Johnston, 4 Hurl. & N. against the tax-payers, had been obtained 660 ; Bigelow's L. C. Torts, 438. by fraudulent representations ; and it was 2 Wilcox V. Howell, 44 N. Y. 398 ; s. held that its validity might be disputed, 0. 44 Barb. 896 ; Holden v. Putnam Fire though money had been expended under Ins. Co., 46 N. Y. 1; Calhoun v. Rich- it. See Roe u. Jerome, 18 Conn. 138; ardson, 30 Conn. 210 ; Sinnett v. Moles, Holden v. Putnam Pire Ins. Co., 46 N. 88 Iowa, 25. In the latter case, a tax Y. 1. vote, claimed to have raised an estoppel ESTOPPEL BY CONDUCT, OB EQUITABLE ESTOPPEL. 451 contrary, it was given with tlie understanding that he should riot negotiate. The court of course held that the defendant was not estopped to deny the truth of the representation made in the certificate. But suppose it had been proved that the certificate had been given to the mortgagee in the presence, of the assignee, and with the full intention that the latter should act upon the representation, and that the assignee was ignorant of the fraud in procuring the cer- tificate, would the mortgagor then be estopped to deny the truth of the statement made ? It would seem not ; for the estoppel rests on the assumption that the party against whom it is alleged has acted freely and with full knowledge of the circumstances ; and this assumption fails where the mortgagor has been deceived into the belief that the mortgage has been given for value. The security may have been given for some supposed liability which future events may have shown, as matter of fact, did not exist, but which at the time he may have had every reason to believe was real and undischarged. If the- mortgagee in such case has procured the certificate or statement by a fraudulent suppression of the facts, the mortgagor, in making the representation, acts in ignorance, and should not be bound. The estoppel will also be strictly limited to the representation made.^ In the case cited, a sheriff, having a writ commanding him to take the body of a certain person, took the plaintiff, upon a rep- resentation by her that she was the person named in the writ ; but he retained her in custody after notice that she was not the party in- tended. The court held that though the plaintiff might be estopped by her conduct from suing the sheriff for the original arrest, she was not estopped to maintain an action against him for retaining her in custody after notice that she was not the person named in the writ. It is not necessary that the representation should be made in express terms, provided it be certain in its nature. Thus the witnessing of a deed to one's own land, done knowingly, for a grantee in ignorance of the witness's rights, will (at least in equity) estop the witness to set up against the grantee a claim to the land existing in the witness when the deed was executed.^ 1 Dunston v. Paterson, 2 Com. B. N. 2 Hale v. Skinner, 117 Mass. 474; B. 495; Murray v. Jones, 50 Ga. 109; Stevens v. Dennett, 51 N. H. 324. As Tilton V. Nelson, 27 Barb. 695. to estoppels in pais at law in real prop- erty, see Fleading.and Practice, post. 452 ESTOPPEL IN PAIS. The estoppel may also arise, as we have intimated, from passive conduct. The doctrine of Pickard v. Sears was soon after brought again before the same court.^ The case referred to was an action of trover for goods, the fittings and furniture of a public house. The plaintiff, being owner of the goods, demised them to one Dur- ham, who thereupon became tenant of the house to third parties under an agreement, made in the plaintiff's presence, giving his landlords a lien on the goods. The landlords, however, did not know that the plaintiff was owner of the property, nor did they know of the arrangement with Durham ; and nothing was said or done to apprise them of these facts. Subsequently Durham sold the fitting^ and furniture to the defendant without the plaintiff's knowledge, and the defendant purchased in good faith, and in ignorance of the plaintiff's title, and thereupon became tenant under Durham's landlords. The court held that the action could not be maintained. Lord Denman, C. J., said that the doctrine of Pickard v. Sears might be stated even more broadly than it was there laid down. " A party," said he, " who negligently or culpably stands by and allows another to contract on the faith and understanding of a fact which he can contradict, cannot afterwards dispute that fact in an action against the person whom he has himself assisted in deceiving." ^ A somewhat similar point was considered in Niven v. Belknap.^ This was a bill quia timet, under the following circumstances : The plaintiff, Niven, had applied to the defendant, Belknap, to purchase a farm, then in the possession of Belknap, and was in- formed by him that a third person, who held a mortgage from him (Belknap) upon the farm to nearly its value, had the disposal of the property. The defendant then went with the plaintiff to the mortgagee,, and an arrangement was made between him and the plaintiff, in the presence of the defendant, for the absolute pur- chase of the farm, and the mortgagee thereupon executed a convey- ance in fee to the plaintiff, who afterwards took possession as owner, and made considerable improvements on the land. Subse- quently the defendant, the mortgagor, made an absolute convey- 1 Gregg V. Wells, 10 Ad. & E. 90. Co., 38 Conn. 421. But the party cannot 2 Studdard v. Lemraond, 48 Ga. 100 ; be estopped in cases of this kind, unless Whitman v. Boiling, 47 Ga. 125 ; Janeson he held the title at the time of the pur- V. Janeson, 66 111. 259 ; Tucker v. Con- chase or other act. Marquart v. Brad- well, 67 111. 552; Basher v. Wolf, 59 l\\. ford, 43 Cal. 526. 470; New Haven v. Fairhaven & W. E. '2 Johns. 573. ESTOPPEL BT CONDUCT, OB EQUITABLE ESTOPPEL. 453 ance of the land to his son, who was a neighbor of the plaintiff; and the father and son were now proceeded against, with a prayer that they might be compelled to discover any pretended title to the land, and required to renounce the same, or be perpetually enjoined from asserting it. The bill was sustained by the Court of Errors.^ Silence was held to have worked an estoppel in the late case of Hope V. Lawrence.^ In this case, the defendants were instructed, according to the plaintiff's testimony, to sell certain gold of his in their possession if it reached a premium of 217 per cent on a certain day. It did reach that point, and was very firm at the time, and the defendants thought best not to sell under the circumstances, and so stated, in answer to the plaintiff's inquiry on the next day, on the morning of which gold had advanced to 220. Two or three days later, gold having in the mean time fallen belo\^ 217, the plaintiff wrote the defendants, " I took a note of your reply [above 1 The opinion of the court was de- livered by Thompson, J., who observed : "Though it does not appear positively from this testimony that Belknap took any active agency in this negotiation, yet his presence and silence are equally efficacious and binding upon him, if the complainant was thereby misled and de- ceived. There is an implied as well as an express assent ; as where a man who has a title, and knows it, stands by and either encourages or does not forbid the pur- chase, he, and all claiming under him, shall be bound by such purchase. Fonbl. 161. It is very justly and forcibly observed by a writer on this subject (Roberts, Frauds, 130), that there is » negative fraud in imposing a false appre-. hension on another by silence, where silence is treacherously oppressive. In equity, therefore, where a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to be silent." See, also. Hall v. Fisher, 9 Barb. 17, 31 ; Parkhurst v. Van Court- land, 1.4 Johns. 15, 43 ; Malin v. Maljn, 1 Wend. 625, 666 ; Adams v. Rockwell, 16 "Wend. 285, 317 ; Otis v. Sill, 8 Barb. 102; Chautauque Bank v. White, 6 Barb. 589; Railroad Co. v. Dubois, 12 Wall. 47; Rubber Co. v. Goodyear, 9 Wall. 788. In Chapman v. Chapman, 59 Penn. St. 214, Agnew, J., says : " As to Gansamer there was no such positive act, but there was a silence so suggestive, so pregnant with ill to him, the court was justified in leaving its effect to the judgment of the jury. Silence will postpone a title when one should speak out, when, knowing his own right, one suffers his silence to lull to rest, instead of warning to danger ; when, to use the language of the books, silence becomes a fraud. Such a silence, though negative in form, is operative in effect, and becomes suggestive in the seeming security it leads to. He who is led by such . a silence, ignorantly or innocently, to rest upon his title, believing it to be secure, and to expend money and make improvements upon his property without the timely warning he should have had to dispel his illusion, will be protected by estoppel against recovery. Crest v. Jack, 3 Watts, 238 ; Keeler v. Vantuyle, 6 Barr, 250; Commonwealth u. Moltz, 10 Barr, 531 ; Woods v. Wilson, 37 Penn. St. 383 ; Miranville v. Silverthorn, 48 Penn. St. 149." See, also, Lawrence. tf. Lnhr, 65 Penn. St. 236. 2 50 Barb. 258. 454 ESTOPPEL IN PAIS. mentioned] , and determined to wait the future course of the mar- ket before writing to you." The price of gold kept falling for several days, and the defendants sold it at 207| premium. The plaintiff now sought to hold the defendants for their failure to sell at the time first mentioned. The court, however, held that he was estopped by his conduct.^ Similar questions of estoppel have often arisen in actions upon insurance policies as to the effect of silence on the part of the de- fendants concerning defects in the preliminary proofs of loss. In Blake v. Exchange Mutual Insurance Company,^ the defendants, being sued for a loss by fire, raised an objection to the sufficiency of the preliminary proofs ; but the court decided that they had es- topped themselves from making the objection. In the court below, the judge had instructed the jury that defects 1 " The effect of the omission of the plaintiff," said Leonard, P. J., " when he inquired the next day of the defendants if they had sold, to notify them that his instructions were absolute to sell (a) if the price reached 217, was to put them into a feeling of security, and involre them in further loss, if the price of gold continued to decline. The whole risk of the market was on them, while the plain- tiff enjoyed the advantage to accrue in case the price advanced up to or above the limit of 217. The plaintiff was aware of this, if he had given absolute instruc- tions to sell at a price which the market had touched. His letter shows that he knew precisely how the price had ad- vanced, and that he intentionally re- mained silent to see how the market would fluctuate after that. Had he then stated the position now claimed in this action, the defendants might have closed the gold transactions at 215}, the then market price, being only li per cent below the plaintiff's limit, and involving a loss of 175 only. What the market price was on the 30th of January, when the plaintiff advised the defendants of his claim on them, does not appear ; but on the 4th day of February, when it was sold, the price appears to have fallen to 2074, the price realized. The defendants, by the silence of the plaintiff, had no op- portunity to elect whether to hold or to sell the gold of the plaintiff, then in their hands, at their own risk as to the price, without the smallest chance of realizing any benefit for themselves, if the position of the judge at the trial is correct. But, in my opinion, what has been remarked above, as to the practical effect upon the rights of the defendants, arising out of the silence of the plaintiff when he should have spoken, establishes that the plaintiffis estopped from inflicting upon, the defend- ants any damage for the subsequent de- preciation in the price of gold coin. The plaintiff should be held to assume all the risk of further depreciation, when he saw that the defendants were resting under the impression that they had missed the market by an error of judgment. He asked the reason why the defendants had not sold, and was told that the market looked strong when it was about 217, and thereupon they did not sell. It was evident to the plaintiff, from tliis answer, that the defendants were acting on their discretion." 2 12 Gray, 265. (a) The defendants claimed that the instructions were not positive. ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 455 ill the preliminary proofs might be -waiTed or the defendants es- topped to avail themselves of such defects otherwise than in writ- ing indorsed on or annexed to the policy ; that if the by-laws and conditions of insurance required certain preliminary proofs and notices to be given in a certain manner, and with certain particu- lars and details, and certain preliminary proofs and notices were given, not containing all the formal requisites, and, after receiving such proofs and notices, the defendants' president and secretary examined the premises, and had interviews with the plaintiff before the expiration of the time for giving said notices, and neither they then, nor the defendants afterwards, made any objection to the form or sufficiency of the preliminary proofs while any defects therein might have been remedied, and put their refusal to pay on other and distinct grounds, then such conduct might be considered a waiver of any defects in the preliminary proofs, or so far an es- toppel that the defendants should not be allowed to avail them- selves thereof, notwithstanding the provisions of the policy. This instruction was sustained on appeal.^ 1 "There can be no doubt," said Thomas, J., speaking for the court, " that the conduct of the defendants would amount to a waiver, except for the last clause in the policy, by which it is ' agreed and declared by the parties a,foresaid, that no condition, stipulation, covenant, or clause hereinbefore contained, shall be altered, annulled, or waived, or any clause added to these presents, except by writing indorsed hereon or annexed hereto by the president or secretary, with their signatures affixed thereto.' There is a, previous provision that in case of loss the money is 'to be paid within ninety days after notice, proof, and adjustment thereof in conformity to the conditions annexed to the policy.' The provisions for notice and proofs of loss are contained in the twelfth of the , by-laws. The entire by-laws are printed under the heading, ' Conditions of Insur- ance.' The policy is declared to be made and accepted in reference to the condi- tions thereto annexed, which are made part of the policy. How far the provi- sions as to the form of the notice and proofs of loss, after a valid contract has been made and a loss taken place jmder it, can be regarded as conditions of the contract itself, it is not necessary to de- termine, nor whether their being classed under the designation of conditions of insurance could change the nature and purpose of the stipulations themselves ; for it seems to us that the question is not as to the provisions of the contract, but as to the performance of the provisions. The plaintiff is not seeking to set up a contract from which a material provision has been omitted by the oral consent of the officers of the company. The policy contained the usual provisions as to notice and proofs of loss. Upon the happening of the loss, the plaintiff sent to the defendants certain notices and proofs in pursuance of the requisition of the by- laws upon the subject. If the notices were defective, good faith on the part of the underwriters required them to give notice to the insured. If they failed to do so, if they proceeded to negotiate with the plaintiff without adverting to the defects, if, still further, they put their refusal to 456 ESTOPPEL IN PAIS. The case of Cambridge Institution for Savings v. Littlefield^ is important in this connection. It was an action by the indorsees of a promissory note against the maker, to which the defendant pleaded his discharge in bankruptcy. It appeared that before the note was transferred to the plaintiffs, one Wood applied to them for a loan of money, apd that the plaintiffs, at Wood's suggestion, took the note and mortgage of the defendant as security ; Wood guaranteeing the note. The intention, at first, was to take a mort- gage from Wood. The defendant was present during the trans- action, and did not disclose the fact that he had been discharged in bankruptcy from liability on the note. The plaintiffs now con- tended that the defendant was estopped to set up his discharge ; but the court held the defence proper. But the court intimated that it might have been otherwise, had this been the only security obtained.^ pay on other and distinct grounds, they are, upon familiar principles of law, es- topped to set up and rely upon the defec- tlTC notices. The law assumes that the notices were correct, and will not listen to the defendant when he seeks to show the contrary. Vos v. Robinson, 9 Johns. 192; ^tna Kre Ins. Co. v. Tyler, 16 Wend. 401 ; Heath u. Franklin Ins. Co., 1 Cush. 257; Clark «. New England Mutual Fire Ins. Co., 6 Cush. 342 ; Miller V. Eagle Life Ins. Co., 2 E. D. Smith, 268; s. 0. 1 Big. 375; Ripley «. ^tna Ids. Co., 30 N. Y. 136. If the defendants relied upon any exemption from the ob- ligations of the policy, or any modifica- tion of them by the agents or officers of the company, or any addition, he must show such exemption, modification, or addition by indorsement upon the policy. But the question whether a stipulation as to notice and proofs of loss has been fulfilled, or whether the defendant is in a condition to be heard upon that ques- tion, must be tested by the ordina,ry rules of law. There is a time when objections in matters of form must be taken. If they are not then made, they never can be made. The law does not say the pro- cedure was perfect, but that the question was not open." > 6 Cush. 210. ^ Having remarked that it was essen- tial to such an estoppel that one party has been induced by the conduct of the other to do or forbear doing something which he would not or would have done, as the case might be, but for such con- duct of the other party, Dewey, J., speak- ing for the court, said : " The application , for a loan was by Wood. It was, so far as we can perceive, a loan to be made on Wood's responsibility, accompanied by a mortgage of certain land to secure the payment. The party lending the money did not originally stipulate for Littlefield's personal liability. When Littlefield's note was offered as the basis of the mort- gage, some objection was made to it, and thereupon Wood's guaranty was given, and the mortgage transferred to the plaintiffs, and accepted by them. The plaintiff's thus received Wood's security and a valid mortgage of real estate, all equally valid whether Littlefield's per- sonal liability had or had not been re- leased by his discharge in bankruptcy. If it be said that the guaranty of Wood was not as good security as his promis- sory note, that objection equally exists whether the note of the defendant was valid or invalid as against the plaintiff's. The silence of the defendant, at the time of making the loan to Wood, did not ESTOPPEL BT CONDUCT, OK EQUITABLE ESTOPPEL. 457 A question of. this kind arose in the recent case of Corning v. Troy Iron and Nail Factory.i The action was brought to restrain the defendants from diverting the \yater of a stream running along the land of the plaintiffs, and to compel the defendants, to re- store the water to its natural channel. It appeared that one De- freest, under whom the plaintiffs claimed, while owning and using a water privilege on the stream in question, had assented to the erection by the defendants of works and dams on land leased by him to the defendants, by which the waters of the stream were diverted, and urged the completion of the works intended for this purpose, and expressed his fear that the defendants had not the means to complete them. Defreest wished the completion of the works from an expectation that the result would be a large increase in population, which would raise the value of his land ; and the claim of the defendants to the use of the water so diverted was adverse to Defreest. It was held that the plaintiffs were not estopped. The court said that the answer to the position that the plaintiffs were estopped was, that the defendants were in full possession and control of the creek and land under the lease, and that during the continuance of the lease Defreest had no right to object to any use of the stream by the defendants except such as worked an injury change that part of the arrangement; personal discharge of the defendant by and the guaranty of Wood is equally his discharge in bankruptcy, binding on him whether the defendant is " The case is not, therefore, the bald or is not liable. Had the plaintiflFs re- case of a party standing by and silently ceived the note from the defendant as permitting a chose in action, to which he their sole security, or as that upon which is a party, to be taken as a valid debt, they substantially relied, and parted with and money lent thereupon; he knowing their money on the strength of it as at the same time that there is a secret security, the silence of the defendant as taint as to the same that renders it wholly to his discharge from all liability for the worthless, and leaves the party taking it payment of it might have been strongly without any security for the repayment urged against him, upon his setting up of the loan. On the contrary, the de- such discharge as a bar. But, indepen- fendant might reasonably suppose that dently of a personal liability of the de- the plaintiffs relied principally upon the fendant, the plaintiffs received a valid and mortgage and the guaranty of Wood as valuable security for their money. The their security for the money lent, and note was a good instrument for the foun- it has not been shown or suggested that dation of a. mortgage, and equally so the land mortgaged and the guaranty of whether the personal liability of the de-' Wood are not ample security for the fendant to pay the note existed or not. loan." So, too, the guaranty of Wood was a legal i 40 N. Y. 191. and valid contract, irrespective of the 458 ESTOPPEL IN PAIS. to the reversion ; and this the diversion, during that period, could not have done. The defendants, further, knew at the time that upon the expiration of the lease their right to divert the water would cease, and there was no 'pretence of any other right except under the lease ; and the defendants were not, therefore, in any sense misled or deceived as to the right of diversion by any thing done by Defreest. A curious case of estoppel of this kind arose recently in Ford V, Williams.^ It appeared that the defendant, an attorney in an execution, refused to disclose to the plaintififs (who were interested in the matter) at whose request he acted in directing the execu- tion sale ; and that the plaintiffs thereupon threatened him with suit, to which the defendant replied that they might use as soon as they pleased. In an action of trespass for the goods sold under the execution, he was now held estopped to deny that he had acted on his own responsibility.^ Silence was held a ground of estoppel in the recent case of Gregg V. Von Phul.^ The case was this: The parties had entered 1 24 N. Y. 859. tended and countenanced the sale. It 2 In delirering the opinion of the court, might be that, conceding these facts, he Denio, J., observed : " The evidence on was not a trespasser, and that the officer the present trial was very full to show and the plaintiffs in the execution were the defendant to have directed the seizure the only parties implicated, as we held and sale of the property; and the rules when the case was here before. 13 N. Y. of law as to what kind of participation 577. Yet if he acted officiously, and be- in a trespass will implicate a person in yond the scope of~his duty as an attor- wrong were correctly laid down by the ney, or if he directed the execution to be judge. But the defendant objects to the levied on this particular property, without ruling in which it was stated that the fact instructions for that purpose by his cli- that the defendant refused to disclose on euts, he would be hable. The present whose behalf he was acting, and told plaintiffs, after the sale, required an ex- the plaintiffs to sue him, estopped the planation on that point, which, according defendant from denying that he directed to the testimony, he refused to give, tak- the sale of the property. I think the ing the responsibility upon himself by in- case does not raise such a question. As I viting the plaintiffs to sue him. This, if understand it, the charge was, that if the the testimony were believed, would be a defendant, besides directing the sale and ratification on his part of the act of sell- p,romising to indemnify the bidder, refused ing the property, which would render him to name his principals and invited the subject to its consequences ; and, in con- plaintiff to sue him, he would be estopped sequence of that declaration, if the plain- from denying his complicity. The sub- tiff sued him instead of the other parties Btantial correctness of such an instruction liable, he would be estopped from insist- cannot be doubted. But if the charge ing upon a defence which, if allowed, were such as the objection assumes, I would subject the plaintiff to costs for think it would be right. The defendant acting on his invitation." certainly issued the execution and at- 3 1 Wall. 274. ESTOPPEL BT CONDUCT, OB EQUITABLE ESTOPPEL. 459 into articles of agreement by which Von Phul, the plaintiff,^ agreed to sell and convey to Gregg certain premises in Peoria. Von Phul had covenanted that he would convey the premises by deed in fee " with full covenants of seizure and warranty, on or before the first day of March, 1857," and Gregg agreed to execute his three promissory notes for the sura to be paid. On the Ath of May, 1860, Von Phul's agent tendered a deed to Gregg, and de- manded, not the notes, but the money due on the contract of pur- chase. This deed covenanted that Von Phul was " lawfully seized " in fee of the premises, and that he would " warrant and defend the title " against all persons. Gregg looked at the deed, and made no objection to it, but stated that he was not ready to pay the money, and handed back the instrument. Von Phul now brought an ejectment for the premises, of which Gregg had taken posses- sion under the contract of purchase ; and the defence was, that the deed tendered did not correspond with the one agreed upon. But the court 'held him estopped to set up such a defence.^ If the owner of an estate stand by and see another expend money upon an adjoining estate, the latter relying upon an existing right of easement in the other estate, without which such expenditure would be useless, and do not interpose to prevent the work, he will 1 " In the view we take of this case," objections which his failure to make when said Davis, J., for the court, " it is not the deed was tendered must have induced important to determine whether the deed Von Phul to suppose did not exist." tendered was such a one as Von Phul Further on in the opinion, the ground was bound to make, or Gregg obliged to of the decision is stated still more plainly, receive. If the deed was justly liable to " No one is permitted to keep silent," said objections, they should have been stated, the learned judge, "when he should Gregg is estopped now, on the most speak, and thereby mislead another to his obvious principles of justice, from inter- injury. If one has a claim against an posing objections which he did not even estate, and does not disclose it, but stands name when the deed was tendered and by and suffers the estate [to be] sold the money due on the contract demanded, and improved, with knowledge that the If the deed was defective and the defects title has been mistaken, he will not be pointed out, non constat but they could allowed afterwards to assert liis claim have been obviated. There is nothing in against the purchaser. Hill v. Epley, 31 the evidence even tending to show that Penn. St. 331, 334; Breeding v. Stamper, Von Phul did not act in good faith. The 18 B. Mon. 175. And justly so, because very silence of Gregg was well calculated the effect of his silence has actually mis- to influence the conduct of Von Phul, and led and worked harm to the purchaser, to convince him that the want of the And in this case the silence of Gregg con- money was the only reason Gregg had for dudes him. He cannot now take excep- declining to perform the contract. And tions to a deed which he failed to per- it would be against good conscience to ceive when it was tendered to him, or, permit Gregg now to avail himself of if he knew them, failed to disclose." 460 ESTOPPEL IN PAIS. not be permitted to interrupt the enjoyment of such easement.^ In the case cited, the plaintiff brought an action to compel the defend- ants to take down and remove a wall which they had erected upon the top of a wall which divided the plaintiff's store from that of the defendants. The wall was a party wall, standing one half upon the land of each of the parties. The defendants had carried it up so as to add two stories to the height of their building ; and this was done with the knowledge and consent of the plaintiff. The court held as to this point that the plaintiff was now estopped to object to the erection ; but it was also held that the wall could not be so constructed as to become a nuisance to the plaintiff. In Watson v. Knight,^ the plaintiff brought an action of trespass against "the defendant, a constable, for taking certain property of his under an execution against one Beason. To support the de- fence, the constable offered to prove that on the day of sale Beason claimed the property as exempt from execution, in the presence of the plaintiff, who said nothing. It had been previously shown that Beason formerly owned the property, and had sold it to Knight about a month before the sale by the constable, and had given him possession before the levy. The plaintiff had given the defendant notice that the property belonged to him. The evidence offered was excluded by the court below, and the judgment was affirmed on appeal. The court observed that the claim of exemption set up by Beason was as much a defence of his right to sell to the plaintiff as the claim of property in himself, and did not call for contradiction. The defendant had received notice from the plaintiff of his claim, and the declaration of Beason was an additional reason why he should not sell. The recefht case of Guthrie v. Quinn^ involved this subject. This was a bill in Chancery by Quinn against Guthrie, Lewis, and others, in which he alleged these facts : That Guthrie had pur- chased a horse from him for a certain sum, to be paid about two and a half months afterwards ; that, to secure payment, Guthrie gave him a mortgage on his growing crop ; that, before the sale was consummated, Quinn had an interview with the defendant, Lewis, in regard to the sale, and informed Lewis of the proposition, to which Lewis replied that " Guthrie would be entitled to half the crop he was making, and it would be all right," but at the same time advis- 1 Brooks V. Curtis, 4 Lans. 283 ; Wash- 2 44 Ala. 352. burn, Easements, 62, 63. s 43 Ala. 66i. ESTOPPEL BT CONDUCT, OR EQUITABLE ESTOPPEL. 461 iiig Quinn to retain a lien on the horse, which was done.' The bill further stated that the crop above referred to was growing on the land of Lewis, but he did not inform Quinn that he had any claim to or interest in the crop. Guthrie afterwards absconded with the horse, and Lewis now, for the first time, informed Quinn that he had a claim on the crop. The plaintiff now sought to subject this to the payment of his debt by foreclosing the mortgage given by Guthrie ; and the court held him entitled to the remedy.^ So if the maker of a note tell one proposing to take it, and desir- ing to know if he has any defence to it, that it is " all right," he will be estopped to dispute the truth of this admission when sued on the note by the person to whom it was made.^ In Owen v. Slatter,^ the plaintiff filed a bill to obtain an' assign- ment of dower in certain pieces of land, which had been sold under an order of the Orphans' Court, on the application of the plaintiff 1 Mr. Justice Peters, speaking for the court, now said : " Quinn applied to him [Lewis] for advice when he was about to sell bis horse to Guthrie, and Lewis cau- tioned him not to sell without retaining a lien on the horse, and informed him that Guthrie would be entitled to one half the crop he was malting on his (Lewis's) land, and that 'it would be all right.' This language could not have been reason- ably construed to mean less than that the crop would be liable to aid in paying for the horse. The language was addressed to Quinn. It could not be all right to him, if the cotton and corn that Guthrie was mailing on Lewis's lands were not liable to the payment of the amount about to be contracted for the horse. Nothing less than this would make it all right with Quinn. If Lewis then had claims against Guthrie for which the crop was liable, it was his duty to have dis- closed them. If he failed to do this, he waived his right. This is the doctrine of this court as laid down in Steele v. Adams, 21 Ala. 634." 2 Brooks V. Martin, 43 Ala. 360. Peters, J. ; " There can scarcely be a reasonable doubt that the words used by Martin, in answer to Brooks's inquiry about the note, were calculated to mis- lead and deceive, if they turned out to be untrue. It is difficult to conceive what would make a note ' all right ' that could not be collected by suit, or that would not be paid at maturity, if the maker was able. This would make it all right, and nothing short of this would have that effect. Had there been a suit pending' on the note between Brooks and Martin, and the latter had come into court and pleaded that the note was 'all right,' the court could not have refrained from giving judg- ment against him. Now, by his words, he puts in this plea before suit is brought, and the law will not permit him to with- draw it, after suit is brought. These words amount to an admission that Martin cannot take back without inflicting an injury upon Brooks, who had acted upon it." See also Hefner v. Dawson, 63 111. 403; Plant v. Voegelin, 30 Ala. 160; Mc- Cabe V. Eaney, 32 Ind. 309 ; Vanderpool 17. Brake, 28 Ind. 130; Eose v. Hurley, 39 Ind. 77. But see Jaqua v. Montgomery, 33 Ind. 36. But if a defence should arise subsequently to the representation, the maker may set it up. Cloud v. Whiting, 38 Ala. 57 ; Maury v. Coleman, 24 Ala. 381. 3 26 Ala. 547. 462 ESTOPPEL IN PAIS. as administratrix, to the grantor of the defendants. The defence was that the plaintiff had made no reservation of her claim to dower at the sale, and that the defendants had purchased without notice of her claim. The plaintiff was held entitled to recover.^ In Hopper v. McWhorter,^ an action of trover for the conversion of slaves, it was contended that the plaintiff, administrator of one Pratt, was estopped by reason of these facts : After the death of Pratt, the slaves were divided between the donees of the deceased, and the share to which the plaintiff was entitled was delivered to Mrs. Pratt. The plaintiff was present at the division, and made no objection to Mrs. Pratt's receiving the share allotted her; and he, having married one of the donees, received the portion allotted his wife. The court held that there w.as no estoppel.^ In an action of debt on a guardianship bond, against the guar- dian and surety,* it appeared that the guardian had been removed by an order of court, and that he subsequently received money as guardian. The surety (Holcomb) knew at the time that Phelps, the guardian, was about to receive the money under pretence of holding the position, but he did not interfere or give notice of the 1 Chilton, C. J., in delivering the blindly bids off the land without inqviiring opinion of the court, said : " The widow's whether the widow has relinquished her right to dower is unaffected by the sale, dower, or consented to a sale of it, elect- unless, indeed, she bars her right by some ing to take a share of the proceeds in lien act which in a court of equity would con- thereof, it is his folly, and he has no one Btitute it a fraud in her to insist upon it. to blame but himself. We are of opinion. The facts of the case before us do not therefore, that there was no fraud on the make out such a bar. True, the widow part of Mrs. Owen in failing to announce in this case is administratrix, but the law at the sale that the land was sold subject prescribes her duties, and so long as she to her dower." acts within the scope of those duties it " 18 Ala. 229. would be singular indeed that she should ^ The court said : " We can perceive forfeit her rights as an individual, merely none of the qualities of an estoppel in by reason of her having properly com- this. Mrs. Pratt, who received the slaves plied with the requirements of the law to which her husband's administrator was in her fiduciary character. Such sales, entitled, gave nothing for them. The when made by commissioners, are judi- administrator made no representations cial in their character, and, like sales un- which it would be inequitable for him der executions, leave the widow's right to to disregard; nor, so far as we can see, dower unaffected. The purchaser is sup- did he say or do any thing in reference posed to examine the record, and to know to the division, but simply permitted the what he is buying, and to purchase with share, to which he, as administrator of a knowledge that the dower is yet an en- Pratt, was entitled, to go into the posses- cumbrance upon the land. The maxim sion of his widow." caveat emptor applies ; and if the purchaser * Merrells v. Phelps, 34 Conn. 109. ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 463 removal. It was now contended that Holcomb was estoppe'd to deny his liability ; but it was held that he was not. It did not appear, the court observed, that Holcomb did or ^aid any thing intended or calculated to deceive or mislead, or to induce any one to change his position; and the displacement of the guardian having been a judicial proceeding, it could not be deemed incum- bent upon the surety to seek out the plaintiff and communicate to him a fact of which the record of the court gave notice to the world. In a recent case,^ the plaintiff sued to recover an assessment of taxes on cattle. It appeared that for six years prior to the year 1862 the plaintiff's cattle had been entered in the assess- ment lists of North Canaan, and the tax upon tliem had been regularly paid by the plaintiff, without complaint; and in the year 1861, the son of the plaintiff, acting as his agent, entered the cattle in the lists of the town, with the knowledge and con- sent of the plaintiff. The court held the plaintiff estopped to deny the legality of the assessments.^ But in the absence of statute the mere payment of taxes im- properly assessed, without objection, will not estop a person to resist further assessments.^ In Landon v. Litchfield, just cited, the plaintiff sought to recover money paid by him under protest as a tax on property which he claimed was exempt. It appeared that he had paid the assessments on the property for twenty years pre- viously, without objection ; and it was urged that the plaintiff ' Ives V. North Canaan, 33 Conn. 402. time he questioned only the right of the ^ He "had every reason to expect," it town to tax the college lands belonging to was said, " that the cattle would continue him. In the case of Smith v. Smith, 30 to be entered in the assessment lists of Conn. Ill, a minor son made a contract that town, unless he made knbwn to the for his services, and in the agreement it assessors his objections to such course, was stipulated that his wages should be It was reasonably certain that his con- paid to himself. His father was entitled duct would produce such result, and to the value of his labor, and knew the induce the belief that he desired such terms of the contract, and, although he course should be taken. Every person resided in the vicinity, made no objection of ordinary understanding would have so thereto till after the son had been paid, reasoned under the circumstances ; and when he paid the contract price. It was the plaintiff must, therefore, be taken held that his silence showed that he to have so considered the subject. His assented to the contract, and he was held silence shows that he assented to what to be estopped from claiming the wages was done. This is further shown by the of his son." See, also, Goddard v. Sey- fact that, after the assessment was made, mour, 30 Conn. 394. the plaintiff offered to pay the tax upon 3 Landon v. Litchfield, 11 Conn. 251 ; the cattle, without the least objection to Cruger v. Dougherty, 43 N. Y. 107. the legality of the assessment. At that 464 ESTOPPEL IN PAIS. was now estopped to deny the defendant's claim to the taxes. But the court held that there was no foundation for such an objection. If a person make a note in the name of himself and another, as partners, the other person being present at the time, and not objecting, the latter will be estopped to allege that he was not a partner at the time the note was executed, whatever the truth may have been.^ In Taylor v. Ely ,2 the plaintiffs, as assignees of one Withey, sought to foreclose a mechanics' lien in his favor, for building a house for the defendants, the work on which was commenced by Withey and finished by the plaintiffs. The plaintiffs claimed a balance due of fl,500. It appeared that Withey, during the negotiations for the assignment of the contract, stated to the plaintiffs that this amount would be due on the completion of the work. This statement was immediately communicated to one of the defendants, who said that he did not know how the fact might be, that his brother knew more about the matter than he did, and referred the plaintiffs to him for information. One of the defendants remarked that he could not then tell how the account stood, as the books were at the store ; and subsequently the defendants refused to give such information on the subject as the plaintiffs desired. The plaintiffs now proceeded to finish the house, at considerable outlay ; the defendants being present very frequently while the work was going on, but giving no further information concerning the state of the account with Withey, though it also appeared that the defendants supposed they were somewhat indebted to him. It was contended for the plaintiffs that the defendants were now estopped to deny their liability to them ; but the court ruled otherwise.^ 1 Newell V. Nixonj 4 Wall. 572. See pay them for a, portion of Withey's in- Danforth v. Adams, 29 Conn. 107. debtedness to them, in connection with the '^ 25 Conn. 250. declarations of the defendants, after they 3 In delivering the opinion of the were informed that Withey had said that Court, Hinman, J,, remarked : " The $1,500 would be due wlien the house was plaintiflF's claim is founded upon the idea finished, and their refusal to give infor- that the defendants' conduct, in suffering mation in respect to their accounts with the plaintiffs to go on and expend their Withey, is tantamount to standing by and money in completing Withey's contract, suffering an honest purchaser to expend under the false impression that when his money in the purchase of property to completed there would be enough due which the party thus consenting to its upon it to reimburse them for such ex- sale has a claim of which he gives no penditures, and would also be enough to notice ; and as the defendants not only ESTOPPEL BY CONDUCT, OB EQUITABLE ESTOPPEL. •465 At an election to fill a vacancy among the trustees of a school, the place having been occupied by the plaintifiF, it appeared that omitted to give any information on the subject when first applied to for the pur- pose, but subsequently expressly refused to give any, on tlie ground that they might be blamed by Witliey, It is asked whether the express refusal to give any information is not to have the same effect that the silence of a party will have upon his rights to property, if he is standing by when it is sold to a bona fide pur- chaser ; and whether it makes any differ- ence in the case that a reason was given for such refusal. No one doubts that by refusing or neglecting to give notice of his rights to property, where it has the effect to mislead a purchaser, by In- ducing him to believe that no such rights exist, a party may preclude himself from afterwards asserting them. And the case, as we think, turns upon the appli- cation of this and other well-settled prin- ciples, rather than upon any difficult or doubtful principle itself. We do not assent, however, to the notion that a re- fusal to speak, with a reason given for it, is the same thing as silent acquiescence in what another does or says. A party cannot be misled unless something is done or omitted which has the effect to mislead him. . . . The doctrine in regard to estoppels in pais is more liberal and less entirely governed by technical rules than estoppels by deed or record. The object is to prevent fraud, not to produce it by entrapping a party ; . . . and where the representation or concealment is not wilfully fraudulent, or is not attended with such gross negligence of the rights of others as to be tantamount thereto, the party ought not to be estopped. Parker V. Barker, 2 Met. 423 ; Cady v. Dyer, 20 Conn. 563. [See post, pp. 476 et seq.] . . . " "We know of no principle that re- quires that the evidence of title should be disclosed ; or that an account should be rendered where, as in this case, the interest of another may depend upon the state of the account, so long as nothing is done to mislead. It might be prejudicial to the right claimed, if the party was bound to go into details respecting it. The true question must be, whether any thing was intentionally, or at least by gross negligence, concealed, which had the effect to mislead. " Tested by these principles, we think the facts found by the committee are not sufficient to entitle the plaintiffs to relief. There is no actual fraud found against the defendants; and although certain facts and circumstances are found, which might have more or less weight as links in a chain of evidence going to show fraud, yet they are in themselves of an inconclusive character, and, in connection with other facts in the case, are wholly insufficient to induce us to believe that the defendants intended to mislead the plaintiffs. The circumstance on which the plaintiffs' counsel appear to place the most reliance is the fact that the defend- ants stood by and saw the plaintiffs ex- pend their money in the completion of the building, without informing thebi that there would be nothing due on the con- tract, when the house was finished. If this fact was unexplained, it might per- haps fairly be inferred from it that the de- fendants intended, by means of the plaintiffs' materials and labor upon the building, .to reimburse themselves for their overpayments to Withey ; and if such was their object, it would be a fraud which would subject them in this applica- tion. But the case finds that Withey informed the defendants that he had secured the plaintiffs for completing his agreement; and if this information was believed, and we cannot say the defend- ants had any reason to disbelieve it, it entirely changes the character of tlie defendants' acts, by showing that they, as well as the plaintiffs, were misled, and were acting under a mistaken impression induced by the unrehable statements of Withey. Besides, the defendants were 30 466 feSTOPPEL IN PAIS. he was present at the election of another to his place, remained silent when the office was being filled as vacant, made no objec- tion when it was filled, and without objection saw the defendants enter upon the duties and assume responsibilities in the office, he himself neglecting to act. The court held that he was now estopped to say that there was no vacancy, and that he still held the position of trustee.^ In Rice v. Dewey ,2 a recent case, silence was held not to have worked an estoppel. In this case, it was contended by purchasers from a mortgagor that the defendant, assignee of the mortgage, was estopped to set up his mortgage lien against them, by reason of his failure to assert the lien during the making of certain improvements on the land by the -purchasers. But the objection was overruled. The court observed that the defendant had a right to presume that the plaintiffs had examined the records ; and no case could be found holding that a mortgagee, whose mortgage was duly recorded, lost any right by neglecting to give personal notice to a purchaser from the mortgagor. The case was not analogous to the class of cases where one having the title to' land himself knows that another, ignorant thereof, but believing him- self to be the owner, is proceeding to erect improvements thereon, and the real owner conceals his title from him, or remains silent in relation thereto. An officer is not estopped, when sued for neglect of duty in serving an execution, to show that the process was void, even though he return the execution as partly satisfied.^ Such a state of facts was presented in the case cited, and the court in sub- stance said : By collecting a portion of the amount, the officer did not obligate himself to proceed and collect the remainder. Where an officer becomes satisfied that there is a want of jurisdiction, he is not bound to act. He may stop as soon as he becomes convinced of this, and, if sued for a neglect of duty, he may show the fact in defence. In the present case, it may have been that the officer not entirely silent in acquiescing in the obtaining payment of some portion of plaintiffs' work npon the house ; and we Withey's indebtedness to them ; and, so think, under the circumstances, that it far as they acted under any such induce- can hardly be said that the plaintiffs, in ment, it is chargeable to their own im- performing this work, acted with the prudence, for which, obviously, the de- prudence and caution which most men fendants are not responsible." would have exercised. They were prob- 1 Colton v. Beardsley, 38 Barb. 29, ably more easily misled than they other- " 54 Barb. 455. wise would have been, in the hope of » Tucker v. Malloy, 48 Barb. 85. ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 467 was not advised at first of the defective character of the writ ; but, even if the fact was otherwise, he was justified in his course. , The return did not injure any one, and no action had been taken by the plaintiff in consequence of it. It could not, then, work an estoppel. 2. Of Knowledge, of the Facts. Having illustrated the nature of the express or implied repre- sentation upon which this class of estoppels rests, we come to the consideration of the rule that the representation must have been made with knowledge of the truth to one ignorant of it ; the general rule being that/rawc? is necessary to the existence of an estoppel by conduct. Hence, it is in general a defence to the estoppel claimed that the representation was made under a mis- take ; and sometimes even though this mistake be one of law, as in regard to property exempt fron taxation ; ^ or in the case of the election of the widow of a testator,^ especially if "a denial of it wiU not work loss to the other party. So, on the other hand, the estoppel is removed by proof that the party claiming its existence had notice of the actual state of the facts at the time of acting upon the representation. He must be deceived.^ But it is not enough that he had the means of in- forming himself, except possibly where the parties stand in similar relations to the fact, as in the case of a registered deed,* or of directors of a corporation in reference to the acts of the board. Thus, in a suit upon a promissory note given for the purchase of certain stock, in which suit it appeared that the defendant pur- chased the stock from the president of the company, who repre- sented it to be at par, and that the business was of great value, and that the corporation was solvent, all of which was false ; it has lately been held that, though the defendant had ample oppor- tunities before his purchase of learning the true state of affairs, he had a right to presume that the vendor was fully informed on, the subject and to rely on his statements.^ Numerous cases of boundary involve this element of the estop-- pel. In the case of Liverpool Wharf v. Prescott,^ the plaintiffs 1 Charlestown v. County Commission- 49 Mo. 231, is not good law. No authority ers, 109 Mass. 270. can be found to sustain it. 2 Ellsworth V. Ellsworth, 33 Iowa, * Bales v. Perry, 51 Mo. 449. 164. s Wannell v. Kem, 57 Mo. 478. 3 It is safe to say that Kice v. Bunce, ' 7 Allen, 494 ; s. c. 4 Allen, 22. 468 ESTOPPEL IN PAIS. brought a writ of entry to recover a narrow strip of land in Bos- ton. It appeared that a line had been agreed upon between the plaintiffs and the defendants about twenty years before the com- mencement of the action, and had been mutually adopted as the correct one, and built upon accordingly with the acquiescence of the demandants, until some time in 1858 or 1860, when they claimed that the defendants' building was over their line, and noti- fied them in writing, but made no other interruption of the defend- ants' possession. In the court below, the defendants asked the court to instruct the jury that if they found that the line of the building had been adopted as the true line, with knowledge, or with reason to believe, that they were going to erect a building upon it and make expensive outlays, and that the defendants did then, with the knowledge of the demandants, adopt the line thus given, and, relying upon it, proceeded at once to make the erec- tions and outlays contemplated, the demandants seeing and know- ing it, and standing by without making any objection or giving notice, the demandants would now be bound by this line, and estopped to deny that it was the true boundary. But the court declined to give this instruction, and told the jury that the facts in the case were not sufficient to estop the demandants ; and the judgment was affirmed on appeal.^ In Thayer v. Bacon,^ — a writ of entry, — it appeared that the demandant, the tenant, and other adjoining owners, signed an agreement in the following terms : " Boston, November 4, 1853. We, the undersigned, owners of wharves and flats east of Harrison Avenue, are desirous of having our respective lines run so as each of us may know our boundary. We severally agree to employ Mr. Alexander Wadsworth to run said lines, and put up stakes or marks to designate each lot, and we further agree to pay our pro- portion of the expense of the same." The lines were run in pursu- 1 Mr. Justice Hoar now said : " We true boundary as fixed by the deed. The are of opinion that it was rightly held authority of Tolman v. Sparhawk, 5 Met. at the trial that there is no estoppel 469, is, therefore, direct and decisive, under such circumstances. There is The case relied on by the tenants (Kel- nothing in the case to show that there logg v. Smith, 7 Cush. 375) is wholly was any ' standing by,' and permitting different. There the line in question had the expenses to be incurred without no- been referred to as a, fixed boundary, tice, which was the case put in Thayer and adopted as such for more than a V. Bacon, 3 Allen, 163. The parties did hundred years ; and the decision did not not even undertake to fix a doubtful rest on the point of estoppel." line by agreement, but only to point the ^ 3 Allen, 163. ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 469 ance of this agreement, and in 1855 the tenant began building his wharf in conformity with the lines, and having finished it, a quitclaim deed was written on the back of the surveyor's plan, assenting to and establishing the lines ; and this deed was signed by the tenant and by some others of the proprietors, but not by the demandant, and the deed was never recorded or acknowledged. Judgment was given in favor of the demandant.^ The tenant had asked for the following instruction to the jury : That if the jury should believe that the tenant, relying in good faith upon the agreement to riin the lines, built his wharf in accordance with them, and released any right he had to other lines, which he would not have done but for the agreement, then the demandant was estopped to claim any land owned by the lines as ascertained. The court said it was very clear that this instruction would not have been warranted by law. An estoppel in pais must arise from some act of the party against whom it is claimed. If the demandant, with a knowledge or reason to believe that the tenant supposed the lines run were the true lines, stood by and allowed the tenant, without notice or objec- tion, to make expensive outlays upon the premises, he might be estopped from denying that he had adopted the line which was the basis of the tenant's claim. But the prayers for instructions had omitted the element of knowledge by the demandant of the tenant's expenditures. In another case,^ it appeared that certain parties, intending to establish the true line between their lands, agreed upon a boun- dary by parol, which was not in fact the true line. But they held possession in accordance with the conventional line ; and one of ^ "If the instrument," said Hoar, J., or decision of conflicting claims. So far for the court, " upon which the defendant as the paper shows, the service expected relies is to be construed as an agreement of Mf. Wadsworth was simply ministerial, to submit to arbitration the line between There is no agreement to adopt and him and the plaintiff, the ruling of the abide by whatever lines he may deter- court at the trial [in favor of the de- mine. Such an agreement, indeed, would mandant] was wrong, and u new trial not be necessary, but would be implied must be granted. Searle v. Abbe, 13 by law from an explicit agreement to Gray, 409. But we cannot so construe submit to arbitration ; but, where no such it. . . . We seek in vain for the usual stipulation is clearly made, it does not apt words to constitute a submission to seem to us to result from the employ- arbitration. It does not appear that there ment of a surveyor to run lines." was any controversy between the owners, 2 Brewer v. Boston & W. E. Co., 5 any thing requiring a notice or hearing Met. 478. 470 ESTOPPEL IN PAIS. the parties being about to sell to the defendants, the other stated to the purchasers that the line agreed upon was correct, and that he did not claim beyond it. After the sale the purchasers made improvements next to the conventional line, with the knowledge of the adjoining owner, who was often present and repeatedly pointed out the line, without giving notice of any claim to the land. Having subsequently discovered the true line, and that it extended beyond the improvements, the court held him entitled to recover it.^ The principle upon which these cases proceed is, that there must have been, when the incorrect line was acted upon, a knowledge of the true boundary by the one party and an ignorance of it by the other, iu order to estop the party from asserting it within the period of limitation ; and this, though it may have been the inten- tion that the incorrect line should be fixed as the true one, and acted upon accordingly ; ^ and this, too, it is held, though the ad- 1 " We must," said Wilde, J., in de- livering judgment, "consider the decla- rations and admissions of the demandant as haying been- made in good faith and by mere mistake. And admissions thus made do not, we think, by law operate by way of an estoppel. . . . Now it does not expressly appear "by the case stated that the declarations of the demandant were made to the tenants' agent with a view to influence their conduct, or that he had knowledge of their intention to purchase. Nor does it appear that the tenants will be injured by the flats ; for if they purchased with warranty, they may be indemnifled. We do not, how- ever, decide the case on these consid- erations, but on the ground that the demandant has acted fairly, under a mis- take, and that he has made no declaration contrary to his honest belief at the time, or with any intention to deceive the ten- ants. And we think it clear that decla- rations thus made do not operate in the nature of an estoppel. A party is not to be estopped to prove a legal title to his estate by any misrepresentation of its locality, made by mistake, without fraud or intentional deception, although another party may be induced thereby to purchase an adjoining lot, the title to which may prove defective, for he may require a warranty, and it would be most unjust that a party should forfeit his estate by a mere mistake." 2 Corkhill v. Landers, 44 Barb. 218; Laverty v. Moore, 32. Barb. 347 ; s. c. 33 N. Y. 658 ; Raynor v. Timerson, 51 Barb. 617 ; Smith v. McNamara, 4 Lans. 169 ; Eeed v. McOourt, 41 N. Y. 435 ; Reed v. Farr, 35 N. Y. 113 ; Rutherford v. Tracy, 48 Mo. 325; Davenport v. Tarpin, 43 Cal. 598; People v. Plumpke, 41 Cal. 263; Kincaid v. Donnell, 51 Mo. 552. In Halloran v. Whitoomb, 43 Vt. 306, 312, the court quote the following language of the court, in Hicks u. Cram, 17 Vt. 449 : " If one man has made a represen- tation which he expects another may or will act upon, and the other does in fact act upon it, he is estopped to deny the truth of the representation." But if by this it was intended to lay down an accu- rate-formula (which was probably not the case), it certainly is defective in omitting the element of knowledge in the party against whom the estoppel is claimed. The cases are exceptional and rest on peculiar grounds where this element can be dispensed with. ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 471 mission were in writing, provided the instrument did not operate as a conveyance.! And the doctrine of standing by and permitting one's property to be sold, or of witnessing a deed to it made by another, is subject to the same rule.^ In many of the States, however, it is held that an estoppel may arise in cases even of mistake after long lapse of time, in connection with change. of situation.^ In McCormick v. Barnum, acquiescence for twenty-two years was held sufficient. In Adams v. Rockwell, it was suggested that, in case valuable improvements had been made in accordance with the supposed boundary, acquiescence for eleven years might be sufficient. In Hagey v. Detweiler, the period of acquiescence was fifteen years, and that was held long enough. And the same period was in Columbet v. Pacheco held to raise an estoppel to dispute the assumed boundary. This doctrine disre- gards the question of the knowledge of the party against whom the estoppel is claimed ; and for this reason, though it has been as widely followed as that above stated, it is not in accord with the general principles of this equitable estoppel. But the party acting upon the representation should not be deprived of the improve- ments made by him if he is compelled to give up the land.* But under either doctrine, whether there be knowledge or not of the true state of the title to the land in question, the estoppel applies only to rights existing in the party at. the time of the representation or admission ; and he will not be precluded from setting up a paramount title afterwards acquired from a third per- son.^ The estoppel is not like that which arises under a convey- ance with warranty. Tliere are other classes of cases which illustrate the rule under consideration. In a recent case in Ohio,® it appeared that the de- fendant, a warehouseman, had given two receipts, by mistake, for the same grain. The second receipt came into the plaintiff's hands bona fide and for value, after the grain had been delivered on the first receipt. In an action for the non-delivery of the grain ' Bradbury v. Cony, 59 Maine, 494. v. Pacheco, 48 Cal. 395 ; Joyce v. Williams, 2 Brown v. Tucker, 47 Ga. 485 ; Hale 27 Mich. 332 ; Major v. Kice, 57 Mo. 384; V. Skinner, 117 Mass. 474. Thomas v. PuUis, 56 Mo. 211. " McCormick o. Barnum, 10 Wend. « Dolde v. Vodicka, 49 Mo. 98. 104; Adams i;. Rockwell, 16 Wend. 285, 5 Donaldson v. Hibner, 55 Mo. 492; 302; Perkins v. Gray, 3 Serg. & R. 327; Dillett v. Kemble, 10 C. E. Green, 66. Hagey v. Detweiler, 35 Penn. St. 409 ; ^ Second National Bank v. Walbridgej Sneed v. Osborn, 25 Cal. 619; Columbet 19 Ohio St. 419. 472 ESTOPPEL IN PAIS. on the second receipt, the court allowed the defendant to show- that it had been given by mistake.^ Pierce v. Andrews ^ was an action of trespass against a deputy- sheriff for taking the plaintiff's horse. It appeared that one Brooks, having an execution against the plaintiff's father, sent his agent to the plaintiff, in whose possession the horse was, to in- quire whose property it was ; and the agent, without disclosing his agency, or informing the plaintiff of the object' of his inquiry, inquired who was .the owner of the horse, to which question the plaintiff replied that the horse was his father's. Brooks now sent the defendant to levy upon the horse in accordance with the exe- cution, when the plaintiff claimed the property, and forbade the sale, but all to no purpose. The court held that the plaintiff was not estopped to maintain the action. It was said that it might have been different, had the plaintiff known the agent's object in making the inquiry, and had permitted the sale to take place without objection ; ^ but no one could be estopped by a deceptive answer to a question which he may rightly deem impertinent, and propounded by an intruder, especially after giving notice on dis- covering that his statement had been acted upon. In a recent case,* the plaintiff brought an action for money paid to the defendant's use, at his request. The plaintiff offered lierself as a witness at the trial, in support of her claim ; but the defendant objected on the ground that she was his wife, and had been living with him as such, and introduced testimony to prove this. The plaintiff, however, proved that at the time she was married to him she had a husband living, and that the defendant knew of the fact. The defendant contended that since the plaintiff had been living with him during the transactions which were the subject of the suit, and had continued afterwards to cohabit with him, she was estopped to assert that she had a husband living at tiie time. But the court held that the plaintiff's evidence was proper. The case had been before the court at a previous term, on which occasion it had been intimated that the defendant might rely on the marriage.^ But the court now said that if the marriage was in fact void, they did not intend to be understood as deciding that 1 See also Blanchet v. Powell's Co., 3 Stephens v. Baird, 9 Cowen, 274. Law R. 9 Ex. 74. 4 Robbins v. Potter, 98 Mass. 532. 2 6 Cush. 4. 5 11 Allen, 588. ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 473 the fact that the parties had cohabited as husband and wife would estop the plaintiff from denying the marriage, if its invalidity appeared to be as well known to the defendant as to her. The festoppel would only exist as against a party who had been deceived by the pretence and appearance of marriage. In an English case,^ a railway company had been deceived into registering shares by transfer to S. and G., and granting them certificates of registration, whereby A., an innocent person, was induced to purchase those shares under the belief that the ven- dors were registered shareholders. It was afterwards discovered that the transfer to S. and G. was a forgery, and the company were ordered to restore the name of the rightful owner. A. now brought an action against the company to recover the value of the shares at the time the company first refused to recognize him as a shareholder; and it was held that the case was within the rule of. estoppel, and that the action was proper.^ In the recent case of the Bank of Hindustan v. Alison,^ the question was whether the defendant had, by his conduct, estopped himself from denying that he was a shareholder in the Bank of Hindustan. It appeared that two banking companies, the Bank 1 In re Bahia and San Francisco Ry. company, and it is given by the company Co., Law R. 3 Q. B. 584. with the intention that it shall be so used 2 Lord Cockburn, C. J., said : " If the by the person to whom it is given and facts are rightly understood, the case falls acted upon in the sale and transfer of within the principle of Pickard v. Sears, shares. It is stated in this case that the 6 Ad. & E. 469, and Freeman u. Cooke, claimants acted bona fide, and did all that 2 Ex. 654. The company are bound to is required of purchasers of shares ; they keep a register of shareholders, and have paid the value of the shares in money, on power to issue certificates certifying that having a transfer of the shares executed each individual shareholder named there- to them, and on the production of the in is a registered shareholder of the par- certificates which were handed to them, ticular shares specified. This power of It turned out that the transferrers had in granting certificates is to give the share- fact no shares, and that the company holders the opportunity of more easily ought not to have registered them as dealing with their shares in the market, shareholders or given them certificates, and to afford facilities to them of selling the transfer to them being a forgery, their shares by at once showing a market- That brings the case within the principle able title, and the effect of this facility is of the decision in Pickard v. Sears, as ex- to make the shares of greater value. The plained in the case of Freeman v. Cooke, power of giving certificates is, therefore, that if you make a representation with for the benefit of the company in general ; the intention that it shall be acted upon and it is a declaration by the company to by another, and he does so, you are es- all the world that the person in whose topped from denying the truth of what name the certificate is made out, and to you represent to be the fact." whom it is given, is a shareholder in the ' Law B. 6 C. P. 54. 474 ESTOPPEL IN PAIS. of Hindustan and the Imperial Bank of China, agreed to amal- gamate, the business of the latter company being transferred to the former, and the shareholders having the option to take newly created shares in the Bank of Hindustan. The last named bank issued circulars informing the shareholders of the other bank of the arrangement, and intimating the option to take new shares in the Bank of Hindustan. The defendant thereupon applied for and obtained an allotment of twenty-five shares, paid a portion of the sum due, and engaged to pay the residue. Several calls were afterwards made, of which the defendant had notice, and he never repudiated his liability until the present action was brought against him for the non-payment of the calls. The amalgamation was declared void by a decree in chancery, in 1868 ; but the plaintiff bank contended that the defendant was estopped by his conduct to deny that he had become a shareholder of the bank. The court decided in favor of the defendant, on the ground that when he made application for the shares he was ignorant of the condition of the bank.i ' In respect to the authorities cited in support of the estoppel, Bovill, C. J., said : " The strongest for the purpose' were the cases of Hull Flax and Cotton Mill Co. V. Wellesley, 6 Hurl. & N. 38, and Sewell's Case, Law R. 3 Cli. App. 131. In the former, the court held that the defendant was estopped from denying that he was a shareholder, first, because he had executed the deed of settlement, which authorized the creation of the shares ; and, secondly, because he had for five years constantly received a divi- dend on the shares which he held. Under these circumstances, having bound him- self by his execution of the deed, and having accepted a benefit, it was properly held that he had estopped himself from denying that he was a holder of valid shares. That, therefore, is a very dif- ferent case from the present. In the case of Re New Zealand Banking Corporation, Sewell's Case [supra], the directors of a company whose capital was £300,000, divided into 8,000 shares of £100 each, made an unauthorized issue ^of 1,000 additional shares beyond their capital. They afterwards called general meetings, at which resolutions were passed to in- crease the capital to £600,000, to be divided into 60,000 shares of £10 each ; and it was held that the issue of tlie 1,000 shares, although originally ultra vires, was confirmed by the resolutions, and that the allotters of those shares were bound by the resolutions, and were rightly placed on the list of contributories in the winding up of the company. The ground upon which the decision pro- ceeded was that Mr. Sewell and the other shareholders were parties to the resolu- tions ratifying what had been done. I find nothing of the kind in the present case. There was another case referred to at the conclusion of the argument, namely. Re London and Northern Insur- ance Co., Stace and Worth's Case, Law R. 4 Ch. App. 682, which strongly con- firms this view. It is true the circum- stances of the two cases are not precisely similar ; for there was no application for shares there, as there was here. Two of the directors under an attempted amal- gamation, which turned out not to be ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 475 Where a party sui juris reaffirms a voidable contract, with knowl- edge of the facts, he will be bound by the reaffirmance, and estopped valid, had attended meetings and acted as if they were shareholders. The court held that, the amalgamation being void, and there being no separate agreement by the defendants to become shareholders independently of the amalgamation, there was nothing to fix them with liability as shareholders." The learned Chief Justice then said that it was clear from the circumstances of the case that what had been done was the result of mistake, and that the plain- tiffs had not been misled by the defend- ant. Mr. Justice Willes forcibly stated these points. "Has the defendant . . . chosen," said he, "to become a share- holder in the Bank of Hindustani I may at once dispose of that question by saying that he has not so chosen, because •his application for the shares was made not only without a knowledge of the facts, with such an ignorance of the facts on his part as would constitute an entire mistake as to the subject-matter of the contract, but with either a corresponding ignorance on the part of the plaintiffs, or with a knowledge that the circumstances were otherwise than their directors repre- sented in the circular to which, I hare already drawn attention. I wiU assume that there was no fraud. The other alternative is that both parties were mis- taken as to that about which they were contracting; that the plaintiffs honestly meant to sell shares to which was annexed a certain privilege, to be obtained by means of money advanced by the Imperial Bank of China ; and that the defendant was satisfied to take shares with that privilege. It now appears that he cannot have shares with that privilege. He is, therefore, not bound by his contract, and the money advanced by the Imperial Bank of China must be restored to them. Another sort of estoppel is sought to be raised, by reason of the plaintiffs having been induced, by the conduct of the de- fendant, to alter their position. When challenged to show how the plaintiffs had altered their position in consequence of the defendant's conduct, Mr. Brown said the bank might, upon the faith of the de- fendant and others having become share- holders, have entered into large engage- ments which they would not otherwise have entered into. I find nothing in the special case to lead me in point of fact to that conclusion ; and, if it were so, it would be necessary to show that . the plaintiffs had been led to adopt such a course by the conduct of the defendant. I think it might be said more justly that the plaintiffs are the wolf, and the de- fendant the lamb. It was the plaintiffs who led the defendant into the mistake of supposing that he had valid shares in their bank. It was they who held out to him the inducement to become a share- holder. It was they who muddied the sources of information, by intimating to the defendant that he might get shares on the advantageous terms they represented." The case was now carried to the Ex- chequer Chamber, where the judgment of the Common Pleas was aflarmed,"Law R. 6 C. P. 222. Kelly, C. B., speaking for the court, now said : " A party is only estopped from showing the truth when he has by some act or declaration acquiesced in an assumed state of things, and by such acquiescence the situation of the other party has been altered to his pre- judice. For example, where the directors of a company have been guilty of some irregularity in the issuing of shares, and, with knowledge of the irregularity, a party has agreed to become a shareholder, or, after having been made acquainted with the irregularity, has received divi- dends or done some other act to express his acquiescence in what has been done, so that the situation of the directors has been altered to their prejudice, they have a right to treat him as a shareholder, and he is estopped from setting up the irregu- larity by way of defence." 476 ESTOPPEL IN PAIS. to allege that it is voidable, if the other party has acted upon the ratification.^ In the case cited, the jury had been charged that if they believed that the defendant (who had agreed to deliver to the plaintiifs a large quantity of flour), after receiving information of the arrival of the steamer, and of the rise in the price of flour, had either knowledge or fair notice, or reason to believe that he had- been deceived in making the contract, then reaffirmed it, he would be bound ; for by such reaf&rmance the plaintiffs would be bound to provide funds to pay for the flour on its delivery ; whereas, if he had at once disaffirmed the contract, no such necessity would have arisen. And this charge was held correct. It is also well established that, in order to the estoppel, there mustiiave been knowledge, actual or constructive, by the party making the representation, that the other party intended at the time to act upon it.^ In the case cited, the plaintiff, as indorser, sued the maker of a promissory note, to which the defence was that the note was given for intoxicating liquors sold in violation of law. On the trial, it appeared that the note was offered for sale to the plaintiff, who, before closing the bargain, showed it to the de- fendant, and inquired whether it was " all right ; " to which the defendant answered, " Yes, it is all right ; I shall pay it soon." The court observed that there was no evidence that the defendant had any knowledge that the plaintiff intended to act upon the state- ments made by him. There was nothing in the evidence inconsis- tent with a belief on the part of the defendant, at the time he made the statements, that the plaintiff was then the owner of the note. It seems to be settled that a party's ignorance of the truth of the representation made will not remove the estoppel, if he was bound to know the fact, or if his ignorance is the result of gross negli- gence.3 The case first cited was trover by the trustee in insol- vency of an insurance company for certain bonds in the possession ' of the defendant. It appeared that the defendant, who had been a. 1 Bronson v. Wiman, 8 N. Y. 182 ; s.c. 39 Iowa, 413. See Hoxie v. Home Ins. 10 Barb. 406. Co., 32 Conn. 21 ; Beardsley v. Foot, 14 2 Andrews v. Lyons, 11 Allen, 349. Ohio St. 414 ; Odlin v. Gove, 41 N. H. ' Calhoun w. Richardson, 30 Conn. 210 ; 466; BuUis v. Noble, 36 Iowa, 618. See Hoxie V. Home Ins. Co., 32 Conn. 21 ; as to the effect of negligence generally in Preston v. Mann, 25 Conn. 118 ; Slim v. raising an estoppel, Fisher v. Beckwith, Croucher, 1 DeG. F. & J. 618 ; Smith 80 Wis. 66 ; Henshaw v. Bissell, 18 Wall. V. Newton, 88 111. 230 ; Smith v. Cramer, 255. ESTOPPEI, RY CONDUCT, OR EQUITABLE ESTOPPEL. 477 director' and the. principal stockholder in the company, signed a certificate to an affidavit of the president of the company, in which certificate it was stated that all the statements made in the affidavit were true so far as the defendant had knowledge. In the affidavit it was declared that the bonds in question were part of the property •of the company. It appeared also that the defendant had shortly before signed a receipt which was held by the company, in which he acknowledged that the bonds belonged to the insurance com- pany ; and the plaintiff claimed that this receipt had been given to enable the company to make their report to the comptroller of the State. It was also proved that soon after the receipt was given a return was made to the comptroller and published according to ' law, publication being made in the town in which the defendant - resided ; and in this return the bonds were also stated to be the property of the company. The court held that evidence was proper to show that the cer- tificate had been given under a. misrepresentation of the contents of the affidavit, and with no knowledge that it stated that the bonds belonged to the company ; that the defendant might show that, to prevent injury, he had given information as soon as the facts were discovered ; that he might show that he was unable to read writing, and that the receipt had been obtained by fraud ; ^ and that he might show that he had, in fact, no knowledge of the statement in the return concerning the bonds. But the court sug- gest that the case would have been different, had the defendant been guilty of misconduct or gross negligence.^ 1 See Wilcox v. Howell, 44 N. Y. 398 ; made and published, and the company to ante, p. 450. transact business on the credit of it. . . . '^ Upon this last point, Mr. Justice This claim, as presenting a principle of Ellsworth, speaking for the court, said : law, we tliink unobjectionable, and so we "Now the plaintiff insisted that as the presume the judge himself considered it; defendant was a director of the company for he proceeded to instruct the jury as to at that time [when the return was made], the nature and effect of an estoppel, and as well as before and after, and regularly correctly enough told them that, to estop attended the directors' meetings, he must the defendant, his action must have been be held to have known the contents of understandingly and intelligently had, this annual return, and to have assented and his admissions understandingly and to it as exhibiting the true situation and intelligently made, which is well enough condition of the company's assets, and as to the point of knowledge ; but the that under all the circumstances of the judge says nothing about the effect of case the defendant was guilty of fraud- fraudulent conduct and gross negligence ulent misconduct or gross negligence in as estopping the defendant, and subject- permitting the return, if it was false, to be ing him to damages. We think the de- 478 ESTOPPEL IN PAIS. In a recent case,i in the English Court of Chancery, it appeared that one Hudson, a builder, having finished several houses at fendant might have ■ been unacquainted with the contents of the return to tlie comptroller, and yet possibly be liable on the ground claimed by the plaintifE. The plaintiff insisted that the defendant ought' to have informed himself, and not to have given his sanction,, either directjy or in- directly, to the return, and afterwards set up a claim directly against It. We do not mean to say, as matter of law, that the defendant did sanction the return, or is liable under the circumstances, but it was quite proper that. the jury shoi;ld pass upon the question whether the defendant had been guilty of misconduct or gross negligence, so that he should not be al- lowed ITo shield himself upon the plea of ignorance. It is the summing up in the charge of the court to which we most object, as to the effect of gross negligence when there is not actual knowledge. . . . " We forbear to say what degree of neglect and inattention in the directors and officers of incorporated companies, in the duties for which they are appointed and which they are understood to engage to perform to some reasonable extent to- wards the stockholders and the confiding public, will subject them to damages. This is a delicate point to settle, and not likely to be correctly determined upon the common notions which seem to pre- vail too generally among certain classes in the community." In another case, Preston v. Mann, 25 Conn. 118, 129, before the Supreme Court of Connecticut, Storrs, J., says : " It would seem that where the alleged ignorance in- volves gross culpability, there should be a limit to the facility with which a party whose words or conduct have misled an- other to the latter's injury should be per- mitted to qualify his responsibility by pleading his own fault. For instance, if one who is apparently a party to a bill of exchange, on being inquired of concern- ing the signature, pronounces it to be genuine, he cannot afterwards set up against a purchaser whom he has misled forgery of his own name, although he may have accredited the bill jgnorantly. How far the brea:ch of duty should ex- tend to preclude the party guilty of it from extenuating his false representations by his want of knowledge, it is unneces- sary to inquire. Suitably restricted, the principle of which we have given an inti- mation unquestionably exists, and indeed was hinted at in the opinion of this court in a recent case. Whitaker v. Williams, 20 Conn. 98, 104. " In one class of transactions, the ex- cuse of ignorance must obviously yield to the operation of the very principle of es- toppel in pais. We refer to cases among which, on the hypothesis that the jury have found the facts as claimed by the plaintiflF, the present may properly be classified ; cases where the representa- tions which mislead another are made by a party who is consciously ignorant of the matter to which they relate at the very time that he professes a full knowledge of it. This wilful and wrongful assumption of knowledge is the chief element in the imposition which he practises ; and he should not afterwards be suffered to dis- claim an acquaintance with facts which he has once unjustly and injuriously pro- fessed to know; He has voluntarily in- duced another to believe that he was not ignorant of a certain matter ; after the other has been betrayed by this false representation, its author should not be permitted to retract it, any more than he should be permitted to deny any other conclusion which he wilfully suffered the other to draw from his words and con- duct. He is estopped from pleading a want of knowledge which he has once 1 sum V. Croucher, 1 DeG. F. & J. 518. ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 479 Bromley, applied to the plaintiff's solicitors to know if any client of theirs would lend him money on a mortgage of the houses, in- forming them that the defendant, Croucher, to whom the land be- longed on which the houses had been erected, had agreed to grant him (Hudson) 9, lease of it for ninety-eight years and a half. The solicitors, having read the agreement for a lease, shown them by Hudson, required an assurance from Croucher that he would grant a lease according to the agreement. Under these circumstances, Hudson applied to Croucher, and informed him of the matter, and Croucher thereupon wrote and sent,, by Hudson, a letter to the designedly assumed to possess, and to another's hurt. " Let us apply this idea to the facts before us. Glazier seeks an interriew with Savage on the subject of a note to which Savage is nominally a party, with the view, which he discloses to Savage at the time, of purchasing the obligation. His inquiry does not in general terms relate to negotiable paper, signed in a certain manner, but he states to Savage all the particulars of the note in ques- tion, its date, its amount, the time of its maturity, the form of signaturQj and the names of the payees. To an inquiry thus intelligently put. Savage replies that it is a good note, and will be paid at maturity ; an answer from which Glazier might rightfully infer that Savage was ac- quainted with the particular note spoken of, and the circumstances attending it, and that he knew it to be a valid note which ought to be paid. Savage was bound to know, and did know,- that Glazier would understand him as speak- ing intelligently of a contract with which he was familiar. Shall he now be allowed to say that he knew nothing of the par- ticular note ; that he was totally ignorant of its existence, and the cireumstances attending it at the time of his inter- view with Glazier? We cannot recog- nize such a principle. The representa- tions of Savage, being made relative to a matter atfecting his own pecuniary in- terest, must have carried with them to the mind of the person with whom he was dealing all the sanctions of a new promise. In fact, in cases not distinguish- able from the present, courts have some- times chosen to regard declarations of the kind imputed to the defendant in the light of new and obligatory promises. In a Pennsylvania case. Games v. Field, 2 Yeates, 541, this idea was applied to circumstances very similar to those now imder review. A money bond had been given for certain lands, under the belief that the title was good to the whole, while in fact it proved defective in respect to a very large proportion of the entire quantity. Before ascertaining this fact, the obligors were called upon by a person who desired to purchase the obligation, and who was informed by them that it was signed by them, and would be paid. The court held, in an action brought by the party who had purchased the bond under these circumstances, that he could recover, notwithstanding the want of knowledge of the state of their title on the part of the obligors, on the ground that the representation of the latter was, under the circumstances, to be treated as a new promise. The reason given for the decision may be somewhat ques- tioned, as the independent efficacy of such a promise is evidently not so great as to make it a substantive ground of legal liabiUty, and its effect would seem to be rather that of a. representation or ratification, conclusive upon the party who makes it in favor of the party in- duced by it to change his position." 480 ESTOPPEL IN PAIS. solicitors, in which he said that he was " quite agreeable " to grant the lease. The plaintiff then, by his solicitors, proceeded to pre- pare the same, and, having done so, notified Croucher and Hudson, and requested them to call and examine it. Tliey did so, and ap- proved of it in writing. The lease was afterwards engrossed, and a counterpart executed, which was handed over to Croucher, the solicitors retaining the lease on behalf of the plaintiff. The plain- tiff now loaned Hudson various sums of money on the faith of the security, and Hudson executed an instrument purporting to be a mortgage, by way of underlease of the houses. Hudson subse- quently became embarrassed and went abroad ; and the plaintiff shortly afterwards discovered that, prior to all these transactions, Croucher had granted a lease to Hudson for ninety-nine years, which had included till the premises comprised in the plaintiff's security, and that this lease had been assigned by Hudson for value to a stranger, and was still subsisting. Croucher thus had no right to grant the second lease, and the mortgage was worth- less. The plaintiff now filed a bill against Croucher and Hudson, cliargiug fraud, misrepresentation, and concealment, and praying that Croucher might be ordered to repay to the plaintiff the sums loaned, with interest. Croucher denied the charges of fraud, mis- representation, and concealment, and stated, in defence to the suit, that, at the time of granting the lease comprised in the plaintiffs security, he had forgotten the grant to Hudson of the prior lease, and had, in consequence, inadvertently granted the second lease. The court held the plaintiff entitled to recover from Croucher, affirming the decree of the Vice-Chancellor, on the ground that his forgetfulness was inexcusable.^ 1 2 Giff. 37. The Lord Chancellor said : Greenaway v. Adams, 12 Ves. 395 ; Todd v. "There has been a misrepresentation; Gee, 17 Ves. 273, and other cases), in which and if there had been moral fraud in the he says that a contrary doctrine has been case, it could hardly have been disputed laid down in this court, but he has uot that a court of equity would have had cited one single case similar to this, where jurisdiction to inquire into it, and to call it is held that equity will not give relief, upon the defendant to disclose all that he " I think that his authorities may knew, and give relief from the conse- be divided into two classes, — one where quences of the fraud. Now although there was only a general claim to dam- there may not be moral fraud here, yet ages, which a court of equity at that time I think that the party who has been in- could not have properly assessed ; and jured has a right to relief. Mr. Lewis, in the other class where there was a breach a very able argument, has cited a num- of promise, not the misrepresentation of ber of cases (Sainsbury v. Jones, 5 Mylne a fact. But here there is the misrepresen- & C. 1 ; Denton v. Stewart, 1 Cox, 258 ; tation of a fact, and there is no difficulty ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 481 Forgetfulness was allowed as a defence in the case of an infant recently in the Court of Appeals of New York.^ In this case, the at all in assessing the amount of the loss, and in doing justice between the parties. I cannot distinguish this case from the case of Burrowes v. Lock, 10 Ves. 470. There the defendant is called a trustee, because he was a trustee, but the word is used merely to designate the person who took a part in the transaction. There was no fiduciary relation between the plaintiff and the trustee who made the misrepresentation. They were strangers to each other, just as much as the plaintiff and the defendant are in this case ; but the trustee stated, and stated innocently, just as much as the defendant in this case, what was untrue ; and it was held that he was liable to make good the loss that had arisen from his misrepresentation. I be- lieve that every word which Sir William Grant uses in that case is applicable to this. ' It is objected,' he says, ' that this is a demand for damages ; also, that this was not a wilful misrepresentation. As to the first point, the demand is properly made in equity : and the Lord Chancellor in Evans v. Bicknell, 6 Ves. 174, declared that the case of Pasley v. Freeman, 3 T. B. 51, and all others of that class, were more fit for a court of equity than a court of law ; but his lordship was clearly of opinion that at least there is a concurrent jurisdiction, and says : It has occurred to me that that case, upon the principles of many decisions in this court, might have been maintained here ; for it is a very old head of equity that if a representa- tion is made to another person, going to deal in a matter of interest upon the faith of that representation, the former shall make that representation good, if he knows it to be false.' That is, you may undo the transaction, and you may re- place the person to whom the representa^ tion is made as far as possible^ in the same situation in which he was before the representation was made. Lord Eldon certainly does say, ' if he knows it to be false.' But the meaning of that qualifi- cation of the proposition is, as X under- stand the words, if he makes a misrepre- sentation as to what he ought to have known, and what he did at one time know, although he alleges that at the particular moment that he made the rep- resentation he had forgotten it. It so happens that in the case of Burrowes «. Lock [s«p-a], the person who made the representation set up the same defence as is now done by Mr. Croucher." The Lord Chancellor now quotes again the language of Sir William Grant, in the case above cited, which was as fol- lows : " In this case the plaintiff was going to deal with Cartwriglit, upon a matter of interest, and applied to the person best qualified to give information, the trustee, to know what Cartwright was entitled to ; who told the plaintiff expressly that Cartwright was entitled to £288, and had an undoubted right to make an assignment to that extent, know- ing that he had not a right to make such an assignment, having previously agreed to give another person £10 per cent out of the fund. There is, therefore, a con- currence of all the circumstances which the Lord Chancellor (Lord Eldon in Evans V. Bicknell, 6 Ves. 174) thinks requisite ■ to raise the equity. The excuse alleged by the trustee is, that thougli he had re- ceived information of tlie facts, he did. not at that time recollect it. But what can the plaintiff do, to make out a case' of this kind, but show, first, that the fact as represented is false ; secondly, that tlie- person making the representation had. a knowledge of a fact contrary to it ^ " The Lord Chancellor says that he does not find that this case has ever been ques- tioned, and that he regards it as sound. Slim V. Croucher has lately been followed in Iowa. See ante, p. 476, note. 1 Spencer v. Can, 45 N. Y. 406. 31 482 ESTOPPEL IN PAIS. parents of the defendant, Henrietta Carr, an infant, conveyed to her the premises in controversy. Ten or eleven years afterwards the parents executed a deed of the same premises to the plaintiff in trust. The plaintiff advanced large sums of money on this security, paying also an outstanding mortgage upon the land. Henrietta, then about sixteen years of age, signed her mother's name to the deed, at her mother's request. She had forgotten, at the time, the conveyance to herself; but, after the plaintiff had made all his advancps, she recollected the deed. The action was brought to bar Henrietta's claim, or to have the land sold and the plaintiff's advances repaid ; but the defendant prevailed. In a recent case in Ohio,i the plaintiffs sought to recover of " Adams & Co." a sum of money placed in their hands for invest- ment, but which they had not invested. The answer was filed, not -by Adams & Co., but by another firm, consisting mainly of the same individuals, calling themselves Adams & Co.'s Western Express. It appeared that there were in fact two express com- panies, composed largely of the same members, having a branch office in the place (Cincinnati), and kept by a common agent. One of these companies was the original firm of Adams & Co., and the other was the one which answered to the suit. The name of the latter company alone was upon the sign over the Cincinnati office ; but its business was transacted as well in the name of Adams & Co., and Adams & Co.'s Express, as in its own proper name. The defendants were held liable ; but the court said the case would have been otherwise, had the plaintiffs' ignorance been the result of their own fault.^ 1 Adams v. Brown, 16 Ohio St. 75. public generally. The companies heing 2 The court said : " Had Miss Pollock composed in part of the same individuals, [one of the plaintiffs] known the distino- each is presumed to be cognizant o£ the tive business and names of these two business and name of the other. If the companies, or had Her ignorance been new company did not intend to deceive the result of her own fault or folly, or and mislead the public, such was at least free from fault on the part of defendants, the effect of their acts. They cannot act the case would have been different. But in the name of one company, and do the Buch were not the facts. In her eyes business of that company, and then fall both companies were one and the same, back upon the rights and immunities of To her understanding, the name of one the other. They are estopped from so was the name of each, and the business doing. The firm of Adams & Co. seems of either was tliat of both. If this was to have been one of long standing, widely a misunderstanding, it was a misunder- and favorably known to the business standing induced by the acts of the de- community, and for that very reason its fendanls, and probably shared in by the name was adopted and used by the other ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 483 In a recent case in Maryland,^ in which the plaintiff sued the defendants on a policy of insurance, it appears that the insured had been discharged under the insolvency laws of the State. This, the court held, would discharge the insurer from liability, by reason of releasing the plaintiff from the payment of his premium notes. But it appeared that the company had received, after the petition for discharge was filed, an instalment of interest due on the premium note, though without actual knowledge of the action of the plaintiff; and it was now contended that this receipt of interest had avoided the effect of the discharge. But the court ruled otherwise.^ In accordance with the principles in the above cases, it is held that directors of corporations, being bound to know the proceed- ings of the body, cannot escape an estoppel by the allegation of ignorance.^ Negligence, however, in order to operate as an estoppel, must be the proximate cause ®f the loss.* The case cited was an applica- tion for a mandamus, to compel the defendants to replace the name of thie plaintiff on the registry of shareholders of the company, his name having been removed.. The facts in brief were these : The plaintiff, the registered owner of 1,000 shares in the company, in which tlie shares could only be transferred by deed, executed by both transferrer and transferee, employed a broker to sell for him company, as admitted by one of the part- thereby waived its right to hold itself ab- ners, for the purpose of securing patron- solved from its contract ; but upon that age. If they take' the benefits of that question we do not mean to express any name, they should also take its burdens." opinion. But the proof clearly shows 1 Reynolds v. Mutual Fire Ins. Co., 34 that the proceedings in insolvency were Md. 280. had in a court at some distance from the 2 " This argument,'' said the court, county in which the office of the appellee " is based upon the fact that the proceed- was located and its officers resided, and ings in insolvency were had in a court of that they had no actual notice of those record, whose proceedings are construe-, proceedings, and the discharge of the tive notice to the whole world, and that, appellant, until long after the month of having received the interest on the ap- August, 1862, when he made his last pay- pellant's note with this constructive notice ment of interest." The following cases of his application for the insolvent laws, were cited by the court : Ijams v. Hoff- the appellee cannot now avail itself of man, 1 Md. 437 ; Gray v. Murray, 3. said application as a defence to this ac- Johns. Ch. 188; Bennett o. Colley, 2 tion. If the proof had shown that the Mylne & K. 225; Howard v. Carpenter, appellee had received the payments of 11 Md. 279 ; Flagg v. Mann, 2 Sum. 563. interest with actual knowledge of the ap- ^ gtone v. Great Western Oil Co., 41 pellant's application for the benefit of the 111. 85. insolvent laws, there might have been * Swan v. North British Co., 7 Hurl, some reason for the argument that it had & N. 603 ; s. o. in error, 2 Hui;l. & C. 175. 484 ESTOPPEL IN PAIS. some shares in • another company, which were also transferable by deed only. The broker represented it to be necessary for the plaintiff to execute ten blank forms of transfer, which was done, and the blanks delivered to the broker to be filled up for the trans- fer of the shares in the other company. Only eight of the blanks were thus used by the broker, and having stolen the certificates from a box deposited at a bank for safe custody, he filled up the other two forms as transfers each of 500 of the plaintiff's 1,000 shares in the defendant company, and, having forged the attesta- tions, he delivered the transfers, together with the certificates, to bona fide purchasers for value ; and when they were presented to the company, they removed the plaintiff's name from the registry, and placed therein the names of the purchasers. Judgment was given for the plaintiff in the Court of Exchequer, and the decision of that court was affirmed by the. Exchequer Chamber. There was much diversity, however, in the grounds of decision in the lower court, though it was agreed that, in order to an estoppel against the plaintiff, his negligence towards the broker must have been the proximate cause of the loss ; and this they held was not the case here.^ ' "One question," said Mr. Baron Mar- replaced on the register, would be liable tin, " which occurs in the consideration to make good to the transferees their of a contention whether a man has,-^ by his loss, and the defendants could maintain conduct, estopped himself from averring an action against the plaintiff for an In- the truth, must be whether his conduct demnity, it would go very far to show be such as, assuming it to have caused that the defendants ought now to succeed, damage to the person alleging the estop- as a decision in favor of the plaintiff pel, would render him liable to an action would only lead to circuity of action, at the suit of this person. This point which, as far as possible, ought to be was referred to by Baron Parke, in de- avoided. An action of this kind at the livering the opinion of the judges in the suit of the defendants would be very corn- Bank of Ireland v. The Trustees of Ev- plicated, but the principle of it may be ans's Charities, 5 H. L. Cas. 389 ; and it .tested by one at the suit of the trans- is an apt and pertinent one. If he would feree. Suppose the case to be that, be- not be liable to an action, it is difficult fore the name of the transferee had been a to see how he can be estopped. In the entered upon the register, the plaintiff present case, one of three parties must had discovered Oliver's fraud, and given suffer the loss conBequent upon Oliver's notice to the defendants not to alter the fraud. If the plaintiff fails in the present name, and they had acted npon this no- action, he is the person who must bear it. tice. If the defendants could maintain If, on the other hand, he succeeds, the the action against the plaintiff, the trans- loss must fall either upon the defendants feree could do so also, for the alleged or the transferees; and if it could be tortious act of the plaintiff is identical as made out that the defendants, in the against both. It seems to me only neces- event of the name of the plaintiff being sary to state what the averments in the ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 485 3. Of the Intention. The next requirement to this estoppel is that the representation must have been made with the intention that it should be acted declaration would of necessity be, to show that no such action could be main- tained. It would first state that the de- fendant (in that action) had negligently, and witliout due care and caution, placed in the hands of Oliver two blank trans- fers, signed and sealed by him, to enable him to fill them up and transfer to pur- chasers certain shares in another com- pany ; that Oliver had opened a box in which the certificates of the shares in question were deposited, and taken them thereout (this being a felonious act) ; that having ascertained their numbers, he had inserted them in the blank trans- fers (this being a second felonious act), and then delivered them to the plaintiff in that action (being a third felonious act), who, believing them to be genuine transfers, paid the purchase-money to Oliver; that the defendant gave notice to the company not to act upon the transfers, and they refused to do so, by reason whereof the plaintifi" had lost his purchase-money, Oliver being insolvent and unable to pay it back. I do not think it would be contended by any one that such a declaration would show a good cause of action. The act of the de- fendant, however negligent it may be assumed to have been, would be much too remote from the damage to render the defendant liable. . . . The law pre- scribes what the Conduct of men shall be> towards each other; and if the act or negligence of a man afford no right of action to another who has sustained loss in some degree connected with or conse- quent upon it, how is it possible that the same act or negligence can estop him from averring the truth, which, if he is estopped from doing, the same precise evil consequence will ensue to him as if he had committed an unlawful act ? " In the Court of Errors, Cockburn, C. J., said: "As regards the alleged es- toppel by reason of the plaintiff's negli- gence, I am of opinion that negligence alone, althojigh it may have afforded an opportunity for the perpetration of a forg- ery by means of which another party has been damnified, is not of itself a ground of estoppel. The rule relating to nego- tiable instruments stands on peculiar grounds. The law relating to these in- struments is part of the law merchant, which, in order that the negotiability of such instruments — which is of the very essence of their negotiability — shall not be impaired, establishes that if a man once puts his name to such an instrument, he shall be liable to a bona fide owner without notice, in respect of what may be added to give effect or negotiability to the instrument, notwithstanding this may be done in the absence of authority, or even for the purposes of fraud. The case of Young v. Grote, 4 Bing. 253, on which so much reliance has been placed, and which is supposed to have established this doctrine of estoppel by reason of negligence, when it conies to be more closely examined, turns out to have been decided without reference to estoppel at all. Neither the counsel in arguing that case, nor the judges in deciding it, refer once to the doctrine of estoppel. The question arose on a disputed item in an account between a banker and his cus- tomer, which had been referred to arbi- tration, and the question raised by the arbitrator was orj whom the loss which had arisen from payment of a check, in wliich, by tlie carelessness of the cus- tomer, an opportunity had been afforded for increasing the amount, should fall. It was held, not that the customer was estopped from denying that the check was a forgery, but that, as the loss which would otherwise fall on the banker, who had paid on a bad check, had been brought about by the negligence of the 486 ESTOPPEL IN PAIS. upon. In general, where there is nothing to show that the repre- sentation was intended to be acted upon as a statement of the truth, or that it was tantamount to a promise or agreement that the declaration made is .true so as to amount to an undertaking to respond in case of its falsity, the party making is not estopped from proving the truth.i Thus in Kuhl v. Jersey City it was held that a receipt for taxes on land, given by a tax collector on receiv- ing a check, does not estop him from showing that the check was not paid, though a purchaser of the property was induced by such receipt to pay the whole consideration. The collector, it was said, did not give the receipt, knowing that it would be used for such a purpose, nor did the mere giving the receipt raise a presumption that it would be used to defraud a purchaser. A third person, to whom the representation was not made, cannot claim the estoppel unless it was intended, or at least contemplated, that he would act upon it.^ The most important case upon this subject after Pickard v. Sears is perhaps Freeman v. Cooke,^ which was decided by the Court of Exchequer, in 1848. It was an action of trover, by the assignees customer, the latter must sustain the loss. As the question on an account submitted to arbitration, the matter was decided without reference to any techni- cality ; but I am disposed to think that, technically looked at, the matter would stand thus ; The customer would be en- titled to recover from the banker the amount paid on such a cheek, the banker having no voucher to justify such a pay- ment; the banker, on the other hand, would be entitled to recover against the customer for the loss sustained through the negligence of the latter. Possibly, to prevent circuity of action, the right of the banker to immunity, in respect of the loss so brought about would afford him a defence in an action by the customer to recover the amount. So, in the pres- ent case, if, through the negligence of the plaintiff, the company should sustain a loss' with reference to the party who has been substituted for him, the plain- tiff might possibly be liable to the com- pany ; and if his present demand were simply a money demand, for the value of his shares, it may be that the loss sustained through his negligence might be an answer to the plaintiff's action. But the plaintiff here asks, not for a compensation for money alone, but also for a mandamus to restore him to his status as a registered shareholder of the company; and it appears to me, there- fore, that if the company have any claim on the plaintiff in respect of damage sus- tained througli his negligence, they must be left to their cross-action, or such other remedy as may be available to them." •The learned judge thought, however, that even if negligence could form a ground of estoppel in this way, it had not been sufficiently established in the present case. 1 Danforth v. Adams, 29 Conn. 107 ; Tarist's Appeal, 39 Conn. 150; McAdams V. Hawes, 9 Bush, 15 ; Zuchtmann v. Rob- erts, 109 Mass. 53 ; Kuhl v. Jersey City, 8 C. E. Green, 84 ; Muller v. Pondir, 55 N. Y. 325 ; Davis v. Smith, 43 Vt. 269. 2 Mayenborg v. Ilaynes, 50 N. Y. 676. 3 2 Ex. 654. ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 487 of "William Broadbent, against tlie sheriff of Yorkshire, for goods of the bankrupt. There were pleas of not guilty, not possessed, and leave and license. The conversion alleged was the seizure of the goods by the defendant's officers, under s. fieri facias against Joseph and Benjamin Broadbent. It appeared that when the officers entered, the bankrupt told them the goods seized were the property of Benjamin;, he did so, supposing that the officer had no writ against Benjamin. Afterwards he contradicted that statement, and said they were the goods of his brother Joseph. It was contended t],iat this representation bound William, because it induced the officers to seize, and that he could not complain of that act, nor could the assignees who claimed under him. The jury found that the goods were really William's ; but they also found " that William represented the goods to the sheriff's officers as the goods of Benjamin so as to induce them, by that false rep- resentation, to seize them ; " and the question was, whether this finding was sufficient to estop the bankrupt, and the plaintiffs as his assignees, from complaining of the seizure of the goods. The question was answered in the negative.^ ' The judgment of the court was de- livered by Parke, B., who, referring to the rule in Pickard v. Sears, said : " That was founded on previous authorities in the cases Graves v. Key, 3 Barn. & Aid. 313, and Heane v. Rogers, 9 Bam. & C. 586, and has been acted upon in some cases since. . . . Whether that rule has been correctly acted upon by the jury in all the reported cases in which it has been applied is not now the question ; but the proposition contained in the rule itself, as above laid down in the case of Pickard V. Sears, must be considered as estab- lished. By the term ' wilfully,' however, in that rule, we must understand, if not that the party represents that to be true which he knows to be untrue, at least that he means his representation to be acted upon, and that it is acted upon, accordingly; and if, whatever a man's real intention may be, he so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it, and did act upon it as true, the party making the representation would be equally precluded from contest- ing its truth ; and conduct, by negligence or omission, where there is a duty cast upon a person, by usage of trade or otherwise, to disclose the truth, may often have the same effect. As, for in- stance, a retiring partner omitting to inform his customers of the fact, in the usual mode, that the continuing partners were no longer authorized to act as his agents, is bound by all contracts made by them with third persons, on the faith of their being so authorized. But if we apply this rule, either in the terms in which it is enunciated in Pickard v. Sears, or as it is above expounded, the finding of the jury is insufficient to entitle the defendant to have a verdict entered for him on the plea of not possessed. It is not found that he intended to induce the officer to seize the goods as those of Benjamin ; and whatever intention he had on his first statement was done away with by an opposite statement before the seizure took place. Nor can it be said 488 ESTOPPEL IN PAIS. The language of Lord Denman in Pickard v. Sears is examined and explained in the recent case of Cornish v., Abington.^ This was an action of debt for goods sold and delivered, work done and materials provided, and on accounts stated. It appeared that the plaintiff, a litho^aphic printer, took into his employment one Gover, to superintend the printing and take orders for printing, at a salary of 35s\ a week. The defendant was a publisher. The plaintiff stated that the first order on the defendant's account came from Gover. In September, 1857, the plaintiff made out an account against the defendant, charging him with £108 for print- ing maps, and gave it to Gover, who handed the account to the defendant, and the defendant paid it. Afterwards, further print- ing .was done by the plaintiff, and paper supplied by 'him. The plaintiff sent the goods, some of them being accompanied with delivery notes signed by himself, for which receipts were signed by the defendant ; while in other instances the delivery notes were from Gover. Gover having left the plaintiff's service in 1858, the plaintiff- afterwards called upon the defendant for a settlement of his account. The defendant said he knew nothing about it. The plaintiff asked him if he had not received the account, and the defendant replied that he had had no transactions with the plain- tiff, — he owed the money to Gover. He admitted having received the invoice of the paper, and produced it. This invoice charged him as debtor to the plaintiff. The defendant stated that Gover had applied to him to publish various works and maps for himself, which the defendant agreed to do, and that he had paid over to Gover the proceeds of the sales, only deducting the commission ; and that on receiving the invoice of paper, above referred to, he asked an explanation of it. Gover replied: "That fool Cornish has been making out invoices himself, and has charged you instead of me. I will see him on the subject ; he will at once see that it is an error, and you will hear no more about it." The defendant said that he was satisfied with this explanation, and he heard no more about it till the interview with the plaintiff above mentioned. He said that Gover had no authority to pledge his credit with the that any reasonable man would have to the contract or license of the party seized the goods on the faith of the bank- making it. Here there is no pretence for rupt's representation, taken altogether, saying it amounted to a license, and a In truth, in most cases to which the doc- contract is out of the question." trine in Pickard v. Sears is to be applied, l 4 Hurl. & N. 549. the representation is such as to amount ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 489 plaintifp. It was not disputed that as between Gover and the de- fendant the account was settled. The jury found that the defend- ant did not. authorize Gover to use his name in ordering the work to be done ; but they also decided that the manner in which the de- fendant had signed the receipts was such as to induce the plaintiff to think that he was buying the goods on his own account. Judg- ment was given for the plaintiff ; the ground being that the jury had found that the defendant, whether intentionally or not, led the plaintiff to form an opinion that he was dealing with the defendant, and had induced him to furnish goods to the defendant.^ The learned Chief Baron declared the true rule to be that if a party uses language which, in the ordinary course of business and the general sense in which words are understood, conveys a certain meaning, he cannot afterwards say he is not bound if another, so understanding it, has acted upon it. If any person, by a course of conduct, or by .actual expressions, so conducts himself that another may reasonably infer the existence of an agreement or license, whether the party intends that he should do so or not, the party using that language, or who has so conducted himself, can- not afterwards gainsay the reasonable inference to be drawn from his words or conduct. In the present case, the plaintiff had given notice that he Understood that the defendant was dealing with him. The defendant gave no answer. He ought to have sent back the invoice. Mr. Baron Bramwell put the case upon the same ground. It 1 " The sending of the invoice was tion amounts to an agreement or license, equivalent to notice that the defendant or is understood by the party- to whom it was not dealing with Gover, but with the is made as amounting to tliat, the rule plaintiff! If, after that, the defendant would not apply ; but although the case chose to accept the explanation of Gover, of Freeman v. Cooke limited the applica- when he ought not to have been satisfied tion of the rule to this extent, the court without communication with the plaintiff, point out that the word ' wilfully,' in the he must take the consequences. Lord rule as laid down in Piekard v. Sears, Wensleydale, formerly Baron Parke, in means nothing more than ' voluntarily.' Freeman v. Cooke, 2 Ex. 654, ante, p. 486, Lord Wensleydale, perceiving that the commenting on the earlier case of Pick- word 'wilfully' might be read as op- ard V. Sears, pointed out a limitation of posed, not merely to 'involuntarily,' the application of the rule, viz., that ' in but to ' unintentionally,' showed that if most cases to which the doctrine of the representation was made voluntarily, Piekard v. Sears is to be applied, the though the effect on the mind of the representation is such as to amount to hearer was produced unintentionally, the the contract or license of the party mak- same result would follow.'' ing it.' No doubt, unless the representa- 490 ESTOPPEL IN PAIS. was a strong fact, he remarked, that the plaintiff for a long time had supposed himself to be dealing with the defendant. When this was brought to the attention of the defendant, he had been content to take the word of the servant who was defrauding his master. Taking the finding of the jury that the plaintiff sup- posed that he was dealing with the defendant, and that the defendant's conduct was such as reasonably to induce that belief, he thought that the rule referred to by the Lord Chief Baron applied. The rule was, that if a man so conducts himself, whether intentionally or not, that a reasonable person would infer that a certain state of things exists, and acts on that inference, he shall be afterwards estopped from denying it. Martin, B., though agreeing in the general conclusion, hesitated about accepting the doctrine that there could be an estoppel without intention ; and the proposition should be received very cautiously, and not adopted as a general rule.^ In this case, it is clear that there had arisen an implied contract through the defendant's negligence. In a recent case - in New York, the court said that it was ~ not necessary to the estoppel that the party against whom it had been alleged should have designed to mislead. But the case was clear ; an indorser whose Christian name began with M wrote the initial so carelessly that it was read A. C, and notice was given accordingly. The notice, however, finally reached the indorser, after several days, and he was properly held liable.^ Still more recently the courts of New Hampshii-e have allowed the estoppel without evidence of intention to mislead.* But we apprehend that the case cited went too far. In an action of trespass quare dausum /regit for interfering with certain alleys ' in a cemetery,^ it appeared that the plaintiff was grantee and the defendant heir of the grantor of a lot adjoining the alleys. There was evidence, upon which the plaintiff at- tempted to raise an estoppel against the defendant, that the grantor, at the time of the sale of the lot, informed the plaintiff that the alleys were intended for the benefit of the adjoining proprietors, and that if the same party purchased two or more ad- joining lots, the alleys separating them could be closed by the pur' 1 See Zuchtman ii. Roberts, 109 Mass. » See Young v. Grote, 4 Bing. 253. 53 ; Wright v. Willis, 2 Allen, 191. * Horn v. Cole, 61 N. H. 287. 2 Manufacturers' & T. Bank v. Hazard, 5 Seymour v. Page, 33 Conn. 61. 80 N. Y. 226. ESTOPPEL BT CONDUCT, OR EQUITABLE ESTOPPEL. 491 chaser; but it appeared that the grantor did not intend thereby to authorize the closing of the alleys to the detriment of the other owners, or to convey to the purchaser an exclusive right in any alley without extra compensation therefor. It appeared also that the grantee, after the purchase, enriched and kept in order, at his own expense, for nine years, that part of the alleys claimed by him, with the knowledge of the grantor, and without objection from him. The court decided that there was no estoppel upon the defendant. The necessity of evidence of intention to make a! dedication to the public may be noticed here. In a case,i in -yphich the plaintiff sought to restrain the defendants from exercising authority over a strip of land as a highway, the defendants rested their claim on the following facts : The heirs of one Gouverneur had several years before opened and fenced a strip of land, communicating with a public road at one end, with the intention of making a dedication of it as a highway. The strip was mapped and designated as a public way, with the consent of the owners, upon a map of the village of Cold Spring. The land so opened and fenced was used by' the public from that time, by walking and driving upon it, until the plaintiff closed it. The court held that there had been no dedi- cation, on the ground that there was no evidence of a positive intention.^ 1 Holdane v. Cold Spring, 21 N. Y. 474. property to the use of the public, they ^ The law upon the subject was clearly are insufficient to establish a case of dedi- stated by Wright, J., in delivering the cation. In the case of a highway, the opinion of the court. " XJn doubtedly the public must accept the dedication, and, owner of land," said he, "may dedicate before it is accepted, the owner is not or set apart a street or highway through precluded from revoking it. It is not it to the public use, and if the dedication necessary that there should be any for- be accepted, it will wori an estoppel in mal act of acceptance by the public pais, precluding the owner from assert- authorities, but it may be indicated by ng any right inconsistent with such use. common user, under circumstances show- The dedication and acceptance are to ing a clear intent to accept and enjoy, as be proved or disproved by the acts of such, the easement proposed to be dedi- the owner, and the circumstances under cated. Throwing open land in a village, which the land has been used. Both are and fencing it on each side, and causing . questions of intention. The owner's acts the way or avenue to be designated as and declarations should ~be deliberate, public on "a map of the village, are acts unequivocal, and decisive, manifesting a tending strongly to show a design pres- positive and unmistakable intention to ently, or at some future period, to dedi- permanently abandon his property to the cate and devote it to the public use. But specific public use. If they be equivocal, these acts are not conclusive to establish or do not clearly and-plainly indicate the a present dedication, binding on the intention to permanently abandon the owner of the land. One may fence off a 492 ESTOPPEL IN PAIS. 4. Tlie Representation must have been acted upon. The rule is well settled that if the representation, containing all the foregoing elements, has also been acted upon, the estoppel arises ; and the party making the statement or guilty of the con- duct in question will be precluded from alleging the contrary of that which he has given the other party to understand to be true. And it matters not, if the party acting upon the representation were justified in, so doing, how he has changed his position, whether by the purchase of property, the surrender of possession, the erec- tion of improvements or other outlay upon, land or goods about which the estoppel is claimed, or the expenditure of money in liti- gation.^ But, unless the representation is acted upon, the estoppel strip of his own land, for the purpose of a passage-way, opening on a public street, or he may lay out a, street through it with the view of subdividing his land bounded upon it into village lots, intend- ing upon the sale of such lots to dedicate the street to the use of the public ; but in such cases, though the public may have occasionally, or indeed at all times, used the open way in passing to and from the enclosure of an adjoining proprietor, it could scarcely be pretended that the land had thereby become burdened with an irrevocable public servitude." In a subsequent portion of his opinion, the learned judge shows that the doctrine of estoppel is at the basis of the law con- cerning dedication. " The referee," he observes, " did not find the fact of dedica- tion ; and the facts that are specifically found do not, in my judgment, show that the public acquired a right to the use of the land as a street or highway, by dedi- cation of the former or present owner. Assuming, however, that enough was done by the owners to constitute a present dedication of the land, I think they still had a right to revoke it. The law of dedication is somewhat anomalous ; but it may be said to rest, in part at least, upon the doctrine of estoppel in pais. Though the owner of land in a city or village may evince, by his acts, an inten- tion to dedicate a street, or square, or other plat of ground, to the public use, no sufficient or valid reason can be assigned against a change of purpose and a subsequent resumption of the posses- sion, unless the public accommodation and private rights are to be materially affected by an interruption of the enjoy- ment. Cincinnati v. White, 6 Peters, 431 ; Haynes v. Thomas, 7 Ind. 38. See also Rutherford v. Taylor, 38 Mo. 315 ; Price V. Thompson, 48 Mo. 361. . If, how- ever, private rights have been acquired with reference to such dedication, and such an interest secured, with tlie assent and concurrence of the owner, as would render it fraudulent in him to resume his rights, the dedication becomes irrevoca- ble. As in the present case, if the owner of the land had opened the way in ques- tion, with the intention to dedicate it to public use as a street, and building-lots had been sold and built upon, bounded on it, with the understanding on the part of the purchasers that the land was per- manently devoted to public use, or per- haps if the public accommodation were to be seriously impaired or affected by an in- terruption of the use or enjoyment of the subject of the dedication, the owner would be precluded from reclaiming his land." • As to' estoppel arising by expendi- tures in litigation, see Meister v. Birney, ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 493 cannot arise.^ And it seems that it must be exclusively acted upon; at all events, there can be no estoppel where the party claiming one is obliged to inquire for the existence of other facts, and to rely upon them also in acting.^ The damage, too, to sup- port an estoppel must, it is held, be something more substantial than that which might be considered as barely sufficient for a consideration to a contract.^ The rule that the representation must have been acted upon in order to the estoppel under consideration is illustrated by Howard V. Hudson.* This was an action of trespass for false imprison- ment. The question of estoppel arose in reference to the warrant. It appeared that the defendant had only a copy of the warrant, but that the plaintiff had been led to believe that he had the original. It was held that the defendant was not estopped to show the fact ; the plaintiff not having acted upon the representation.^ 24 Mich. 435. As to the other cases, see the authorities cited passim in tliis chapter. 1 Hence a, representation made after the change of position will not work an estoppel. Garlinghouse o. Whitwell, 51 Barb. 208. ■^ McMaster v. Insurance Co. of N. A., 55 N. Y. 222. 3 East V. Dolihite, 72 N. Car. 562. Sed quaere if the court in this case does not go too far in stating that the damage must be such that the party cannot be put back in statu quo, and cannot be adequately compensated in damages. 4 2 El. & B. 1. s " Did the defendant/' said Mr. Justice Erie, " make a misrepresentation to the plaintiff with intent that the plaintiff Should act upon it, and did the plaintiff in consequence so act upon it to his prejudice t The jury have found that the defendant acted as if he had the original, and led the plaintiff to believe he had it; so that there was a representa- tion. But did the plaintiff alter his posi- tion for the worse in consequence of that representation ? It is clear to my mind that, whether the original warrant, or a copy of it, was annexed to the return, the conduct of the defendant in putting the plaintiff in the remand ward would equally be justified. But the ground mainly relied on seems to be th^t the plaintiff supposed that the defendant had the original, and therefore lost time and money in applications to a judge and to the Court for the Relief of Insolvent Debtors. But in fact the ground of these applications was, that the warrant was not a suflicient authority for the plaintiff's discharge. That was his contention be- fore the judge and the Court for the Relief of Insolvent Debtors ; so that it is clear that he did not make these applica- tions in consequence of believing the re- presentation that the defendant had the warrant, but notwithstanding that he be- lieved that representation." "I think," observed Crompton, J., " that every case in which we are to act upon it [the doctrine of estoppel] must he iirought within the principles so ac- curately laid down in the elaborate judg- ment in Freeman v. Cooke, 2 Ex. 654 ; and in the present case there is, on the finding of the jury, a want of the two great ingredients ; for it is not found that the defendant intended that the plaintiff should act on the faith of the representa- tion, nor that the plaintiff did so act. The word • wilfully,' which is used in the 494 ESTOPPEL IN PAIS. There is another late English case on this point, which is in- structive.i It was an action against a railway company for failing to carry horses safely. It appeared that when the plaintiff deliv- ered the horses to the defendants, he signed a declaration, at their request, that the value of the horses did not exceed £10 each, and that, in consideration of the rate charged, he thereby agreed that the horses were to be carried at his own risk. The horses were injured on the way, by reason of a defect in the conveyance. The defendants paid into court £25, and this would have been sufficient to cover their liability, if the horses had been worth only £10 each, as the plaintiff represented ; but in fact they were worth more than this, and at their true value the loss would be £65. This amount the plaintiff claimed in the present action ; but the court held him estopped by his representation to the company.^ A recital in an affidavit of sale, under *a mortgage of the amount for which the sale was made, is not conclusive between the parties.^ So, too, a sheriff's return not acted upon may be shown by him to be erroneous in an action against him by a party to the writ.* In Stimson v. Parnham, an action was brought against a sheriff , for judgment in Pickard v. Sears, 6 Ad. & E. defendants might act upon it; and true 469, has been well commented upon in it is they have acted upon it; but the the judgment in Freeman v. Cooke. As statement was untrue, and now I want the rule is there expressed, it takes in all four times as much as the declared value the important commercial cases in which of one of the horses, (o) This is in a representation is made, not wilfully in effect what he is doing. I think that, any bad sense of the word, not malo according to every principle of law, he animo, or with the intent to defraud or cannot be allowed to do so. If there deceive, but so far wilfully that the party be one principle of law more clear than making the representation on which the another, it is this, that when a person has other acts means it to be acted upon in made a deliberate statement, with the that way. That is tlie true criterion." view to induce another to act, and he has 1 McCance v. London and Northwest- acted, upon it, the former is not at liberty ern Ey. Co., 7 Hurl. & N. 477. to deny tlie truth of the statement so 2 " There is a stipulation," said Bram- made. I think it would be most mis- well, B., " or statement, whether a rep- chievous if he could." resentation or contract is immaterial, by 3 Alden v. Wilkins, 117 Mass. 216. which the plaintiff, with a view to induce * Stimson v. Farnhara, Law R. 7 Q. the defendants to act (and they have B. 175 ; Harris v. Kirkpatrick, 6 Vroom, acted) upon it, has said that the value of 892; State v. Ogle, 2 Houst. 371. And each horse did not exceed £10, and lie generally, conversely, it is not binding on now professes to say. True it is I did the party to the writ. Ogle v. Smith, 2 make that statement, in order that the Houst. 174. (a) £40 in addition to the sum paid into court. ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 495 not levying under a writ oi fieri facias, and for a false return. The pleas were, not guilty, nulla bona, except as to the claim in respect of the return, and tliat, after seizure of the goods by the defend- ant, the plaintiff ordered him to withdraw from possession ; whereupon he did so, and made the return complained of. It appeared, at the trial, that the plaintiff had obtained judgment against one Fellows, and that the sheriff went upon the premises of the debtor and seized goods there, which were, however, in the possession of a claimant under a bill of sale. The sheriff's officer, at the plaintiff's request, remained upon the premises until dis- missed by him. In the mean time the goods were sold under the bill of sale. A return having been called for, the sheriff returned that he had seized the goods of Fellows. The retention, and with- drawal from possession under orders from the plaintiff, were also stated in the return. The jury found that the bill of sale was valid ; and thereupon a verdict was entered for the defendant. A rule for a new trial was now asked for, on the ground that the defendant was concluded by his return. The decision was against the plaintiff; the return not having been acted upon by him.^ ' "An action against a sheriflf," said Blackburn, J., " for a false return, will not lie, unless actual damage has been caused to the plaintiffs ; and in the pres- ent case, on the finding of the jury that the goods seized were not the debtor's goods, there was no damage,- and the ac- tion will not lie. But, then, was the sheriff estopped by his return? The general rule is, that what a man says -is evidence against him, and nothing more. He may show that what he said was a wilful untruth. Nevertheless, there are a good many cases in which a. man is not permitted to contradict his assertions, and in which he is precluded, or, in tech- nical language, estopped, from doing so ; as in the cases of Pickard v. Sears, 6 Ad. & B. 469, and Freeman v. Cooke, 2 Ex. 654. But I do not see any thing to bring this return of the sheriff that the goods seized were goods of the debtor — a mere averment preliminary to his answer — witlxin the principle of estoppel, and I do not understand why the fact of his being sheriff should make it operate as an es- toppel. " Where the sheriff has made a return by which he shows a state of things such as that the plaintiff is entitled to receive the money, then the question is quite a different one, for the sheriff says he has money in his hands belonging to the plaintiff. The plaintiff, according to the record as it then stands, is entitled to have the money. Mildway v. Smith, 2 Wms. Saund. 343, was not an action for a false return. The sheriff had returned that he did seize the goods of the debtor, and should have levied the debt, but that they were rescued out of custody. The plaintiffs brought an action on scire facias, and the Court of Common Pleas held that the sheriff was bound by his return, and, consequently, that the plaintiffs were en- titled to have execution against him for the value of the goods, as he should have been prepared with sufficient force to re- sist those people who came to the rescue. Then error was brought, and it could not 496 ESTOPPEL IN PAIS. This matter of the necessity of a prejudice to the party claim- ing the existence of an, estoppel is also, illustrated by the case of Schmaltz v. Avery.^ This was an action of assumpsit on a charter- party, not under seal, against the defendant for not taking the cargo on board. The charter-party in terms stated that it was made by the plaintiffs as agents for the freighters. It then stated the terms of the contract, and concluded with these words : " This charter-party being concluded on behalf of another party, it is agreed that all responsibility on the part of G. Schmaltz & Co. [the plaintiff] shall cease as soon as the cargo is shipped." The declaration treated the charter-party as made between the plaintiff and the defendant, without mentioning the character of the plaintiff as agent, and without any reference to the concluding clause ; and thereby treating the plaintiff as principal. At the trial it was proved that in point of fact the plaintiff was the real freighter. At the close of the trial it was objected that the plaintiff was con- cluded by the terms of the charter-party, and fixed with the char- acter of agent, so that he could sue only in that character. The " be denied that the return was bad, but an attempt was made to impugn the judg- ment of the court below, because credit had been given for the value of the goods, as returned by the BheriflC; to which the answer of the Queen's Bench in effect was : He has by his own fault put the plaintiffs to an end of their suit ; for they cannot sue a new execution, except only for the surplus of the debt over and above the sum returned, and we cannot order the goods to be sold because they are out of the sheriff's hands. And so on those pro- ceedings the sheriff was estopped. That seems reasonable enough. Again, the case of Clerii V. Withers, 2 Ld. Raym. 1075, related to quite a different matter. Lord Holt, there considering the effect of the execution creditor dying after seizure and before sale, points out that the position of the creditor was altered by the goods having been seized, for that he had no further remedy against the judgment debtor, but must proceed against the sheriff, who was bound to sell the goods, and was bound to the value he had stated them to be of in his return, and was not hindered from selling by the death of. the execution creditor ; and Mildway v. Smith was cited. Neither of these cases are authorities for saying that the present defendant was estopped by his return. Then in Remmett v. Lawrence, 15 Q. B. 1004, is a passage which is the only au- thority supporting the argument of the plaintiff. Lord Campbell, C. J., is re- ported to have said that, if the sheriff had returned that he had got the debtor's goods, he would have been estopped. The observation may possibly have been misunderstood, but more probably the learned judge in forgetfulness used inac- curate language. The dictum was cited in the case of Levy v. Hale, 29 L. J. C. P. 130, by Williams, J., whose ob- servations merely show that lie had 'not made up his mind that Lord Campbell was not right. But the two cases he cited do not support the dictum, nor do I see any principle upon which it could be supported." See to the same effect Bar- kers. Benninger, 14 N. Y. 270; Rivard V. Gardner, 39 111. 125. 1 16 Q. B. 665. ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 497 case having gone to the Queen's Bench, the court overruled the objection.^ The same doctrine appears in the case of dedication. When a land-owner sets apart portions of his plat for public purposes, it is done with the expectation that the use of such portions for those purposes will be advantageous to the rest of the property, or to the original proprietor. He has a right to expect that within a reason- able time the land will be put in condition to subserve those uses. If given for public buildings, there must be some reasonable assur- ance that they will be built ; and if for ornamental purposes, that it will be made available for those. He cannot be bound to wait and abstain indefinitely from the use of his property upon' the chance that some time or • other, in the remote future, the public use may be secured. And his efforts to induce such acceptance and use cannot properly be regarded as any thing more than repe- titions and continuances of his offer, requiring some responsive action. The public can only bind the land-owner by acting upon his dedication before he has an equitable right to withdraw it.^ But the damage, it would seem, need not always be expressly proved.* In the recent important case of Knights v. Wififen, the defendant, Wiffen, was sued for the conversion of sixty quarters of barley. The facts, as stated by Blackburn, J., were, that the de- fendant had in his warehouse a large quantity of barley, and sold 1 In the course of his opinion, Patte- 660; Bassett ». Holbrook, 24 Conn. 453. son, J., speaking for the court, said : " In But it has been held that a defendant in the present case, the names of the sup- trover, disclaiming ownership, who has posed freighters not being inserted, no in- represented to the plaintiflF, when demand- ducement to enter into the contract from ing the property, that it was in his pos- the supposed solvency of the freighters session and control, is not estopped to can be surmised. Any one who could prove the contrary, though the plaintiff prove himself to have been the real has been induced to sue by reason of the freighter and principal, whether solvent representation. Jackson v. Pixley, 9 or not, might most unquestionably have Cush. 490. This, it will be observed, is sued on this charter-party. The defend- the reverse of Pickard a. Sears. But ant cannot have been in any way preju- compare Finnegan v. Carraher, 47 N. Y. diced in respect to any supposed reliance 493. on the solvency of the freighter, since the It has also been held that a party will freighter is admitted to have been un- not be estopped by having disclaimed the known to him, and he did not think it ownership of property to an administra- necessary to inquire who he was." tor, and induced him to proceed to an in- * Ompbell, C. J., in Baker v. John- ventory and appraisal of the property ; ston, 21 Mich. 319, 345. See also Lee v. the administrator having done nothing Lake, 14 Mich. 12. more than his duty. Turner v. Waldo, » Knights V. Wiffen, Law R. 5 Q. B. 40 Vt. 51. 82 498 ESTOPPEL IN PAIS. to one Maris eighty, quarters, which, on the contract between him and Maris, remained in his possession, as unpaid vendor. No par- ticular sacks of the barley were appropriated, as between Maris and Wiffen ; but at the time the contract was made, Maris had a right to have eighty quarters out of the barley appropriated to him, and at the same time Wiffen, as the unpaid vendor, had a right to insist on the payment of the price before any part of the grain was given up. Maris afterwards entered into a contract with the plain- tiff, Knights, by which he sold him sixty sacks of the barley, and Knights paid him for them. A document was given. by Maris to Knights, in the shape of a delivery order, addressed to a station- master of the Great Eastern Railway, instructing him to deliver to Knights's order sixty quarters of barley on his ( Maris' s) account. Knights forwarded it to the station-master, enclosed in a letter authorizing the station-master to hold it for him. The station- master went to Wiffen and showed him the delivery order and let- ters, and Wiffen said, "All right; when you receive the forwarding note, I will place the barley on the line." Maris became bankrupt, and the defendant, as unpaid vendor, refused to deliver the barley when the forwarding note was presented to him by the station- master in behalf of the plaintiff. Judgment was given for the plaintiff. The ground taken was that Wiffen had recognized Knights as the person entitled to possession, and that Knights had rested assured on that admission of title, and forborne to take steps (which he might otherwise have taken) to protect himself.^ 1 This case has been somewhat criti- ever, be interpreted in connection with cised (Langdell, Sales, 1028) on the the whole transaction and with any cus- ground that the statement of Wiffen to tom properly connected with it. The Knights, that he would hold the barley above decision is borne out by Dezell ». for him, was a promise, while an estoppel Odell, 3 Hill, 215. And this case sustains of this liind can only rest upon facts. But Knights v. Wiffen also, upon the point of the promise of Wiffen clearly implied a prejudice to the plaintiff. See, also, disclaimer of title in himself, — as clearly Dresbach v. Minnis, 45 Cal. 223; Gaff v. as if he had stated that the barley did Harding, 66 111. 61 ; Dewey v. Field, 4 not belong to him. This, we apprehend. Met. 381 ; Chapman v. Shepard, 39 Conn, is at least the common understanding of 413 ; Warren v. Milliken, 57 Maine, 97. tuch language and circumstances among Mr. Justice Blackburn, having recited the warehousemen ; and any other ruling facts as above given, down to the reply of than that of the Queen's Bench would Wiffen to the station-master that he would enable the original owner to repudiate place the barley on the line when the for- the claim of the person holding the re- warding note arrived, said : " What does ceipt (from a third person) on any rise of that mean ■? It amounts to this, that Maris the market. The language must, how- having given the^rder to enable Knights ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 499 In the case of Woodley v. Coventry,^ cited by the learned judge, the plaintiffs brought trover for a quantity of flour in the possession to obtain the barley, Wiffen recognized Knights as the person entitled to tlie pos- session of it. Knights had handed the delivery order to the station-master, and Wiffen, when the document was shown to him, said, in effect, It is quite right; I have sixty quarters of barley to Maria's order ; I will hold it for you, and when the forwarding note comes, I will put it on the railway for you. Upon that statement Knights rested assured ; and Wiffen, by accepting the transfer which had been in- formally addressed to the station'master, bound himself to Knights. The latter accordingly, when he did not get the goods, brought an action of trover against Wiffen, saying, as it were. You said that you had the sixty quarters of barley, and that you would hold the goods for me. You cannot refuse to deliver to me; if you do refuse, it will be a conversion. And Wiffen now says. It is true, but I do refuse to deliver the barley. Granted that I previously said I would hold sixty quarters of barley for you, yet I had none to hold for you. I yhad no quarters be- longing to Maris, for I never severed them from the bulk, and I am entitled to hold the whole quantity as against Maris, until I am paid the full price. No doubt the law is, that until an ' appropriation from a bulk is made, so that the vendor has said what portibn belongs to him and what portion belongs to the buyer, the goods remain in soUdo, and no property passes. But can Wiffen here be per- mitted to say, I never Bet aside any quarters ? As to that, Woodley v. Cov- entry, 2 Hurl. & C. 164, is very much in point ; with this difference, that there the plaintiff acted on the statement of the warehouseman, and altered his position by paying the vendee a part of the price, and so the doctrine of estoppel applied ; which doctrine is, that when one states a thing to another, with a view to the other altering his position, or knowing that, as a reasonable man, he will alter his posi- tion, then the person to whom the state- ment is made is entitled to hold the other bound, and the matter is regulated by the state of facts imported by the statement. Woodley had altered his position by pay- ing part of the price, but Coventry did not know it. In Stonard v. Dunkin, 2 Camp. 344, it is patent that the defendant knew the money was paid. In Hawes v. Watson, 2 Barn. & C. 540, it appears that payment had been made, but the defend- ant did not know of it, although, as a rea- sonable man, he might have known it was likely. But in neither of those cases did the defendants know that money was going to be paid. In the present case, the money had been paid before the presenta- tion of the delivery order; but I think, nevertheless, that the position of the plaintiff was altered through the defend- ant's conduct. The defendant knew that, when he assented to tlie delivery order, the plaintiff as a reasonable man would rest satisfied. If the plaintiff had been met by a refusal on the part of the de- fendant, he could have gone to Maris and have demanded back his money. Very likely he might not have derived much benefit if he had done so ; but he had a right to do it. The plaintiff did rest satisfied in the belief, as a reasonable man, that the property had been passed to him. If once the fact is established that the plaintiflfs position is altered by relying on the statement, and taking nO' steps further, the case becomes identical* with Woodley v. Coventry and Hawes v. Watson. It is to be observed, moreover,, that the judgment of the court in Wood- ley V. Coventry did not rest on the fact of the payment of the price. It will he- noticed there, that, although the fact did exist of payment of price, Martin, B., seems to found his decision on the assent- 1 2 Hurl. & C. 164. 500 ESTOPPEL IN PAIS. of the defendants, one of whom was owner of a grain warehouse. One Clarke, who had purchased, but had not paid for, a quantity of flour of the defendants, applied to the plaintiffs for advances, and delivered to them a delivery order on the defendants for a por- tion of the flour which he had purchased. The plaintiffs, before consenting to make any advance on this order, sent it to the ware- house with the inquiry whether " it was all in order," and received the answer, " Yes." Samples were then taken to the plaintiffs ; and they thereupon made an advance of £950 to Clarke. Before the flour had all been delivered, Clarke was declared a bankrupt, and the defendants refused to deliver any more to the plaintiffs ; and their defence was, that as the flour purchased by Clarke had never been separated from the bulk, no property had passed. But the court held that they were estopped to set up this defence. The case of Stonard v. Dunkin,^ also cited by Blackburn, J., supra, was put on the ground of tenancy. In this case, a warehouse- man, on receiving an order from a dealer in malt to hold it on ac- count of the plaintiff, gave a written acknowledgment that he so held it. It was contended for the defendants that by the custom of the trade a remeasuring of the malt was necessary to a transfer of the property, and that the dealer's bankruptcy intervened before this had been done ; and on this ground the assignees claimed the malt. But Lord Ellenborough said : " Whatever the rule may be between buyer and seller, it is clear the defendants cannot say to the plaintiff, The malt is not yours, after acknowledging to hold it on his account. By so doing, they attorned to him ; and I should entirely overset the security of mercantile dealings, were I now to suffer them to contest his title." The case of Hawes v. Watson ^ was very similar in facts ; and Stonard v. Dunkin was cited in favor of the decision. The same doctrine was again maintained in Gosling v. Birnie,^ and again ing to hold, and the fact that when sented. In the present case, the plaintiff that assent was communicated to the altered his position, relying on the defend- plaintiffs they altered their position, ant's conduct when the delivery order was In Gillett v. Hill, 2 Cromp. & M. 530, presented. The plaintiff may well say, I there was no payment of the price, abstained om active measures in con- und the Court of Exchequer gave judg- sequence of your statement, and I am mfint against the wharfingers on the entitled to hold you precluded from de- ground that they were estopped from nying that what you stated was true." .denying the facts after the other party i 2 Camp. 344. iiad altered his position, relying on their 2 2 Barn. & C. 540. .conduct when the delivery order was pre- 8 7 Bing. 389. ESTOPPEL BY CONDUCT, OR EQUITABLE ESTOPPEL. 501 rested on the ground of attornment. This position, however, seems entirely consistent with the presumption of damage ; and damage we understand to be at the bottom of this class of estoppels. To use, substantially, the language of Mr. Justice Blackburn, above given, the plaintiff in all of these cases rests satisfied in the belief, as a reasonable man, that the property has passed to him ; and he is prevented by the acknowledgment of the opposite party from taking measures to place himself in statu quo with the seller. This would seem, however, to be the limit of the law. An important question respecting the quantum of damages arose in the recent case of Fall River National Bank v. Buffinton.^ In this case, the plaintiffs sued as indorsees of two promissory notes. The defendant's name was on the paper as an indorser ; and, though this was a forgery, it appeared that they had so represented the signature to be genuine as to estop themselves to deny it. The jury had been instructed that the plaintiffs would be entitled to recover of the defendant the whole amount due on the notes, and that it was immaterial whether the plaintiffs' actual damage or injury in relying upon the representation was more or less. The defendant excepted, but his exceptions were overruled.^ • 97 Mass. 498. law they are entitled to do, that the de- 2 Mr. Justice Hoar, in delivering the fendant is estopped to deny that the in- judgment, said : " Without considering dorsement is obligatory upon him. The whether the last clause of these instruc- wholenoteswerethepropertyof the bank; tions was strictly accurate as a statement the bank had paid full value for them ; of the abstract rule of law, we are of they were not taken as collateral security opinion that it was correct in its applica- for a smaller sum, so that the proceeds, tion to the facts of the case on trial, and when collected, would be held in part for that the defendant has no just cause of the benefit of some other person. If the exception to the whole instructions given defendant indorsed the notes, he was to the jury. If we take it to be true that liable to the plaintiffs for their whole a plaintiff is entitled to no more damages amount ; and if, by his conduct, he has than will compensate him for the injury precluded himself from denying that he which he has sustained, the plaintiffs here did indorse them, there is no division to are not seeking to recover damages for be made of his liability as indorser. The the injury occasioned by a false represen- injury which permitting him to deny the tation. The action is not an action on truth of his representation would occasion the case for deceit; it is an action upon to the plaintiffs is the loss of a good and promissory notes. The plaintiffs allege valid indorser upon the notes, (a) which, that the defendant indorsed the notes in so far as he is concerned, is the liability suit ; and, instead of proving the facts for their full amount. If the action were affirmatively, prove, as by the rules of for deceit in making a, false represeuta- (a) The plaintiff had refrained from taking steps to collect the notes by reason of the defendant's representation. 602 ESTOPPEL IN PAIS. The case of Tohej v. Chipman ^ was referred to by the court as in point. The note in this case was for $200, and the action was by an indorsee against the maker. The plaintiff proved that, be- fore purchasing the note (which the defendant proved had been made without consideration), the defendant solicited him to buy it, and assured him that it was a good and valid note in every respect, and given for value, and that, relying on this assurance, the plaintiff bought it and paid for it the .sum of |100. The defendant now contended that the plaintiff was only entitled to recover this sum with interest ; but the court held him entitled to recover the face of the note. The plaintiff was estopped by his conduct, it was said, to avail himself of the benefit of the statute ; and as the entire note belonged to the plaintiff, there was no rule of apportionment by which his recovery could be limited to a part only of its_ amount. tion, the'rule of damages would be found by ascertaining, as the defendant asks slaould be done in this case, in how much worse condition the plaintiffs had been put by reason of the deceit. But the plain- tiffs are not in that position. They had some notes of doubtful yalue. They do not ask to be compensated for having dis- covered this fact a few weeks later than they might have done if they had not trusted to the defendant's statement, which perhaps occasioned them little injury ; but they say, and the finding of the jdry entitles them to say, that in consideration of their trusting the de- fendant's assurances, by his procurement, and thereby exposing themselves to the injury which such delay might occasion, which is a sufficient consideration in law, the defendant made himself liable to them as indorser. . . . " The case cited for the defendants, as decided by the New York Court of Appeals in 1853, (a) if in conflict with the cases to which we have referred, (6) does not seem to us based on a correct application of the principle involved. But in the case at bar there were no successive and independent transactions in relation to the notes. Nor can we perceive in what manner it would be consistent with the rule to allow the de- fendant to show the falsity of his own representations in relation to the question of damages, more than upon any other part of the case. There may be cases where the falsity of a representation in relation to a note, although coming within the rule, would not involve an injury to the whole amount of the note. But here the defendant is responsible for the whole amount due on the notes, unless he is allowed to show that his admission of his responsibility as indorser is untrue ; which he has precluded him- self from doing.'' 1 13 Allen, 123. (o) Merrill v. Tyler, cited in 2 Abb. N. Y. Dig. 588. The case is thus stated by Mr. Abbot't : " T.'s name was forged to a note, and M., after he had advanced money on it, inquired of T. concerning it,, and T. so spoke as to induce M. to advance more. Held, that the forgery was a defence to T. only as to the first advance." {b) Especially Tobey v. Chipman, 13 Allen, 123. ELECTION. — INCONStSTENT POSITIONS. 503 CHAPTER XIX. ELECTION. — INCONSISTENT POSITIONS.^ A PARTY cannot occupy inconsistent positions ; and where one has an election between several inconsistent courses of action, he will be confined to that which he first adopts.^ Any decisive' act of the party, done with knowledge of his rights and of the fact, determines his election and works an estoppel.^ The cases illus- trating these rules are very numerous, and we shall present only the more important ones, but enough to fully illustrate their mean- ing and extent. It is an old rule of equity that one who has taken a beneficial interest under a will is thereby held to have confirmed and ratified every other part of the will, and he will not be permitted to set up any right or claim of his own, however legal and well founded it may otherwise have been, which would defeat, or in any way pre- vent the full operation of, the will.* • It may be doubted if this subject properly belongs to the law of estoppel. It certainly does not historically; and election is no new title in the law. Still, it has come to be so generally treated as a phase of estoppel that we have thought best to present it here, though not in great detail. 2 Rodermund v. Clark, 46 N. Y. 354; Morris <>. Kexford, 18 N. Y. 552. See Meyer v. Clark, 45 N. Y. 286 ; Succession of Monette, 26 La. An. 26 ; Weedon v. Landreaux, lb. 729 ; Connihan v. Thomp- son, 111 Mass. 270 ; Lilley v. Adams, 108 Mass. 50; Sloan v. Holcomb, 29 Mich. 153. ^ Connihan v. Thompson, supra; Ro- dermund V. Clark, supra; Sanger v. Wood, 3 Johns. Ch. 416 ; Littlefleld v. Brown, 1 Wend. 398 ; s. c. in error, 11 Wend. 467; Barwick v. Raekley, 46 Ala. 402. * Hyde v. Baldwin, 17 Pick. 803 ; Thel- lusson V. Woodford, 13 Ves. 209 ; Church- man V. Ireland, 1 Russ. & M. 250; Tib- betts V. Tibbetts, 19 Ves. 655; Brown v. Ricketts, 3 Johns. Ch. 553 ; Etcheborne v. Auzerais, 45 Cal. 122 ; Collins v. Woods, 63 111. 285. But in a late case in Ohio (Carder v. Fayette Co., 16 Ohio St. 353) the Su- preme Court say : " We hold that the election of the widow to take under the will does not estop her from contesting ' the will, denying the validity of its de- vises, or setting up her claims as 'heir. She can do all or eithar of these without having her election set aside. Her right to elect is the creature of statutory law, and we must look to the statutes cre- ating it, alone, for the estoppel it is to work. These statutes make her election to take under the will 'a bar to dower, and to her distributive part of the personal estate due to her as widow', and to noth- ing else. A contrary reading of the stat- 504 ESTOPPEL IN PAIS. Thus, if a man bequeath to another property which belongs to a third person, to whom he gives by the same will other parts of his estate, such third person must convey his property to the de- visee, or he cannot take the property devised to him under the will. The only question in such case is, did the testator intend (upon the face of the will) that the property should go in such a manner, and not had he power to do so ? It is immaterial whether the testator thought he had the right, or, knowing the extent of his rights, intended by an arbitrary exertion of power to exceed them ; in either case, the legatee, as such, cannot dispute the ownership of the property bequeathed to the other, and he can only take the property on the terms upon which it was given.^ But in this connection a recent case in New York must be no- ticed.^ In this case, it was held that where a husband loans njoney and takes a note therefor payable to the order of himself and wife, and afterwards makes a will containing a devise or bequest to the utes would, in many instances, result in the greatest injustice to her. She is com- pelled to make an election, and is only allowed one year for that purpose. The heirs may contest the will, or not, at their discretion, and they are allowed two years in which to commence the contest. The widow must complete her election within one year, and the heir must begin his contest in two years. How can the widow know, at the time of making her election, whether there will be a contest ■? And if she could know that, must she, at her own peril, predetermine the rights of the parties thereto? There would be no safety to her in such a construction of the law. She might vaUdate the will by an election, and the heirs invalidate it by a contest. It would then seem to be a will as to her, and no will as to them. On the other hand, shoyld she decide that the will was invalid, and would be set aside, and therefore decline to take under it, the will might ultimately be established, and she be made to lose all benefit, however great, of its provisions in her favor. Thus an election, which was intended for the benefit of the widow, would become a means to entrap her, and would render her right uncertain and impracticable. Such is not the law. If there is no valid will, there is no valid election, and of course no estoppel or bar. And it mat- ters not whether the invalidation takes place before or after the election, or at whose instance it takes place. It is only in the event that the document probated becomes or remains established as a valid 'will,' that her election can have any efiect whatever ; and when such is the case, the effect of the election is confined to her rights as widow, and cannot reach her rights as heir to property not effectu- ally and legally disposed of by the will. The will and its devises and bequests to other persons stand unaffected by her election either to take or to refuse its pro- visions in her favor. The whole effect, in the one case, is to destroy her rights as widow, and in the other to destroy her rights as devisee or legatee, and in their place to give her the rights of the widow of an intestate." ' Upsliaw V. Upshaw, 2 Hen. & M. 381 ; Whistler v. "Webster, 2 Ves. Jr. 370 ; Wilson u. Townsend, lb. 696; Blake v. Bunbury, 4 Brown, Ch. 25. 2 Sanford «. Sanford, 58 N. Y. 69; s. c. 45 N. Y. 723. ELECTION. — INCONSISTENT POSITIONS. 505 wife by its terms to be accepted and received in lieu of dower and of all claims upon the estate ; if the note remains unpaid at the time of his death, and she survives, she acquires title to the note as a gift, and not as a part of his estate at the time of his death, and she is not put to her election betwee^ the note and the pro- vision for her in the will, but is entitled to both. And it was further held that the fact that she had given the note to the appraisers as part of her husband's estate was not conclusive, though it was evidence tending to show that she had released to him her right of survivorship, and did not estop her from claiming the note, in the absence of evidence that the position of any party had been changed in consequence, or that any transaction was had in reliance thereon. This principle has been extended to cases at law, and is called an estoppel.^ Smith v. Smith was an action for breaking and entering a close. The defendant claimed title under a deed from the father of the parties, who, by his will, had devised the locus to the plaintiff, and to the defendant the residue of the land described in the deed, and other lands. The defendant admitted at the trial, that, with a full opportunity to judge, and full knowledge of the nature of the estate given by the will, and of its situation, he had accepted and was determined to hold the estate devised by the will to him ; but he intended to hold also under the deed, if the law would allow him to claim under both. It was contended for the defendant, that, having acquired a legal title to the loeus before the will was made, he could not be divested of it, or estopped to use and enjoy it, by accepting under the will, — at any rate, not at law ; but the court decided otherwise, and, referring to the prin- ciple of equity above stated, said that it was equally applicable at law.^ There is a good illustration of this doctrine in the recent case of Board v. Board.^ That was an ejectment by the assignee of a remainder-man under a will against the assignee of a tenant for life, who had entered under the same will, and had subsequently conveyed in fee. It was held that, the tenant for life having taken 1 Smith V. Smith, 14 Gray, 532. one of the creditors of tlie estate, that the 2 But the grantee of land conveyed by deed was fraudulent. Norton v. Norton, an intestate, with intent to defraud his 5 Cush. 624. creditors, is not estopped by taking under 3 Law E. 9 Q. B. 48. the deed, and acting upon it, to object, as 506 ESTOPPEL IN PAIS. possession as devisee, would be estopped to say that the testator was only a tenant by the curtesy (which was the fact), and that she had acquired title to the premises by twenty years' adverse possession against the heir at law ; and the defendant claiming under her was also precluded from alleging such facts.^ In general, one who talfes possession of property under a will, and holds and manages it for a long time, and especially if he sell the whole or part of it, will be considered to have made a binding election.^ It becomes a difficult matter, however, in some cases, to determine what constitutes an election. In Pitts v. Cook,^ it was held that no election had been made. In this case, a testator devised to his son Obed lands of which he was only tenant by the curtesy ; and he devised to his wife the use, during life, of a third part of all his real estate, and the right of occupying such part of his dwelling-house as might best promote her convenience and comfort, and also various articles of personal property. The residue of his property he gave to his children (including Obed), who were also the heirs at law of his wife. The will was proved without objection ; and the widow and children continued to live together on the estate, without making any division or setting off dower. The widow having died, the children continued long after upon the premises without change. Her heirs now claimed the 1 Blackburn, J., said : " The case is ance of the title of a devisor should say like that of a tenant coming in under a that such title is defective. My brother landlord : he is estopped from denying Martin, in Anstee u. Nelms, 1 Hurl. & N. his landlord's title. As to the point that 232, 26 Law J. Ex. 8, says that the Stat- Kobert [the testator] , being only a tenant ute of Limitations can never be so con- by the curtesy, had nothing to devise, it strued that a person claiming a life estate may be said that in many instances the under a will shall enter, and then say landlord has only an equitable title, and that such possession was unlawful, so as yet the tenant is estopped from disputing to give his heir a right against a remain- such title. I think if the law were other- der-man. That seems directly in point, wise the consequences would be disas- It is good sense and good law. All we trous ; for how unjust it would be if a have to decide here is, that Rebecca [de- person who comes in under a will as ten- visee for life] having entered under the ant for life, and continues in possession will, William, the remainder-man, under until twenty years have elapsed, could the same will, has a right to say that she say there was a latent defect in the title and all those claiming through her are of his predecessor, and the estate devised estopped from denying that tlie will was really belonged to the heir at law, and his valid." The other judges were of the title bfeing barred, he, the tenant for life, same opinion. is entitled to the property in fee-simple. ^ Upshaw v. Upshaw, 2 Hen. & M. It is contrary to the law of estoppel that 381. he who has obtained under and in further- '' 5 Cush. 596. ELECTION. — , INCONSISTENT POSITIONS. 507 land devised to Obed ; and he contended that they were estopped to repudiate the will. The court held, however, that no election had been made to take under the will.^ It is held in Ohio that where, in case of a devise of real estate to a widow for life, with remainder in fee to one of the testator's sons, the widow, without following the form prescribed -for making her election to take under the will, set up no claim for dower, but in fact acted under the will, and had the use and occupancy of the premises for a series of years, she was estopped to deny that she had elected to take under the will.^ In Dewey v. Bell,^ the plaintiff sued the defendant on a promis- sory note, the latter being the maker, and the former an indorsee. It appeared that the defendant had executed the note in question for the purpose of renewing a former note, and that his agent carried the note to one Way (who as indorser of the prior note had taken it up), desiring him to take this latter note in exchange 1 Mr. Justice Dewey, in delivering tlie opinion of the court, said : " It is not in- consistent with Joanna Cook's [the wid- ow's] legal rights, and a present purpose on her part, at a future day, to assert her right to the land of which she was seized in her own right, and independent of her husband. Take the facts as stated. All the other lands were occupied by Obed, as well as those which are the subject of controversy. But the will gave Joanna Cook one third part of the real estate. She did not set off this one third. Things being left in this loose state, and none of the parties exercising rights adversely to each other, it will not do to draw infer- ences from these acts that shall operate as an estoppel against parties subsequently setting up legal rights to the lands thus occupied. To authorize such an estoppel, the conduct of the party should be mani- festly inconsistent with the rights now claimed. Estoppel in pais only arises when manifest justice and equity as re- spects the interest of another require its application. In looking at the provisions of this will, it will be seen that they are so little a departure from what would have been the legal rights of Joanna Cook without the will, that little can be inferred from her subsequent use of the property in the manner set forth in the agreed statement. . . . The further fact relied upon in the statement, that Obed Cook purchased of Fitts and wife [the plain- tiffs], about a year since, their interest in the furniture which was devised by Gad Cook, does not prove any acceptance of the will, or assent to the same. Whether it was the property of Joanna Cook, or property of the estate of Gad Cook, upon the death of Joanna Cook it might natu- rally be divided among the children who survived her, and be made the subject of a sale of an undivided interest therein. Indeed, the whole circumstances stated as to the use of the property, after the death of Gad Cook, are consistent with a family arrangement among themselves to live together during the life of Joanna Cook, and all to participate in the prop- erty, without any special reference to the will, or to the devise therein of property belonging to Joanna Cook." 2 Thompson v. Hoop, 6 Ohio St. 480 ; overruling Stilley v. Tolger, 14 Ohio, 610. See Stockton v. Wooley, 20 Ohio St. 184, 189 ; Winship v. Winship, 43 Ind. 291. 3 6 Allen, 165. 608 ESTOPPEL IN. PAIS. and payment for the earlier one. Way said he -would take it as collateral to the first note, and the agent assented and left the note with him. Way now indorsed the last note, and procured it to be discounted, and it finally came into the hands of the .plain- tiff. The court held that when Way procured the note to be dis- counted, he estopped himself from saying that he had not taken it for the purpose for which it had been made,. It operated as a payment of the prior note ; and the plaintiff was therefore en- titled to recover.^ It will be found upon an examination of the above and other cases that, wherever the rights of other parties have intervened by reason of a man's conduct or acquiescence in a state of things about which he had an election, and his conduct or acquiescence, or even laches',^ was based on a knowledge of the facts, he will be deemed to have made an effectual election ; and he will not be permitted to disturb the state of things, whatever may have been his rights at first. But mere acquiescence or waiver, made with- out consideration, will not be binding, if a change of purpose do not affect the rights of others.^ And of course the consent or 1 A very similar case was subsequently tried before the same court, and with a like result. Hooker v. Hubbard, 97 Mass. 175. "We cannot distinguish this case," said Poster, J., in deliyering the judg- ment, "from Dewey v. Bell [supra]. The note of NoTember 14 was given for no other purpose than to renew and pay the one of earlier date now in suit. The plaintiff, knowing this fact, had no right, as against this defendant, to take it ex- cept in payment. Having elected to take it and enforce it by suit, the law conclu- sively presumes that he took it for a rightful and not an illegal and fraudulent purpose, and the plaintiff is estopped to allege the contrary. It is plain that both notes cannot be enforced rightful- ly against the present defendant. The plaintiff must fail in one of the two pend- ing actions. If the acceptance of the second note be not treated as payment of the first, by a negotiation of the second to a bona Jide holder for value before ma- turity, the defendant might have been rendered liable on both. To avoid this unjust result, and prevent the plaintiff from accomplishing a successful fraud to the injury of an innocent person, the just and equitable principle of estoppel is invoked, and the plaintiff is held to be for ever bound by that construction of the transaction according to which alone it was rightful. Dewey v. Bell is pre- cisely like this case, with this'exception : there the negotiation of the note given in payment had actually taken place. The commencement of a suit on the renewal note is an equally decisive act of election to make it the plaintiff's own, and in this case as much as that the plaintiff is es- topped to say he did not accept it for the purpose for which it was made." 2 Williams v. Allison, 33 Iowa, 278. 5 See Kipley v. .ffitna Ins. Co., 30 N. Y. 136, 164 ; Cruger v. Dougherty, 43 N. Y. 107; Landon v. Litchfield, 11 Conn. 261; Ives v. North Canaan, 33 Conn. 402; Smith v. Smith, 30 Conn. Ill ; Flege v. Garvey, 47 Cal. 371 ; Jones V. Clark, 42 Cal. 181 ; Meley v. Collins, 41 Cal. 663 ; Watt v. McGalliard, 67 lU. ELECTION. — INCONSISTENT POSITIONS. 509 acquiescence must have been made understandingly, and some- times even of the party's rights under the law.^ This doctrine has been held to apply to the case of persons who had procured the passage of an act of the Legislature, under which they had acted and obtained advantage ; and the parties were thereafter held estopped to show that the act was unconstitutional,^ though it had been so pronounced by the courts, a^ to those who had not participated in its passage.^ In the case referred to, it appeared that a large portion of the people of Gallatin County, Kentucky, had met in 1864, and resolved to raise |20,000 to be used as a fund to avoid the draft for soldiers. They appointed a committee to obtain an act of the Legislature authorizing the county to issue bonds for the amount mentioned, and to levy a tax to pay the money. The money was borrowed; the volunteers were obtained ; an act of the Legislature was procured authorizing the proceedings ; the bonds were issued ; and the tax was levied. Certain parties who had aided in obtaining the act now prayed an injunction to restrain the collection of the tax ; but the prayer was refused.* 513 ; Maroketa v. Willey, 35 Iowa, 323 ; Adams, v. B. & M. R. Co., 39 Iowa, 507 ; Prout V. Wiley, 28 Mich. 164 ; Mason o. Finch, lb. 282 ; Lackland v. Stevenson, 54 Mo. 108 ; Sherman v. Parish, 63 N. Y. 48 ; MiUer v. Miller, 5 Heisk. 723. 1 Ellsworth V. Ellsworth, 33 Iowa, 164; Charlestown v. County Commissioners, 109 Mass. 270. ^ Ferguson v. Landram, 5 Bush, 230. See also Todd v. Kerr, 42 Barb. 317; People V. Murray, 5 Hill, 468 ; Van Hook V. Whitlock, 26 Wend. 43 ; Burlington v. GUbert, 31 Iowa, 356 ; B. C. R. & M. R. Co. V. Stewart, 39 Iowa, 267. See Tal- lant V. Burlington, lb. 543. » lb., 1 Bush, 548. * " Upon what principle of exalted equity," said the court, " shall a man be permitted to receive a valuable considera- tion through a statute,, procured by his own consent, or subsequently sanctioned by him, or from which he derives an in- terest and consideration, and then keep the consideration and repudiate the statute as unconstitutional ? Suppose five hun- dred citizens of Gallatin County had come together, and by written agreement authorized certain gentlemen, as their agents, to borrow |20,000, to be used for raising volunteers to prevent themselves and relatives from being conscripted, is there any doubt that those loaning the money could recover it by personal action from them ? .... If they could then bind themselves personally and collec- tively, without a statute, but to render the collection more secure, less uncertain as to the recipients, and more equitable, they Ihould agree, instead of giving their personal obligations, to procure an enact- ment to compel each one to contribute ac- cording to the amount of his property, and constitute the county court their agent to determine this, and have the proper assess- ment made and collected from each, by what rule of equity or law should they be permitted to withdraw their assent to this assumed liability and agency, though it be evidenced by a statute instead of a mere personal contract ? . . . " In procuring this money, and obtain- 510 ESTOPPEL IN PAIS. And a similar doctrine has been held in respect of one who had joined in a petition for the opening or improvement of a street ; such a one will, it is sajd, be afterwards estopped to allege that the levy of a t£tx to pay for the improvement was unauthorized, on the ground that the number of abutters required by law did, not join in the petition.^ But it is held that a land-owner on whom an assessment for the extension of a street has been laid under the statute is not estopped to petition for a jury to revise the assess- ment by reason of his having asked for an apportionment thereof under the same statute.^ If these questions did not arise under statutes, their consistency with each other might be doubted ; and ing with it Tolunteer soldiers, these men violated no law of morality or of govern- ment. Their contract was not void for want of consideration or for illegality ; but it is the means by which the sum for its reimbursement is to be raised that they assail. Whilst the borrower and lender of money at usurious rates both violate law, of course there is neither consideration nor estoppel as to the usu- rious loan ; but if the borrower induces a third and innocent party to take the note, he is then estopped, because his conduct becomes fraudulent as to this third party. So a minor who shall con- tract is not bound, because the other party knows he is doing an illegal act, unless the minor falsely represents that he is of age, and thereby induces another to contract with him under such belief; then because of his fraud the minor is estopped. So may corporations avoid con- tracts they have no legal power to make until they become fraudulent as to some innocent party, and then they too are es- topped, as has been often decided. . . . " Suppose the legal voters of a town should petition the Legislature to grant a charter for a manufacturing company, authorize them to organize it by elect- ing ofiicers, and conferring on them the power to borrow a given sum, to be reimbursed by the levy of an annual tax, and that each should have stock accord- ing to what he paid of this tax ; whilst this statute would be clearly invalid and unenforceable against such as neither petitioned nor voted for the officers, yet, as to such as.did, very different consider- ations and questions would arise. For, after voluntarily asking the Legislature to provide by law an agent for them, and after appointing that agent, by what rule of law or ethics could they be permitted to repudiate their agent and deny their responsibility to those who may have loaned the money ? "All persons who were themselves liable to draft, or had minor sons or slaves so liable, divided an actual valu- able consideration by the avoidance of the draft, and hence are liable. AU-who participated in the procurement of the law, or afterwards voluntarily ratified it, can- not be heard now to object, especially such as had relatives liable to be con- scripted ; because, having voluntarily waived this constitutional benefit), they shall not be heard to set it up after the money is procured, the volunteers ob- tained, and the war ended." » Burlington v. Gilbert, 31 Iowa, .356. People V. Goodwin, 5 N. Y. 571 ; Kellogg w. Ely, 15 Ohio St. 66, were cited in sup- port of the doctrine ; but it may be doubted if they are in point. See also Gilmore v. Pox, 10 Kans. 609. 2 Gardner The allegation, as will be seen from the (a) From which the above statement is taken. 534 PLEADING, PRACTICE, AND ETIDENCB. the defendant claimed should take priority over that given to Piatt ;i and this, too, though Piatt's mortgage was on record at the time of his misrepresentations. The court said that it was no objection that the title of Piatt was by a recorded deed. It was true that title by mortgage deed could not be released by parol. But, although the legal title, might exist as a paper title, the party may not be able to enforce it, or render it effectual. This species of defence, when offered to control written convey- ances or title-deeds, was no more obnoxious to the objection of permitting oral evidence to control written, than the ordinary case of setting aside conveyances for fraud upon oral, proof. So, too, the facts constituting an estoppel- m pais may be ground for filing a bill for a conveyance of real estate or for a further assurance. In Favill v. Roberts,^ the plaintiff brought an action for the purpose of procuring title to a farm which he had pur- chased of the executor of John Roberts, of whom the defendants were heirs. The land had been sold and paid for under an order of court, and improvements had been made by the plaintiff, when it was discovered that the court had no authority to grant the order for the conveyance of the land. The plaintiff now sought to enforce a remedy against the heirs at law, and to compel a con- veyance, on the ground that the executor acted with the consent and approbation of the heirs, and that they encouraged the 'sale. It was held that the plaintiff was entitled to his remedy. In order to claim the benefit of an estoppel upon a tenant in .a suit for rent, it is not necessary for the plaintiff to allege that the lessee occupied under the lease. It is sufficient to set out the lease, and if the lessee answer denying the title, it is conclusively established by showing use and occupation.^ And this is probably true whether the lease be in parol or undef seal. It has been held that the doctrine of estoppel by conduct, where the subject of the representation is the title to real estate, or prop- erty which can only be passed by deed, is not available in a suit at law.* The case first cited was an action of ejectment. The 1 Fay V. Valentine, 12 Pick. 40 ; Dew- v. Wall, 2 Dev. & B. 126 ; West v. Tilgh- ey V. Field, 4 Met. 381. man, 9 Ired. 163 ; Blake v. Fash, 44 m. 2 3 Lans. 14; s. c. 50 N. Y. 222, 302; Mills v. Graves, 38 111. 455; Swick 3 Prevot V. Lawrence, 51 N. Y. 219. v. Sears, 1 Hill, 17 ; Delaplaine t'. Hitch- 4 Doe d. McPherson v. Walters, 16 cock, 6 Hill, 14. See Heard v. Hall, 16 Ala. 714 ; Smith v. Mnndy, 18 Ala. 182 ; Pick. 460 ; Foster v. Bigelow, 24 Iowa, Hamlin v. Hamlin, 19 Maine, 141.; Knight 879. ESTOPPEL IN PAIS. 535 plaintiff being seized in fee of the land in controversy, sold it to one Bird, and gave bond to malte title on payment of the purchase- money, secured by the purchaser's notes. One of these notes the plaintiff indorsed to the defendant, who obtained judgment upon it against the purchaser, who was in possession 'of the" laud, and, under the instructions of the plaintiff, had the execution levied on the land, and at the plaintiff's request purchased it. Afterwards the plaintiff paid the residue of the notes which he had indorsed, and filed a bill in chancery against the purchaser. Bird, and had the land sold in payment of the purchase-money. The defendant was not a party to these proceedings. The plaintiff became the purchaser at the sale under the decree, and now brought the pres- ent action to recover the land. Upon tliis evidence, the court be- low instructed the jury that the plaintiff was esbopped to assert his title against the defendant ; but this judgment was reversed by the Supreme Court.^ The learned Chief Justice who delivered the ' The point is important, and we quote at length from the opinion of the court. Dargan, C. J. : " The plaintiflFwas seized in fee of the premises, and he has exe- cuted no deed by which he has trans- ferred the title to another. This is admitted; but it is contended that the conduct of the plaintiflF, in directing tlie levy to he made on the land, as the prop- erty of Bird, the purchaser, who held his bond for title, and requesting the defend- ant to buy, estops him from asserting his legaV title, more especially as the amount bid at the sheriff's sale by the defendant extinguished, to that extent, the liabiUty of the plaintiff as the indorser of the note of Bird to him. If any one having the title to land induce another to purchase it from one who has no title, it is very certain that the legal owner cannot be permitted afterwards to assert his title and defeat the purchaser. Sugden, Vend- ors, 262. But the question is, In what forum shall the purchaser defend him- self? Can he defend at law, or must he resort to equity for protection ? "If the defendant had been the pjir- chaser from the plaintiff, had he paid the fiill price of the land under the promise that the plaintiff would forthwith make him titles, — if this promise had been made with a fraudulent intent on the part of the plaintiff to obtain the purchase- monej', and then assert his legal title, yet the defendant could not defend himself at law against the legal title, and would be compelled to resort to a court of equity for protection. If a court of law could not protect the defendant in the case sup- posed, I do not see how it could if the plaintiff, having the legal title, fraudu- lently induced the defendant to purchase' at sheriff's sale under an execution against one who had no title that could be sold. The title to land can pass only by deed ; and an estoppel at law, which works a divestiture of title, can be cre- ated, in my opinion, only by as high evi- .dence. I have looked with some care into the English cases, but I have not found one in which a plaintiff at law was held to be bound by a parol estoppel, when the subject-matter was such that the title could pass only by deed. If the title could pass by delivery or by parol, then a party shall be bound by -a parol estoppel, and cannot be permitted, after he has induced a party to act upon a sup- posed state of facts, to show that these facts are untrue, to the prejudice of him 536 judgment, referring to the cases of parol dedication, said that they were not in point, by reason of the character of the grantee, the public, who was intended to be benefited by the act. It is worthy • of doubt, however, if the doctrine of the Alabama court be correct, whether this can be considered a sound distinction. It would seem better to say that the case of dedication is an admitted ex- ception to the rule that land cannot be conveyed by parol. But it is clear that parol dedications depend upon the doctrine of es- toppel -iVt pais.^ There is no doubt of the correctness of the Alabama doctrine (except in those States in which equity is administered in courts of law), where the party claiming to hold the land by the equitable estoppel brings ejectment against the party who has been guilty of the fraud. The latter still holds the legal title to the land, and who has. acted on his representations. Piokard v. Sears, 6 Ad. & E. 469 ; Heane K. Rogers, 9 Barn. & C. 577 ; Graves v. Key, 3 Barn. & Aid. 318. In the case of Hamlin v. Hamlin, 19 Maine, 141, it is said that ' no verbal agreement respecting land can create an estoppel at law, for the title to laud can pass only by deed, and no man can be barred of his right to land by way of estoppel, unless by record or deed.' In North Carolina, the title to slaves can only pass by instrument in writing ; and in the case of Knight v. "Wall, 2 Dev. & B. 125, it was decided that title to slaves, could not be made out at law by a parol estoppel ; and if fraud had been practised on the party, he must seek redress in equity, but that such fraud could not at law convey to him the legal title. The cases of Boiling v. Pe- tersburg, 3 Rand. 563 ; Heard v. Hall, 16 Pick. 460 ; Marshall v. Pierce, 12 N. H. 127 ; and Hamlin v. Hamlin, 19 Maine, 141, seem also to recognize the doctrine that the owner, at law, is not estopped from asserting his legal title to the land by a fraud committed by him on the defendant, and who, in consequence of the fraudulent acts of the plaintiff, has been induced to buy from one who had no title. I admit that cases may be found in the reports of some of the States of the Union that seem to countenance a con- trary doctrine. But when we reflect that a court of law can look only to the legal title, and that the legal title to land can- not pass by parol in this State, it is di£S- cult to perceive how a plaintiff at law shall be estopped from asserting his title merely because of his fraudulent acts or conduct, which render it inequitable or unjust for him to assert. If a court of law, because of such conduct or acts, should stop short and refuse to give effect to the legal title, would it not be on ac- count of the equities of the defendant? Yet we know that a court of law wiU not look to or consider the equity of a party in opposition to the legal title of the other. The better course, in my opinion, is to pursue tlie well-settled rule of law, and to permit the legal title to prevail at law, regardless of the equity the opposite party may have, and leave him to enforce his equitable rights in a court of chan- cery, which has power not only to arrest; or enjoin the suit at law, but also to de- cree a conveyance of the legal title to him who in equity is entitled to it." See also Warner v. Middlesex Mutual Assur. Ca, 21 Conn. 444. 1 Baker v. Johnston, 21 Mich. 319, 345; Lee v. Lake, 14 Mich. 12; 3 Washb. Real Prop. ESTOPPEL IN PAIS. 637 must prevail at law when it is exhibited against the equitable title. We apprehend that an equitable estoppel can never be ground of an ejectment ; though it is otherwise of an estoppel by deed, for in the latter case the plaintiff has the legal title as between the parties. • And perhaps the same would be true where the equitable estoppel was used as a defence of possession in ejectment. Whether this rule would hold in trespass by either party may be another ques- tion. But it is difficult to see how an equitable estoppel can be more effectual than a purchase of and payment for the land, which without a deed would be no defence to an ejectment at law. There are, however, authorities in favor of the position that an equitable estoppel as to land is available at law.^ In Connect- icut, the Supreme Court, in the case first cited, have said, in reference to the position, that a parol estoppel cannot prevail in the case of real estate : " This certainly is not the common law. Littleton says : ' And so a man can see one thing in this case, that a man shall be estopped by matter in fact, though there be no writing by deed, indenture, or otherwise ; ' and Lord Coke, commenting thereon, gives as an instance of estoppel by matter in fact this very case of partition.^ And such an award [one by parol] has in England been held sufficient to estop a party against whom ejectment was brought from setting up his title." ^ As' to the first two of these authorities, however, it might be re- plied that they were before the Statute of Frauds ; without which the reason for denying the right of the party resting on the estoppel would not be so strong. And as to the case of partition, that is record evidence of the rights of the parties. The rule that a party shall not dispute the validity of documents wliich he has produced or has been required to inspect, on notice, at the trial, seems to rest on the ground of prejudice to the other side.* ' Brown v. Wheeler, 17 Conn. 345 ; 84 ; Finnegan v. Carraher, 47 N. Y. 493 ; Pool V. Lewis, 41 Ga. 162; Burkhalter Stevens v. Dennett, 51 N. H. 324; Hale V. Edwards, 16 Ga. 593 ; Davis v. Davis, v. Skinner, 117 Mass. 474. 26 Cal. 23 ; McAfferty v. Conover, 7 2 Coke, Litt. 356. Ohio St. 99 ; Spears v. Walker, 1 Head, ^ Doe d. Morris v. Rosser, 3 East, 15. 166; Dodge w. Stacy, 39 Vt. 558; Hallo- * So, too, where a party has been ran v. Whitcomb, 43 Vt. 306 ; Spiller v. induced to bring a particular form of Scribner, 36 Vt. 245 ; Smith o. Hall, 28 action by an instrument produced by the Vt. 364; Shaw v. Beebe, 35 Vt. 205; defendant, as a policy of insurance, the de- Gove V. White, 23 Wis. 282 ; Mariner v. feudant cannot object to the form of suit. Milwaukee & St. Paul R. Co., 26 Wis. Rockford Ins. Co. o. Nelson, 65 111. 415. 638 PLEADING, PRACTICE, AND EVIDENCE. In Doe d. Wright v. Smith,' the plaintiff gave the defendant no- tice, under the rules, that he might inspect and would be required to admit a "counterpart of lease." The instrument produced, though indorsed as a " counterpart," was executed as a lease ; and the defendant thereupon objected to receiving it. The objection was overruled.^ So, again, in the case of Regina v. South Holland.^ This was an application for a certiorari to bring up an inquisition held be- fore a compensation jury, on the grounds of improper notice and improper and inadequate compensation. The application was re- fused. Lord Denman said that the ground of his decision was, that the party had rendered himself incompetent to make the objections. They could not doubt that the inquisition would have been free from the defect of notice complained of, if the party him- self had not waived the notice, and requested for his own benefit that the inquiry might take place at an earlier period than that which a regular notice would have assigned. The case of Regina d.. Salop* contains another instance of this sort of estoppel. It appeared in this case that an order had been made adjudging the settlement of a pauper to be in" the parish of H. ; whereupon the overseers of H. gave notice of. an appeal to the next Borough Sessions for S. Both parties appeared at the trial 1 8 Ad. & E. 255. caution of that party, and he must be 2 " It is also said," Mr. Justice Cole- taken to have said, I agree to admit the ridge observed, " that the defendant is Instrument in the manner in which you not proved to have inspected any doc- have described it. It is asked what ument at all ; but he is not competent would be the case if a probate were raen- to allege this. If, having opportunity tioned in the notice, and nothing produced given, he did not inspect, he stands in but a plain paper. Such a paper could the same situation as if he had. The never have been a probate at all ; it mani- instrument in question was indorsed festly wants the legal authority ; but the ' counterpart ; ' if he looked at it, that instrument here produced may have been would stare him in the face ; and at any a counterpart, and would not cease to be rate he must have seen the paper de- so because the landlord signed it. There scribed as a counterpart in the plaintiff's is no similitude between the case supposed notice. Then was he not bound to make and the present. This is a case in which his objection at the time when inspection we may say that a party, having consent- was offered ? If he had then said, I can- ed to admit the execution of an instru- not admit this as a counterpart, he would ment in a particular character, shall not thereby have given the opposite party afterward object that the instrument has notice to prove that there was an original not that character." properly stamped. By the conduct now s 8 Ad. & E. 429. pursued, he has lulled asleep the < 4 El. & B. 257. ESTOPPEL IN PAIS,,.j: 539 of the appeal, and it was decided that the court had no jurisdiction, and that the appeal should have been taken to the County Sessions. Having decided that no valid notice of appeal had been given, the question was now raised in the Queen's Bench, on a rule for a mandamus, whether, in the original notice of appeal, the mention of the Borough Sessions could be treated as surplusage ; and it was held that it could not. Lord Campbell, C. J., said that counsel had succeeded in dis- tinguishing the case from Regiua v. Liverpool,^ on which the court had just acted in Regina v. Buckinghamshire.^ In Regina v. Liverpool, the appellants, having given a notice of appeal, in which, by mistake, they said that the appeal would be to the County Ses- sions, had discovered their error before any step had been taken in consequence, and had informed the other side that the appeal would be to the Borough Sessions. There had, therefore, been nothing in the circumstances of that case to preclude the respond- ents from saying, as they had done, that the mention of the County Sessions was mere surplusage, which could not mislead. But, in the present case, the respondents had given notice of appeal to the Borough Sessions, and had then appeared there. They treated it as an appeal to the Borough Sessions, tried to obtain the benefit of it as such, and were defeated, and they could not now be allowed to say that the mention of the Borough Sessions had been a mistake, and that the intention was to appeal to the County . Sessions.^ It seems to be in strict accordance with the principle in these cases, that where a party has, upon notice, refused to produce a writing in his possession, and thereby caused the opposite party to give secondary evidence of its contents, he will himself be precluded from producing it in evidence.* In the case of Meredith v. Davies,^ the plaintiff in error argued that the defendant was estopped, after having pleaded in nulla est erratum, from praying that the court would award a certiorari for diminution of the record ; and that though the court might award a certiorari in order to be certified of the out-branches of the 1 15 Q. B. 1070. ^ Doe d. Thompson y. Hodgson, 12 2 4 El. & B. 260. Ad. & E. 135. 3 See also London and Northwestern ^ 1 Salk. 270. Ey. Co. V. Bedford, 17 Q. B. 978. 540 PLEADING, PRACTICE, AND EVIDENCE. record (as the original writ or warrant of attorney), which are not returned with the body of the record upon a writ of error, but were certified in another roll'; still the court could never do it to be certified of any thing in the body of the record. They must suppose it to be returned as it ought to be, and must take it as it is, and were concluded by the admission of the parties from tak- ing it to be otherwise. Counsel on the other side admitted that the defendant in error was estopped ; but it was argued that the estoppel did not reach the court, for the writ of error was itself a commission to examine sucii errors as were manifest on inspec» tion. And the court for the reasons given made a rule for a certiorari. The case of Morgan v. Vaughan ^ belongs to this subject. In that case, Morgan brought a writ of error, alleging that Vaughan had obtained judgment against him six years before, whereas he (Morgan) was then an infant of fourteen years, and appeared by attorney, instead of by guardian, as he stated he should have appeared. Verdict having been given for Morgan on the question of infancy, counsel for the other side now moved in arrest of judg- ment on this ground : .The writ of error had alleged that Morgan was but fourteen years of age when the prior action was brought, and that was six years ago. Error now being assigned by at- torney, it was contended on the other side he was estopped by his own showing. In other words, if he could not appear by at- torney at fourteen, as he contended, he could not now at twenty, being still a minor. But the objection was overruled by the whole court. The judges said that there was no estoppel, because the allegation of the precise age was idle and not traversable, and the plaintiff in error might have alleged any other day, and the defendant could not have taken issue upon it. A case '^ was cited where, the lord having distrained cattle, the tenant under a lease for sixty years pleaded a lease for ten years, and after the expiration of the ten years, the reversioner having entered, the tenant pleaded his lease of sixty years ; and the court resolved that he was not estopped by pleading his lease to be but for ten years, because the lease, not the number of years, was material.^ The court finally stated the rule 1 T. Kaym. 456. 3 See another case referred to from 2 8 Dyer, 289 b, pi. 69. Fitzh. Estoppel, 69. Eescous. ' ESTOPPEL IN PAIS. 641 to be that one should not be estopped but of that of which he might have a traverse. In Boyle v. Webster,^ the plaintiff declared against two defend- ants on joint promises. The defendants severed in pleading, and one entered a plea of infancy. The plea was admitted, and a nolle prosequi entered as to that defendant ; but the plaintiff entered issues as to the pleas of the other defendant, and proceeded to trial against the objections of the opposite party that the plaintiff should be nonsuited. The Queen's Bench held that this should not have been done. It was true, Lord Campbell observed, that the nolle prosequi admitted only the plea to which it was pleaded. But the effect of that plea was that there was no contract by the defsndant who pleaded it; and this the plaintiff had admitted. " How, then," said the Lord Chief Justice, " can he say afterwards that both promised ? He himself has furnished conclusive evidence to the contrary." It is held, also, that the question whether a company has been properly incorporated cannot be raised after it has been impleaded as a corporation, and recognized as such in decrees made in the cause.2 In Greenville and Columbia Railroad Company v. Joyce,^ the defendant, sued as an executor, pleaded the Statute of Limita- tions. At the trial, he endeavored to show that the plaintiff was not entitled to the full time allowed in actions against executors, as he, the defendant, was an executor de son tort ; but the court held him estopped by his pleading to allege that he was not a right- ful executor. The party who has committed a fault in pleading, which has not been noticed by the other side, cannot object that the other side has followed the defect.* In the case cited, the defendant to an action by an indorsee against him as acceptor of two bills of ex- change pleaded that the bills had be^n accepted for the accom- modation of the drawer ; that, after they were due, the drawer gave the plaintiff other bills of larger amount, for which the plaintiff agreed to give him time as to the bills now sued upon ; that new bills were given in payment of the bills now sued upon ; and that- the transaction was untnown to the defendant. To this the plaintiff replied, de injuria. The defendant now demurred, 1 17 Q. B. 950. » 8 Rich. 117. 2 Howard v. LaCrosse & M. E. Co., * Reynolds v. Blackburn, 7 Ad. & E. Woolw. 49. 161. 542 PLEADING, PRACTICE, AND EVIDENCE. on the ground that the replication attempted to put in issue two matters of defence ; but the demurrer was overruled.^ A party is estopped to make an objection inconsistent with his cause of action,^ or with an agreed position taken by both parties in the course of the trial,^ or, generally, with an admission made in open court.* The case of Daniel v. Morton was an action for money had and received against a sequestrator, for the pur- pose of impeaching the sequestration ; and it was held that the plaintiff could not insist that he had vacated the benefice of W., by adopting that of C, when it was necessary to the maintenance of his action that he should be an incumbent of W. So if a plaintiff offer competent testimony to prove certain facts, and it is rejected by the court on the objection of the other aride, the defendant will not afterwards be permitted to allege that the plaintiff failed to prove the facts embraced in the offer." 1 In the course of the argument, Pat- Dunning v. West, 66 111. 366 ; Cronk ». teson, J., said to counsel for the defend- Trumble, lb. 428 ; Thurlough v. Kendall, ant : " You attempt to set up a plea 62 Maine, 166 ; Callaway v. Johnson, 51 which you allege to be bad, because, as Mo. 33. But a party is not estopped by you contend, the plaintiff has made a bad expressing a particular purpose of the use replication. If your plea is double, and of an instrument from drawing from it there is a general replication, you cannot other deductions. Sill v. Keese, 47 Cal. take advantage of the fault of your plea 295. to make the replication bad." * Stribling v. Prettyman, 57 HI. 371. 2 Daniel v. Morton, 16 Q. B. 198. 6 Thompson v. McKay, 41 Cal. 221. •• Drey fo us u. Adams, 48 Cal. 131; PRECEDENTS IN PLEADING. 543 CHAPTER XXiy. PRECEDENTS IN PLEADING. We present, in conclusion, the following common-law precedents in pleading by way of estoppel. Some of these forms are taken from Chitty's Precedents in Pleading ; some are from Story's Pleadings ; some are from Bullen and Leake's Precedents ; and others are from the pleadings in the reported cases. 1. Commencement and Conclusion of a Plea of Matter of Estoppel.^ The defendant by , his attorney [or in person], says that the plaintiff ought not to be admitted to say [stating the matter to which the estoppel relates] , because he says [state the matter of estoppel and conclude] . And this the defendant is ready to verify ; wherefore he prays judgment if the plaintiff ought to be admitted against his own acknowledgment by his deed aforesaid [or other- wise, according to the estoppel] to say [stating the matter to which the estoppel relates, as before] . 2. Replication hy Way of Estoppel to a Plea.^ That the defendant ought not to be admitted to plead the said plea by him above pleaded, because he says [state the matter of estoppel] . And this the plaintiff is ready to verify ; wherefore he prays judgment if the defendant ought to be admitted, contrary to his own acknowledgment and deed [or otherwise], to plead that [here state the matter to which the estoppel relates]. 3. Plea hy Matter of Estoppel that the Plaintiff brought an Action against the Defendant for the same Cause of Action, and that the Defendant had Judgrnent.^ Replications, &c. i [Commencement, 1, supra.} That the plaintiff before this suit brought an action against the defendant in the Court of , for 1 Chitty, 408, Sd Bng. ed. 608 ; Overton v. Harvey, 9 Com. B. 324; 2 Ibid. Eastmure v. Lavps, 5 Bing. N. C. 444; » Ibid. See ante, pp. 27 et seq. Por Gordon v. Whitehouse, 18 Com. B. 747. forms. Bee Palmer v. Temple, 9 Ad. & E. 544 PLEADING, PRACTICE, AND EVIDENCE. the said debt [or cause of action] in the declaration mentioned, and thereupon such proceedings were had that afterwards, and be- fore [or after ^J this suit, it was considered by the judgment of the said court that the plaintiff should take nothing by- his writ in respect of the said debt [or cause of action] , as by the record of the said court fully appears, and which said judgment is still in full force. [Conclude as supra.] Another form : ^ And the said D. comes and defends, &c., when, &c., and says that the plaintiff (acfi'o non}, because he says that formerly, to wit, at a Court of Common Pleas, holden at, &c., within and for the county of, &c., on, &c., the said plaintiff im- pleaded the said D. in a certain plea of trespass on the case on ' promises, to the damage of the said plaintiff $100 on occasion of not performing the very same identical promises in the said decla- ration mentioned. And such proceedings were therefore had, that afterwards,^ to wit, at a term of the court holden at, &c., within and for, &c., on, &c., the said plaintiff by the consideration of the same court, recovered against the said D. in that plea $50 for his damages, which he had sustained by reason .of the not performing the very same identical promises in said declaration mentioned, together with $10, costs of suit, whereof the said D. was con- victed, as by the record thereof now remaining in the same court more fully appears ; which said judgment still remains in full force and unreversed. And this the said D. is ready to verify. Wherefore he prays judgment if the said plaintiff ought to have or maintain his action aforesaid thereof against him, &c. Former judgment on appeal to Supreme Court, with \ continu- ance. [As last above as far as " whereof the said D. was con- victed."] Prom which said judgment the said D. appealed to the Supreme Court then n,ext to be holden at, &c., within and for the same county,* on, &c. ; and afterwards, to wit, at the said Supreme Court holden at, &c., on, &c., the said D. entered his said appeal. 1 It is held to be immaterial whether were the proceedings thereupon that af- the former judgment were rendered he- terwards at the Supreme Court, begun fore or after the present action. Case- and holden at, &c., on, &o., within and beer v. Mowry, 55 Penn. 419; DufEy v. for, &e., tlie said plaintiff recovered judg- Lytle, 5 Watts, 120 ; Child v. Eureka ment against the said D., for, &c." It is not Powder Works, 45 N. H. 547. necessary that the particular proceedings i! Story's Pleadings, 185, Oliver's ed. should be stated. 8 If the action be carried to the Su- < This of course to be omitted, where preme Court, this form is sufficient ; and the Supreme Court has but one place for the defendant may say, " And that such holding session. PRECEDENTS IN PLEADING. 645 And such were the proceedings thereupon had that afterwards, to wit, at a term of the said Supreme Court holden at, &c., on, &c., the said plaintiff by the consideration of the same court recovered judgment, &c., as appears by the records thereof in the same court remaining ; which said judgment remains in full force and unre- versed. And this the said D. is ready to verify. Wherefore, &c. Former judgment and appeal, and appeal not entered, and judg- ment affirmed. [As above.] From which said judgment the said D. appealed to the Supreme Court then next to be holden at, &c., on, &c. ; and afterwards, to wit, at said" Supreme Court holden at, &c., on, &c.,the said D. did not prosecute his said appeal ; where- upon in the same term, on the complaint of said plaintiff, by the consideration of the same court, the said former judgment was affirmed with additional damages and costs. And thereupon it was considered by the same court that the said plaintiff recover against the said D. f 50 damages and #10 costs of suit, as appears by the records thereof in the same court remaining ; which said judgment remains in full force and unreversed. And all this the said D. is ready to verify. Wherefoi'e, &c. Replication of nul tiel record. And the plaintiff says that, not- withstanding any thing by the said D. above in pleading alleged, he, the plaintiff, ought not to be barred from having his said action thereof maintained against said D., because the plaintiff says that there is not any such record of the judgment aforesaid recovered by him, the plaintiff, against the said D. in the said Court of Common Pleas, held, &c., as the said D. hath above in pleading alleged. And this the plaintiff is ready to verify.^ Wherefore he prays judgment and his damages by reason of the promises to be ad- judged to him, &c. Rejoinder. And the said D. says that there is such a record of the judgment aforesaid, recovered by the plaintiff against him, the said D., remaining in the Court of Common Pleas within and for the county of, &c., as he, the said D., hath above in pleading alleged ; and this he is ready to verify by the said record, &c. Replication, with new assignment of other promises. And the plaintiff says (^precludi non'), because he says that although true it is that he, the plaintiff, at a court of, . Fera, lb. 198 ; Needham v. estoppel. Hawks v. Truesdell, 99 Mass. Bremner, Law R. 1 C. P. 583. (67 ; Burlen v. Shannon, lb. 200 ; Lea v. 'i 8 East, 346. PRECEDENTS IN PLEADING. 549 same, Story's Pleadings, 338, Oliver's ed. » 4 Barn. & C. 625. See Ibid. pp. 518, 519, as to lilce forms in scire facias on judgments. 554 PLEADING, PRACTICE, AND EVIDENCE. defendant says that the plaintiff ought not to be admitted to say that the defendant undertook and promised as in those counts or any of them mentioned ; because the plaintiff and his three late co-partners, on the 27th of February, 1817, in a certain court of judicature of our sovereign lord, the King, holden in parts beyond the seas, in and for the island of St. Christopher, to wit, a certain court of record, called the Court of King's Bench and Common Pleas, before John Garrett, Chief Justice, &c., at, &c., impleaded the said defendant in a certain plea of trespass on the case upon promises, and in that suit declared against the defendant, amongst other things, for that whereas (the plea here set out the declara- tion in the former action verbatim, which appeared to be for the same causes of action mentioned in the first, second, fourth, fifth, sixth, and eighth counts of the declaration in the present suit) ; that to such former declaration the defendant pleaded non assump- sit, upon which issue was joined. And such further proceedings were thereupon had in the said former suit, that afterwards, to wit, at, &c., the said issue joined was tried by a jury of twelve men, and as to that issue the jurors of that jury upon their oath did say, that they found for the defendant with one penny costs. The plea then stated that judgment was given for the defendant upon and agreeably to the said verdict, and that that judgment was affirmed by a court of error in the island, and by the King in council, adding : Which said judgments are still in full force, as by the record, &c. Averment, that the said proceedings, so had in the courts of the said island and in the said Court of Privy Council^ were at the times when they were so had, within the jurisdiction of the same courts respectively, and were carried on in conformity with and according to the due course of law at those times es- tablished in force in the island aforesaid. And that the said several sums and debts in the first eight counts respectively men- tioned were and are parcels of the said several sums of money, and of the said supposed debts mentioned in those parts of the declaration in the said former suit, &c. ; and that the defendant did not promise or undertake in respect of the said sums or debts in the first eight counts mentioned, or any of them, or any pai't thereof, otherwise than was alleged in those parts of the declara- tion, in the said former suit, which are herein above set forth. [And the defendant further alleges that the said judgments ren- dered respectively as above mentioned were, and still are, final PRECEDENTS IN PLEADING. 555 and conclusive in the said island of St. Christopher, according to the laws thereof, and were and still are a bar in said island to any- further action by the said plaintiff in respect of the said supposed causes of action in the said counts of the plaintiff's present decla- ration mentioned.] ^ And this, &c. Wherefore, &c. Another plea of the same character from Callandar v. Dittrich.^ Fourthly (to the first and second counts), that before the com- mencement of this suit, and before the commencement of the pro- ceedings next hereinafter mentioned, the defendant was resident in parts beyond the seas, to wit, at Koenigsberg, in the kingdom of Prussia, within the allegiance of the King of Prussia, and within the jurisdiction of a certain court of judicature, called the Royal Prussian Court of Commerce and Admiralty of Koenigsberg ; and that afterwards and whilst the defendant was resident at Koenigsberg aforesaid, and before the commencement of this suit, to wit, on, &c., the plaintiff impleaded the defendant, in the said court of judicature, for not performing the very same identical promises, and each and every of them as are in the first and second counts of the declaration in this action mentioned, and for the damages alleged to have been sustained by the plaintiff thereby ; the same court having jurisdiction in the premises. And such proceedings were thereupon had in the said court tliat afterwards and before the commencement of this suit, to wit, on the 31st of May, 1839, a judgment or decree was pronounced by the said court, whereby it was adjudged and declared that the plaintiff had no cause of action against the defendant in respect of the damages alleged to have heen sustained by him, the plaintiff, through the non-performance of the said promises ; and it was further ordered and decreed by the said judgment or decree that the plaintiff should pay the costs and expenses of the proceedings so had in the same court in that behalf ; which judgment or decree was not in any way reversed or made void. And the defendant says that the said judgment or decree was and is final and conclusive between the parties to such suit, as to the supposed cause of action in the country where the same was pronounced, to wit, in the kingdom of Prussia aforesaid ; and that the plaintiff is pre- cluded from all further litigation in respect of the same, and ought not further to importune or molest him, the defendant, in 1 4 Man. & G. 68. 556 PLEADING, PRACTICE, AND EVIDENCE. respect of such supposed cause of action, so adjudicated upon by the said judgment or decree as aforesaid. Verification.^ 10. Estoppel hy Deed. Replication in Trespass quare Clausum (to a Flea justifying the Entry under a Stranger as Owner") of a Demise from the Defe'ndant? And the defendant further says, that the said M. P. ought not to be admitted or received to plead the said plea by her above pleaded, as to so much thereof as alleged that the said F. W. P., at the several times when, Ac, was seized of the said dwelling- house, &c., in which, Ac, in manner and form as in the said plea was alleged, because the plaintiff says that, before the committing of the several trespasses in the declaration mentioned, and before the said times when, 1 The judgment or decree produced, » Darlington v. Pritchard, 4 Man. & G. however, did not support the plea; but 783. no objection was suggested to the plea, either by counsel or by the court. PRECEDENTS IN PLEADING. 557 aforesaid, for a certain time, to wit, for one half year ending on the day and year last aforesaid ; and that afterwards, on each and every 25th of Mai-ch and 29th of September, which happened in every year from the time of the making of the said demise, until the said several times when, &c., the plaintiff, as tenant as afore- said, duly paid to the said M. P., and the said M. P., as the land- lady of the plaintiff as aforesaid, received and accepted from the plaintiff all and every part of the rent which respectively grew due to the said M. P. from the plaintiff, under the demise and ten- ancy as aforesaid. Verification, and prayer of judgment if M. P. ought to be admitted or received against the said demise and acceptance of rent as aforesaid, to plead the said plea by her above pleaded, as to so much thereof as alleged that the said F. W. P., at the several times when, &c., was seized of the said dwelling-house, &c., in manner and form, &e. 11. Estoppel in Pais. Replication to a Plea of the Incompetency of the Payee of a Bill to indorse the Same. The following replication, in an action by the indorsee of a bill of exchange against the acceptor, was held good on demurrer in Smitli V. Marsack: ^ That, the defendant ought not to be permitted or received to plead the said plea by him above pleaded to the said second count of the declaration, or to say that the said C. W., before and at the time she indorsed the said bill in the said second count mentioned, was the wife of the said E. W., and that the said E. W. had not authorized or consented to tlie said indorse- ment of the said bill by his said wife, or that the said C. W. had no power to indorse the said bill, and to transfer to the plaintiff the property therein, because the plaintiff says that the said C. W. was a married woman, and the wife of the said E. W. before and at the time when she made the said bill in the said second count mentioned, and before and at the time of the acceptance of the said bill by the defendant, as well as at the time of the indorse- ment of the said bill to the plaintiff, as he, the defendant, before and at the said several times of the making and accepting and indorsing of the said bill respectively had, and had always had, full notice and knowledge ; that the plaintiff had not, either before or at the said several times of the making and accepting and indors- 1 6 Com. B. 486. 558 PLEADING, PRACTICE, AND EVIDENCE. ing of the said bill respectively, or either of them, or at any time before the commencement of this suit, known ^ that, the said C. W. was a married woman and the wife of the said E. W., or that she had not power or authority to indorse the said bill, and to transfer to the plaintiff the property therein ; tliat he, the plaintiff, at the time of the indorsement of the said bill to the plaintiff, as in the second count mentioned, gave full value to the said C. W. for the indorsement of the said bill by the said C. W. to the plaintiff; and that he, the plaintiff, gave such value, and took the said bill, and became the indorser thereof, as in the said second count men- tioned, upon the faith and credit of the defendant's acceptance of the said bill, and the said C. W.'s having power, and being a per- son- competent, qualified, and able to indorse the said bill to the plaintiff, and to transfer to the plaintiff the property in the same. Verification, and prayer of judgment if the defendant ought, con- trary to his said acceptance of the said bill in the said second count mentioned, and to his owii act and acknowledgment, to be admitted to say that the said C. W., at the time of the said iu- dorsement by her of the said bill in the said second count men- tioned, was the wife of the said E. W., and that the said E. W. had not at any time authorized or consented to the said indorsement of the said bill by his said wife, or that the said C. W. had no power to indorse the said bill and to transfer the property therein. 1 Qucere, if this allegation of notice on acceptor warrants the payee's capacity, the part of the defendant and ignorance the allegation would seem to be surplus- on the part of the plaintiff of the cover- age. But probably the plaintiflF did not ture of C. W., especially of the plaintiff's care to raise any question on the point,, ignorance down to the time of the trial, and made the allegation ex abundante cau- were necessary ? K it be true that the tela. INDEX. INDEX. ACKNOWLEDGMENT OF RECEIPT, under seal, not conclusive, 281-284. probably a rule of interpretation only, ?84, note. form of acknowledgment in use in 13th century, 284, note. acknowledgments in parol, 427-430. generally not conclusive, 427. conflict of cases, 427, note. bill of lading, 427, note. acknowledgment in policies of marine insurance, 429. where acknowledgment has been acted on by third person, 429. warehouse receipts, 429, 430. receipt given an attaching office, 430. ACQUIESCENCE, when estoppel is raised by, 471, 508. ACQUITTAL OF GOODS, conclusiveness of judgment of, 156, 157. ACT OF LEGISLATURE, when party estopped to dispute constitutionality of, 509. ACTION, in personam and in rem by the Roman law, 6-9. in the Scotch law, 7. in Bracton, 9. in modern English law, 10. when prematurely brought, judgment no estoppel, 26, note. See Pleading, Practice, and Evidence. ADJUDICATION. See Judgments. ADMINISTRATORS, verdict for plaintiff in suit against, on plea of plene adminisiravit, 18, 19, 76, note. no privity between administrator or executor and heir or devisee, 78, 80. otherwise by statute in California, 78, note. relation of administrator de bonis non to his predecessor, 79, 80. not like executor of executor, 79. of different states or countries, 80, 227-229. when estopped to claim property found among assets of the estate, 389, 390. not estopped to amend inventory, when, 390. 36 562 INDEX. ADMINISTRATORS, — continued. when estopped to deny having funds, 390. estoppel against one of several estops all, 442, 443. ADMIRALTY, English court of an inferior court, 129. otherwise of Federal courts of United States, 129. conclusiveness of domestic judgments in, 140-144. adjudications of prize in, 140, 151-169. conclusive both of change of property and ground of judgment, 140, 155-157. adjudications in cases of collision, 140, 141. foreign judgments in, 151-159. conclusive of change of property and of ground of judgment, 162, 155-157. otherwise in New York, 157. sale of wrecks and derelicts, 164, 155. immaterial that sentence was erroneous, 157. breach of warranty of neutrality under insurance policy, 168, 169. finding that vessel was enemy property, 168, 159. judgments in conclusive only of necessary matters, 161-163. possible qualification of rule, 163, 164. obscure statements of record, 164-166. jurisdiction of court, 166-168. constitution of foreign tribunal, 168. fraud in obtaining judgment, 169. AFFIDAVIT, of sale, recital in, 494. AGENCY, judgment against principal, effect on agent, 63, 64. effect of suit by agent in his own name in right of principal, 70. accepting^deed made by agent, 613. assuming to act as principal, 513. principal cannot allege agent's unfaithfulness, 513, note. See Principal and Agent. AGREED JUDGMENTS, conclusiveness of, 16, 17. AMALGAMATION OF CORPORATIONS, estoppeljby conduct in cases of, 636-539. ARBITRATION AND AWARD, under rule^of court, 17, 18. in pais, 615. ASSIGNEE OF PATENT, not permitted to deny validity of patent, when, 388. ASSIGNMENT, fraudulent,'|acted upon, 514. ATTACHMENT, proceedings in, properly in personam, 10, 11, 212, 213. agreement to hold goods under, for plaintiff, 430, 436-437. ATTORNEY, refusing to disclose principal, 458. ATTORNMENT, lessee may explain circumstances of, 856, 159, 360. INDEX. 563 AUDITING ACCOUNT, . effect of, 516. AWARD, under rule of court, 17, 18. • in pais, 616. BAILOR AND BAILEE, under what circumstances bailee estopped to deny bailor's title, 384-388. when bailee may set up the jus tertii, 386, note. proceeds of goods sold by bailee, 387. no estoppel on bailee's vendee, 387. party agreeing to hold goods for plaintiff, 388, 436-437. BANKRUPTCY, non-disclosure of discharge in, 466. BARGAIN AND SALE, DEEDS OF, effect of before Statute of Uses, 317, 319-322. origin of, 319, 320. void at law at first, 320. effect of in Chancery, 320, 321. bargain and sale of a term, 321. effect of clause of warranty before the statute, 321, 322. effect of Statute of Uses upon this mode of conveyance, 323-339. whether it can pass future interests, 323-339. conflict of the authorities, 323-381. question considered, 331-339. effect of warranty, 331. distinction between case of grantor with and without seisin, 332-339. grantee of grantor having no seisin takes nothing, 332-337. warranty in such case, 333. no lien created so as to affect second grantee without notice after title ac- quired, 334. no privity between grantor and grantee, 335-337. conveyance by disseisor, 337-339. See Title by Estoppel. BILL IN CHANCERY, dismissal of for insufficiency, 22, 23. BILLS AND NOTES, warranty of genuineness, 391-408. acceptor of abill estopped to deny signature of drawer, 391, 392. ground of the rule, 392. " indorser estopped to deny signature.s of prior parties, 392, 393. one who intrusts his name to another in blank estopped to object that it has been improperly filled out, 394. acceptor not estopped to deny genuineness of any indorsement, 394. unless indorsement was put on the bill by the drawer before acceptance, 396, 396. or unless bill be payable to fictitious person, 396, 397, 404. or unless bill accepted with knowledge, 397. estoppel of acceptor extends only to signature, and does not embrace body of the paper, 398, 399. 664 INDEX. BILLS AND 'SOTES, — continued. if drawer has contributed by negligence to drawee's mistake, he must bear the loss, 399, 400. acceptance conclusively admits procuration to draw, 400. but not to indorse, 400. . , whether acceptance for honor is an admission of signature of the party for whose honor acceptance is given, 400-450. limitation of rule that drawer cannot allege bill to be invalid, 404. where bill payable to fictitious person or to a dead man, 404. payable to real party, 404. consequence of discovering forgery too late to fix liability of prior parties, 405. effect of paying bill by acceptor whose acceptance is forged, 405. acceptor not estopped to deny genuineness of -drawer's signature where holder took the bill before acceptance, 405, 406. effect of receiving forged paper as one's own genuine paper, 406„407. • rule where holder, by custom or agreement, takes upon himself the duty of inquiry, 407. when holder aids in mistake of acceptor, 407, 408. person selling bill or note^without indorsing it warrants its genuineness, 408. warranty of capacity, 409-412. execution of note a warranty of payee's capacity to indorse, 409. so of acceptance of bill, 409. maker or acceptor cannot therefore allege that payee was an infant, a married woman, or a bankrupt, 409—412. rule as to insane payee, 411, 412. indorsement implies warranty of capacity of all prior parties, 412. guarantor of bond estopped to deny competency of makers, 412. certification of checks, 412-417. bank estopped in New York and other States by teller's certificate, " good," 412-414. contra in Massachusetts, 413. rule as to national banks, 413-417. transfer by indorser after liability fixed, 417, 418. where liability has not been fixed, 418. statement that note is "all right," 461. estoppel to deny payment of, 607, 508. BILLS OF LADING, effect of between original parties, 427, note. BONDS, when corporation estopped to set up invalidity of, 419-423. BOUNDARY, conclusiveness of decrees of commissioners of, 147, 148. land bounded in deed by street, 270. knowledge of true boundary necessary in many States in order to raise an es- toppel, 470. otherwise in other States, 471. long acquiescence, 471. limits of the estoppel, 471. paramount title afterwards acquired, 471. parol agreements as to wlen operating as estoppel, 467-471. INDEX. 665 CERTIFICATION OF CHECKS, effect of in Massachusetts, 413. in New York and elsewhere, 413-417. what constitutes certification, 417. CHANCERY, decrees in conclusive at law, 114, 115, 197. restraining actions at law upon judgments, 215-218, note, 328, 329, note. CHARTER, effect of acceptance of office under, 615. CHECKS, certification of; 412-417. COLLEGE ORDERS, conclusiveness of, 13, 14. COMMERCIAL PAPER. • See Bills and Notes. COMMON RECOVERY, operation of, 312, 313. COMMONWEALTH, estoppel against, 246. COMPETENCY OF PARTIES. See CoKPORATiONS ; Infants ; Lunatics ; Married Women. CONCEALMENT, when one has been silent when he should have spoken and claimed property, 431, 453, 458-464. concealment.of prior marriage, 472, 473. See Conduct, Estoptel bt. CONDEMNATION OF GOODS, conclusiveness of, 143, 144. See Admiralty ; Judgments, Domestic, in Rem ; Judgments, Foreign, in Rem. CONDUCT, ESTOPPEL BY, origin of, 431. doctrine in equity, 431. Pickard v. Sears, 431, 434. where one by words or conduct ' ' wilfully " causes another to believe the ex- istence of a certain state of things, and induces him to act upon it so as to change his previous condition, he will be estopped to deny the truth of his representation, 434. leading cases in America, 435, 436. rule modified as to word " wilfully," 487. essentials to this estoppel, 437. there must have been a representation or concealment of material facts, 437. the representation must have been made with knowledge, 437. the party to whom it was made must have been ignorant of the facts, 437. it must have been made with the intention that it should be acted on, 437. the party must have been induced to act upon it, 437. the representation, 437-467. term of convenience, 437, 451. there need not be an express representation, 437, 438, 451. must concern fads, 438. 566 INDEX. CONDUCT, ESTOPPEL BY, — continued. must have reference generally to a present or past state of things, and not to future, 438-441. exception, 441. estoppel in pais distinguished from contract, 441. representation must be plain, 441. not a matter of inference, 441. such as would naturally be acted on, 441. affects only parties and privies, 442-450. rule covers representations of agents, 442. admissions of one of several administrators which estop him estop all, 442, 443. whether married women may be estopped by conduct, 443-446. rule in Massachusetts, 443. rule in Illinois, 443, 444. rule in Indiana, 444, 445. « rule in Pennsylvania, 446. . in cases of pure tort, 446, 446. action of contract cannot be maintained, 446. whether infants may be estopped in pais, 447-449. conflict of authority, 447, 448. question considered, 448, 449. in questions of real property, 448, note. doctrine of privity prevails, 449. whether a purchaser of goods in privity with the seller,-449, 450. if representation has been procured by fraud, there is no estoppel, 450, 451. estoppel limited to the representation, 451. witnessing another's deed, 451. doctrines concerning silence, 452-467. where one has been silent when he ought to have spoken, he shall be de- barred from speaking when conscience requires him to be silent, 453, note. effect of standing by and seeing one's property used as another's, 453, 458-462. silence as to defects in proofs of loss in insurance, 454, 465. non-disclosure of discharge in bankruptcy, 456. assent to diversion of water, 467, 458. attorney refusing to disclose principal, 458. statement that note is " all right," 461. effect of failing to claim dower, 461, 462. effect of failing to object to an assessment of taxes, 463, 464. execution of note in firm name by one partner in presence of another, 464. of silence and its effect in other cases, 464-467. knowledge of the facts, 467-485. the rule as to stated, 467. party must be deceived, 467. where party has means of informing himself, 467. in cases of boundary, 467-471. there must have been knowledge of the true boundary when incorrect one was agreed upon in order to an estoppel, 470. different rule in some States, 471. long acquiescence sufficient in these States, 471. limits of the estoppel, 471. paramount title afterwards acquired, 471. INDEX. 667 CONDUCT, ESTOPPEL BY , — continued. warehouse receipts given by mistake, 471, 472. purport of inquiry not understood, 472. concealment of prior marriage, 472, 473. affirming voidable contract with notice, 475, 476. party must know that representation would be acted upon, 476. ignorance the result of gross negligence , 476-480. forgetfulness of facts, 481, 482. parties affected with notice, 483. negligence must be proximate cause of loss, 483. the intention, 485-492. ' the general rule, 486. term " wilful" in Pickard v. Sears means simply " voluntary," 487-490. in most cases the representation must amount to the contract or license of the party making it, 487, note. intention not necessary in every case, 490. effect of negligence, 490. in eases of dedication, 491. representation must have been acted upon, 492-502. the general rule, 492. not material how acted on, 492. whether it must be exclusively acted on, 493. representation must have been made before or at the time of change of posi- tion, 493, note. misrepresentation as to character of warrant, 493. as to value of horses, 493. recital in affidavit of sale, 494. sheriff's return, when an estoppel, 494, 495. cases of dedication, 497. damage may be presumptive, 497-501. false statement inducing a suit, 497, note. inducing administrator to proceed to an inventory, 497, note. quantum of damages, 601, 502. CONFESSION OF JUDGMENT, rule as to in America, 18-20. rule in England, 18, 19. apparent conflict among English cases, 19. judgment by confession before issue raised, 19, 20. in vacation in clerk's office, 200. CONSULAR COURTS, conclusiveness of jndgime«ts of, 234, 235. CONTRACT, distinguished from estoppel, 440, 441, note. when party estopped to deny validity of, 511, 514. merger of, by judgment, 60-57, 218-220. CORAM NON JUDICE, judgment must have been rendered by a legally constituted court, 11. illustrations, 12-16. CORPORATIONS, effect on stockholders of judgment against, 70. under what circumstances corporations estopped to set up ultra vires, 419-423. 568 INDEX. CORPORATIONS, — continued. defences to municipal bonds, 421-423. general rule as to public and private corporations, 423. when party dealing with corporation may set up the invalidity of the body, 424. irregularity in amalgamation of, 473, 474. effect of irregularity upon directors, 483. municipal corporation not estopped to claim property belonging to it improp- erly sold for taxes, 514. effect of accepting audited report approving accounts of unfaithful treasurer, 615. CO-SURETIES, effect of judgment against one upon others, 60, 66-68. See Surety. COURTS, judgment must be given generally by lawful court of justice, 11, 12. exceptional cases, 12-14. English admiralty an inferior court, 129. otherwise of Federal courts of United States, 129. . jurisdiction of, 122-132, 166, 167, 201-209. constitution of foreign court may be examined, 168. presumption as to, 168. Federal not foreign to State, 200, 201. effect of judgment in consular courts, 234, 235. See Courts-Martial ; Inferior Courts ; Military Courts ; Judgments. COURTS-MARTIAL, conclusiveness of judgments of, 14, note. COVENANTS, of warranty, in old common law, 286-288, 310, 311, 318, 321, 322. in modern times, 288, 289. effect of upon after-acquired title at the present time, 297-306, 323-339. effect depends upon nature of grant and of warranty, 297-306. operates as a rebutter, 289, 301, 331. but not as a conveyance, 333. ' nor as a lien so as to affect a subsequent purchaser without notice, 334. covenants of title, seisin, and right to convey, 304, 339. for further assurance, 304, 306. , for quiet enjoyment, 293, 304, 305, note, 317. See Title by Estoppel. CRIMINAL CAUSE, JUDGMENT IN, effect in civil suit, 47. CROSS-ACTION, right of after judgment by opposite party, 107, 108. CUMULATIVE REMEDIES, effect of judgment in case of, 115, 116. CUSTOM, judgments incidentally establishing, 148, 149. dImage, an essential part of estoppel by conduct, 492-501. will be implied in some cases, 497-501. measure of damages, 501, 502. INDEX. 669 DECLARATION, judgment for insufficiency of, 22. DECREES, in Chancery conclusive at law, 114, 115, 197. in Admiralty, see Admiealty. See Judgments. DEDICATION, ■when effectual by estoppel, 491, 497. DEED, estoppel by, defined, 239. division of subject, 240. parties and privies, 241-252. deed binds such only, 241. parties, 242-246. persons acting under authority of grantee, 242. deed under which grantee does not claim, 24i, estops parties only in the character in which they appear, 243, 244. guardian's deed, 244. parties must be sui juris, 245, 246. covenants of married women, 245. deed of infant, 245, 246. estoppel by deed against the State, 246. privity, 246-252. assignee of lessee, 246. other cases, 247, 248. no privity between judgment creditor and debtor, 249. privy in estate, 249, 250. effect of acceptance of, as to dower, 250, 262. apparent conflicts on this point, 250. question considered, 250-252. relation of doctrine of privity to the point, 251, 252. criticism of Carver v. Jackson, 261, 252. must be valid in order to an estoppel, 263-255. and delivered, 253. by corporation in excess of powers, 263, 264. in contravention of statute, 254, 265. procured by fraud, 266. void only as to one of several grantors, 255. no estoppel in collateral matters, 265-258. in case of deed-poll only grantor generally estopped, 258, 259. exceptions, 259. whether one who accepts a deed from another estopped to deny his title, 269- 262. estoppel against estoppel, 262, 263. limitation of rule, 263. if truth appears on face of, no estoppel arises, 263-265. limitations of rule, 264, 265. in actions of covenant and ejectment, 264, 265. recitals in, 266-284. particular recitals conclude, 266-273. 'general recitals do not ordinarily, 278-284. 570 INDEX. DEED, — continued. exception, 278. acknowledgment of receipt in a deed, 281-284. not conclusive, 281-284. whether aclcnowledgment might not be made conclusive, 284, note. confirmatory of former deed, effect as to recitals, 308. estates by estoppel, 322-363. release of dower, 364-366. witnessing another's deed, 451. See Dower ; Estates by Estoppel ; Parties and Privies ; Recitals. DEMURRER, decision on, conclusive when merits involved, 22. judgment for insufiScieucy of declaration, 22. DEPUTY SHERIFF, effect on sheriff of judgment against, 62, 63, 76. DERELICTS, sales of wrecks and derelicts conclusive on all persons, 154, 155. DIRECTORS OF CORPORATION, ^ affected with notice estopped, 483. See Corpoeations. DISCLAIMER, under what circumstances effectual to remove estoppel, 373, 374. DOCUMENTS AND EVIDENCE, party estopped to impeach his own, 537, 538. ground of rule, 537. DOMESTIC JUDGMENTS. See Judgments, Domestic. DOMICILE , estoppel in pais as to, 513. DOWER, whether acceptance of deed estops grantee to dispute widow'-s claim to, 250-252. release of, 340, 341. wife not estopped without release, 340, note. conveyance by husband of his wife's land, wife affixing her 'signature and seal, 340, 341. release of dower in fraudulent conveyance, 341. effect of failing to claim, 461, 462. effect of election to take under will, 603-507. EJECTMENT, effect of judgments in, 64, 65, 112, 113. ELECTION, INCONSISTENT POSITIONS, party cannot occupy inconsistent positions, and the first taken will be held a conclusive election, 503. any decisive act with knowledge is an election, 603. one who has taken beneficial interest under will estopped to deny its validity in equity, 603. examples, 604, 505. grantee of fraudulent grantor taking under the'deed, 505, note. party taking possession of property, and holding and managing it, 506, 507. INDEX. 571 ELECTION, INCONSISTENT POSITIONS, — con ,. decrees of probate, 145, 146. removal of paupers, 147. decree appointing tutor to minor, 147, 148.- - decree confirming order of commissioners of boundary, -147, 148. 576 INDEX. ESTOPPEL, — coniinued. proceedings in attachment, replevin, and the like, 148. decrees incidentally establishing reputation, custom, public ferries, and the like, U8, 149. unsatisfied judgment against a vessel, whether a bar to suit in personam, 149, 160. foreign judgments in rem, 1.51-169. adjudications in Admiralty, 151-159. Algerine decree held conclusive, 153. sales of wrecks and derelicts, 154, 655. condemnations in Admiralty conclusive of fact for which the property was con- demned, 156-157. immaterial that sentence of condemnation was erroneous, 157-159. foreign decrees concerning marriage and divorce, 159, 160. of probate and ecclesiastical courts,- 160. not conclusive of questions incidentally decided, 161-164. or of matters stated obscurely or ambiguously, or of matters of inference, 164r- 166. jurisdiction may be impeached, 166-168. impeachment for fraud, 169. foreign judgments in personam, 171-235. judgments of foreign nations conclusive on merits, 171-179. judgments of sister American States conclusive on merits, 179-183. whether constitutional provision extends to criminal cases, 184, 186. to police regulations and qui tarn actions, 185. has no reference to matters subsequent to the judgment, 185, 186. further illustration of conclusiveness, 186-197. judgment must have been final and conclusive, 197. . character and operation of judgment a proper subject of inquiry, 198. no ground of impeachment that judgment was erroneous, 198. Federal courts not foreign to State courts, 200, 201. result of the cases as to judgments of sister States, 201. impeachment of judgments of foreign countries for want of jurisdiction, 202- 204. for fraud, 218. of judgments of sister States for want of jurisdiction, 204-209. for fraud, 214^218. doctrine of merger as to judgments of foreign countries, 218-220. as to judgments of sister States, 220-224. garnishment or trustee process, 224-227. doctrine of privity between executors or administrators in different States, 227- 229. judgments of foreign courts of limited jurisdiction, 229-236. of sister States, 229-234. of foreign consuls, 234, 286. jurisdiction may be examined, 235. estoppel by matter of deed, 239-341. defined, 239, application to parties, 241-246. to privies, 246-252. INDEX. 577 ESTOPPEL, — continued. limitations of the doctrine, 253-265. deed must be valid, 263-255. not an estoppel in collateral actions, 255-258. grantee in deed-poll or indenture, 258-262. estoppel against estoppel, 262, 263. no estoppel if truth appears, 263-265. recitals, 266-284. defined, 266. particular recitals, 266-273. general recitals, 273-278. of immaterial matters, 278-281. acknowledgment of receipt in a deed, 281-284. title by estoppel, 285-339. defined, 285. doctrine of the early common law, 285-287. collateral and lineal warranty, 287, 288. leases ; where no interest passes an estoppel arises, 290. where an interest passes no estoppel arises, 290-294. grantor and grantee, 294-307. grantee before and grantee after title acquired, 307-339. as to personal property, 339. release of dower, 340, 341. conveyance of wife's land, 340, 341. release of dower in a deed executed in fraud of creditors and without considera- tion, 341. estoppel by matter in pais, 346-516. persons holding relations of trust to others, 348-390. landlord and tenant, 348-382. estoppel upon tenant of modern origin, 346-350. nature of estoppel in time of Coke, 346-348. seal not the foundation of modern estoppel, 349. doctrine of mutuality, 352, 353. competency of parties, 353. doctrine of privity, 353-.355. rule as to outstanding titles, 355. mistake, 356-358. fraud, 358. circumstances of attornment may be explained, 359. tenant may show that landlord's title has expired, 360, 361. effect of taking lease of land of which tenant was in possession, 364-371. tenancy created by operation of law, 372, 381. effect of disclaimer, 373, 374. estoppel applies in relation of mortgagor and mortgagee, trustee and cestui que trust, and like cases, 374, note. purchase by tenant from landlord, 374, 375. tenant may deny derivative title of person to whom he has attorned, 376, 377. effect of lease showing that landlord has no legal estate, 378-380. estoppel not confined to ejectment suits, 381. possession by license, 381. 87 578 INDKX. ESTOPPEL,— continued. tenancy by the curtesy, 381, 382. estoppel of vendee in equity, 382-384. estoppel of bailee to deny-bailor's title, 384:-388. assignees and licensees of patents, 388, 889. executors and administrators; 389, 390. commercial paper, 391-418. , •warranty of genuineness by acceptance and indorsement, 391-409. warranty of capacity, 409-412. certification ofchecks, 412-417. transfer by indorser after liability fixed, 417, 418. ' corporations, agency, partnership, 419-430. when corporation may not set up ultra vireSf 419-423. effect of misrepresentation by one partner upon another, 425. holding one's self out as partner, 425, 426. acknowledgment of receipt in parol, 427-430. when not conclusive, 427-429. when conclusive, 429, 430. estoppel by conduct, 431-502. origin, 431. essentials to the estoppel, 437. there must have been a representation or concealment of material facts, 437—467. • it must have been made with knowledge of facts to one ignorant of them, 467- 485. it must, have been made with intent that it should be acted on, 485-491. it must have been acted on, 492-501. election, inconsistent positions, 503-616. main rule, 508. effect of taking under will, 503-505. other acts of election, 606-516. pleading, practice, and evidence, 519-558. pleading the estoppel, 619-621. estoppels by record, 622-628. estoppels by deed, 529-631. estoppels in pais, 532-542. precedents in pleading, 543-558. ESTOPPEL AGAINST ESTOPPEL, sets the matter at large, 262, 263. EVICTION, removes estoppel of tenant when, 362, 363. eviction by law not necessary, 363. burden of proof, 363, note. EVIDENCE. See Pleading, Practice, and Evidence. EXCEPTIO REI JUDICATA, in the Roman law, 6, 6. EXECUTORS AND ADMINISTRATORS, verdict for plaintiff in suit against, on plea of plme administravit, 18, 19, 96, note. no privity between administrator or executor and heir or devisee, 78, 80. INDEX. 679 EXECUTORS AND ADMINISTRATORS, — con(m«ec?. otherwise by statute in California, 78, note, relation of administrator de bonis non to his predecessor in the administration, 79, 80. not like executor of executor, 79. residing in different States, no privity between, 80, 227-229. when estopped to claim property found among assets of the estate, 389, 390. not estopped to amend inventory, when, 390. when estopped to deny having funds, 390. estoppel against one of several estops all, 442, 443. FEOFFMENT, operation of, 285, 286, 308-311. FERRY, PUBLIC, judgment incidentally establishing, 148, 149. , FINE, operation of, 311, 312. FOREIGN COURTS, jurisdiction of mfiy be examined, 167, 209, 235. so of constitution of tribunal, 168. presumption, 168. consular courts, 234. See Judgments, Foreign. FOREIGN JUDGMENTS, in rem, 151-169. in personam, 170-235. See Judgments, Foreign. FORGERY, warranty, of genuineness, 391-408. See Bills and Notes. , FORMER JUDGMENT, nature of plea of, 27. causes of action must be identical, 27. trespass quare dausum, plea of judgment in, as bar to an entry sur disseisin, 27, 28. plea of non est factum as to a bond, judgment sustaining, as bar to fecial promise to pay the bond, 28, 29. plea of judgment for defendant for premature action, 29. plea of judgment in an action for failing to remove a wreck, 30, 31. plea of an injunction against the right now claimed, 30, 31. plea of proceedings in Chancery for the same matter, and replication- of bill dismissed with reservation of right of action, 32. plea of judgment for defendant in an action of contract, as bar to suit for fraudulent representations concerning the contract, 32, 33. plea of judgment for defendant in an action for false representation of sound- - ness, as a bar to an action on warranty, 33. action for goods sold defeated by special promise, and subsequent suit on the special promise, 83. cases of continuing or recurring liability, 33, 34. 680 INDEX. FORMER JUDGMENT, — continued. tax assessments and debts due by inkalment, 33, 34. result of the cases stated, 34. test of identity, 34, note, 54, note, 109, note. doctrine of twice in jeopardy, 34-36. FORMER RECOVERY. See Former Judgment. FORMER VERDICT, nature of plea of, 36, 37. causes of action need not be identical, 36-38. doctrine of Duchess of Kingston's Case, 38, 39. of Outram v. Morewood, 39, 40. effect of judgment on plea of set-off, 41, 42. judgment for defendant on one of two notes by reason of a defence common to both, 43, 44. plea of judgment against a surgeon for negligence as bar to an action for medical services, 44. plea of fraudulent alteration of note, and reply of judgment obtained on the note, 44. suit upon a special contract pleaded by opposite party in a former action and there denied by plaintiff, 45. result of the cases stated, 45. judgment against several parties, rights inter sese, 46. FRAUD, when ground of impeaching judgments, 133-139, 169, 214-218. representation obtained by, 450, 451. FURTHER ASSURANCE, COVENANT FOR, effect of, 304, 305, 306, note, 334, note. GARNISHMENT, effect of judgment against garnishee as to original creditor, 70-74. voluntary payment by garnishee, 70, 72, note. execution must be executed according to custom of London, 71. if execution satisfied, garnishee discharged ;)ro tanto, 71. original creditor may prove his claim greater than admitted, 71. judgment against garnishee must be proved, 71, note. it must have been valid, 71, note. and real, 72, note. court must have had jurisdiction, 72, note. whether judgment without satisfaction a bar, 73, 74. other cases, 74, GOVERNMENT, estoppel against, 246. GRANTOR AND GRANTEE, not in privity, 250-262, 334-337. title by estoppel between, 285-339. See Title by EaxoppEL, GUARANTOR, no privity between, and principal, 76. INDEX. 581 GUARDIAN, deed of, with warranty, 244. IDENTITY OF CAUSE OF ACTION, test of, 33, 34, note, 54, note, 109, note. necessity of, to support plea of former judgment, 27-36. IMPEACHMENT OF JUDGMENTS, for want of jurisdiction, 122-132, 166, 167, 201-203, "204-209. for fraud, 133-139, 169, 214^218. See Judgments. IMPROVEMENTS, erected by grantor of deed with warranty enure to grantee, 304. INCIDENTAL MATTERS, effect of verdict upon, 82. various illustrations showing judgment not to be binding, 82-92. what meant by incidental matter, 89-92, note. INCONSISTENT ACTS, election between, 603-516. See Election. INDEMNITOR, effect of judgment against surety, 66-68. liable on notice to defend, 66. liable sometimes without notice, 67. INFANTS, whether concluded by judgment, 49, 50. not estopped by deed, 245, 246. whether subject to estoppel in pais, 447-449. INFERIOR COURTS, judgments of, conclusive when, 7, note, 14, 16. superior courts not proceeding according to course of the common law, 123— 129, 167. of sister States, 167, 229-236. consular courts, 234. IN PAIS, ESTOPPEL BY MATTER. See Agency ; Bills and Notes ; Conduct, Estoppbl by ; Corporations ; Election; Estoppel; Landlord and Tenant; Partnership. nsrSOLVENCY, effect of judgment in, 195. INSTALMENTS, debts payable in, effect of judgment, 33, 34. INSUFFICIENCY, dismissal of bill in Chancery for, 22, 23. judgment on demurrer to declaration for, 22. INSURANCE, acknowledgment of receipt of premium, 427-429 . waiver of defects in proof of loss, 454, 456. notice of fact waived, 483. INTENTION TO DECEIVE, need not be wilful, 486-490. need not exist in certain cases, 490. See Conduct, Estoppel by. 582 INDEX. JOINT CONTRACT, judgment upon, merges the same, 54-57. JOINT TORT, effect of judgment on, 57, 58. JUDGMENTS, DOMESTIC, IN PERSONAM, plea of former judgment, 27-36. See Former Judgment. there must be an identity between the causes of action, 27-36. judgment in trespass guare clausiim fregit no bar to. writ of right, 27, 28. judgment on plea of non est factum in suit on a bond no bar to special promise to pay the bond, 28, 29. judgment that suit has been prematurely brought on a note no estoppel to sue on the consideration of the note, 29. other examples of the rule concerning identity, 28-30. plea of judgment in an action for failing to remove a wreck, 80, 31. plea of injunction against the right now claimed, 30, 31. plea of proceedings in Chancery for the same matter, and replication of bill dismissed with reservation of right of action, 82. plea of judgment for defendant in an action of contract as bar to suit for fraudulent representation concerning the contract, 32, 33. plea of judgment for defendant in an action for false representation of sound- ness as bar to an action on warranty, 83. action for goods sold defeated by special promise, and subsequent suit on the special promise, 33. cases of continuing or recurring liability, 33, 34. tax assessments and debts due by instalment, 33, 34. result of the cases stated, 34. test of identity, 34, note, 54, note, 109, note. twice in jeopardy, 34-36. plea of former verdict, 36-46. operates as estoppel, though cause of action be different, 36, 37. but the particular pointin dispute must be the same in both cases, 37. sentence of spiritual court against a marriage in suit for jactitation no estop- pel to an indictment for bigamy, 38, 39. recovery in trespass, effect of, 39, 40. judgment against plea of set-off an estoppel to a suit upon the subject of the set-off, 41, 42. judgment for defendant on one of two notes by reason of defence common to both, 43, 44. judgment that services have been negligently performed as a bar to an action for the services, 44. plea of fraudulent alteration of note and reply of judgment obtained on the note, 44. suit upon a special contract pleaded by opposite party in a former action and there denied by plaintiff, 46. result of the cases stated, 45. judgment against several parties, rights inter sese, 46. effect and operation of judgment and verdict estoppels, 46-139. parties, 46-74. See Parties and Privies. INDEX. 683 JUDGMENTS, DOMESTIC, IN PERSONAM, — coniinuei. judgments in personam bind only parties and privies, 46. verdict on indictment no estoppel in civil suit, 47. parties under legal disability, 47-50. married women, 47-49. infants, 49, .50. lunatics, 50. " judgments against persons deceased, 50. judgment against one of several joint contractors, whether a bar to an action against the rest, 60-57. not unless judgment was given on a plea that would have been a discharge to all, 55, 56. as to joint and several contracts, 51, note, 56. judgment against one of several partners, 51-53. ^ parties more or less numerous in former suit than in the present, 54, 65. judgment against one of several tort-feasors, whether a bar to an action against the rest, 51, note, 57, 68. persons made parties to proceedings for foreclosure, as subsequent encum- brancers, 69. effect of judgment in a writ of partition, 69. judgment against principal and surety in a note, effect of, in a subsequent ac- tion by the principal alone, 60. similar cases, 61-63. judgment against officers, 60-62. against a servant, 61. principal and agent, 63, 64. bailor and bailee, 63, 64. judgments in ejectment in cases of fictitious parties, 64. parties nominally the same, but really different, 64, 66. judgment concludes parties only in the character in which they appear, 65. effect of notice to third persons liable over, 65-68. in some cases liable to indemnify without notice, 67. whether one appearing as a witness is estopped, 68. relation of master and owner of a vessel, 68. suit by an agent in his own name in right of his principal, but not at latter's request, 70. garnishment or trustee process, 70-74. bound only in the character in which they sue, 274. privies, 74-80. definition, 74. judgments conclude privies as well as parties, 75. no privity between guarantor and principal, surety and principal, co-sureties, sheriff, and deputy, &c., 75. various examples of privity, 76-78. no privity between administrator or executor and heir or devisee, 78, 79. administrator in privity with intestate, 79. executor in privity with testator, 79. heir or devisee in privity with ancestor or devisor, 79. whether administrator de bonis non in privity with his predecessor, 79, 80. executor of executor, 79. 584 INDEX. JUDGMENTS, DOMESTIC, IN PERSONAM, — cow/mMed!. whether administrator de bonis non may maintain scire facias on a judgment of his predecessor, 79, note, no privity between executors or administrators of different States, 80. cases in which judgments avail against third persons, 81, 82. judgments no estoppel as to matters incidentally determined, 82-92. various examples, 82-88. distinction between courts of concurrent and those of exclusive jurisdiction, as to matters incidentally determined, 88. as to what is to be regarded the main point in issue, 89-92. effect of judgments as to matters not passed upon, which might have been put in issue, 89-108. submission of " all matters in difference " to reference, 91, 92. evidence withheld as to one count of declaration, 92, 93. submission of " all demands between the parties," 93, 94. action on two notes and withdrawal of one, 94. action to recover partial payment on note after judgment for full amount, 94r-96. ilnglish doctrine aa to judgments by default, 18, 96, note, action to recover interest after general judgment for principal and damages, 97, 98. recovery of value of land and subsequent suit for value of buildings, 98. recovery of illegal interest after judgment for creditor on note, 98. suits for part of entire demand, 98. judgment on contract and cross-action for negligence, or breach of warranty, or fraud, 98-108. rule in New York, 99, 100. rule in Massachusetts, 100. rule in New Hampshire, 100, 101. rule in Ohio, 101. rule in England, 102-104. rule in Michigan, 105, 106, note, question considered, 104-108. nature of cross-rights, 107, 108. distinction between case where evidence is omitted and where insufficient evi- dence is produced, 108-111. effect of fraudulent concealment by defendant of a further claim, 109, 110. evidence as to one count rejected as inadmissible, and subsequent suit on same count, 110, HI. action to recover money paid under judgment. 111, 112. judgments conclusive of necessary inferences, as well as of the decision itself, 112, 113. form of action need not be the same in both cases, in order to the estoppel, 113, 114. judgment against plaintiff estops him to present the demand as set-off to an action by the defendant, 114. immaterial that former judgment covered other demands than the one in ques- tion, 114. judgment at law an estoppel in chancery, 114, 116. effect of judgment upon one of several cumulative remedies, 115-117. INDEX. 585 JUDGMENTS, DOMESTIC, IN PERSONAM, — conimucd. eflEect of judgment upon portion of an entire demand, 117-120. judgment for plaintiff by default, plaintiff allowing defendant partial credit for separate demand, 121, 122. collateral impeachment of judgments, 123-139. as to jurisdiction of superior courts, 122. presumption as to, 122, 123. parties under disability, 122, 123. courts not proceeding according to common law, 123-129. of inferior courts, 129. adjudication as to jurisdiction, 130, 131. denial of attorney's authority to appear, 131, 132. as to fraud in case of superior courts, 133-138. English doctrine, 133-135. American cases in conflict, 135-137. question considered, 138, 139. distinction between judgment obtained by fraudulent practice and judgment on fraudulent claim, 138, 139. JUDGMENTS, DOMESTIC, IN REM, adjudications of prize in Admiralty, 140-144. conclusive upon all persons, not only of the change of property, but also of the fact for which condemnation was pronounced, 140. cases of collision, 140, 141. distinction between judgments in personam and in rem, 141. condemnation of goods in the Exchequer, 141-144. / acquittal of goods, 143-144. effect of decree establishing pedigree, 144. decree as to legitimacy, 144. proceedings in marriage and divorce, 144, 145. decrees of probate, 145, 146. orders of removal of paupers, 146. decree appointing a tutor to a minor, 146, 147. judgment confirming report of commissioners of boundary, 147, 148. judgments in attachment, replevin, and the like, 148. judgments incidentally establishing reputation, custom, public ferries, &c., 148, 149. whether unsatisfied judgment against a vessel a bar to a suit in personam, 149, 160. JUDGMENTS, FOREIGN, IN PERSONAM, cases considered historically as to judgments of foreign nations, 170-175. finally settled in England that such judgments are conclusive on the merits, 175. immaterial that they are erroneous, 175. or that they proceed on an incorrect view of the law of England, 175. American doctrine, 176, 177. , early English dicta formerly followed, 176. late cases in conflict, 177. opinion of Mr. Justice Story, 177. question considered, 178, 179. judgments of the sister States of America, 179. 586 INDEX. JUDGMENTS, FOREIGN, IN FERSO^AU, — continued. history, provisions of confederation and constitution, 179, 180. conclusive on merits, 180-183. judgments of superior courts record evidence, 181. nil debet not a good plea, 181, 183. Statute of Limitations a good plea, 183. whether constitutional provision includes criminal cases, 184, 185. does not embrace qui tarn actions, 185. limitation of rule, 185. does not embrace matters subsequent to the judgment, 185, 186. various examples, showing effect of judgments of sister States, 186-191. judgment of sister State for plaintiff establishes his right to sue in the same capacity, 192, 193. judgment for a party conclusive of his existence, 193. non-production of evidence, 193. effect of judgment against executor as to assets, 193. cases of principal and surety, 193, 194. effect of judgment in insolvency, 195, 196. judgment must have gone on the merits, 196. matters collateral and incidental, 197. judgment must have been final and conclusive where rendered, 197. rule of conclusiveness prevails also in Chancery, 197. operation of judgment, a proper subject of inquiry, 197, 198. immaterial that judgment was erroneous, 198, 199. judgment by confession in vacation in clerk's office, 200. Federal courts not foreign to State courts, 200, 201. result of cases stated, 201. limitation of rule, 201. judgments of foreign countries liable to impeachment in respect to jurisdiction, 201-203. limitation of rule, 203. not record evidence, 203. doctrine in respect to impeaching the jurisdiction of courts of sister States, 204-209. State statutes providing for judgment without personal service have no extra- territorial effect, 210-214. whether judgments of sister States may be impeached or restrained for fraud, 214-218. whether judgments of foreign countries may be, 218. judgment of foreign country no merger of cause of action, 218, 219. otherwise of judgments of sister States, 220-223. garnishment or trustee process, 224-227. doctrine of privity, 227-229. no privity between executors or administrators of different States, 227. executor in one State and administrator de bonis non in another State, 228, 229. judgments of foreign courts of inferior jurisdiction, 229-235. whether constitutional provision embraces such judgments, 229-234. question considered, 233, 234. foreign consular courts, 234. impeaching jurisdiction of such courts, 235. INDEX. 687 JUDGMENTS, FOREIGN, IN REM, ground of conclusiveness, 151, 152. case of Hughes v. Cornelius, 152, 153. Algerine decrees, 153. sales of wrecks and derelicts, 154, 155. conclusive of the fact for which the condemnation was pronounced, 155-157. otherwise in New York, 157. immaterial that judgment was palpably erroneous, 157-159. decrees as to marriage and divorce, 159, 160. decrees of probate and ecclesiastical courts, 160. conclusive only of matters essential to the decision, 161-164. limitation of doctrine, 163. not conclusive of matters obscurely stated, or of inference, 164-166. whether evidence admissible to show what was meant, 166. jurisdiction may be questioned, 166, 167. adjudication of jurisdiction, 167. want of authority of tribunal to sit as court, 168. presumption of authority, 168. may be impeached for fraud, 169. JURISDICTION, impeachment of jurisdiction of superior courts, 122-129. presumptions as to jurisdiction, 122-129. superior courts not proceeding according to course of the common law, 122- 129, 167. English Admiralty an inferior court, 129. otherwise of Federal courts of United States, 129. inferior courts generally, 129, 180. adjudication of jurisdiction, 130, 131. appearance by attorney, 131, 132. of foreign courts, 166-168, 201-209. JUS TERTH, when bailee may set up, 368, note. See Bailor and Bailee. KNOWLEDGE OF FACTS, the rule as to, in equitable estoppels, 467. party must be deceived, 467. where party has means of informing himself, 467. in cases of boundary, 467-471. conflict of cases, 470, 471. long acquiescence held sufficient in some States, 471. limits of the estoppel in these cases, 471. paramount title afterwards acquired, 471. warehouse receipts given under mistake, 471, 472. purport of inquiry not understood, 472, 476. concealment of prior marriage, 472, 473. affirming voidable contract with notice, 475, 476. party must know that representation will be acted on, 472, 476. ignorance the result of gross negligence, 476-480. forgetfulness of facts, 481, 482. parties affected with notice, 483. 588 INDEX. LANDLORD AND TENANT, estoppel of tenant to deny landlord's title, 848-382. of modern origin, 848. nature of, in time of Coke, 346-348. arose only in case of deed, and against the party sealing, 348. and only when the demise was the gist of the action, 848. seal not the foundation of the modern estoppel, 348. estoppel of the old common law different from that which now prevails, 349. consideration of the change, 349-351. modern doctrine arose out o{ assumpsit for use and occupation, 350. enjoyment by permission th^ foundation of the estoppel, 351. several cases criticised, 351, 362. doctrine of mutuality prevails, 352, 363. same rules prevail concerning competency of parties as in estoppel by deed, 863. persons under disability not estopped, 353. when payment of rent establishes tenancy, 353. or that tenant is assignee of lease, 353, note, doctrine of privity prevails, 868, 854. sub-lessees, 354. outstanding title cannot be set up by tenant, 355, 356. tenant not estopped in cases of mistake, 856-358. or in cases of fraud, 858-360. tenant not estopped to explain circumstances under which an attornment has been made, 356, 359, 360. tenant may show that landlord's title has expired, 360, 361. new taking or letting into possession, 361. tenant cannot dispute landlord's title even after expiration of lease without surrendering possession, 362, 363. eviction under judgment of law not necessary, 362, 363. actual entry by one having paramount title sufficient, 368. ouster in pais, what tenant must prove who alleges, 863, note, what cases not sufficient, 363, note, whether tenant taking lease of land of which he was already in possession is estopped without surrender, 864-371. California doctrine, 864-369. rule in New York and Kentucky, 864. rule in England, 869, 371. rule in Massachusetts, 869, 370. question considered, 371-373. estoppel prevails where tenancy is created by operation of law, 371, 872, 881. effect of disclaimer, 873, 374. lessor may at once eject tenant, but if he do not do so within the period of limitation, tenant may then set up his own title, 373. but not before period of limitation has expired, 873. same doctrine applies to relation of mortgagor and mortgagee, trustee and cestui que trust, and the like cases, 374, note, tenant may purchase property of lessor and set up title, 374, 375. tenant bound to pay taxes may not set' up tax title where the sale has been made by his neglect, 375. tenant not estopped to say that he was let into possession under a title from which landlord's title was derived, 375, 876. INDEX. 589 LANDLORD AND TETS ANT, — continued. tenant may show that one to whom he has attorned haa no derivative title, 376-378. when tenancy is established, the estoppel of tenant arises though tenancy be created by deed showing that landlord had no legal estate, 378-380. limitations of rule, 379. doctrine of tenant's estoppel not confined to cases of ejectment, 381. doctrine prevails against one in possession under mere license, 881. tenant by the curtesy cannot deny wife's title, 381, 382. party claiming under judicial deed requiring him to perform certain acts can- 'not, whUe claiming under the deed, excuse himself from performing the acts, 382. relation of mortgagor and mortgagee, 374, note, 382. relation of trustee and cestui que trust, 347, note, 382. position of purchaser of land before payment, 382, 383. entry under contract of purchase, 384. LAND PATENTS, when binding, 15. survey and patent of land commissioners, 15. incorrect location of, 513. LAW, mistake or error of no ground for impeaching judgments, 21, 45, 157, 189- 191, 198. , estoppel as to statement of, 273, 438. LEASE, where no interest passes an estoppel arises, 290. where an interest passes no estoppel arises, 290-294. See Landlord and Tenant ; Title bv Estoppel. LEASE AND RELEASE, DEEDS OF, operation of by way of estoppel, 318, 319. LEGITIMACY, judgment of as to other children of the same marriage, 144. LEVY, does not estop officer to deny that the goods are the plaintiff's, 387. LICENSE, possession of premises under, works an estoppel, 381. LICENSEE OF PATENT, not permitted to deny validity of patent, when, 388, 389. LUNATICS, judgments against, 50. MARRIAGE AND DIVORCE, sentence of Spiritual Court in suit for jactitation of marriage, Duchess of Kingston's Case, 38, 39. proceedings are in rem, conclusive against all persons, 144, 145. verdict that charges are true must be followed by judgment of dissolution, 145, 644, note, concealment of prior marriage, 472, 473. MARRIED WOMEN, judgments against, 47-50. 590 INDEX. MARRIED WOUE^, — continued. conflict of cases, 47-50. question considered, 48, 49. not estopped by deed, 245. contra in some states, 245, note. •whether subject to estoppel in pais, 443-446. conflict of cases, 443-446. question considered, 448. MASTER AND OWNER OF VESSEL, nature of the relation, 68. MERGER, effect of judgment on joint contract, 60-57. effect of judgment on joint tort, 61, note, 57, 68. doctrine of, as to judgments of foreign countries, 218-220. as to judgments of sister States, 220-221. MERITS, judgments cannot be collaterally attacked on the, 45, 151, 175, 181. See Judgments. MILITARY COURTS, conclusiveness of judgments of, 14. MISNOMER, effect of pleading, 538, 639. MISREPRESENTATIONS, fraudulent work estoppel, 467. otherwise generally of innocent, 467-471. as to boundaries cases in conflict, 467-471. MISTAKE, of law no ground of impeaching judgments, 21, 45, 167, 189-191, 198. may be shown in cases of tenancy, 356-360. innocent misrepresentations, 467-471. MORTGAGE, grantee in warranty deed reconveying in, not estopped to set up outstanding title and eviction, 261, 262. acceptance of, estops mortgagee to deny mortgagor's title, 272. execution of to a corporation, effect on mortgagor, 424. MORTGAGOR AND MORTGAGEE, when mortgagor in possession may dispute title of mortgagee, 373, 382. MUNICIPAL CORPORATION, when estopped to set up illegality of bonds, 421, 423. not estopped to claim property belonging to it improperly sold for taxes, 614. MUTUALITY. See Parties akd Pmvibs. NEGLIGENCE, when estoppel produced by, 399, 400, 476-480, 490. must be proximate cause of loss, 483, 484. NEGLIGENT PERFORMANCE OF SERVICES, action for, after judgment for the services, 98-108. NIL HABUIT IN TENE MENTIS, when allowed between landlord and tenant under the old law, 348, 349. modern doctrine as to, 349-352. • INDEX. 591 NOLLE PROSEQUI, effect of entry of, 25, note. NON PROS., effect of entry of, 23, 24. NONSUIT, effect of, 24. on agreed facts, 24. NOTES. See Bills and Notes. NOTICE, effect of, upon persons liable over, 65-67. having means of, 467. affirming voidable contract with, 475, 476. directors of corporations, 483. NUISANCE, practice in declaring for a continuing, 524. OUTSTANDING TITLE, may not be set up by tenant, when, 356-358. See Landlord and Tenant. PAIS, ESTOPPEL BY MATTER IN, defined, 345. division of subject, 345. in the old common law, 346, 347. changes in and growth of the doctrine, 346, 347. See Agency; Bills and Notes; Conduct, Estoppel by; Corporations; Election; Estoppel; Landlord and Tenant; Partnership. PARTIES AND PRIVIES, in estoppel by matter of record, 46-82. parties, 46-74. ' judgments in personam bind only parties and privies, 46. what term " parties " means, 47. judgment on indictment not an estoppel in civil action, 47. estoppel should be mutual, 47, note. judgment against present defendant, another for specific performance of con- tract, and action for breach of the contract, 47. judgments against parties under legal disability, 47-50. rule in Maryland as to married women, 47, 48. rule in Massachusetts, 48. rule in Pennsylvania, 48. rule in other States, 48, note. consideration of the question, 48, 49. judgments against infants, 49, 50. day given them by statute after majority, 49. cases not arising on the statute, 49, 50. rule in Kentucky, Indiana, and North Carolina, 49. rule in Illinois, 49. cases in Massachusetts and Iowa, 49, note. 592 INDEX. PARTIES AND PBIVIES, — continued. consideration of the question, 49, 50. judgments against lunatics binding, 50. so of judgments against deceased persons, 50. judgment against one of several joint contractors a bar to an action against the rest, 60-57. rule proceeds on ground of merger, 60, 51, note, 67. rule as to joint and several contracts different, 51, note, 56. rule concerning joint contractors as declared in Sheehy v. Mandeville denied, 60, 52, note. Sheehy v. Mandeville explained, 53, note. judgment against one of several partners, 51-63. consideration of subject by Story, J., 63, 54. not always fatal that parties more or less numerous in former action than in the present, 64, 65. indorsee of bill or note may sue all parties concurrently or successively, 64. judgment against joint action must have gone upon a defence open to all the parties, 66. exception to the rule as to judgment in joint contract, 57. English rule as to judgment against one of several joint tort-feasors, 61, note. contrary rule in America, 67, 58. persons made parties to proceedings for foreclosure, as subsequent encum- brancers, 69. effect of judgment in writ of partition, 69. effect of judgment against principal and surety in subsequent action by princi- pal alone, 60. similar cases, 61-63. judgment against officers, 60-62. against a servant, 61. principal and agent, 63, 64. bailor and bailee, 63, 64. judgments in ejectment, 64. parties nominally the same, but really different, 64, 65. judgments conclude parties only in the character in which they appear, 66. apparent exceptions to this rule, 66. effect of notice to persons liable over, 66-68. in some cases liable to indemnify bound without notice, 67. whether one appearing as witness is estopped, 68. relation of master and owner of vessel, 68. trustee and cestui que trust, 69. numerous beneficiaries, 69, 70. limit of rule, 70. relation of stockholder and corporation, 70. garnishment or trustee process, 70-74. See Garnishment. privies, 74-80. , definition, 74. judgment concludes privies as well as parties, 75. no privity between guarantor and principal, surety and principal, co-sureties, sheriff, and deputy, &o., 76. various examples of privity, 75-78. INDEX. 593 PARTIES AND VRIYIKS, — continued. no privity between administrator or an heir or devisee, 78, 79. administrator in privity with intestate, 79. executor in privity with testator, 79. heir or devisee in privity with ancestor, or devisor, 79. whether administrator de bonis non ia privity with his predecessor, 79, 80. executor of executor, 79. situation of administrator de bonis non historically considered, 79, 80. whether he may maintain scire facias on a judgment of his predecessor, 79, note. no privity between executors or administrators of different States, 80. result of cases stated, 80. limitation of rules, 80, note. where personal judgments bind strangers 81, 82. chain of title under judgment and sale, 81. relationship established, 81. surety concluded by judgment against principal, how far, 81, 82. in estoppel by deed, 241-246. recital in mortgage to stranger, 241. stranger cannot take advantage of estoppel, 242. persons acting under authority of grantee by deed, not strangers, 242, 243. party not estopped by a deed under which he does not claim, 243. parties only estopped in the character in which they execute deed, 243, 244. deed of guardian, 244. parties must be sui juris, 245. estoppel against the State, 246. doctrine of privity illustrated and examined, 246-252, 834-337. effect of accepting deed without relinquishment of dower, 250-252. in estoppel in pais, 353-355. landlord and tenant, 353-355. doctrine of mutuality prevails, 352. competency of parties, 353. doctrine of privity prevails, 353-355. estoppel by conduct, 442-460. admissions of one of several executors or administrators, 442, 443. whether married women may be estopped by conduct, 443-446. See Married Women. whether infants may be, 447-449. See Infants. doctrine of privity prevails, 449, 450. PARTITION, effect of judgment in, upon parties, 59, 60. implied warranty in deed of, 306. PARTNERSHIP,' when firm bound by false representations of partner, 425. under what circumstances partner estopped to deny liability on note fraudu- lently given in partnership name, 425. when a person is estopped to say he is not a partner, 426, 426. execution of firm note by one partner in presence of the other, 464. 594 INDEX. PATENTS, decisions of commissioner of, conclusive, 15. land patents, 16. recitals in, 267, 271-273. licensee or assignee of, wlien estopped to deny patentee's right to profits, 388, 389. PATENTS, LAND, when binding, 15. survey and patent of land commissioners, 15. incorrect location of, 513. PAUPERS, effect of orders concerning, 146, 147. PAYMENT, of rent evidence of tenancy, 353. or that tenant is assignee of lease, 353, note. ■when party estopped to deny, 607, 608. PEDIGREE, decree concerning conclusive upon all persons, 144. PERSONAL PROPERTY, title by estoppel as to, 339, 449, 450. PLEADING, PRACTICE, AND EVIDENCE, pleading the estoppel, 519-521. whether estoppel by record or by deed must be pleaded, 619, 520. where there is no opportunity to plead, matter of estoppel conclusive in evi- dence, 520, note. estoppel in pais need not be pleaded at common law, 621. effect of statutes upon the subject, 621. estoppel by record, 622-528.. nul tiel record the proper general issue in suit upon judgment of court of record, 522. 80 of judgments of sister States, 622. otherwise of judgments of foreign countries, 622. replication to denial of record in the same court, 522. of record of another court, 522. burden of proof, 522. practice as to setting out judgment in suit upon the same, 622. in pleading or replying judgment, 623. examples, 523. parol evidence admissible to show or disprove identity of matter in litigation, 523, 624. practice in declaring for a continuing nuisance, 624. form of judgment against administrator, 624. effect of dismissal of bill in Chancery, 524, 625. former recovery, what, 625. estoppel by election, 626, 626. effect of confessing plea in former action when it might have been avoided, 626. statement of the issue in the former trial, 626, 627. plea of judgment of foreign country must show the jurisdiction, 528. so of an action upon such judgment, 528. INDEX. ■ 595 PLEADING, PRACTICE, AND EVIDENCE, — conWrauei. as to judgment of sister States, 628. of inferior courts, 528. estoppel by deed, 528-531. when demurrer may be entered, 529. replication where declaration does not show the matter of estoppel, 629, 530. effect of proof that deed is invalid, 630. effect of deed in collateral matters, 530. recitals of immaterial facts, 630. pleading respecting leases, 530. respecting deeds of bargain and sale, &c., 530, 531. estoppel in pais, 632-543. need not be pleaded, 632. proof requisite to, 632. allegation of assent to sale, 532, 633. estoppel in pais against a deed, 633, 534. may be ground for filing bill for conveyance, 534. not necessary to allege that tenant occupied under the lease, 634. whether the estoppel is available at law in respect to land, 634-637. foundation of rule that party may not impeach evidence which he has produced, 637, 538. prejudice to the opposite party in this and other cases, 637-539. effect of pleading misnomer, 538, 639. in nulla est erralum, 539, 540. estoppel arises only in respect of that of which party had a traverse, 540. effect of entering nol. pros, as to one of two infants sued upon joint promises, 541. effect of recognizing a company in the pleadings and decrees, 541. effect of committing fault in pleading not noticed by the other party, 541. party estopped to make an objection inconsistent with his cause of action, 642. similar cases, 542. See Precedents in Pleading. POSSESSION, effect of tenant being in possession at time of taking lease, 364-371. PRECEDENTS IN PLEADING, commencement and conclusion of plea of matter of estoppel, 643. replication by way of estoppel to plea, 643. plea by matter of estoppel that the plaintiff brought an action against the defendant for the same cause, and that defendant had judgment, 543, 644. former judgment with appeal and continuance, and appeal dismissed, 644. former judgment and appeal, and appeal not entered, and judgment affirmed, 545. replication ofnul tiel record, 646. rejoinder, 645. replication with new assignment of other promises, 646-647. rejoinder, 647. former recovery in an action by executor against lessee, 647. plea of estoppel by verdict as to a particular matter adjudicated in a different cause of action, 458-550. 596 . INDEX. PEECEDENTS IN -pLEADmG, — continued. replication byway of estoppel to plea of set-off 'of judgment in inferior court upon the same matter, '551. plea of same, 661, note, replication to plea traversing plaintiff's title to land, an estoppel by judgment in ejectment, 661, 662. plea of judgment recovered by plaintiff in superior court for same cause of action, 662, 563. pleas in debt and scire facias on judgments, by executor, nul tiel record, and joint judgment, one ofdefendants being still alive, 653. plea of judgment for defendant pro eadem causa, rendered in a foreign court, 663-555. another plea of the same character, 555, 656. estoppel by deed, replication in trespass quare clausum (to a plea justifying the entry under a stranger as owner) of a demise from the defendant, 666, 657. estoppel in pais, replication to a plea of the incompetency of the payee of a bill to indorse the same, 657, 658. PREMATURE ACTION, judgment by reason of, 25, note. PRESUMPTIONS OF JURISDICTION, when conclusive, 122-132. when pnma facie, 122-129, 167, 168. when there is no presumption, 167, 168. PRINCIPAL AND AGENT, judgment against principal bars suit against agent when, 63, 64. • effect of suit by agent in his own name in right of principal, 70. accepting deed made by agent, 513. assuming to act as principal, 613. principal cannot allege his agent's unfaithfulness, 613, note. PRINCIPAL AND SURETY, effect of judgment against surety, 60, 66-68. judgment against principal not a judgment against the surety, 75. but it is conclusive of the legality and extent of the obligation assumed, 19, 81. surety estopped to deny existence of principal, 272, note. PRIVITY, doctrine of in estoppel by deed examined, 250-252, 334-337. not the same in estoppel as in contract, 252. See Parties and Privies. PROBATE, DECREES OF, conclusive upon all persons, 145, 146, 160. PUBLIC FERRY, judgment incidentally establishing, 118, 149. QUIET ENJOYMENT, COVENANT FOR, works estoppel, 293, 304, 305, note, 317. QUE TAM ACTIONS, of sister States not intended by Constitution, 185. INDEX, 597 QUIT-CLATM, DEEDS OF, warranty in, 298-301. rule in Massachusetts and Maine, 800. rule in other States, 301. See Title by Estoppel. REAL PROPERTY, title by estoppel, 285-339. See Title by Estoppel. whether an estoppel in pais as to available at law, 451, 458-460, 634-537. REBUTTER, meaning of,' 289. See Title by Estoppel. RECEIPT, in a deed not conclusive, 281-284. probably a rule of interpretation only, 284, note. form of acknowledgment of receipt, in use in the thirteenth century, 284, note. in instrument not under seal not conclusive generally, 427-430. conflict of cases, 427, note. acknowledgment in policies of marine insurance, 429. where acknowledgment has been acted on by third person, 429. warehouse receipts, 429, 430. receipt given an attaching officer, 430. RECITALS, defined, 266. particular recitals work estoppel, 266-273. action on a bond reciting lease incorrectly, 266, 267. recitals in patents, 267, 271, 272. other examples, 269, 270, 272. general recitals do not work estoppel, 273-281. qualification of rule, 278. recital of immaterial facts, 279-281. of conclusion of law, 273, 438. acknowledgment of receipt in a deed, 281-284. , recital in affidavit of sale, 494. RECORD, defined, 3. its effect, 3. limitation of definition, 3. as res judicata, 4. docket entries, what, 4. contents, proof of, 4. as a memorial or entry, 4. foreign judgment not debt of, 218-220. .See Judgments ; ,Re8 Judicata. RECOVERY, COMMON, operation of, 312, 313. REGISTRY LAWS, effect of in questions of title by estoppel, 334, 337, note. in questions of' estoppel in pais, 467. 598 INDEX. RELEASE, DEEDS OF, operation of by way of estoppel, 318. RENT, PAYMENT OF, evidence of tenancy, 333. also of assignment of lease, 363, note. REPLEVIN, not a proceeding in rem, strictly, 11, note, 148. REPRESENTATIONS, fraudulent work estoppel, 467. innocent generally do not, 467-471. as to boundaries, cases in conflict, 467-471. See Conduct, Estoppel by. REPUTATION, judgments incidentally establishing, 148, 149. RES JUDICATA, origin and meaning of the term, 5-11. general principle of, 5. comes from the Roman law, 5. decree in the judicium legitimum, 5. in the judiciiim imperio continens, 5. in the Institutes of Justinian, 6. in Gaius, 5, 6. in the continental countries of modern Europe, 6. in the Scotch law, 7. depends for its effect, first, upon the nature of the proceeding, whether in perscnam or in rem, 7. secondly, upon the forum in which the cause was tried, 7. properly applies only to domestic judgments, 7. distinction between judgments in personam and in rem, 7. signification of term in rem in the Roman law, 7, 8. effect of judgments in rem by Roman law, 8, 9. use of terms in rem and in personam by Bracton, 9. by Coke, 10. denotes a proceeding in respect to status, 10, 11. special significance of term in rem at the present time, 10. judgment in rem binds all the world, 10. literal import of the term in rem, 10. •proceedings in attachment not properly proceedings in rem, 11. otherwise of an order of sale of perishable goods, 11. proceedings in replevin, 11, note, 148. judgment must have been rendered by a legally constituted court, 11. illustrations, 11-15. decree by ofBcers not sitting as a court of the law, 12. proceedings after discontinuance, 12, 13. judgment by divided court, 13. college orders, 13, 14. judgment of military courts, 14. of courts-martial, 14, note. judgment of courts of inferior jurisdiction, 15. of commissioner of patents, 15. INDEX. 599 RES JXmiC AT A, — continued. of board of land commissioners, 15. judgment of court of last resort, 15, 16. agreed judgments, 16, 17. English rule, 17. a dangerous rule, 17. . award of arbitrators, 17, 18. judgment by confession, 18. stay of execution, 18, note. judgment by default, 18-20. English rule, 18, 19. apparent conflict as to, 19. confession of judgment, or judgment by default by executor or administrator, what it admits, 19, 96, 97, note. before issue raised, 19, 20. proceedings supplementary to judgment, 20. final judgment by default, 20. must have been valid, 20, 21. and given on merits, 21. judgment on preliminary point, 21. judgment must have been final, 21-24. judgment by default before writ of inquiry, 22. insufficiency of declaration, 22. dismissal of bill in Chancery for insufiiciency, 22, 23. judgment on demurrer, 22. non-pros., 23-25. nonsuit, 24, 25. nonsuit on agreed facts, 24. agreement to await the result of another trial, 25, note. premature suit, 25, note. dismissal for want of parties, 25, note. qualified judgments, 25, note. right of amendment after judgment so that another suit may be brought, 25, note. abatement of writ, 25, note. judgment solely for informality of instrument, 25,' 26, note. dismissal for want of jurisdiction, 25, note. judgment on retraxit, 25, 26, note. decree that plaintiff had no title and subsequent acquisition of title, 26, note. See Judgments. RETRAXIT, effect of judgment on, 25-, note. ROMAN LAW, doctrine of res judicata in, 5-8. SCIRE FACIAS, whether administrator de bonis non may maintain, on judgment of his prede- cessor, 79, note. 600 INDEX. SERVANT, judgment against, effect on master, 61. SET-OFF, judgment upon plea of, conclusive, 41, 42, 114, 115. SHERIFF, when only nominal party, 60, 61. effect of judgment against deputy, 62, 63, 75. SHERIFF'S DEED, ineffectual as an estoppel, when, 294. SHERIFF'S RETURN, when an estoppel, 494, 495. SILENCE, when estoppel in pais created by, 452-467. See Conduct, Estoppel by. STANDING BY, effect of, 452, 458-460. See Conduct, Estoppel by. STATE, ' whether bound by estoppel, 246. STATUTE, of Limitations a good plea to an action on a foreign judgment, 183, 184. of Frauds, as to estoppels in pais, 448, note. of Uses, law before as to title by estoppel, 322. since the statute, 322-339. See Title by Estoppel. when party estopped to deny constitutionality of, 509. STAY OF EXECUTION, conclusive as a judgment by confession, 18, note. STOCKHOLDERS. effect as to of judgment against corporation, 70. STREETS, land bounded by, 270. effect of petitioning for opening of, 510, 511. SUBSEQUENT ENCUMBRANCERS, persons made parties to proceedings as, 59. SUPERVISORS, effect of auditing and partly paying improper claim, 515. SURETY, effect of judgment against co-surety, 60, 66-68. judgment against principal not a judgment against surety, 75. but it is conclusive of the legality and extent of the obligation assumed, 19, 81. not permitted to say that principal was dead, 272, note. TAX ASSESSMENTS, former judgment on, 33, 34. effect of failing to object to, 463, 464. TAX VOTE, effect on voters, 450, note, 610, 511. INDEX. 601 TENANCY. See Landlord and Tenant. TITLE BY ESTOPPEL, history of the doctrine, 285-289. at common law only four kinds of assurance possessed the efficacy of pass- ing after-acquired interests, 285, 808. operation of feoffment, 285, 286, 308, 809. the old common-law warranty, 286, 287, 309-311. lineal warranty, 2r7. collateral warranty, 287, 288. modern warranty, 288, 289. leases, 290-294. where no interest passes, 290. where an interest passes, 290-294. the doctrine explained, 293. between grantor and grantee, 294-306. title by estoppel without warranty, 294-296. under statutes, 296. title by estoppel in deeds with warranty, 297-306. effect of deed depends on nature of grant and warranty, 297-299. covenant of warranty limited to estate granted in some States, 300. rule diflferent in other States, 301. qucEre if doctrine is any thing more than interpretation, 300, note. rights of way, 301. effect of Mill Acts, 301. construction of warranty in deed of partition, 302. construction of language not in form of warranty, 302. extinguishment of covenants, 303. fraudulent conveyances, 303, 304. improvements erected by grantor, 304. covenants for quiet enjoyment, 304, 305, note, 317. distinction between covenants of seisin and those for further assurance, 304, 305. implied warranty in partition of land, 306-308, note. grantee before and grantee after title acquired, 307-339. estoppel at common law in case of fe(Tffment, 309, 310. whether the interest passed by reason of the wai:ranty, 310, 311. operation of the fine, 311, 312. operation of the common recovery, 312, 313. operation of lease, 313—317. explanation of, 316-317. operation of release, 818. operation of lease and release, 318, 319. operation of the grant, 319. operation of the bargain and sale, 319-322. origin of, 319, 320. void at law originally, 320. effect of a warranty in, 321, 322. result of consideration of law prior to Statute of Uses, 322. conveyances under this statute, 322-339. 602 INDEX. TITLE BY ESTOPPEL, — conWnMci. consideration of bargain and sale, 323. dicta of the courts, '622-^25. express decisions in favor of the estoppel against second grantee, 325, 326. cases contra, 327-331. question considered, 331-339. distinction between cases where grantor had seisin and where he had not, 331. where grantor had not seisin, 332. such a case not within Statute of Uses, 332. what necessary to pass title under the statute, 332. ■warranty never possessed power of conveyance, 333. nor can it operate as a lien against an innocent purchaser, 834. no privity between second grantee and his grantor, 335-337. cases distinguished, 336, 336. grantee with seisin, that is as disseisor, 337-339. first grantee now acquires an estate under Statute of Uses, 337. but he has not a perfect title, 337, 338. effect of registry laws, 334, 337, note. title by estoppel may prevail now without rebutter, 338, 339. title by estoppel as to personalty, 339, 449, 450. TORT, JOINT, effect of judgment on, 61, note, 67, 58. TRESPASS, effect of judgment in trespass quare clausum fregit, 27, 28. TRUST, when trustee may dispute title of cestui que trust, 373, 374. TRUSTEE, when he can represent cestui que trust in litigation, 69, 70. TRUSTEE PROCESS, effect of judgment against trustee as to original creditor, 70-74. voluntary payment by trustee, 70, 72, note. custom of London, 71. if execution satisfied, trustee discharged ^ro tanto, 71. original creditor may prove his claim greater than admitted, 71. judgment must have been valid, 71, note. and real, 72, note. TWICE m JEOPARDY, rules in respect to, 34-36. ULTllA VIRES, when corporations estopped to set up, 419-423. VENDEE, estoppel of, in equity, while purchase-money remains unpaid, 382, 383. holds relation of duty in such case like that of tenant, 382, 383. VERDICT, estoppel by, 36-46. See FoBMER Verdict. must be followed by judgment, 145, 644, note. INDEX. 603 WAIVER, of defects in proofs of loss in insurance, 454, 455. notice of fact waived, 483. WAREHOUSE RECEIPTS, when conclusive, 429, 480. mistake in giving may be shown, 471, 472. WARRANT, misrepresentation as to character of, 493. WARRANTY, under the old common law, 286, 287, 809-311. lineal warranty, 287. collateral warranty, 287, 288. modern warranty, 288, 289. limited in some States to extent of grantor's interest, 800. otherwise in other States, 301. never possessed power of conveyance, 333. nor can it operate as a lien against an innocent purchaser, 334. See Title by Estoppel. WATER, assent to diversion of, 457, 458. WIDOW, effect of failing to claim dower, 461, 462. election of, 503-o07> in possession of husband's real estate estopped to deny title of heir, 514. and of husband's grantee, 514. WILFULLY, term as used in Pickard v. Sears, modified, 487-490. WILL, effect of election to take under, 603-507. WITNESS, whether estopped by judgment, 68. WITNESSING DEED, works estoppel, 451. WORDS, " all right," 460, 461. " good," 412-417. " wilfully," 487-490. WRECKS AND DERELICTS, sales of, conclusive upon all persons, 154, 155. WRIT OF ENTRY, effect of judgment in, 27, 28. Cambridge: Press of Jobn Wilson & Son.