ts fet ee tt; pepe Secu 2 ene Boe —* 3 os Cornell Law School Library bes | | Toa A TREATISE | ON THE LAW OF ESTOPPEL. TREATISE ON THE LAW OF ESTOPPEL OR OF INCONTESTABLE RIGHTS BY z ai 60 v MELVILLE M. BIGELOW o SIXTH EDITION, REVISED By JAMES N. CARTER, Pu.B., J. M. BOSTON LITTLE, BROWN, AND COMPANY 1913 (22737 Entered according to Act of Congress, in the year 1872, By Metvitte M. BicEtow, In the Office of the Library of Congress, at Washington. * Copyright, 1886, 1890, 1900, 1918, By Metvitte M. Bicetow. Printers 8. J. Parkariy & Co., Boston, U.S.A. PREFACE TO THE SIXTH EDITION. UNFORTUNATE and unavoidable circumstances have kept this book out of print for several years, and it is a fact of some significance, perhaps, that a new edition of a work dealing with Incontestable Rights should be called for in a time of profound discontent and unsettlement of things relating to the administration of justice. Legal definitions of crime and tort are changing; the very function of the courts has invited doubt; still the subject of this book stands undisturbed. No suggestion has been made that it needs reconstruction; a state- ment which would not be ventured of the subject of every other book of the law which has been before the public for forty years. Indeed, were it not for the natural and well-founded desire for the latest decisions of the courts, the first edition of this book might still answer the present purpose. It may be right that the author should feel some satisfaction in reflecting that as young man he did a kind of work that was and still is held in honor by a great profession. This could not - have been the case had he failed to give unsparing effort to get down to the foundation of things, where and where only lies reality. True, the “Guardians of the State,’ or in legal phrase the Trustees of the State, were not likely to ‘ stumble about ’ here,! but it was still a duty as well as a privilege to do what one could to help them in the search for solid ground. The editor of this edition has had to deal with some two thousand cases, and has done all that could be expected of him to make it worthy of the favor with which the book has here- tofore been received. M. M. B. Boston, May 1, 1918. 1 Huphxapev dpa, ws foixev, bre rd Tv wodNGy modNA voura . . . werat ov kuvdwierra: Too Te wh Svros Kal Tod Bvros elhixpivs. — Republic, 479 D. ~ PREFACE TO THE FIRST EDITION.I Tuat the law of estoppel should have been looked upon as an unprofitable subject and left until recent times to haphazard growth is nothing strange. There is something forbidding in the very subject; it has been thought to be hard, dry, and technical, and the courts used to call estoppels odious. But this notion is now out of date; and to no one is so much due for dispelling it as to Mr. John William Smith. The spirit with which he approached the subject in his note to the Duchess of Kingston’s Case is as admirable as the language is familiar: ‘Notwithstanding the unpromising definition of the word “estoppel” [by Lord Coke], it is in no wise unjust or un- reasonable, but on the contrary in the highest degree reason- able and just, that some solemn mode of declaration should be provided by law for the purpose of enabling men to bind themselves to the good faith and truth of representations on which other persons are to act. Interest reipublice ut sit finis litium; but if matters once solemnly decided were to be again drawn into controversy, if facts once solemnly affirmed were to be again denied whenever the affirmant saw his opportunity, the end would never be of litigation and confusion.’ Mr. Smith’s note, however, with a!]l the additions of later editors, presents only an outline of the law of estoppel; and the subject has expanded to such proportions in recent times 1 Abridged and in part rewritten. vili PREFACE. that something more has been called for. The present work ‘ is an attempt to meet the later demand for a more exhaustive - treatment of this venerable branch of the law. The plan adopted by the author for carrying out the undertaking has been somewhat different from that pursued in most other law books, though resembling that of some of the best English books, such as Jarman on Wills. The work consists in’ its main feature in presenting the law by way of a review of the cases upon a statement of their facts, as in Jarman; to this being often added, by way of support of the text, what his- torians sometimes call ‘piéces justificatives,’— that is to say, the very language of the authorities upon which the text is founded. The reader is thus enabled to judge the better of the correctness of the author’s statement of the law. The ‘ Institutes ’ has been written with special reference to ‘ the use of students, as an introduction to the work. Not to invoke the greater Roman example, the idea was suggested by the Introduction of Mr. Adams to his Treatise on Equity, one of the most useful features, in the present writer’s opinion, of that valuable work. It may be hoped that the practitioner also will find the Institutes of service in making him acquainted with the order of arrangement of the several parts of the sub- ject. . Boston, July 20, 1872. CONTENTS. PAGE . TaBLE oF Cases CITED . . . . . . . ~~) SS OXY INTRODUCTION Nature of peelbe 3 Outline . 8 Part I. ESTOPPEL BY RECORD. CHAPTER I. PRELIMINARY VIEW: THE RECORD : oP OP. a, Es. aS CHAPTER II. Pre”inary View: Res JUDICATA. §1. Meaning and Use ofthe Term. . . . . . . 40 § 2. Requisites of the Estoppel ke sis of ct: Ue Ra ofa £02 § 3. Special Tribunals . 67 § 4. Special Judgments (on the Merits) of the erdiaary Tribu nals ecg ais Ne Ma Gs Oe otf a a SD. CHAPTER III. JUDGMENTS IN PERSONAM. § 1. Former Judgment: Identity of Causes of Action. . . 89 § 2. Former Verdict: Identity of Pointin Issue... 100 § 3. The Special Effect and Operation of Judgment and Verdict Estoppels. oR. ee. oe = IG § 4. Collateral Tenpeachment of ‘Judgments D- 9. 1S. Sel of SBS CHAPTER IV. JupGMenTs IN Rem... . .) .etestsSSs~—<‘ tst« CHAPTER V. ForEIGN JUDGMENTS IN REM . ince vo ee & 4 261 x CONTENTS. CHAPTER VI. Forzien JUDGMENTS IN PERSONAM. PAGE § 1. Historical View of the Subject : . 282 § 2. Constitutional Provision: Judgments of Sister States . 292 § 8. Application of Rule of Res Judicata . . . . = . 801 § 4. Jurisdiction > ohte wits os cy ve: ots ot . 3816 § 5. Fraud ee ee ee ee | § 6. Merger ‘ , o) oe. we TB. A 88% § 7. Judgment for Defendant Sk ae ee Ue B42 § 8. Garnishment or Trustee Process ey) ee “te, ce O48 § 9. Privity : 346 § 10. Judgments of Foreign Courts of snforion or - Himived Tinie: diction iis ae ie cde Sty Hw . . 848 Part Il, ESTOPPEL BY DEED. CHAPTER VII. - Pre”iminary View: THE Sean... . . . 859 CHAPTER VIII. PRELIMINARY Virw: ParTIES AND PRIVIEs. §1. Parties . > va ee Oe re wm, BEE S2: Privitv« 4 «@ <+ BW ww @ «© «= » 4 872 CHAPTER IX. PRELIMINARY View: LIMITATIONS OF THE DOCTRINE. § 1. The Deed must be valid . “ 880 § 2. Limited to Questions directly doneeiing the Deed 383 § 3. Grantee in Deed-Poll: In Indenture: Mutuality 387 § 4. Estoppel against Estoppel we Se RS ce > oy 1892 §5. No Estoppelif Truth appears. . . . . . . 893 CHAPTER X REcITALs. §1. Particular Recitals . ©. . . . 1. . >) .) 6. 898 §2. General Recitals. ~ os & * «= & «» 410 CONTENTS. Xl CHAPTER XI. TitLeE BY EsTopPEL. PAGE §1. History of the Subject .. . . 418 § 2. Leases: Where no Interest passes an n Estoppel arises . . 424 § 3. Leases: Where an Interest passes no Estoppel arises . . 425 § 4. Grantor and Grantee. . . 429 § 5. Grantee before and Grantee after Title acquired _ . . 449 §6. Personal Property . . . . . . . . . 482 CHAPTER XII. Reveas—E oF DowFR. . . . . . . . «484 Part III. ESTOPPEL IN PAIS. CHAPTER XIII. PRELIMINARY VIEW... Ss Os ts oh ~ . . 489 A. ESTOPPEL BY CONTRACT. CHAPTER XIV. Facts AGREED oR ASSUMED. § 1. The General Principle me ot: @ Be @ & e495 § 2. Corporations ea ee a a) CHAPTER XV. ACKNOWLEDGMENT OF RecHIPT . . . . . . . 6509 CHAPTER XVI. ComMMERCIAL PapEr. § 1. Genuineness i ea ~ oe he) «66D §2. Capacity . = oe & = » B85 § 3. Certification of Cheeks a. 9 me he Sh 4089 § 4. Transfer by Indorser after Liability Hed 545 ,¢ xii CONTENTS. CHAPTER XVII. Lrecau Errect or Contract: Takina Possession. PAGE § 1. Estoppel of Tenant to deny Landlord’s Title . . 547 § 2. Estoppel under Contract for Purchase . . . . . 6590 § 3. Estoppel of Bailee: Receiptor of Goods ~ ee «892 § 4. Employees: Assignees and Licensees: Patents . . . 597 § 5. Possession taken under Will or Intestacy . . . . 599. B. ESTOPPEL BY CONDUCT. CHAPTER XVIII. EQuITABLE ESTOPPEL. § 1. Division of the Estoppel. . . . . . . . 602 § 2. General Principles. j ra «05: § 3. Representation 2. o# 2 Se a SL § 4. Silence ; 648 § 5. Knowledge of Facts by hitn ipainst whom the stopp! is alleged ... . 663 § 6. Ignorance of Facts by him iia aistan the Bstoppel . 681 § 7. The Intention : . . 684 § 8. The Representation must haze bean ieted nen. . . 694 § 9. Consequences of this Estoppel eo ee el Oe ce op 710 § 10. Estoppel by Silence: Negligence . . . . . . 710 CHAPTER XIX. WaIvER. .« «wee TT CG; * ‘CHAPTER XX. ELEcTION AND INcoNsISTENT Posrtions GENERALLY. §1. Election : Gf we ke ke BB § 2. Inconsistent Positions generally oe Ce Se ces a 74S Part IV. PROCEDURE. CHAPTER XXII. PurapING THE EstoppEL. . . . . . . . . 761 CONTENTS. CHAPTER XXII. EstoprpEL BY RECORD CHAPTER XXIII. -EsToPprpeL BY DEED CHAPTER XXIV. EstTorren in Pars CHAPTER XXV. INCONSISTENT POSITIONS IN CoURT CHAPTER XXVI. PRECEDENTS IN PLEADING xiii PAGH 766 772 774 783 791 809 TABLE OF CASES CITED PAGE A. Abbott v. Allen 388 v. Hapgood 146 Abouloff v. Oppenheimer 241, 281, 337 Abraham v. Casey 559 Abrams v. State 652 Accidental Death Ins. Co. v. Mackenzie 552, 576 Achorne v. Gomme 557 Acker v. Leland 168 Ackley v. Dygert 627 Acton v. Dooley 631, 672, 674, 675 Adair v. New River Co. 153 Adams v. Adams 83,171, 188 v. Barnes 161 v. Brown 683 v. Cameron 111 v, Graves 57, 63 v. Morrison 612 v. Popham 645 v. Rockwell 651, 675 v. Rowe 322 Adams Co. v. B. & M. R. Co. er 50 Addison v. Crow 392 Adler v. Pin 702 v. Potter 615 v. Van Kirk Land Co. 80 Adoue v. Seeligson 615, 786 Aetna Ins. Co. v. Tyler 720 Agar v. Young 576 Agnew v. Platt 96 Ah Tone v. McGarry 593 Aiken v. Lyon 61 Alabama R. Co. v. So. Ala. R. Co. 80, 619, 724 Alabama Warehouse Co. v. Jones 223 Albany v. Watervliet Turnp. Co. 745 Albany Ins. Co. v. Bay 383 Alden Coal Co. v. Challis 693 Albin v. Commonwealth 504 Aldrich v. Billings 493 v. Kinney 290, 320 Alexander »v. Gill 74, 110 v. State 372 PAGE Alexander v. Taylor 141 v. Winters 745 v. Woodford 648 Alfred v. Smith 164, 379 Allebough v. Coakley 98 Alleman v. Wheeler 521 Allen v. Ashley School Fund 429, 476 v. Blunt 113 v. Butman 108 v. Dundas 271 v, Frazer 644, '667 v. Goodnow 696 v. Griffin 556 v, Hodge 637 v. Holton 438 v. Kellam 729 v. Macpherson 2384, 235, 236 v. Maury 608 v. Morgan 165 v. Rundle 637 v. Shaw 661 v. Studebaker 590 vo. Westbrook 663 Alley v, Adams Co. 747 Allie v, Schmitz 112 Allis v. Billings 538 v. Davidson 771 Allum v. Perry 685 Almy v. Thurber 696 Alner v. George 510 Alston v. Munford 164 Altman v. Klingensmith 3875 Altmus v. Nickell 429 Altschul v. Polack 147, 148, 150 Alvey v. Reed 626 American Emigrant Co. v. Iowa Land Co. 750, 751 American Mut. Life Ins. Co. v. Mason 315 American Nat. Bank v. Small- house 637 American Tube Works v. Bos- ton Mach. Co, 611 Amesti v. Castro 73, 94, 144 Anaheim Water Co. v. Semi- Tropic Water Co, _ 648 Anderson v., Anderson 239, 331 v. Armstead 608, 624 XVl1 PAGE Anderson v. Burgoyne 64 ». Collinson 129 ov. Fleming 135 v. Hubble 648, 650, 662, 667, 684, 763, 764 v. Kimbrough 81 vo. West Chicago R. R. Co. 110 v. Wilson 230 , % Young 155 Andreae v. Redfield 682 Andrews v. Aetna Ins. Co. 696 v. Andrews 58, 229, 270, 271, 325 v. Durant 220 v. Lyon 693, 694 v. Montgomery 331 v. School District 56 ». Smith 116 -Andrus v. Colman 363 Angell v. Johnson 608 Angle v. Northwestern Ins. Co. 613 Annett v. Terry 148 Anonymous 445 Ansdell v. Ansdell 113 Anstee v. Nelms 601 Anthony v. Bartholomew 615 ». Jasper 503, 505 Apollon, The* 245 Archer v. Mosse 255, 271 Arkwright v. Newbold 281, 646, 664 Armour v. Mich. Cent. R. Co. 511, 513, 677 Armstrong v. Cache Valley 745 v. Carson 294 v. Portsmouth Building Co. 429 v. State 130 v. Wheeler 377, 477 Arnold v. Arnold 106 ». Cheque Bank 493, 534, 684, 687, 712, 714 v. Richmond Iron Works 538 Arnott v. Redfern 284 Arrington v. Arrington 302 Arthur v. Israel 747, 785 v. State 227 Ashcraft v. De Armond 538 Ashley v. Foreman 764 ». Martin 600 v. Vischer 509 Askins v. Coe 695 Aslin v, Parkin 82, 102, 185 Athens v. Georgia Ry. Co. 729 Atkinson v. Allen 238, 335 v. McDonald 744 v. White 136 CASES CITED. PAGE Atlanta v. Gate City Gas Co. 729 v. Word 729 Atlantic Dock Co. v. Leavitt 388, 389 Atlantic R. Co. v. Robbins 727 Att. Gen. v. Chicago R. Co. 179 v. Hooker 166 v. Marr 372, 619 v. Simonton 499 Audenried v. Betteley 638 Audubon v. Excelsior Ins. Co. 65 Audubon Co. v. American - Emigrant Co. 750 Augusta v. Port Royal Ry. 729 Aurora City v. West 111, 171 Aurora Ins. Co. v. Kranich 721 Austin v. Charlestown Female Sem. 132, 133 ». Craven 513 Averill v. Wilson 478 Averill Mach. Co. v. Allbrit- ton 55 Avery v. Akins -437 v. Paine 88 Ayres v. Probasco 747 B. B.C. R. & M. R. Co. v. Stew- art 751 Babcock v. Camp 112 Bachelder v. Lovely 432 Bacon v. Schepflin 60 Badger v. Inlet Dist. 503 v. Titcomb 220 Bailey v. Bailey 132 v. Fairplay 143 v. Kilburn 552 v. O’Connor 313 v. Rockafellow 380 Bain v. Wells 609 Baines v. Babcock 153 v. Burbridge 132 Baird v. Jackson 651 v. United States 215 Baker v. Barclift 111, 556 ». Brannan 748 », Cummings 112 v. Hale 592 v. Home Life Ins. Co. 722 v. Humphre 724 ». Johnson 726, 727, 780 v. Kansas R’y. lll v. McDuffie 700 » Preston 163 v- Rand 303, 312 v. Stone ~ 626 v. Stonebraker 232 CASES CITED. PAGE Baker v. Union Ins. Co. 509, 510 v. Whiting 589 v. Wood 710 Balch v. Arnold 439 v. Shaw 38 Baldwin v. Hale 96, 752 v. McCrea 111, 223 ». Richman 697 v. Thompson 392 Bales v. Perry 682 Balkis v. Consolidated Co. v. Tomkinson 664, 699 Balkum v. Satcher 111 Ball v. Hooton 695 v. Rowe 6 Ballance v. Peoria 547 Ballantyne v. Mackinnon 49, 106, 168, 169, 247, 265, 266, 267 Ballou v. Jones 408 Baltimore Ry. Co. v. Illinois Ry. Co. 177 Baltimore R. Co. v. Vander- warker & 397 Baltzell v. Nosler 321 Bamka v. Chicago & St. P. R. R. Co. 146 Bancroft v. Bancroft 53 v. White 375 ». Winspear 215, 220 Bandon v. Becher 237, 240, 243 Banister v. Campbell 288, 292 Bank v. Board of Com’rs 733 v. Brecheisen 407 ». Flour Co. 497 v. Frankfort 55 v. Jennings 55 v. Morse 53 o. Smith 146 Bank of America v. Banks 369, 384 Bank of Australasia v. Hardin 288, 318, 338 v. Nias 281, 286, 354 Bank of Batavia v. Lake Erie R. Co. ‘ 619 Bank of Cadiz v. Slemmons 604 Bank of Cal. v. Shaber 167 Bank of China v. Morse 54 Bank of Commerce v. Union Bank 526 Bank of Commonwealth v. Hopkins 60, 79 Bank of England v. Cutler 664 Bank of Hindustan v. Alison 611, 677 Bank of Ireland v. Evans Charities 493, 663, 712, 713 Bank of Lockhaven v. Mason 593 Bank of Monongahela v. Wes- on ~ Bank of Old Dominion ov. Allen Bank of Santa Fe v. Haskell Co. Bank 55 Bank of U.S. »v Bank of Georgia 532 v. Lee 621 v. Merchants’ Bank 116, 339 v. Patton 116. Bank of Utica v. Mersereau 469 Banning v. Kreiter 637 | Barbell v. Gingell 531 Barber v. Hartford Bank 52 v. Lamb 87, 355 Barboro v. Occidental-Grove 499 Barham v. Gomez 732 wv. Tuberville 627, 781 Baring v. Claggett 266 Barker v. Benninger 701 v. Circle 369 v. Cleveland 203 Barley v. Wright 732 Barlow v. Bishop 536, 538 Barnard v. German Seminary 604 Barnes v. Gibbs 342 Barnesley v. Powell 233, 236 Barnet v. Smith 545 Barnett v. So. London Tram- ~ ways Co. 381, 614 Barney v. Dewey 151 v. Douglass 158, 344 v. Keniston 695 v. Patterson 167, 290, 314 Barrett v. Birge 160 v, Joannes 645 v. Union Fire Ins, Co. 718 Barringer v. Boyd 308 v. King 278, 322 Barron v. Cobleigh 593, 616, 642 v. Paine 153 Barrow v. Barrow 735 v. West 155, 330 Barrows v. Kindred 144 Barrs v. Jackson 179 Barstow v. Savage Mining Co. 667 Barter v. Greenleaf 515 Bartholomee v. Lowell 764 Bartholomew v. Jackson 747 Bartlett v. Bangor 403 v, Kauder 653, 663 ». Knight 290 v. Wells 626 Barton v. Anderson 85 ». London & N. W. Rail- way Co. 653 v. Ry. Co. 667, 668, 731 Xvii PAGE 493 116 Xvi ¢ PAGE Barton v. Smith 156 Barwick v. Rackley 739 v. Thompson 555 Bascom v. Manning 197 Basher v. Wolf 650 Bassett v. Bradley 693 v. Holbrook 703 v. Mitchell 182 Basten v. Butler 200 Batchelder v. Queen Ins. Co. 718 Bateman v. Faber 621, 736 Bates v. Ball 785 v. Illinois Cent. R. Co. 372 v. Leclair 644 v. Norcross 373 Battey v. Button 85 Bauer v. Gottmanhauser 675 Baxley v. Linah 342 Baxter v. Baxter 270 ®. New England Ins. Co. 47, 265, 267, 276 v. Vincent 156 Baylor v. Dejarnette 167 Bays v. Trulson 763 Bazemore v. Freeman 675 Beal v. Bass 748 v. Smith 352, 355 Beall v. Beck 167 Beals v. Cone 53, 146, 268, 314 v. Lewis 609 Bean v. Smith 115 v. Welsh 466 Bear v. Commissioners 764 Beardsley v. Beardsley 47, 128, 255 Beatty v. Kurtz 691, 726 Beaufort Lumber Co. v. Price 632 Beaupland v. McKeen 781 Becquet v. McCarthy 287, 290, 330 Beddow v. Beddow 77, 78 Bedford v. Sykes 55 Beebe v. Knapp 665 v. Swartwout 389 Beekman Street, In re. 14 Beeman v. Duck . 522, 525, 527 Beere v. Fleming 64, 224 Behler v. Weyburn 621, 622 Behr v. Conn. Mut. Life Ins. Co. Behrens v. Germania Ins. Co. Behrman v. Louisiana Ry. & Nav. Co. 46 696 786 Belcher v. Chambers 227 Bell v. Banks 117 v. Craig 600 v. Dagg 149 v. McCulloch 112 v. Shafer 694, 615 v. Todd 403 CASES CITED. Bellas v. McCarty Belleairn, The Belle of the Sea Bellinger v. Craigue Bell’s Estate, In re Belmont v. Coleman Beloit v. Morgan Belshaw v. Moses 170, 171, : 189, Bemis v. Call Bendernagle v. Cocks Benjamin v. Gill Bennecke v. Ins. Co. Bennett v. Davis v. Dean v. Denny v, Farnell v. Hood v. Judson ». Van Syckel 215, 55, Bennitt v. Star Mining Co. 152, Bensieck v. Cook 733, Bensley v. Burdon 432, 460, Benson v. Bennett v. Matsdorf 108, Benton v. Benton v. Burgot Berger v. Williams 154, Berkley v. Watling Berman v. Clark Co. Bernard v. Hoboken 112, v. Merrill Bernardi v. Motteux 262, 266, Bernheim v. Horton Berringer v. Payne Berry v. Banner Bethlehem v. Watertown Betteley v. Reed Bettman v. Harness 682, Betts v. Brown v, New Hartford v. Starr 101, v. Wurth Bevens v. Weil Beveridge v. New York R. Co. Beverly v. Lincoln Gaslight Co. Beymer v. Bonsall Bickerton v. Walker Bickett v. Nash Bickford v. First National Bank Bicknell v. Field Biddle v. Bond v. Wilkins Biddulph v. Ather Bigelow v. Foss », Winsor Biggins v. People 511, 63, 98, 93, 89, 160, 593, 595, 596, PAGE 472 62, 79, 81 641 196, 198, 204. 146 153 111 172, 191 621 220 599 719 438 641 312 526 137 664 785 171 784 476 510 185 556 290 163 514 197 113 146 274 377 215 36 257 596 733 676 127 204 547 608 114 550 139 512 377 545 332 597 767 254 781 lll 170 CASES CITED. PAGD Biggs v. Evans 619 Bilsland v. MecManomy 124 Bimeler v. Dawson 290 Binck v. Wood 84 Bingham v. Walla Walla 383 v. Weiderwax 471 Birch v. Birch 234 v. Funk 56 o, Hutchings 695 v. Wright - 588, 589 Birckhead v. Brown 204 Bird v. Sellers 111 Birdsey v. Butterfield 635 Birke v. Abbot 404 Bisbee v. Carey 695 Bishop v. Balkis Con. Co. 699 ov, Hayward 124 v. Lalouette 552, 555 Bissell v. Briggs 290, 293, 294, 318 v. Jeffersonville 507 v. Kellogg 127, 179, 180 v. Spring Valley 60, 61, 89, 100, 101, 171, 210, 505 612 v. Warde Bivins v. Vinzant 473 Bixby v. Adams Co. 751 Black v. Dressell 748 Blackburn v. Bell 409, 682 v. Crawfords 251 Blackhall v. Gibson 402, 408, 416 Blackham’s Case 233, 254 Black River Co. v. Clarke 502 Blackwood v. Brown 151 Blaco v. State 406 Blain v. Harrison 485 Blair v. Bartlett 196 v. Wait 684 v. Williams 763 Blake v. Bunbury 735 v. Douglass 132, 227 v. Exchange Ins. Co. 720 v. Fash 778 v. Foster 428 v. Ohio River R. Co. 170 v. Sanderson 555 Blake Crusher Co. v. New Haven 671 Blakemore v. Johnson 764 Blakeslee v. Mobile Life Ins. Co. 434 Blane v. Paymaster Min. Co. 325 Blanchard v. Brooks 437, 438 v. Ellis 466, 467, 470 ov. Tyler 368 Blanchet v. Powell’s Co. 514, 677 Bland v. Low 57, 72 Blaney v. Rogers 399 Blankenship v. Blackwell 565, 569 XIX PAGE Blasdale v. Babcock 149 Bleven v. Freer 615, 615 Blight v. Rochester 376, 389, 478 Blight’s Lessee v. Rochester 389 Bliss v. Keweah Canal Co. 504 Block v. Comm’rs 410, 506 Blodgett v. Dow 76, 172 v. Jordan 351 v. McMurtry 607 v. Perry 631, 641, 646 Blood v. La Serena . 493, 757 Bloomenthal v. Ford 664, 666, 682, 699 Bloomington v, Brokaw 750 Blount v. Darrach 294 Board v. Board 377, 601, 734 Board of Commissioners v. Karp 72 v. Welch 83, 326 Board of Education v. Bake- well 745 Board of Public Works v. Co- lumbia College 326 Board of School Directors v. Hernandez 128 Board of Trustees v. Whalen 64, 67 Bobbitt v. Shryer 608, 609 Bobe v. Stickney 112 Bobo v. Richmond 676 Boddie v. Bond 632, 702 Bodine v. Killeen 608 Bodurtha v. Goodrich 232, 321, 325 v.-Phelon 84, 197 Bogardus v. Clark 235, 257, 271 Bogg v. Shoab 434 Boggs v. Oleott 610, 756 Bohon v. Bohon 423 Boileau v. Rutlin 174 Bold Buccleugh, The 51, 259 Bole v. Horton — 421 Boles v. Bennington 489, 646 Bolling v. Petersburg 779 v. Teel 377 v. Vandiver 407 Bolton v. Brewster 229 v. Gladstone 262, 266 Bond v. Carroll 377 ». Terrell Mfg. Co. 504 Bonesteel v. Todd 117 Bonham v. Bishop 783 Bonomi v. Backhouse 192 Bonsall v. Isett 229, 318 Boone v. Armstrong 429, 448 v, Graham 672 v. St. Paul Foundry Co. 98 Booth v. Lenox 618, 632 Borden v. Fitch 230, 331 xX CASES CITED. PAGH Borden v. McNamara 764 Borer v. Chapman 89 Bornheimer v. Baldwin 378 Borrowscale v. Tuttle 62 Bosch v. Kassing 85 Bosquett v. Crane 172 Boston v. Worthington 149 Boston Water Co. v. Gray 76, 77, 78 Boston & M. R.R. v. Brack- ett 147, 177 Boston & W. R. Co. v. Spar- hawk 239, 240, 335 Boswell v, Otis 325 Botts v. Fultz 637 Boubede v. Aymes 786 Bouchaud »v. Dias 60, 61 Boucher v. Lawson 269, 286, 332 Bouchier v. Taylor 49, 179 Bowen v. Bowen 237 vo. Hastings 120 Bower v. McCormick 402 Bowers v. Keesecker 590 Bowes v. Foster 509, 510 Bowling v. Welby 257 Bowman v. Taylor 400, 432 Bowne v. Potter 375 Box v.-Barrett 736 Boyce v. Kalbaugh 693 v. Methodist Church 499, 504, 505, 506 Boyd v. Alabama 112, 113, 371 v. Plumb 543 Boyden v. Clark 695 Boykin v. Cook 164, 165 Boyle v. Boyle 254 v. Ogden 745 v. Wallace 144 v. Webster 788 Boynton v. Ball 311 ». Braley 648, 667, 672 v. Haggart 440 v. Morrill 98 Bracken v. Atlantic Trust Co. 733 Brackenridge v. Howth 675 Brackett v. People 56 Bradbury v. Cony 674 Braden v. Graves 78 Bradley v. Bradley 63 ». Briggs 170 v. Brigham 112 v. Coolbaugh 785 v. Luce 651 v. Rogers 783 Bradshaw v. Bradshaw 735 Bradstreet v. Neptune Ins. Co. 245, 265, 275, 278, 325 Brady v. Huff 184 ‘ PAGH Brady v. Pryor . ‘I Bragdon v. McShea 632, 648 Braithwaite v. Gardiner 537 Bramble v. Kingsbury 662 Branch v. Jesup 501, 502, 747 Brand v. Brand 299 Brandriff v. Harrison 750 Brannon v. Noble 155 Bransby v. Kerridge 254 Branson v. Wirth 372, 392 Brant v. Virginia Coal Co. 682, 684, 687 Brantley v. Wolf 627 Brasfield v. Lee 191 Braswell v. Hick 146 Brawford v. Wolfe 257 Braxton v. Freeman 738 Bray v. Williams 751 Brazee v. Schofield 377 Breaux v. Albert Co. 682 Brechlin v. Night Hawk Mi- ning Co. 61 Breeding v. Stamper 745 Breeze v. Brooks 723 Brengle v. McClellan 300 Bresee v. Stiles 254 Brevoort v. Brevoort 88 Brewer v. Boston & W. R. Co. a 673 », Sparrow 784 Brewster v. Madden 589 v. Striker 635 Brewton v. Spira 507 Brickley v. Edwards 708 Bridge v. Johnson 69 v. Sumner 59 Bridgeport Ins. Co. v. Wilson 149, 150 Bridgeport Sav. Bank v. El- dredge 229 Brien v. Robinson 165 Briggs v. Bowen 763 v. Hodgdon 597 Brigham v. Fayerweather 47, 48, 49, 168, 180, 184, 246, 247, 248, 254, 255, 256, 257, 267, 272, 273, 648 v. Smith 440 Brightman v. Hicks 495, 637 Bringard v. Stellwagen 661 Brinsmead v. Harrison 118 ‘Bristow v. Warde 736 British House Ass’n v. Pater- son 743 Britten v. Webb 124 Britton v. Thornton 144 Broadwell v. Merritt 500 Brock v. Rogers 368 CASES CITED. PAGE Brock v. Young 377 Brockenbrough v. Mut. Life | Ins, Co. 721 Brocklesby v. Temperance Soc. 494, 608, 713 Broda v. Greenwald 223 Broderick’s Will 235 Brooke v. Haymes 399 v. New York R. Co. 513, 618 Brookhaven v. Smith 664 Brooklyn v, Ins. Co. 150, 507 Brooks v. Curtis 724 v. Hill 154 v. Martin 644 Broome v. Wooton 118 Brothers v. Bank of Kau- kauna 688 Broughton v. McIntosh 85 Brouwer v. Appleby ~ 502 Brown v. Birdsall 302 v. Bonds 53 v, Bowen 781, 783 v. Bradford 148 v. Brown 3877, 774 v. Cambridge 125 v. Campbell 64, 325 v. Clarke 116 v. Coon 622 v. Davis 700 v. Driggers 743 v. Dudley 155 v. Dysinger 573 v. First Nat. Bank 502 v. Fletcher 297, 325, 348 v. Gallaudet 207 v. Hamil 615 v. Jackson 438 vy. Johnson 120 v. Leckie 545 v. Lexington & D. R. Co. 313, 342 v. McCormick 472 v. McCune 627 v. McKinall- 201, 213 v. Mayor 114 v. Moran 784 v. Neale 154 uv. Newall 61 v. Nichols 232 v. Patterson 674 v. Phillips 429, 448 v. Ricketts 734 ». Sprague 59, 79 v. Staples 391, 393, 437 vo. Summerville 154, 155 v. Taylor 147 ». Tucker 675 ©. Wheeler 781 xxi PAGH Brown v, Wilson 629 Browning v. Crouse 721 v. Hanford 700 Brownsville v. Cavazos 144 », Loague 78, 115 Broyles v. Nowlin 728 Bruce v. Cloutman 229 v. Goodbar 622 v. Phoenix Ins. Co. 763 v. United States 406 ». Wood 1, 385 Brudnell v. Roberts 428 Brugman v. McGuire 612 Brummagim v. Ambrose 87 Brunsden v. Humphrey 172, 189, 190, 192, 193 Bryan v. Des Moines 746 v. Malloy 98, 159 v. Pinney 648 v. Uland 87 Bryans v. Nix 483 Bryant v. Jeffreys 75 v. Tamworth 74 Bryar v. Campbell 145, 763 Buchanan v. Hubbard 626 v. Keines 361 v. Litchfield 410, 506 v. Matlock 236 v. Rucker 285, 316, 330 Bucher v. Cheshire R. Co. 59 Buck v. Milford 672, 682 Buckingham v. Hanna 469 v. Ludlum 121 Buckland v. Johnson 222 Buckley v. Stevens 788 Bucklin v. Bucklin 96, 752 Buckner v. Archer 328 Budlong v. Budlong 55 Buena Vista Co. v. Iowa Falls R. Co. 751 Buffington v. Cook 114 Buford v. Kirkpatrick 308 Bulkley v. Morgan 744 Bull v. Church 738 v. Rowe 672 Bullard v. Hascall 515 Bullene v. Garrison 684 Bullis v. Noble 670 Bumstead v. Read 227 Bunger v. Roddy 590 Bunker v. Tufts 112, 158 Bunkley v. Lynde 404 Bunting’s Case 252 Bunting v. Lepingwell 48, 252, 254 Burchfield v. Moore 525 Burdick, In re 225 v. Michael 648 Xxli CASES CITED. PAGE Burgess v. Badger 597 v. Merrill 121 v. Northern Bank of Ky. 523 v. Seligman 610, 611, 637, 641, 699 Burk v. Hill 131 v, Simonson 756 v. Webb 615 Burke v. Adams 621, 672, 695 v. Allen 538 v. Elliott 72 v. Miller 65 Burkhalter v. Edwards 781 Burkinshaw v. Nicolls 643 Burlen v. Shannon 53, 63, 67, 113, 170, 172, 179, 183, 252, 253, 269, 271, 273, 278, 326, 796 Burley v. Russell 626 Burlington v. Gilbert 751, 754 . Merchants’ Bank 762 Burlington R. Co. v. Harris 763 v. Stewart 647 Burn v. Carvalho 224 Burnap v. Campbell 155 Burner v. Havener 65 Burnes v. St. Louis Ry. Co. 65 Burnett v. Smith 197, 207, 208 Burnham v. Citizens’ Bank 404 ov. Webster 290, 312 Burns v. Hodgdon 87 Burpee v. Sparhawk 128, 232, 331, 731 Burritt v. Belfy 95, 191, 215, 219, 220 Burroughs v. De Couts 87 v. Jamineau (see Burrows v. Jemino) 286 Burrowes v. Lock 669, 670 Burrows v. Grover 612 v. Guthrie 75 v. Jemino 254, 288 Bursley v. Hamilton 407, 594, 615 Burt v. Sternburgh 98, 769 Burton’s Appeal 613 Burton v. Curyea 574 v. Reeds 471 Burwell v. Cannaday 184 Bush v. Bush 745 v, Cooper 442 v. Marshall 388, 590 v. Person 481 Busteed, The 63 Butchers’ Assoc. v. Boston 695 Butchers’ Bank v. McDonald 500 Butler v. Butler 53, 65, 66 v. Hildreth 58 v, Miller 213, 214 v. O’Brien 745 Butler v. Suffolk Glass Co. Butter v. Butter Butterfield v. Smith Buttrick v. Allen ' vu. Holden v. Lowell Bybee v. Oregon & Cal. Ry. Co. 376, 387, 389, 478, Bynum v. Preston Byrne v. Hibernia Bank v. Minneapolis Ry. Co. Byrnes v. Douglass Cc. Cabot v. Washington 112, Cackett v. Keswick 648, Cadaval v. Collins 2138, Cady v. Dyer ov. Eggleston v. Owen Caffrey v. Dudgeon Cagger v. Lansing Cagwin v. Hancock 410, Cahall v. Citizens’ Bldg. As- soc. Cailleteau v. Ingouf Cain v. Sheets v. Union Life Ins. Co. Caird v. Moss 199, 202, Cairncross v. Lorimer Cairns v. O’Bleness Caldwell v. Hart 615, vu. Neely v. Nelson v. Smith 6, 556, 559, 570, v. Walters Calhoun v. American Emi- grant Co. v. Dunning v. Richardson 646, California Sav. Bank v. Ken- ned Calkins v. Allerton v. Copley Callahan v. Griswold Callandar v. Dittrich Callaway v. Johnson Callen v. Ellison Calvert v. Bovill 273, v. Sebright Cambefort v. Chapman Cambridge Inst. for Sav. v. Littlefield Camden v. Werninger Cameron v. Kanrich v. Stephenson vo Wurtz PAGE 208 225 290 127 751 576 631 746 192 554 257 729 244 658 416 648 380 144 506 500 258 127 61 213 708 748 619 389 ‘151 789 132 497 144 679 503 140 399 238 804. 783 226 276 439 214 654 125 727 300. CASES CITED. PAGE Cammell v, Sewell 239, 247, 269, 288, 336 Camp v. Camp 569 v. Moseley 620 Campau v. Campau 377, 389 v. Lafferty 547, 570 Campbell v. Birch 663 v. Butts 36 v, Charter Oak Ins. Co. 788 v. Everhart 556, 578 v, Frankem 683 v. Goodall 171 v. Hall 160, 379 v. Hart 548 v. Hastings 612 v. Hunt 56, 60 v. Kauffman Mills Co. 733 »v. Knights 375, 376 v. Laclede Gas Co. 627 v. Phelps 135, 137 v. Rankin f 98 v. Trunnell 496, 503 Campbell Printing Co. v. Walker 171, 220 Canal Bank v. Bank of AIl- bany 522, 530, 688 Candee v. Clark 301 v. Lord 163, 168, 248 Candler v. Lunsford 372 Canfield v. Smith 755 Cann v. Willson 712 Cannam v. Farmer 625 Canning v. Brown 695 v. Harlan 648 Cannon v. Home Ins. Co. 671, 720 Cantley v. Morgan 648, 673 Capital Bank v. Armstrong 534 Capital Lumber Co. v. Barth 763 Carder v. Fayette Co. 738 Carey v. Gunnison 592 Carithers v. Stuart 367, 369 Carleton v. Bickford 296, 325 v. Washington Ins. Co. 226, 227, 228, 229 v. Woods 220 Carley v. Wilkins 664 Carlin v. Brackett 60 Carlisle v. McCall 65 Carll v, Oakley 785 Carlton v. Davis 148 Carmack v. Lovett 515 Carman v. Townsend 328 Carmine v. Bowen 648 Carnarvon v. Villebois 36, 259 Carolina R. Co. v. McCaskill 723 Carpenter v. Buller 362, 376, 384, 393, 398, 414, 415, 416, 635 v. Carpenter 624, 626 xxiii PAGD Carpenter v. Pier 351 v. Strange 302 v. Thompson 552 Carr v. London Ry. Co. 632, 649, 684, 687 v. Miner 238, 511 ». Townsend 133 v. United States 147, 371 vo. Wallace 651 Carrier v. Sears 538 Carrigan v. Bozeman 398 Carrington v. Merchants Ins. Co. 248 Carritt v. R. & P. Advance Co. 512 Carroll v. Smith - 410, 504, 506 Carson v. Faunt 548 v. Hayes 661 v. New Bellevieu Cem. Co. 423 Carter v. Bennett 301 v, Carter 76, 384 v. Doe 434 vo. Fately 608. v. James 173 v. Marshall 569, 577 v. Shibles 97 v. White 87 Caruthers v. Crockett 677 Carver v. Astor 872, 444 ». Jackson 432, 478 v. Lewis 254 Carvill v. Garrigues 216 Case v. Beauregard 40, 55, 63 v. Boughton 664 v. Case 341 v. Hoffman 169 v. Reeve 151 v. Shultz 594, 616 v. State - 69 Case Threshing Mach. Co. ». Pederson 37 Casebeer v. Mowry. 792, 796 Casey v. Galli 73, 684 v. Inloes 651, 724 Casler v. Shipman 167 Cassidy v. Carr 73 Cassin v. Nicholson 590 Castle v. Noyes 134, 151, 204 Castner v. Farmers’ Ins. Co. 719 Castrique v. Behrens 241, 280, 337 v. Imrie 47, 51, 130, 168, 247, 265, 266, 267, 268, 273, 281, 288, 289, 290 Caswell v. Fuller 609 Catherwood v. Watson 625 Catlin v. Gilders 320 Caton v. Caton 638 Catskill Bank v. Stall 543 Cavan v. Darlington 737 XXIV PAGE Cavanaugh v. Jackson 675 Caylus v. New York R. Co. 188 Cecil v. Cecil 257 v. Early 406 Cedar Rapids Water Co. v. Cedar Rapids 503 Center School v. State 764 Central Agric. Assoc. v. Gold Ins. Co. 502, 503 Central Baptist Church v. Manchester 94, 128, 129 Central P. R. Co. v. United States 717 Central R. Co. v. Smith 36, 83 Central R.R. v. Henderson 496, 503 Central Ry. Co. v. Kisch 643, 646 Certain Logs of Mahogany. 52 Chadwick v. Manning 638 Chaffe v. Morgan 695 Chaffee v. Browne _ A417 v. Potter 410, 504 Chamberlain v. Carlisle 169 v. Faris 330 v, Gaillard 767, 768 v. Preble 80, 149 », Spargur 362, 418 Chambers v. Bookman 632 v. Falkner 502 Champlain R. Co. v. Valentine 416 Chance v. Jennings 764 Chandler v. White 685 Chant v. Reynolds 150 Chapin v. Curtis 61 Chapman v. Abrahams 383, 434 v, Chapman 651, 652, 664 v. Crooks 676 v. Forsyth 96, 752 v. Goodnow 113, 247 v, Pingree 608, 651 ». Shepard 704 Chard v. Warren 744 Charlestown v. County Com- mrs 672, 744 Chase v. Cartright 380 v. Cheney 71 v, Haughton 158, 344 vo. Walker 38 Chatauque Bank v. White 652 Chatauque Co. Bank v. Risley 392 Chatfield v. Simonson 633, 635, 774 Chauvin v. Wagner 433, 444, 476 Cheesman v. Exall 593, 594, 596 Cheever v. Wilson 271, 297 Chehalis Co. v. Hutcheson 504 Chellis v. Coble 684 Cheney v. Patton 152 vo. Selman 633, 786 CASES CITED. PAGE Cheongwo v. Jones 154 Cherry v. Robinson 144 Chesapeake & O. Ry. Co. v. Keymeier 216 Chesham, In re 732, 735, 736 Chesnutt v. Frazier 56 Chester v. Bakersfield Assoc. 159 Chettle v. Pound 573 Chew v. Barnet 471, 472, 476 Chicago v. Cameron 171 v. Chicago R. Co. 619 v. Goodwillie 53 v. McGraw 619 v. Robbins 148, 150 v. Sexton 619 v. Wright 693 Chicago Bldg. Assoc. v. Crow- ell 505 Chicago Ins. Co. v. Warner 721 Chicago Packing Co. v. Til- ton 612 Chicago R. Co. v. Joliet 497 v. Knuffke 745 v. People 497, 675 v. Schaffer 98, 191, 192 ». Wiggins Ferry Co. 315 Chicago Ry. Co. v. Auditor Gen. 672 v. Douglas Co. 372 v. Mashore 633 Chicago Tire Co. v. Chicago Nat. Bank 80 Chicago Title & Tr. Co. »v. Smith 321 Chichester v. Chichester 318 Child v. Chappell 630 v. Eureka Powder Works 342, 792 Childs v. Hayman 87 Chiles v. Boothe 392 Chilton v. Scrugge 633 Chitty v. Glenn 116 Chope v. Detroit Plankroad Co. 371, 619 Chopin v. Adamson 292 Chouteau v. Gibson 78, 111 Chrisman v. Harman 64 Christie v. Secretan 273, 275 Christmas v. Russell 239, 281, 297, 299, 309, 335, 337 Christopher, The 279 Chubb v. Upton 507 Chudleigh’s Case 462 Churchman v. Ireland 734 Churchward v. Ford 550 Cicero v. Williamson 71 Cicotte v. Wayne 646 Cincinnati v. Cameron 747 CASES CITED. PAGH Cincinnati v. Dickmeier 168 v. Morgan 507 v. White 693 Cincinnati R. Co. v. Mara 748 v. Wynne 342 Citizens’ Light Co. »v. St. Louis : ~ 80 City Bank v. Bartlett 745 City Bank of New Orleans v. Welden 61 City Ry. Co. v. Citizens R. R. Co. 731 Claflin v. Boston & A. R.R. 641 Clanton v. Scruggs 639 Clapp v. Hansom 519 v. Tirrell 517 Claridge v. Mackenzie 560, 569 Clark v. Baker 220 v. Bryan 226, 227, 228 v. Carrington 148 v. Clark 633, 786 v. Deshon 517 v. Dew 271 v. Fisher 235 v. Hayward 695 v. Hindman 674 v. Moore 661 v. New England Ins. Co. 720 v, Parsons 290, 351 v. Sammons 188 v. Scovill 56 v. Wiles 111, 208, 223 v. Wolf 139, 153 v, Young 56, 90 Clarke v. Clarke 559 v. Dunham 133 Clarke Nat’l Bank v. Bank of Albion 545 Clary v. Hoggland 231 Clauser v. Jones 763 Clay v. Buchanan 57, 709 v. Smith 96, 731, 752 Clay Ins. Co. v. Huron Salt Co. 505 Cleaton v, Chambliss 90 Clement v. Field 92, 111, 208 Clementson v. Gandy 737 Clerk v. Withers 701 Cleveland v. Creviston 95 v. Rogers 355 Cleveland Iron v. Gauthier 675 Cleveland Ry. Co. v. Moore 763 Clews v. Bank of New York 526, 539 v. Bathurst 254 Clifford, In re 783 Clink v. Thurston 763 Clinton v. Haddam 671 xXXV PAGH Clinton Bank v. Hart 120 ° Close v. Glenwood Cem. 500, 502 Cloud v, Whiting 645 Clough v. London Ry. Co. 743 Coakley v. Perry 392 Coari v. Olsen. 647 Coates v. Chaves 592 Cobb v. Arnold 577 v. Curtiss 197 v. Fisher 360, 362 Cobbey v. Buchanan 626 Coburn v. Goodall 170 v. Palmer 581 Cochett v. Keswick 643 Cochran v. Arnold 502 Cockburn v. Thompson 153 Cocke v. Brogan 434 Cockrill v. Hutchinson 369, 764 Cocks v. Masterman 530 Codington v. Lindsay 735 Coe v. Clay 443 v. Gerst 619 Coffey v. United States 169, 176, 250 Coffin v. Knott 61 Coffman v. Brown 60 Coggill v. American Bank 522, 523, 524 Cohen, v. Teller 530, 532 Coit v. Beard 59 v. Haven 226 Cole v. Favorite 152 v. Lafontaine 764 v. Langford 44, 234 v. Raymond 467, 468, 481 v. Stone _ 352, 771 Coleman v. McAnulty 133 v. McMurdo 166, 347 v. Pearce 666, 763 v. Pike 745, 746 Coles v. Allen 159 v. Soulsby 516 Collier v. Gamble 444 Collingwood v. Irvin 149 Collins v. Bartlett 389, 479 v. Bennett 196 v. Jennings 65 v. Lofftus 152 v. Mitchell 406 v. Wood 734 v. Wright 664 Collis v. Emmett 524 Coloma v. Eaves 506, 507 Colonial Bank v. Cady 634, oe 1 v. Hepworth 634, 635, 641 Colonius v. Hibernia Ins. Co. 695 Colquitt v. Smith 609 XXV1 PAGE Colt v. Partridge 53 Colter v. Calloway 695 Colton v. Galbraith 423 Columbet v. Pacheco 675, 676 Columbian Ins. Co. v. Law- rence 722 Columbus v. Dahue 693 Colvin v. Corwin 220 Colwell v. Brower 608 Combes v. Chandler 610 Comings v. Wellman 416 Commercial Bank v. Pfeiffer 500 Com. Nat. Bank v. Sloman 94 Commissioners v. Bolles 500 v. Sewell 745 Commonwealth v. André 371 ». Blood 228, 278, 322, 355 v. Dudley 730 v. Green 296, 300, 319 v. Moltz 652 v. Reading Bank 505, 539 v. Rourke 598 v. Sherman 504, 628, 629 v. Tuck 100 Companies Acts, In re 380, 503 Compher v. Anawalt 308 Compton v. Sandford 787 Comstock v. Eastwood 790 v, Smith 404, 435, 438 Conant v. Newton 380, 397 Conard v. Atlantic Ins. Co. 513 Concha v. Concha 48, 104, 114, 245, 246, 247, 248, 255, 256, 257, 262, 267, 271, 272, 273, 274, 734 Concord v. Bellis 621 Concord Nat. Bank v. Haw- kins 503 Cone v. Cotton 355 Congregational Soc. v. Perry 502 Conkey v. Hawthorne 695, 702 Conklin v. Barton 612 v. Conklin 637 Connecticut Ins. Co. wa Schwenk 634, 788 Conn. Mut. Life Ins. Co. ». Smith 61 Connelly v. Connelly 270 Connihan v. Thompson 733, 739 Connolly v. Branstler 624, 625 v. Connolly 254 Connor v. Eddy 391, 448 v. Martin 536 Conrad v. Lane 626 Continental Bank v. Nat'l Bank 541, 649, 684, 696 Continental Nat. Bank »v. Tradesmen’s Nat. Bank 539, 541 CASES CITED. PAGE Converse v. Ayre 303 Conway v. Ellison 308 Conwell v. Mann 553 Cook v. Burnley 63, 170 v. Field 155 v, Harnes 619 v. Lee 56 v. McCahill 633 v, Parham 378 v. Pridgen 724 v. Sholl 250 ». Steuben Bank “303 v. Thornhill 303 v. Toumbs 371 Cooke v. Fidelity Vault Co. 734 Cooley v. State _ 633 Coolidge v. Ayers 418 Coons v. People 746 Cooper v. Adams 582 v. Blandy 553 v. Meyer 524, 525, 526 v. Molsons 763 v. Peck 615 ». Reynolds 51, 54, 302, 325, 331 v, Watson 376, 377, 387 ». Witham 626 Copeland v. Copeland 781 Copin v. Adamson 292, 317 Copper Mining Co. v. Ormsby 604 Coran v. Wheten 392 Corbet’s Case 254 Corbett v. Brown 6338, 643 v. Craven 63 Corbley v. Wilson 130 Corcoran v. Chesapeake Canal Co. 114, 147, 152 Corder v. Dolin 592 Corey v. Gale 84 v. Indep. Ice Co. 302 v. Morrill 238 v. Ripley 331 Corkhill v. Landers 674 Cornell Univ. v. Parkinson 633 Corning v. Troy Iron Fac- tory 658 Cornish v. Abington 577, 688 v. Searell 565, 574, 582 Corrothers v. Sargent 111 Corry v. Gaynor 750 v. Lackey 253 Corwith v. Culver 498 Cotes v. Davies 536 Cothran v. Brower 80, 496 Cotton v. New Providence 506 Couch v. Harp 56 Counterman v. Dublin 502, 752 Courtland v. Willis 192, 771 Coventry 0. Ry. Co. Covert v. Nelson CASES CITED. PAGH Great Eastern 513, 649, 667, 671, 677, 712 155 Covington v. First Nat. Bank 95 Covington & L. R. Bowler Cowell v. Springs Co. Cowles v. Marks Cox v. Bruce v. Rogers v. Thomas Coxe v. Nicholls v 154 378, 501, 502 370 381, 614 734. 231, 406, 757 308 Cracknall v. Jackson 477 Craddock v. Turner 163 Crafts v. Clark 770 Cramer v. Moore 64 v, Wilson 146 Crane v. Maginnis 270 v. Morris 392 v. Reeder 372 Crary v. Dye 682, 685 Cravens v. Kitts 685 Crawford v. Howard 228 v. Jones 552 v. Nolan 762 v. Turk 163 v. White 334 v. Whittal 283 Crawley v. Isaacs 287 Creagh v. Blood 568 Creamer v. Holbrook 747 Crenshaw v. Julian 131 Crest v. Jack 652 Crichlow v. Parry 522 Crim v. Kessing 226 Crime v. Davis 640 Crisman v. Lauterman 648 Crocker v. Hutchinson 687, 708 Croft v. Johnson 65 Crofton v. Cincinnati 170 Crofts v. Middleton 432, 460 Cromwell v. Sac 83, 86, 89, 98, 100, 107, 171, 185, 189, 207, 208, 209, 210, 248, 244, 410, 506 Cronan v. Frizell Cronin v. Gore Cronk v. Trumble Cropper v. Smith Crosland v. Murdock Cross v. Kansas Crossan v. May Crossley v. Dixon 146 676 783 695 235 755 645, 696 598 Croudson v. Leonard 47, 245, 246, Crout v. De Wolf 265, 274 531 Crowder v. Red Mt. Min. Co. 838 xxvii PAGH Crowl v. Crowl 145 Croxall v, Shererd 591 Cruger v. Dougherty 727, 744 Crum v. Boss 99, 184 Crumb v. Wright 376, 388, 590, 591 Crumlisk v. Central Imp. Co. 325 Crusoe v. Butler 271 Culmer v. Salt Lake City 727 Cumberland Coal Co. v. Jef- fries 72 Cumberland R. Co. v. McLan- ahan 724 Cummings v. Banks 291 v. Powell 376, 377, 389 Cummins ¥. Agricultural Ins. Co. 633 Cunningham v. Ashley 163 v. Goelet 318 v. Milner 609 v. Shanklin 371 Cupp v. Campbell 622, 624, 625 Curlee v. Smith 377 Curnen v. New York 497 Curran v. Burdsall 482 Currens v. Lauderdale 652 Curtis v. Galvin 582 v. Gibbs 294 v, Leavitt 168 v. Spitty 550 Curtiss v. Beardsley 341 v. Curtiss 138 Curyea v. Berry 778 Cushing v. Laird 114, 245, 246 Cuthbertson v. Irving 393, 396, 583 Cuthrell v. Hawkins 431, 465 Cutler v. Bower 404 v. Dickinson 406 v. Huston 66 Cutter v. Evans 138, 163, 168 v. Waddingham 392 Cutting v. Carter 76, 77 Cuykendall v. Doe 303 Cyphert v. McClune 308 D. Da Costa v. Villa Real 254 Daggett v. Daggett 171 Dahlman v. Forster 36 Dair v. United States 609 Dale v. Turner 763 Dalgleish v. Hodgson . 266 Dalton v. Fitzgerald 377, 601 v. Whittem 749, 784 Damon v. Commonwealth 626 Damouth v. Klock 744 Xxviii PAGE Damp v. Dane 755 Dana v. Craddock 74 v. Nat. Bank of Republic 530 Dancer v. Hastings 582 Dane v. Gilmore 148 Danforth v. Adams 685 Daniel v. Morton 783, 785 Daniels v. Edwards 719 v. Equitable Ins. Co. 695 v. Henderson 129, 172 v. Tearney 383, 504, 505, 732, 751, 752 Darby v. Mayer 235 D'Arcy v. Ketchum 297 Darke v. Bush 634 Darley Colliery Co. v. Mitch- ell : 190, 192 Darlington v. Gray 76 v. Pritchard 805 Darst v. Gale 504 Dashiel v. Collier 375 Davenport v. Chicago R. Co. 95 v. Tarpin 674 Davenport R. Co. v. Daven- port Gas Co. 641, 666 David v. Park 683 v. Porter 299 Davidson’s Appeal 621 Davidson v. Jennings 682 v. Sharpe 345 ©. Shipman 170 v, State 133, 142, 145 ». Young 622, 685, 695 Davies, Ex parte 597 Davies v. Leete 255 v. New York 215 Daviess v. Dickinson 503, 507 Davis v. Bean 65 v. Bowmar 645, 684, 695 v. Brown _ 100, 189, 210, 519 v. Callahan 609 v, C. R. Co. 634 v. Connelly 306 v. Davis 556, 781 v. Denham 377 ». Dyer 696 ». Hedges 197, 199, 202, 208 v. Henry 76, 77, 675 v. McCorkle 111, 170 v. Morris 693 ». Rainsford 403 v. Russell 513 v. Shoemaker 551, 773 ». Smith 685 v. Talleot 195, 196, 198 v. Tingle 624 v. Tyler 551 v. Wakelee 325, 603, 777, 785 CASES CITED. PAGE Davis v. Williams 556 v. Zimmerman 624 Davis Machine Co. v. Bar- nard 127, 254 Dawley v. Brown 94, 144 Dawson v. Mann 212 Day v. Cage 145 v. Hartshorn 113 ° v. Perkins 774 Dean v. Colt 441 v. Crall 763 v. Doe 445 v. Thatcher 80 De Armond v. Adams 238 Debbs, In re 66 Decherd v. Blanton 407 Decker v. Adams 84 Decorah Mill Co. v. Greer 671 De Cosse Brissac v. Rathbone 286, 287 De Ende v. Wilkinson 309 Deeley’s Patent, In re 146 Deeming Invest. Co. v. Shaw- nee Ins. Co. 764 Deery v. Cray 416 Deford v. Mercer 746 Defries v. McMeans 95 De Frieze v. Quint 429 Deitrich v. Hutchinson 56 De La Guerra v. Newhall 96 Delancey v. McKeen 621 Delaney v. Dutcher 362 v. Fox 564, 585: Delanney v. Burnett 65. Delano v. Jopling 322 Delaplaine v. Hitchcock 778. De La Vega v. League 87 Del Campo v. Camarillo 734. Delmege v. Mullins 559 Delphi v. Startzman 764 Delta, The 112 Demarest v. Darg 112, 114 v. Hopper 4,7 ‘De Mill v. Moffatt 778 Deming v. Darling 636 De Montague v. Bacharach 38 De Mora v. Concha 46, 47, 48, 49, 104, 114, 245, 247, 248, 254, 255, 256, 257, 262, 267, 271, 272, 278, 734 Dempsey v. Ins. Co. of Penn. 267 Den v. Ayres 235. ». Reddick 69 d. Brinegar v. Chaffin 416 d. Bufferlow v. Newsom 587 d. Candler v. Lunsford 372 d. Flynn v. Williams 423° d. Gilliam v, Bird 377 CASES CITED. PAGH Den d. Grandy v. Bailey 587 d. Johnson v. Watts 377, 478 d. Love v. Edmonston 592 d. Love v. Gates 377, 478 d. Williams v. Bennett 587 d. Worsley v. Johnson 389 Denegre v. Hann 116 Denison v. Hyde 273, 321 Denman v. Nelson 411 Denn v. Cornell 392, 432 Dennett v. Chick 121 Denning v. Corwin 355 Dennison v. United States 110, 210 Denny v. Bennett 55, 128, 312 v, Willard 699 v. Williams 220 Dent v. Ashley 348 ». Smith 288 Denton v. Noyes 308 vo. Stewart 669 Deposit Bank v. Frankfort 66, 95, 96, 113 De Proux v. Sargent lll Derby v. Jacques 59 v. Johnson 216 De Rochemont v. B. & M. R. 363 Derry v. Peek 664, 670, 712 Deslonde v. Darrington 254 De Sollar v. Hanscome 67 Despair v. Wagner 397 Despard v. Walbridge 582 Destrehan v. Scudder 307 Detroit Ry. Co. v. Hayt 790 Devens v. Mechanics’ Ins. Co. 721 Devin v. Ottumwa 151 De Votie v. McGerr 764, 782 Dewels v. Manhattan Ins. Co. 718 Dewey v. Bell 407, 515, 593, 594, 615, 616, 617, 704, 723, 741, 742, 775 Dexter v. Clark 59 Dey v. Dox 85 Dezell v. Odell 407, 515, 594, 614, 704, 774 Dickens v. Long 36 Diekson v. New York Biscuit Co. 746, 763 Dickerson v. Colgrove 781 Dickinson v. Goodspeed 582 v. Hayes 178, 180 Diehl v. Zanger 675 Dillavore v. Dillavore 61 Dillett v. Kemble 676 Dillinger v. Kelley 56, 60 Dills v. Hampton 586 Dimond v. Manheim 660 Diossy v. Morgan 615 Xxix , PAGH Divoll v. Atwood 65 Dixon v. Kennaway 664, 699 v. Merritt 170 v, Stewart 570, 571, 578 Doak v. Wiswell 196 Doane v. Willeutt 371, 408, 438, 440, 446, 485 Dobbins v. Cruger 429 v. Hyde 155, 156 Dobson _v. Culpepper 554, 577 v. Pearce 224, 333, 334 Dodd v. Una 53, 128, 278 v. Williams 474, 477 Dodge v. Gaylord 78 vo. Hogan 423, 439 v. Pope 614, 683 ». Stacy 781 Doe v. Derby 160, 379 v. Harlow 143 v. Huddart 144, 762 v. Oliver 288 vo. Skirrow 379 v. Thomas 143 ov. Wellsman 800 d. Armstrong v. Bridges 607 d. Baggaley v. Hares 381 d. Bliss v. Estey 554 d. Brinegar v. Chaffin 416 d. Bristow v. Pegge 549 d. Bullen v. Mills 552, 554, 562 d. Butcher v. Musgrave 412 d. Carr v. McCollough 675 d. Chandler v. Ford 382 d. Christmas v. Oliver 453 d. Clun v. Clarke 578 d. Diffin v. Simpson 580 d. Higginbotham v, Bar- ton 564, 580, 582, 589 d. Hornby v. Glenn 367 d. Hurst v. Clifton 557 d. Jackson v. Wilkinson 553, 576 d. Johnson v. Baytup 558, 586 d. Kerr v. Wetmore 159, 388 d. Knight v. Smythe 549, 554, 558, 580 d. Levy v. Horne 381 d. McPherson v. Walters 778 d. Marchant v. Errington 374, 432 d. Marriott v. Edwards 582 d. Morris v. Rosser 781 d. Ogle v. Vickers 556 d. Plevin v. Brown 565, 566, 568 d. Potts v. Dowdall 468 XXX PAGH Doe d. Preece v. Howells 382 d. Sands v. Phillips 565 d. Shelton v. Shelton 409 d. Stevens v. Hays 383 d. Strode v. Seaton 425, 456 d. Taylor v. Shufford 372 d. Thompson v. Hodgson 788 d. Wheble v. Fuller 555 d. Worsley v. Johnson 377, 389 d. Wright v. Smith 788 Doglioni v. Crispin 287 Dolbeer v. Livingstone 489 Dolde v. Vodicka 675, 676 Dole v. Boutwell 155. Dolphin v. Robins 270, 326 Don v. Lippman 285, 317, 326 Donahue v. Klassner 389 Donald v. Gregory 159 Donaldson v. Hibner 676 ». Winter 235 Donnell v. Hamilton 69, 78, 79 Donohoo v. Murray 403 Dooley v. Cheshire Glass Co. 499 v. Potter 127, 159 ». Wolcott 502 Doran v. Cohen 189 Dorlargue v. Cress 682 Dorman v. Bates Mfg. Co. 403 Dorr v. Clark 594, 615 v. Stockdale 164 Dorrance v. Scott 132 Doten v. Bartlet 406 Dotterer v. Pike 624 Doty v. Barnard 745 v. Brown 204 Doucette v. Baldwin 739 Dougald v. Dougherty 430 Dougherty’s Est. 240 Douglas v. Forrest 285, 313, 317, 826, 330, 770 v. Fulda 147, 564 Douglass v. Craig 672 ~ », Howland 162, 163, 167 v. Scott 468, 469 477, 479 Dow v. Electric Co. 751 v. Sanborn 52 Dowling v. Wood 696 Dowell v. Applegate 64, 66, 185, 209, 315 Downer v. Shaw 322, 328 Doyle v. Coburn 418 v. Hallam 144 v. Hort 666 v. Mizner 500 v, Reilly 111 v. Wade 377 Draggoo v. Graham 355 CASES CITED. Drake v. Glover 625 v. Howell 380 v. Mitchell 214 v. Vorse 95 ». Wild 734 Draper v. Oswego Assn. 718 Drayton v. Dale 535, 536 Dresbach v. Minnis 407, 515, 594, 615, 704 Drexel v. Berney 604, 774 Dreyfous v. Adams 783 Drummond v. Prestman 167 Drury v. Foster 621, 624 Dublin v. Chadbourne 271 Dubois v. Dubois 235 Du Bose v. Ball 745 Duff v. Wynkoop 746 Duffie v. Boston L. 164 Duffield v. Scott 147 Duffy, v. Lytle 792 Dugan v. Follett 429 Duke v. Ashby 490, 584 v. Griffith 781 v. Postal Telegraph Co. 61 Dukes v. Spangler 370, 480, 624, 641 Duncan v. Bancroft 96 v. Holcomb 114 v. Ware 157 Dunckle v. Wiles 181 Dundas v. Hitchcock 408 v. Waddell 209, 224 Dunham v. Bower’ 170, 172, 196 v. Reilly 597, 598 Dunklin v. Wilson 699 Dunks »v. Fuller 724 Dunlap v. Clements 615 v. Cody 54, 336 v. Glidden 38 Dunn v. Pipes 79 Dunnell Manuf. Co. v. Paw- tucket 756 Dunning v. West 783 Dunshee v. Grundy 553 Dunston v. Paterson 645 Dunterman v. Story 406 Dupas v. Wassell 495, 547 Durant v. Abendroth 54, 267, 325 v. Essex Co. 63, 68 v, Pratt 685, 693, 708 Durham v. Alden 781 Dutchess Cotton Manuf. Co. v. Davis 502 Dutton v. Woodman 98 Du Val v. Marshall 496 Dwight v. St. John 65 Dyckman v. New York 229, 230 CASES CITED. PAGE Dye v. Crary 489, 632 Dyer v. Rich 416 v. Sutherland 612 Dykes v. Woodhouse 165, 347 Dynes v. Hoover 72 E. Eagan Co. v. Johnson 717 Earl v. Stevens 693, 694 Earle v. Earle 171 Easly v. Walker 615 East v. Dolihite 702 East Ala. R. Co. v. Tenn. R. Co. 160, 489 Easterly v. Goodwin 51 Eastham v. Anderson 592 East Hampton v. Kirk 788 Eastman v. Symonds 183 Eastmure v. Laws 194, 223, 792, 800 . Easton v. Aspinwall 748 «. Goodwin 615 v. Pickersgill 65 v. Wareham 721, 723 Eaton v. Aspinwall 500, 502 v. Driscoll 397 Ebersole v. Latimer 83, 85 Eberts v. Fisher 88 Eddy Valve Co. v. Crown Point 504 Edgell v. Sigerson 107, 238 Edson v. Edson 241 Edwards’s Appeal 786 Edwards v. Baker 96 v. Dickson 637 v. Rogers 374 Egerton v. Muse 81, 115 Egler v. Marsden 550 Ehle v. Bingham 138, 142, 209 Eickelberg v. Soper 632, 683 Eikenberry v. Edwards 695, 702 Eimer v. Richards 112 Hisendeath v. Chicago 693 Eisenhauer v. Quinn 764 Hitelgeorge v. Mutual Bldg. Assoc. 695 Eldred v. Hazlett 219 Eldridge v. Hill 144 v. Trustees of Schools 430 v. Walker 608 Elkhart v. Simonton 74 Elliott v, Dycke 783 v. Frakes 146 v. Hayden 125, 137 v. Keith 603, 682 ». Royal Assur. Co. 75 v. Whitmore 673 XXxXi PAGH Ellis v. Davis 235 v. Hamlin 747 v. Ohio Life Ins. Co. 520, 530, 532 v. Welch 436 v. White 785 Ellsworth v. Ellsworth 744 v. Houlton 721 El Reno v. Cleveland-Trini- dad Paving Co, 61 Elson v. O’Dowd 131 Elston v. Piggott 87 Emanuel v. Symon 330 157, 340, 344 87, 224, 294, Embree v. Hanna Embrey v. Palmer 315, 785 Embury v. Conner 172, 182, 227, 335, 748 Emerson v. Sansome 430 v. Thompson 108, 185 Emery v. Barnett 564 v. Fowler 135, 137 Eminence v. Grasser 505, 507 Emmes v. Feeley 559 Emmons v. Milwaukee 745 Engel v. Scheuerman 300, 333 Engholm v. Ekrem 622 England v. Slade 582 Engstrom v. Sherburne 85, 241 Ennis v. Smith 48, 251 Enohin v. Wylie 255 Ensign v. Bartholomew 58 Epley v. Witherow 651 Eppes v. Mississippi R. Co. 502 Equitable Foundry Co. vw. Hersee 744 Equitable Loan Co. v. Lew- man 374, 618, 631, 663 Equitable Mortgage Co. v. Norton 631 Equitable Trust Co. v. Fisher 171, 202 Ericksom. v. Cass 755 Erskine v. Loewenstein 610 Erwin v. Down » 538 v. Lynn 215 Eshelman v. Schuman 145 Espy v. Bank of Cincinnati 539 v, Comer 732 Esron v. Nicholas - 627 Estep v. Larsh 60 Estey Manuf. Co. v. Runnels 502 Estis v. Jackson 682 Etcheborne v. Auzerais 734 Etting v. Bank of United States 69 Eureka Co. v. Bailey Co. 73, 598 Evans’s Appeal 744 XXX11 PAGE Evans v. Bicknell 603, 669, 670 v. Collier 132 ». Commonwealth 163 v. Edmonds 665 v. Forstall 683 v. Miller 674 v. Powel 399 Evelyn v. Haynes 106 Everett v. Lynds 701 Evertson v. Miles 664 Ewing v. Cook 749 v. Dominion Bank 652, 663 v. Ewing ” 785 v. Orr Ewing 255 Exchange Bank v. Ault 36, 38 Exposition Park v. Kansas City 95 Eyster v. Gaff 129 F. Factors’ Ins. Co. v. De Blanc 746 Fagg v. Clements 87 Fahnestock v. Gilham 788 Fairbanks v. Long 784 Fairchild v. Lynch 171 v. McArthur 376, 479 Faircloth v. Jordan 474 Fairtitle v. Gilbert 380, 503 Faithorne v. Blaquire 131 Falkner v. Guild 227 Fall River v. Riley 163 Fall River Bank v. Buffinton 710 Falls Lumber Co. v. Watkins 618, 631, 695 Fanning v. Ins. Co. 762 Fargis v. Walton 724 Farish v. Coon 372 Farist’s Appeal 685 Farley v. Eller 484 v. Pettes 609 Farley Nat. Bank v. Hender- sort 733 Farm Investment Co. v. Car- penter 74 Farmer v. Simpson 155 Farmers’ Bank v. Birchard 648 Farmers’ & M. Bank v. Butchers’ & D. Bank 540, 541, ‘ 545 Farquharson v. King 494, 608, : 686, 708, 713 Farr v. Lachman 746 Farrar v. Cooper 414 v. Farrar 480, 641 ». Hutchinson 509 CASES CITED. PAGE Farrar v. Olmstead 254 Farrington v. Payne 219 Farris v. Houston 559, 561, 565, » §89 Farmington v. Downing 74 Farwell v. Hilliard 124 Father Matthew Soc. v. Fitz- williams 406, 502 Faught v. Faught 179, 180, 184 Faulks v. Kamp 482 Favill v. Roberts 608, 777 Faweett v. New Haven Organ Co. 685 Faxton v. Faxon 640 Fay v. Ames 149 v. Valentine 175 Fayerweather v. Ritch 63 Feather v. Strohoecker 447 Feeny v. Hall 693 Felt v. Turnure 60 Felton v. Smith 96, 108 Feltz v. Walker 644 Fenner v. Duplock 566 Fenwick v. Thornton 146 Ferguson v. Bobo 627 v. Crawford 37, 226, 228, 335 ». Landram 502, 748, 751, 752 v. Mahon 286, 288, 299 v. Milliken 362 wv. Northern Bank 677 Fermor’s Case 332 Fernald v. Palmer 754 Fernandez v. Da Costa 266 Ferrer’s Case 106, 110 Ferry v. Miltimore Wheel Co. 632 Ferson’s Appeal 754 Field v. Clark 35 v. Doyou 749 v. Flanders 238 v. Seabury 73 Fields v. Bland 732 vo. Willingham 363 Tifield v. Edwards 123 Filipine v. Trobock . 629 Fine Art Soc. v. Union Bank 634, 714 Finlay v. Bryson 784 Finnegan v. Carraher 703, 781 Finneran v. Leonard 232 Finney v. Finney 223 First Evang. Church v. Walsh 634 First National Bank v. Dove- tail Gear Co. 784 v. Gillilan 133, 502 ». Hammond 724. v. Hastings 172 vw. Kissare 607 v. Marshall Bank 693 CASES PAGER First National Bank v. Me- Allister 778 v. Reid 404 v. Ricker 532, 647 v, Warrington 787 First Parish v. Dow 577 Fischli v. Fischli 171 Fish v. Folley 215 Fishbeck v. Phoenix Ins. Co. 708 Fisher v. Banta 127 v, Fielding 325 v. Longnecker 168 v. Milmine 589 v. Mining Co. 363, 377, 383 v. Ogle 275 »v. Seligman 377, 610, 699 Fisk v. Miller 238 Fitch v. Baldwin 378, 389, 746 v. First National Bank 93 Fitts v. Cook 599, 740 v. Hall 626 Fitzgerald v. Spain 592 v. Turner 624 Fitzhugh v. Bay City 753 Fitzpatrick v. Flannegan : 682 Fitzsimmons v. Newport Ins. Co. 246, 267 Flad Oyen, The 277, 278, 279 Flagg v. Flagg 440 Flanagan v. Cutter 154 Flanders v. Hall 63 Flanigan v. Turner 745 Flannagin v. Hambleton 624 Flege v. Garvey 744 Fleischmann v. Stern 644 Flemmer v. Travelers’ Ins. Co, 431 Fleming v. Gooding 552 Flersheim v. Cary 380 Fletcher v. Farrer 400 Fletcher v. Holmes 79 Flint v. Bodge 213 Flitters v. Allfrey 72 Florence v. Drayson 190 ». Jenings 189 Flower v. Elwood 642, 685 v. Lloyd 241, 280, 337 v. Parker 155 Flower City Bank v. Widener 612 Floyd v. Ritter 36 Floyd Co. v. Morrison 496 Flynn v. Gorman ~ 56 Fogler v. Clark 96, 112, 752 Foley v. Cooper 608 Folger v. Palmer 6, 128, 151, 372, 633, 787 Follansbee v. Parker 671 0. Walker 133, 142 Foote v. Gibbs 63 CITED. XXxiii PAGE Foote v. Newell 327 Forbes v. Keyes 746 v. Scannell 354 Forcey’s Appeal 169, 173 Ford v. Ager 562 v. Doyle 64 v. Ford 169, 179, 746 v. Hurd 156 v. Loomis 608 v. Meacham 523 Forncrook Manuf. Co. v. Bar- num Wire Works 598 Forster v. Forster 430 Forsythe v. Hammond 112 Foster v. Bigelow 778 v. Busteed 63 v. Charles 684 v. Dwinel 375 v. Glazener 355 v, Jones 133 ». Wightman 376, 479 v. Winchester 377 Fort v. Allen 401 Fountain v. Whelpley 693, 708 Fountaine v. Carmarthen Ry. Co. 507 Fouque v. Burgess 619 Fourth Nat’] Bank v. Olney 496 Foust v. Chamblee 600 Fowler v. Alabama Iron Co. 628 Fowler v. Parsons 723, 729 v, Shearer 84, 369, 484 Fowlkes v. State 98, 762, 767, 768 Fox v. Union Sugar Refi- nery 403 v, Whitney 519 Foye v. Patch 98, 171, 210, 761, 762, 763 Frame v. Badger 634 Francis v». Boston & R. Mill Corp. 386 Frank v, Frank 735 Franklin v. Green 113 vo. Merida 569, 570 v. Twogood 406, 500, 502 Franklin Ins. Co. v. Martin 718 Franklin County v. German Bank 78, 115, 393 Franklin National Bank v. Whithead 682 Fraser, In re 611 ov. Pendlebury 384 Frayes v. Worms 288, 313, 343, 770 Frazer v. Hilliard 483 Frazier v. McCloskey 192, 194 ». McQueen 116 v. Moore 339 XXX1V PAGD Fredenburg v. Lyon Lake Church 641 Frederick v. Missouri River R. Co. 648 Freeman v. Auld 364, 404 v, Bass 188 v. Clute 204 v. Cooke 663, 684, 686, 690, 698, 700 Freison v. Bates College 65, 131 Fremont Ferry Co. v. Dodge Co. 724 French v. Donohue 502 v. Howard 112 v. Spencer 434 v, White 330 Freon v. Brown 519, 603 Fretwell v. McLenore 163 Frew v. Taylor 318 Frey v. Rawsour 430 Frick v. Trustees of Schools ve 55 Frierson v. Branch 744 v. Jenkins 130 Frink v. Darst 434 Frost v. Frostburg Coal Co. 502 Fry v. Boman 559 v. Taylor 257 Fuller v. Eastman 65, 111, 170, : 172 v. Shattuck 84 v. Sweet. 570 Fulton v. Fulton 738 Funk v. Newcomer 392 Funkhauser v. How 155 Furness v. Williams 389 Fursman v. Fursman 254 G. Gaff v. Harding Gage v. Holmes v, Pumpelly 87 515, 615, 704 213 Gaines v. Relf 240 Gainey v. Anderson 484 Galbraith v. Lunsford 622, 627, 685, 763 v. Neville 115, 283, 286 Gale v. Barnes 129 v. Coburn 517 Galena & C. R. Co. v. Pound 229 Gallagher v. People 647 v. Riley 73 Galloway v. Finley 590, 591 Galpin v. Page 54, 227, 325, 326, 330 Galt v. Provan 732 Gambetta v. Brock 131 CASES CITED. PAGE Gammon v. Freeman 375 Ganong v. Green 717 German Savings Co. v. Dor- mitzer 270, 325 Gans v. St. Paul Ins. Co. 763 Gansvoort v. Williams 543 Gapen v. Brittenitz 53 Garber v. Doersom 783 Gardiner v. Suydam 483, 513 Gardner v. Boston 755 v. Buckbee 96, 98, 105, 769 v. Greene 387 v. Keteltas 443 v. Michigan Cent. R. R. Co. 60 v. Pierce 660, 661, 684 v. Raisbeck 171 Garland v. Jacomb 527 v. Tucker 290 Garlinghouse v. Whitwell 697 Garner v. Hall 605 Garner, In re 739 Garnett v. Macon 164 Garrard v. Haddan 534 Garrick v. Chamberlain 63 Garrity v. Thompson 615, 786 Garwood v. Garwood 112 Gaston v. Brandenburg 632 Gates v. Kerby 155 v. Preston 194, 198, 199 Gatling v. Rodman 621 Gaus v. Chicago Ry. Co. 505 Gawtry v. Leland 729 Gay v. Parpart 81, 87, 115 v. Smith 229 Gayle v. Johnson 496, 497 v. Price 375 Gaylord v. King 75 . Norton 76 v. Respass 377 Gear v. Smith 243 Gee v. Moss 696 Gelpcke v. Dubuque 507 Gelston v. Hoyt 249, 250 General Finance Co. v. Liber- ator Soc. 432, 444, 460, 464, 469, 475 General Nay. Co. v. Guillou 288, . 318 Genet v. Del. & Hud. Canal Co. 55 George v. Bischoff 397 v. Nevada Ry. Co. 747 v. Swafford 661 v. Tate 615 George Whitechurch v. Cava- naugh 637 Georgia Ins. Co. v. Good 733, 739 CASES CITED. PAGH Georgia R. Co. v. Hamilton 7438 Gerlach v. Turner 609 German v. Clark 641 German Sav.'Inst. v. Jacoby 646 Germania Fire Ins. Co. v. Pitcher 720 Germond v. People 383 Gerrish v. Black 188 Gervaise v. Brookins 592 Gibbs v. Bryant 120 v. Thayer 442 Gibson v. Chillicothe Bank 513 v. Clark 380 v, Chouteau 433 vw. Kirk 550 v. Lyon 144 v. Minet 526 v. Rees 115 Giddens v. Crenshaw 719 Gilbert v. Manchester 727 Gilbreath v. Jones 125, 764, ae 69 Gill v. Fauntleroy 378 v. Grand Tower Co. 441 v. Hardin 648 v. Read 253 v. United States 609, 661 Gillespie v. Nabors 626 Gillett v. Hill 706 v. Wiley 688 Gilman v. Haven 391 v. Hoare 427 v. Lockwood 96, 731, 752 Gilmore v. Fox 754 v. Williams 197 Gilston v. Codwise Gingrass v. Iron Cliffs Co. 651 Ginnett v. Whittingham 7 Girard Bank v. Bank of Penn. 545 Gjerstadenger v. Hartzell 702 Glanvill, In re 736 Glasgow v. Baker 364 v. Lowther 290 Glazier v, Streamer 642 Gleason v. Dodd 319, 323 Glidden v. Strupler 621, 623 v. Whipple 53 Globe Nav. Co. v. Maryland Co. 667 Gloucester Bank v. Salem Bank 533 Glover v. Benjamin 785 Glynn v. George 586 v. Thorpe 35 Goble v. Dillon 84, 199, 203 v. Frederickton Boom Co. 159 Godard v. Gray 246, 263, 267, 288, 289, 292, 338 XXXV PAGR Goddard’s Case 761 Goddard v. Merchants’ Bank 529, 530 v. Renner 747 Godfrey v. Brown 788 Godwin v. Neustadtl 786 Goeing v. Outhouse 697 Goetler v. Norman 708 Goff v. Dabbs 80 Goit v. National Ins, Co. 509 Goleonda v. Field 695 Gold v. Canham 286 Goldsticker, Matter of 235 Golightly v. Jellicoe 76, 186, 211 Gonzales v. Hukil 369 Goodall v. Marshall 351 Goodel v. Bennett 44) Goodell v. Bates 521, 532 Goodenough v. Fellows 369 Goodman v. Niblack 124, 127 v. Pocock 216 v. Randall 398 v, Winter 255, 504, 627, et t Goodnow v. Litchfield 127 v, Smith 168 Goodrich v. City 91, 111 v. Jenkins 303, 308 v. Reynolds 748 wv. Yale 216 Goodson v. Beacham 476 Goodtitle v. Bailey 432, 443, 444 v. Fall 383 Goodwin v. Robarts 634 Goorberg v. Western Assur. Co. 764 Gordinier’s Appeal 145 Gordon v. Whitehouse 792 Gore v. Brazier 563 Gorham v. Brenon 430 v. Dodge 734 Gorrisson, Succession of 258 Gorton v. Roach 379 Gosling v. Birnie 395, 707 Gottfried v. Miller 482 Goucher v. Clayton 82 Goudy v. Hall 229 Gould v. Evansville R. Co. 62 v. Hayden 116, 342 Gouldsmith v. Coleman 367 Gouldsworth v. Knights 395 Gove v. White 674, 781 Gow v. Collins Lumber Co. 501 Gowans v. Pierce 404 Grace v. McKissack 608 v. ‘Martin 86, 163 Grady v. Porter 600 Grafton v. U.S. 71 \ XXXvi CASES PAGE Graham v. Boston R. Co. 152, 153, 241, 243, 333 v. Fire Ins. Co. 632 v. Graham 437 v. Long 132, 227 v. Monsergh 301 v. Thompson 652, 682, 683 v. Railroad Co. 1l4 Grand Rapids Ry. Co. v. Os- born 745 Grand Tower Mining Co. »v. Gill "377 Grand Trunk Ry. Co. ». Dyer 727 Granger v. Clark 335 v. Parker 568 Grant v. Bledsoe 355 v. McLachlin 272 v. Norway 513 v, Parham 486 v, White 554 Grantham v. Kennedy 131, 132 Grasette v. Carter 674 Grattan v. Metropolitan Ins. Co. 748 Grauman v. Krienitz 628 Gray v. Richmond Bicycle Co. 331 Gravenor v. Woodhouse 565, 574, 575 Graves v. Colwell 398 v. Key 509, 510, 605, 606, 607, 687, 779 v. Lake Shore R. Co. 636 Graw v. Bayard 724 Gray v. Agnew 671 v. Crockett 620, 625, 650 v. Dougherty 60 vo. Gray 60, 489, 646 v. Hodge 57 v. Johnson + 552 v. MacLean 407 v. McNeal 228 v, Wilson 75 Graybeal v. Davis 607 Great Central Ry. Co v. Char- lebois 80, 237 Great Falls Manuf. Co. »v. Worster 238, 387, 408 Greaves v. Middlebrooks 763 Greeley v. Provident Sav. Bank 748, 787 Green’s Appeal 397 Green v. Branton 131 .v. Clarke 141 v. Glynn 170 v, Hamilton 87 uv. Kemp 404 v, Lycoming Ins. Co. 619 CITED. PAGE Green v. Merchants’ Bank 94 v. Sanborn 194 v. Sarmiento 294, 299 v, Starr 116, 340 v. Van Buskirk 302 v. Walker 619, 662 v. Wardwell 539 v. Weaver 171 Greenabaum v. Elliott 84 Greenaway v. Adams 669 Green Bay Canal Co. v. Hew- itt 199, 202, 203, 391, 504, 777, 790 Greenby v. Wilcocks 564 Greencastle v. Black 754 Greene v. Greene 241 v. Smith 666, 674, 675 Greenfield Bank v. Crafts 525 v. Stowell 534, 539, 613, 688 Greenup v. Crooks 771 Greenvault v. Davis 564 Greenville R. Co. v. Joyce 786 Greer v. Mitchell 397, 607, 608, A 696 Gregg v. Von Phul 652 v. Wells 608, 628, 649, 723 Gregory v. Doidge 566, 569 v. Hobbs 203 v. Kenyon 764 v. Peoples 481 Gresham v. Ware 633 Grider v. Driver 723, 724 Gridley v. Hopkins 608 Griefswald, The 260, 278, 279 Griel v. Pollak 631 Grier v. Canada 633 Griffeth v. Brown 687 Griffin v. Eaton 297 v. Lawrence 723, 724 v. Nichols 648 v. Rusdell 629 v. Seymour 56, 61 v. Wallace 171 Griffis v. First Nat. Bank 589 Griffith v. Clarke 130, 226 Griggs v. Gibson 735 Grignon v. Astor 278, 314 Grim’s Appeal 621, 624 Grimes v. Taft 494 Grimmet v. Henderson 163 Grissler v. Powers 710 Grisson v. Reynolds 157 Grist v. Hodges 564 Griswold v. Haven 511, 613, 614 v. Hill 116 ». Seligman 610, 611, 699 ». Smith 785 Grosholz v. Newman 376, 389 CASES PAGE Groton Bank v. Batty 724 Grout v. Chamberlin 348 Grover Machine Co. v. Rad- cliff 297 Groves v. Blondell 695 Grubbs v. Boon 145 Grusenmeyer v. Logansport 72 Gudger v. Barnes 592 Guegain v. Langis 468 Guen v. Gouverneur 85 Guernsey v. Carver 215, 220 Guest v. Burlington Opera House Co. 695 Guffey v. O’Reiley 650, 763 Guichard v. Brande 695 Guild v. Thomas 613 Guilfoil ». Arthur 590 Guinzberg v. Downs 729 Gulf R. Co. v. Gordon 695 Gulf Red Co. v. Crenshaw 763 Gunn v. Howell 308, 355 Gurnsey v. Edwards 243 Guthrie v. Howard 132 v. Quinn 643 Guthiel v. Gilmer 59 Gwinn v. Smith 376 be H. Hackett v. Callender 693 v. Ottawa 410, 506 Hackettstown Nat. Bank v. Ming 608 Haddock v. Haddock 270 Hadley v. Bordo 384 v, Clark 404 v. State 590 Hager v. Burlington 671 v. Spect 159 499 675 Hagerman v. Ohio Bldg. Assoc. Hagey v. Detweiler Hahlo v. Mayer 612 Hahn v. Kelly 227 Hailey v. Boyd 163 Haines v. Dennett 519, 603 Hains v. Gardner 375 Haldeman v. United States 78, 80 Hale v. Milwaukee Dock Co. 513, 514, 677 v. People 318 v. Skinner 485, 633, 675, 781 Halifax Union v. Wheelwright 534 Hall v. Armor 166 v. Benner 573 v. Blake 157 v. Butler 566, 572 v. Callahan 619 v. Cavanaugh 685 CITED. XXXvii PAGE Hall v. Fisher 651 v. Hamlin 239, 240 v. Jackson Co, 695 ov. Levy 172, 209 v, Matthews 367 v. Odber 318, 338 v, Sigel 154 v. Stryker 168 v. Timmons 627 v. Williams 296, 301, 319, 324, 325, 329 v. Winchell 311 Halleck v. Bresnahen 648 Halliday v. McDougall 328 Hallifax v. Lyle 537 Hallock v. Dominy 72 Halloran v. Halloran 696 v. Whitcomb 674, 781 Hallowell Nat. Bank v. Mar- ston 6, 690 Hallyburton v. Slagle 443 Hambleton v. Central Ohio R. Co. 696 v. Veere 191 Hamilton v. Cutts 4 563 v. Dutch East India Co. 287 v. Houghton 115 v. Marsden 573 v. Quimby 170 v. Zimmerman. 633 Hamilton Hydr. Co. v. Cin- cinnati R. Co. 586 Hamlet v. Richardson 201 Hamlin v. Hamlin 778, 779, 780 v. New York R. R. 63 v. Sears 727 Hamlyn v. Talisker Distil- lery Co. 75 Hammerslough v. Cheatham 763 v. Kansas City Associa- tion 634, 635 Hammond v. Blue 578 v. Wilder 239, 335 Hamner v. Pounds 170 Hampton -v. MeConnel 297, 335 Hanchett v. Gardner 59 Hanchey v. Coskrey 56 Hancock’s Estate, In re 325 Hancock v. Welsh 138 Haney v. Ray 429 Hanham v. Sherman 83, 95, 207 Hanley v. Donoghue 229, 302, 303, 325, 335 v. Foley 108 Hanna v. Read 100, 106 Hannah ». Collins 429, 430 Hannon v. Christopher 393, ae XXXVH1 CASES PAGER Hanover Nat. Bank v. Amer- ican Dock Co. 613 Hanrick v. Gurley 61 v. Patrick 437, 438 Hanson v. Chiatovich 763 Haralson v. George 222 Harbaugh v. Albertson 318, 789 Harbin v. Bell 744 Harden v. Darwin 369, 370 Hardigree v. Mitchum 608 Hardin v. Jordan 72, 74, 172 v. Palmerlee 222 Harding v. Hale 92 Hardman v. Willcock 596 Hardwick v. Young 96, 170 Hardy v. Akerly 564 v. Chesapeake Bank 684, 687 ». Mills 170 v. Nelson 391 Hargrave v. Moulton 159 Harle v. Jarman 735 Harlow v. Marquette R. Co. 666 v. Pike 243 Harmon v. Auditor of Public Accounts 114, 152, 153 v, Birchard 156 Harness v. Green 300, 313 Harriman v. Gray 440 Harrington v. Harrington 112, 253 v. Stratton 194, 206, 207 Harris v. Am. Building Ass’n 652 v. Amoskeag 389 v. Brooks 640 v, Columbia 146 v. Columbia Water Co. 56 v. Gateway Land Co. 500 v. Hardeman 227 v. Harris 75, 80, 171 v. Kirkpatrick 695, 699 v. Mulkern 108, 185 ». Willis 228 Harrison v. Luce 644 v. McReynolds 632 v. Phoenix Ins. Co. 83 v. Rowan 235 ». Stewardson 153 ». Wilkin 615 Harshey v. Blackmarr 321, 334 Harshman v. Knox 115 Hart v. Bullion 635 ». Cummins 308 v. Giles 664 vo. Gregg 429 v. McNamara 49, 247, 248 Harter v. Kernochan 410, 507 Hartman v. Ogborn 131, 239 Hartshorn v. Potroff 750 Hartung v. Witte 675 CITED. PAGE Harvey v. Farnie 270 v. Morris 592 v. Osborne 150 Haseltine v. Central Bank 64, 66 Haskell v. Friend 59 v. Putnam 561 Haslan v. Jordan 429 Hasluck v. McMaster 83 Hass v. Plautz 674, 675 Hassell v. Hamilton 307, 308 Hasselman v. U. 8S. Mortg. Co. 377, 502 Hastings v. Pepper 514 Hatch v. Bullock 547 v. Coddington 222 v. Kimball 781 v. Spofford 116, 340 Hatcher v. Dillard 254 Hatchett v. Berney 166 Hatfield v. Hatfield 254 Hathaway v. Noble = 609 Hauenstein v. Gillespie 406 Hauser v. Ryan 406 Hawes v. Shaw 563, 576 ov. Watson 595, 705, 707 Hawkes v. Orton 564 v. Truesdell 53, 796 Hawkins v. Methodist Church 608, 696 v. Ross 778 Hawks v. Munger 612 Hawksford v. Giffard 318 Hawley v. Simons 93 vo. Smith 78 Haws v. Tiernan 59 Hawthorne v. East Portland 745 Haxtun v. Sizer 407, 615 Haydock v. Coope 746 Hayes v. Livingston 778 v. Virginia Protection As- soc. 764 Haymond v. Camden 225 Hayne v. Maltby 401, 405 Haynes v. Ordway 208 v. Stevens 391, 448 v. Thomas 693 Hays v. Askew 416 v. Reger 661 Hazard v. Irwin 383 Hazel v. Lyden 746 Hazen v. Reed 108 Healy v. Root 300 Heane v. Rogers 605, 606, 607, 687, 779 Heard v. Hall 368, 778, 779 Hearne v. Boston & M. R. R. 98 Heath v. Crealock 432, 444, 464 v. Frackelton 112 Heath v. Franklin Ins, Co. v. Keyes Heaven v. Pender Heck v. Fisher Hector v. Mann Hedgepeth v. Rose Hefferman v. Porter Hefner v. Dawson v. New York Life Co, v. Vandolah CASES CITED. 745, Ins. 82, 634, Hegan v. Fredericton Broom Co. Hegreumbough v. Edwards Heims Brew. Co. v. Flannery Helena, The Helena v. Turner Hemenway v. Wood Hemphill v. McKenna Hendershot v. Henry Henderson v. Hartman v. Henderson v. Keutzer v. Price v., Williams Hendricks v. Kelly Hendrickson v. Hinckley v. Norcross Henley v. Robb Henrick & Maria, The Henry v. Gilliland 43, 502, 624, 171, 592, 664, 111, 277, 718, Henry Co. v. Winnebago Drain Co. Hentz v. Miller Hepler v. People Herbert v. Fera Herbst v. Smith Hern v. Nichols Herrick v. Atwood v. Belknap v. Malin Herriman Irr. Co. v. Keel -Hersehbach v. Cohen Hess v. Huble Hertzberg v. Beisenback Hewett v. Currier v. Williams Heyn v. O’Hagen Hibernia Soc. v. Portener Hibshman v. Dulleban Hickling v. Wilson Hicks v, Cram Hickson v. Ogg 542, 745, Hide & Leather Bank v. West Higginbotham v. Cornwell Higgins, Ex parte Higgins v. Chicago Hightower v. Overhaulser PAGH 720 617 712 624 756 724 71 644 128 695 763 509 504 263 556 170 36 635 609 286 764 746 699 778 224 36 443 786 60 702 55 173 754 674 lil 514 738 120 750 754 XXXiX PAGH Hilbourn v. Fogg 559, 562, 581 Hill v. Bain 128, 136 v. Den 362 v. Hill 633 v. Huckabee 57, 69, 496, 742, 789 ». Manchester 401 v. Minor 364 v. Moore 75 v. Morse 170, 171 v. Nisbet 745 v. The Proprietors of the Manchester Water Works 402 v. Tucker 348 v, Wand 608 v. West 370 Hillock v. Traders’ Ins. Co. 666 Hills v. Laming 405, 408 v. Miller 630 v. Sherwood 169 Hilton v. Guyot 128, 270, 282, 288, 292, 336, 337 v. Jones 152, 232, 321, 787 v. Sloane 682 Hinckley v. Greany 723 Hindson v. Weatherill 234, 235 Hine v. K. & D. R. Co. 127 v. Morse 406 Hinton v. Roane 763 Hirth v. Pfeifle 156 Hiss v. Baltimore Ry. Co. 693 Hitcheock v. Aicken 290, 294 v. Fortier 448 v. Galveston 504 v. Harrington 375 Hitchin v. Campbell 123, 222 Hitchman v. Waltman 589 Hobbs v. Duff 212 v. Henning 266 v. McLean 151 v. Nashville C. & St. L. R. Co. 629 v. Nashville R. Co. 622 Hoboken v. Penn. R. Co. 392, 393, 430 Hockaday v. Skeggs 314 Hodges v. Goodspeed 440 v. Latham 363 v. Powell 622 v. Spicer 663 Hodgson, In re 117, 121 Hodsall v. Stallebrasse 189, 190 Hodson v. Union Pac. Ry. Co. 161 Hoeger v. Chicago Ry. Co. 496, 509 Hoertz v. Jefferson Co. 751 Hoffman v. Flemming 406 v. McFadden 625 Hoffmire v. Holeomb 746 xl CASES CITED. PAGE Hogan »v. Ellis 778 v. Harley 576 Hohenadel v. Steele 81 Holbert, Estate of 53 Holbrook v. Debo 438 v. Tirrell 730 Holeomb v. Indep. School Dist. 648 wv. Tift 117 Holdane v. Cold Spring 691 Holden v. Phelps 619 v. Putnam 646, 647 Holland v. Anderson 683 v. Cruft 429, 476 v, Hatch 59, 66 v. Laconia Association 96 Holloway v. Galliac 571 Holman v. Dukes 431 Holmes v. Remsen 344 v. Steele 724 ». Trumper 535, 688 v. Turner’s Falls Co. 589 Holroyd v. Marshall 476, 483 Holt v. Alloway 322, 331 v. Martin 585 Homberger v. Alexander 612, 674 Home Ins. Co. v. Gamble 155 ». Sherwood 505 Homer v. Brown 59 v. Fish 207, 241, 244, 332 Hone v. Henriques 746 Honsinger v. Union Carriage Co 195 Hood v. Hood 48, 51, 98, 252, 253, 280, 326, 337 Hooker v. Hubbard 57, 188, 719, 741, 789 Hoover v. Kilander 644 v. King 56 Hopcraft v. Keys 559, 566 Hope v. Blair 783 v, Lawrence 725 Hopper v. McWhorter 656 Hoppin v. Hoppin 441, 485 Hoppel v. Hipple 618 Horbach v. Boyd 440 Horn v. Cole 407, 594, 608, 615, 684, 687, 708, 709 ». Lockhart 69 Horr v. Hollis 608 Hortman v. Osgood 227 Horton v. Davis 745 v. Westminster Comm’rs 401 Hortsman v. Henshaw 521, 522, 523, 524, 526 Hosford v. Johnson 631 Hosmer v. Wallace 73 Hougen v. Skjervheim 169 Houlditch v. Donegal 284 PAGn Housatonic Bank v. Martin 383, : 404, 408 House v. McCormick 425 Houston v. Blackman 515, 516 v, Matthews 676 v. Turk 371 Houstoun v. Sligo 93, 98, 112, 193, 194, 199, 202, 767 Hovenden v. Annesley 579 Hovey v. Woodward 408 Howard v. Chase 404 v. Hudson 638, 695, 697 v. Massengale 730 Howard Co. v. Bullis 751 Howe Machine Co. v. Farring- ton 634 Howell v. Goodrich 208 v. Hale 370 v. Hughes 164 Howes v. Austin 57 Howland v. Woodruff 607, 661 Howlett v. Tarte 83, 207, 241, 243 Hoxie v. Finney 438 Hoyt v. Sprague 728 Hubbard v. Gould 98 v. Norton 391, 448 v. Shepard 559 Hubert v. Fera 796 Huddersfield Banking Co. v. Lister 80 Hudgens v. Cameron 166 Hudson v. Baker 509 v. Guestier 278 v. Remington Paper Co. 94 v. Winslow 397 Huffer v. Allen 85, 97, 213 Hughes v. Alexander 83, 188 v. Cornelius 245, 254, 262, 267 v. Dundee Mortgage Co. 66 v. Edwards 579 v. Holmes 565 v. Jones 49, 93, 103, 183, 181, 756 v. United States 63 v, Wheeler 674 Hull v. Blake 344 v. Hull 695 v, Johnston 786 v. Pleasant Valley 748 Hull Flax & Cotton Mill Co. v. Wellesley 678 Hume v. Schintz 53 Humes Cons. Co. v. Phila. Casualty Co. 732 Humphreys v. Finch 609 v. Newman 443 Hundley v. Filbert 615 Hungerford’s Appeal 171 CASES PAGE Hungerford v. Cushing 229, 318 v. Moore 748 Hunt v. Blackburn 239, 242 v. Brown 197, 203, 207, 243 v. Cope 563 v. Haven 141 v. Hunt 270, 281, 331, 337 Hunter v. Carroll 170 v. Davis 170 v. Heath 695 v. Prinsep 278 v. Sandy Hill 691, 726 Huntington v. Charlotte 227 v. Pritchard 376, 377 v. Saunders 311 Huntsville R. R. v. Corpening 53 Hussman v. Wilke 550 Hutchinson v. Bank of Wheel- ing 127 v. Otis 222 Huych v. Bailey 778 Huzzard v. Nagle 148 Huzzey v. Hefferman 435 Hyatt v. Burlington Ry. Co. 786 Hyde v. Baldwin ‘362, 734 v. Leisenring 253 Hyde Park v. Borden 724 Hymes v. Estey 110, 174, 184 I. Iberia v. Serrett 748 Idaho, The 593, 594 Ihmsen v. Ormsby 199 Illinois Ins. Co. v. Wolf 509 Illinois Masons’ Soe. v. Bald- win 695 Imboden v. Etowah Mining Co. 496, 502 Imrie v. Castrique 40, 267, 268, 288 Incledon v. Burges 106 Independent Order of Aid v. Paine 409 Indiana v. Helmer 300, 308 Ingham v. Ingham 738 Ingraham v. Baldwin 573 Ingram v. United States 684 Inman v. Mead 167, 168 Innis v. Lyman 471 v. Templeton 621 Ins. Co. v. Bruce 397, 410, 506 ». Eggleston 717, 718, 721, 722 2». Harris 294, 302, 762 #. Johnson 764 v. Mowry 637, 639, 719, 722 v. Norton 718 CITED. Ins. Co. v. Schwenk v. Wilkinson ». Wolff 718, Ins. Co. of Penn. v. Smith International Bank v. Bowen v. German Bank Iona v. Harbison Iowa L. Ins. Co. v. Lewis Irby v. Kitchell Iredell v. Barber Iron Mountain Bank v, Arm- strong v. Murdock Irvin v. Nashville Ry. Co. Irvine v. Adams v. McKeon v. Scott Irving v. Excelsior Ins. Co. Irving Bank v. Wetherald 539, 515, Irwin v. Wright Ish v. Crane Iskington Vestry v. Hornsey Council Isquierdo v. Forbes Iverson v. Saulsbury Ives v. No. Canaan o. Sawyer 727, 377, 389, a Jack v. D. & M. R. Co. Jackson v. Allen 398, 598, ov. Ayres 570, 572, v, Bradford 441, . Brinckerhoff . Brockton Brownell Bull Carver Cuerden Lawton Marsh Murray Pixley Randall Sinclair Spear Summerville 207, 238, Thompson Tiernan . Vanderheyden 369, Walker v. Wood 178, Jacksonville R. Co. v. Cox Jacobs v. Hill v. Marks 108, Ssssssessssessssss xli PAGH 788 722 719 509 630 641 746 719 599 539 784 534 646 618 516 614 788 530, 540 627 745 757 283 624 744 478 788: 637 592 472 383 785 553 | 437 392 575 149 437 703 185 393 575 244 404 348 370 592 312 433 163 79 xlii PAGE Jacobs v. Miller 734, 745 v. Morris 614, 619, 682 Jacocks v. Gilliam 474 James’ Estate, In re 325 James v. James 76 v. Patterson 592 v. Russell 612 v. Wilder 380 Jameson v. McCoy 62 Jamison v. Miller 702 Janeson v. Janeson 650 Jaqua v. Montgomery 644 Jarbor v. Smith 79 Jarrett v. Kennedy 666 Jarvis v. Aikens 468 Jasper v. Ballou 410, 507 Jay v. Carthage 59 Jeffers v. Easton 564 v. Philo 641 Jefferson v. McCarthy 397 Jemison v. Cozens 385 Jenkins v. Harrison 224 v. International Bank 106, 111, 112, 115, 410 v. Means 743 v. Robertson 81, 153 Jennison v. W. Springfield 203 Jepson v. Fraternal Alliance 60 Jessup v. Carnegie 69, 771 Jew v. Wood 565 Jewell v. Rock River Paper Co. 493, 613 Jochumsen v. Suffolk Bank 229 Johnson v. Farlow 160 v. Flanner 784 v. Johnson 220 v. Knudson-Mercer Co. 96, 127 v. Mutual Life Ins. Co. 370 v. New Orleans 59 v. Northey 115 v. Owen 641 v. Pate 60 v. Provincial Ins. Co. 219 v. Pye 626 v. Riddle 170, 769 v. Robertson 152, 153 »v. Thompson 364, 404 ». Williams 67, 89, 111 Johnson - Brinkman Com. Co. v. Missouri P. Ry. 489 Johnson Co. v. Wharton 67, A 1 Johnston v. Riddle 769 Joint Committee v. Croston Council 80, 82 Joliffe v. Baker 664 Jolliffe, Ex parte 271 CASES CITED. Jolly v. Arbuthnot 395, 582, Jones v, Aetna Ins. Co. Bow . Burgess . Burnham Clark . Clouser Congregation of Mt. Cowles . Darch . De Graffenreid Dorr Drewry Gallatin Gerock Gregory Hawkins Jamison Kearney King Long Madison McPhillips Morris Oswald Peebles Powell Reese 370, 435, 486, 588, Richardson Ritter St. John’s College . Scanland . Stanton . Underwood v. Weatherbee Jordahl v. Berry Jordaine v. Lashbrooke Jordan v. Buena Vista v. Chenoa v. Faircloth v. Katz v. Money v. Phelps Josephi v. Mady Jourdan v. Jourdan Journeay v. Gardner Jourolmon v. Massengill Jowers v. Phelps 608, Joyce v, Williams 543, 675, Justice v, Commonwealth K. 298, 301, 226, 168, ee 519, 682, 637, 638, Kaehler v. Dobberpuhl Kane v. Bloodgood v. Cook 579, PAGE 583, 584 139 254 739 598 744 732 787 776 536 144 696 299 406 733 234 608 343 624 439 146 389 789 362 150 763 630 589 223 228 75 539 447 59 209 199 603 685 726 112 592 664 84 764 445 731 767 651 676 99 784 589 342 CASES CITED. PAGE Kane County v. Herrington 622 Kanne v. Minneapolis Ry. Co. 55 Kansas Pac. Ry. Co. v. Dun- meyer 376 Keane v. Pittsburg Min. Co. 59 Kearney v. Dean 251 Keate v. Phillips 492, 603, 605, 620 Keater v. Hock 61 Keating v. Orne 641 v. Wilbert 592 Keeler v, Vantuyle 652 Keen v. Coleman 624, 625 v, Hartman 625 Keenan v. Missouri Ins. Co. 722 Keeney v. MeVoy 632 Keer v. Hitt ‘675 Keifer v. Klinsick 764 Keiffer v. Ehler 52 Keith v. Garcia 607 v. Goodwin 609 v. Keith 377 Keller v. Equitable Ins. Co. 683 Kelley v. Donlin 111, 170 v. Mize 239 v. State 399 Kellogg v. Ely 754, 755 v. Smith 673 Kelly v. Dresser 36 v. Dutch Church 149 v. Seward 429 v. Turner 370 Kelso’s Appeal 730 Kemp v. Lyon 787 Kempner v. Huddeston 608 Kendal v. Talbot 56 Kendall v. Hamilton 120, 121, 214 v. Titus 133, 501 Kenealy v. Gloss 60 Kenicott v. Supervisors 507 Kenn’s Case 254 Kennedy v. Brown 404 v. Cassilis 269, 286 v. Davisson 194 v. Georgia Bank 226 v. Redwine 226, 608, 788 Kennedy Mining Co. v. Argo- naut Mining Co. 74, 82 Kennell v. Abbott 236 Kenny v. McKenzie 672 Kent v. Hudson River R. Co. 141 v. Quicksilver Keokuk R. R. Co. v. Scotland County 95, 159, 376, 379, 589 Kepley v. People 362 Kepp v. Wiggett 398, 411 Ker v. Wauchope 735 Kerbourgh v. Vance 377 xiii PAGE Kerr v. Kerr 270, 821, 325 v. Shaw 564 Kersall v, Marshall 288 Kerslake v. Brower Lumber Co. 745 Ketchum v. Duncan 695 v. Schickentanz 377, 389 Keyes v, Scanlan 719 v. Union Pac. Tr. Co. 613 Keyser v. Simmons 590, 748 Kidder v. Blaisdell 161, 367, 408 Kiefer v. Rogers 683 Kierlighett, The 279 . Kile v. Yellowhead 750, 785 ‘Kilgore v. Jordan 626 Kilheffer v. Herr 220 Kille v. Ege 108, 185 Killen v, Marshall 165 Killoren v. Murtaugh 553 Killsa v, Lermond 155 Kimball v. Blaisdell 374 v. Aetna Ins. Co. 639 v. Boston 751 v. Gay 158, 344 v. Hilton 94 v. Kimball 375 v. Lee 755 Kimberley v. Ely 96, 752 Kimberly v. Patchin 483 Kimbro v. Hamilton 416 Kimbrough v. Harbett 84 Kimmel v, Benna 144 Kincaid v. Donnell 674 King v. Boston 200 v. Chase 135, 137, 170, 177, 179 v. Dunn 182 v. Hoare 117, 118, 120, 121, 122 v. King 785 v. Norman 162, 167 v. Penn 128, 226, 318, 784 v. Rea 370, 432, 621 v. Reynolds 443 ». Smith 647 v. Van Gilder 351 Kingman v. Graham 648, 649, 660, 682, 684, 687 Kingsbury v. Yniestra 325 Kingsley v. Davis 135, 139 Kingsman v. Kingsman Kingstoy’s Case, Duchess of 6, 45, 52, A02, 107, 128, 130, 169, 173, , 176, 177, 178, 232, 236, 243, 252, 254, 312, 418, 482, 605, 761, 762 : 438 608, 630, 684 Kinnear v. Lowell v. Mackey xliv PAGH Kinnersley v. Orpe 106 Kinney v. Kiernan 733 v. Whiton 618, 684, 693, 708, 709 Kinnier v. Kinnier 270 Kinports v. Rawson lll Kinsman v. Loomis 377, 445 v. Parkhurst 598 Kip v. Brigham 148 Kipp v. Fullerton 229 Kirby v. Fitzgerald 80, 239 Kirchner v. Miller 674 Kirk v. Hamilton 781 Kirkham v. Wheeler-Osgood 627 Kirklan v. Brown 213 Kirkland v. .Trott 106, 789 Kirkman v. Bank of Greens- boro 619 Kirkpatrick v. Brown 778 Kist v. Atkinson 85 Kitchen v. Bartsch 537 Kitzmiller v. Rensselaer 365 Klein v. Caldwell 624, 625 Kleinschmidt v. Binzel 61 Klenk v. Knobel 380, 495 Klinesmith v. Socwell 745 Knapp v. Abell 301, 314 v. Marlboro 148 Knibbs v. Hall 213 Knickerbocker Ins. Co. v. Nor- ton 733 Knight v. New England Wor- sted Co. 220 v. Thayer 131, 371, 468 ». Wall 778, 779 Knights v. Wiffen 511, 594, 615, 696, 699, 703, 704 Knights Templars Indemnity Co. v. Jarman 113 Knott v. Cunningham 125 Knouff v. Thompson 660, 682 Knowles v. Gaslight Co. 229, oo 0 Knowlton v. Hanbury 63 Knox v. Clifford 610 v». Higginbotham 486 ». Sterling. 150 ». Waldoborough 59 Knox Co. v. Aspinwall 506 v. Wallace 507 Knudson v. Parker 783 Knutson v. Vidders 746 Koch v. Losch 404 Kochler v. Holt Mfg. Co. 95 Koons v. Davis 532, 644, 645, 667 Kortz v, Carpenter 564 Kothman v, Markson 744 CASES CITED. PAGE Kraft v. Baxter 631 Kramph v. Hatz 150 Kraus v. Thompson 207 Krekel v. Kreichbaum 744 Krekeler v. Ritter 763 Kronprinz v. Kronprinz 56, 62, 79, 81 Krieger v. Krieger 81 Kuhl ». Jersey City 512, 684, 685 Kunzie v. Wixom 733 L. Lackland v. Stevenson 744 Lackman v. Wood 627 Lacy v. Brandkorst 55 v. Johnson 592 Ladd v. Durkin 165 v, Putnam 65 Ladrick v. Briggs 617 Laing v. Rigney 97, 252, 269, 270, 305 Lainson v. Tremere 393, 398, 399, 400, 401, 432 Laird v. Morris 56 Lake v. Graham 410, 504, 507 Lake Shore Ry. Co. v. State 95 Lall v. Pershad 67 Lamb v. Gatlin 81, 115 v. Trowbridge 603 v. Wahlenmaier 194 ». Walker 190, 192 Lamberton v. Dinsmore 128 v. Grant 299 Lamoille Nat. Bank v. Hunt 100 La Mont v. Dickinson 675 Lampon v. Corke 360 Lamprey v. Nudd 133 Lamson v. Clarkson 559 Lancaster’s Appeal 254 Land Co. v, Saunders 372 Landis v. Hamilton 128, 141 Landon v. Litchfield 727, 744 Lane v. Degberg 250 ». Miller 724 Landing v. Montgomery 364 Lang v. Holbrook 269 Langan v. Sankey 495, 637 Langdon v. Doud 637 Langford v. Selmes 426, 428 Langley v. Kesler 387, 389, 393 Langmead v. Maple 63, 769 Langton v. Lazarus 526 Langworthy v. Baker 227 Lanigan v, New York 76 Lansing v. Gaine 543 v. Van Alstyne 564 Lantz ». Maffett 146, 226 CASES CITED. PAGB Lapham v. Briggs 325, 342 Lapping v. Duffy 510 Larch Mt. Inv. Co. v. Garbade 784 Larkin v. Mead 609 Larkins v. Mason 163 Lart, In re 147, 152, 650 Last Chance Min. Co. ». Tyler Min. Co. 85, 87, 172, 196 Latham v. Edgerton 230 Lathrop v. Kneeland 610 Latine v. Clements 348 Latiolais v. Citizens’ Bank 502 Laub v. Trowbridge 695, 702 Laughlin v. Mitchell 633 Laughton v. Atkins 271 Lauve v. Wilson 429 Laverty v. Burr 543 v. Moore 674 Law v. Law 743 v. O’Regan 163 Lawes v. Purser 598 Lawrence v. Ballou 784 v. Berney 115 vo. Campdon 364 v. Englesby 254, 256 v. Fox 404 v. Gaultney 351 ». Hunt 98, 99, 143, 169, 312 v. Jarvis 321, 325 ». Luhr 652 v. Milwaukee ri 55 ». Stratton 730 v. Towle 695 v. Waid 640 v. Vernon 122 v. Webster 378 Lawrence Univ. v. Smith 641 Lawson v. Conaway 199 Lawton v. Racine 763 Lazell v. Miller © 212 Lazier v. Westcott 291 Lea v. Lea 53, 796 Leach v. Buchanan 521, 532 Learned v. Bryant 615 Leary v. New 589 Leather Manuf. Bank v. Mor- ‘gan 530, 648, 649, 653, 662, 665, 666, 667, 684, 688, 696, 703, 704, 708 Leavenworth v. Barnes 504 Leavitt v. Fairbanks 648 v, Putnam 546 v. Wolcott 114 Le Chevelier v. Lynch 344 Lechmere v. Fletcher 117, 119 Ledons v. Lavedon- 67 Lee v. Clark 149, 404 Lee v. . Gardiner . Hopkins essessessees Dolan Lake 727, Monroe Mound Station State . Templeton . Tillotson . Turner . West Leeper v. Hersman Legg v. Edmonds Leggett v. Great Northern Ry. Co. Le Guen v. Gouverneur Lehman v. Bradle wv vw wv Clark 57, 732, 786, Van Winkle Warner 406, 499, Leinkauff v. Munter 114, Leland v. Marsh v Tousey Le Lievre v. Gould Lemmon v. Hartsook Vv Osborn Leonard v. Baker v v. Vv. Presidential Ins. Co. Simpson 86, Whitney Le Roy v, Collins Lesher v. Sherwin Lesterjette v. Ford Leutz v. Wallace Levering v. Shockey 517, Levi v. New Orleans Ins. Assoc. Levy v. Gray v Lewis UV wv ers eseeees Hale v, Alexander Allred Board of Commission- . Champion Lanphere . Lewis. . Meserve . Rogers Webber . Willis Lexington v. Rennick Lexington R. Co. v. Elwell Libbey v. Haley vw. Libby Pierce 409, 546, v. Frost Lichtenberger v. Graham Light v. St. Louis Ry. Co. Lilley ». Adams xlv PAGE 76 746 101 780 603 726 145 733 751 368 125 684 146 146 85 164 789 733 500 151 192 151 712 674. 79 65 652 147 170 79 592 328 179 624 247 624 701 651 228 83 729 608 235 375 240 615 550 745 756 4 634 733 629 745 733 xlvi PAGE Lilley v. Tower 318, 325, 330 Lilly v. Menke 733, 783 Lincoln v. Tower 318, 325, 330 Lincoln Park v. Swatek 500 Lindell v. McLaughlin 676 Lindner v, Brock 594, 615 Lindsay v. Allen _ 79 v. Cooper 651, 710 v. Freeman 431 Lindsey v. Danyille 104 v. Hawes ’ 372 Linington v. Strong 64 Linnertz v. Dorway 145 Linney v. Wood 383 Lippmins v. McCranie 608 Lipscomb v. Postell 148 Litchfield v. Cudworth 257 v. Goodnow 113, 128, 247, 379 Lites v. Addison 637, 644 Lithgow v. Kavenagh 371, 485 Littlefield v. Brown 739 v. Perry 482 Littleton v. Clayton 552, 556 562 v. Richardson 148 Livermore v. Aldrich 517 Liverpool Assoc. v. Fairhurst 625 Liverpool Bank v. Walker 121 Liverpool Credit Co. vw. Hunter 281, 289 Liverpool Whf. Co. v. Pres- cott 672 Livington v. Hastie 543 Livingstone v. Murphy 264 378, : 389 Lloid v. Maddox 254 Lloyd v. Barr 75, 114 v. Lloyd 460 Lloyds Bank v. Cooke 613 Loan Association v. Black 103 0, Topeka 755 Lobdell v. Baker 664 Lochte v. Gelé 612, 613 Locke v. White 438 Lockett v. James 485 Lockhart v. Locke 278 Locklin v. Davis 648 Lockyer v. Ferryman 209 Loeb v. Willis 59, 66 Loftus v. Maw 637 Logan v. Gardner 648 Logan Co. v. Lincoln 497 Logansport v. Humphreys 78, 111 v. La Rose 72, 74, 682, 754 v. Uhl 724, 743 Lomax v, Smyth 640 Lomerson v. Hoffman 157 London v. Lackawanna Coal Co. 763 x CASES CITED. London Bank v. Bank London eil London In re London Co. v. London & Northern West Liverpool Co. v. London’ Coun- Ins. Co., & Northwestern R. 555, Ry. Co. v. Lindsay London St. Tramways Co. v. London Council Lonergan v. Baber Long v. Anderson v. Bullard v. Fox v, Wilkinson Longfellow v. Moore Longueville v. May Long Island R. Co. lin Longworth v. Aslin Lonstalot v. McKeel Loomis v. Pingree v. Pulver Lorain v. Hall Lord v. Lord v. National Soe. vw. Wilcox Lorentz v. Lorentz Loring v. Folger v. Mansfield v. Otis v. Steineman v. Conk- Protective 695, 254, Los Angeles v. Mellus Lot v. Thomas 391, Lothian v. Henderson 47, 262, Lothrop v. Foster Loud v. Loud Loudenback v. Collins Louis v. Brown Louisiana Levee Co. Louisville gan v. Klyman v. Stevens Louks v. Kenniston Love v. Gibson v, Law v. Trueman Lovejoy v. Murray Loveman v. Taylor Lovett v. Lovett Low v. Bartlett v. Bouverie v, Mussey Lowell v. Daniels Lowry v. Inman v. State R. Co. v. Flana- 666, 147, 125, 597, 664, 670, 369, PAGE 96 679 582 330 44 267 685 743 783 377 719 297 443 672 675 441 85 392 738 730 146 727 156 84 403 257 60 448 266 484 271 63 114 128- 504 790 621 674 148 552 141 744 432 348 671 313 620 154 CASES PAGH Lowry v. Silver City Min. Co. 652 v. Lumberman’s Bank 154 Lucas v. Bank of Darien 331 v. Beebe 397 v. Brooks 553, 570 v. Greenville Assoc. 502 v. San Francisco 78 Luce v. Dexter 125, 126 Luckenback v. Anderson 54, 333, 336 Lucy v. Gray 409 Lufkin v. Curtis 871, 485 Lumber Co. v. Buchtel 210 v. McCord 648 Lund v. Seaman’s Bank 593 Lunsford v. Alexander 555 Lunt v. Holland 403 Luntz v. Greve 87 Lush, In re 624 Lyman v. Faris 139, 153 Lynch v. Swanton 112 Lyndonville Nat. Bank v. Fletcher 647 Lyon v. Northrup 148 v. Perin Manuf. Co. 62, 63 v. Reed | 763 v. Robbins 94 v. Stanford 134, 135 ». Supreme Assembly 721 ». Travellers’ Ins. Co. 721, 783 Lyons v. Munson 410, 507 M. McAbe v. Thompson 695 McAdams v. Barley 431 v. Hawes 685 McAfee v. Fisher 644, 645 McAfferty v. Conover 781 McAleer v. Horsey 646 McAllister v. Brooks 154 McArthur v. Home Life As- soc. 745 McAuly v. West Vt. Ry. 730 McBee v. Fulton 130 McBeth v. Trabue 627 McBlair v. Gibbes 599 McBridge v. Greenwood 437 McBroom v. Lebanon 502 »v. Thompson 724 McCabe v. Raney 644 McCaffrey v. Carter 219 McCall v. Carpenter 303, 314 v, Coover 432 v. Jones 56, 98 v. Powell 696 McCalley v. Robinson 170, 769 CITED. xlvii PAGE McCalley v. Wilburn 85 McCance v. London & North- western Ry. Co. 695, 698 McCann v, Atherton 685 McCarthy v. Chimney Con- struction Co. 406 v. Lavasche 498, 748 v. Lehigh Valley R. R. Co. 67 v. Mann 468 McCarty v. Lehigh 64 McClarin v. Anderson 61 McClure v. Commonwealth 496, 597, 744 v. Englehardt 377 v. Lewis 728 v. Livermore 695 v. Oxford 505 McComb v. Frink 767 McConihe v. Fales 388 McConnel v. Kibbe | 192 McConnell v. Bowdry 570, 572 v. Ory 696 v. People 756 v. Worms 696 McCoon -v. Smith 622, 627 McCormack v. Arizona Cent. Bank 637 McCormick v. Baltimore 691 v. Barnum 675 v. Bauer 113 v. Penna. Cent. R. Co. 151, 787 v. Sullivant 226, 228 McCoy v. McCoy 111, 225 McCramer v. Thompson 534 McCraw v. Old North Ins, Co. 721 McCrea v. Purmort 417, 515, 516 McCreary v. Parsons 493 McCreery v. Fuller 80 McCrory v. Parks 114 McCullough v. Clark 87 v. Dashiell 398 v, Wilson 625 McCune v. McMichael 781 McCusker v. McEvey 468, 479 McDaniel v. Hughes 344 McDonald v. Beatty 648 v. Grand Trunk R. Co. 292 v. Gregory 127 v. Hooker 790 v. Hooper 783 v. Lusk 408 v. McDonald 600 v. Mobile Ins. Co. 112, 170 v. Muscatine Bank 534 McDonnell v. Alabama Ins. Co. 504 xlviii CASES PAGH McDowell v. Graham 717 v. Langdon 67 v. McDowell 637, 696 », Peyton 235 McElmoyle v. Cohen 56, 298, 300, 312, 315 McEwen v. Jenks 633 McFall v. Kirkpatrick 110 McFarlane v. Cushman 59 McFeely v. Scott 229, 243 MeGee v. Prouty . 610 v. Wineholt 172, 174 McGilvray v. Avery 116, 340 McGirr v. Sell 634 MacGregor v. Rhodes 522 McGrew v. Grayston 785 McIntosh v. Parker 380 Mackintosh v. Smith 175 McIntire v. Yates 666 McKay v. Kilburn 141 McKee v. Monterey Co. 590, 748 McKeen v. Naughton 634 McKellar v. Bowell 162 McKelway v. Armour 674 McKenzie v. British Linen Co. 648, 662, 687, 688 v. Gleason 403 McKim v. Haley 163 McKinnie v. Lane 785 McKleroy v. Southern Bank 631 McKnight v. Dunlop 220 v. Pittsburgh 604 McLain v. Buliner MacLaren v. Grant McLaren v. Jones 369 McLaughlin v. Citizens’ Bldg. Assoc. 500 ». Doane 60 v. McGee 65, 145 McLean v. Dow 724 v. Meek 166, 348 v. State 746 McLeery v. McLeery 369, 433, 484 McLendon v. Dodge 308 MeLoud v. Power 117 McMahon v. Eagle Life As- sociation 303 0. Merrick 127 McManus v. Blakeney 632, 695 McMasters v. Ins. Co. 634, 684, ; 695, 697 McMath v. Teel 590 MeMicken v., Cincinnati 74 vo, Perin 599 MeMorris v. Webb 622, 623 MeMullin v. Glass 518 MeNairy v. Nashville 62 McNamara v. Arthur 64 676, 728, 729 . 171 CITED. PAGE McNamee v. Moorland 148 McNary v. Bush 55 MeNeely v. Hyde 53 MeNeil v. Hill 512 v. Tenth Natl. Bank 608 Macknet v. Macknet 743, 744 MeNutt v. Trogden 210 McPherson v. Foster 503, 504 v. Swift 56 McQueen’s Appeal 786 McQueen v. Bank of EHdge- mont 764 v. Gamble 783 v. McQueen 69 McRae v. Mattoon 239, 332 McReynolds v. Jones 745 McStea v. Matthews 608 MeWilliams v. Nisly 476 v. Ramsa : 600 Mackintosh v. Smith 175 Macon St. R. Co. v. Macon 503 Madison v, Alderson 637, 638 v, Larmon 734 Madison Co. v. Paxton 666 Magee v. Hallett - 372 v. Pacific Imp. Co. 504 Maghee v. Collins 188 Magnus v. Sleeper 89 Magoun v. New England Ins. Co. 49, 248, 250, 267, 280 Magrath v. Hardy 155 Magruder v. Esmay 432 Maguire v. Pan-American Co. 407 Mahurin v. Bickford 350 v. Harding 664 Maigley v. Hauer 516 Mailhouse v. Inloes 87 Major v. Rice 675 Majors v. Cowell 146 Males v. Lowenstein 75 Maley v. Shattuck 273 Malin v. Malin 651 Mallett v. Foxcroft 199 Malley v. Thalheimer 724 Malloney v. Horan 485 Mally v. Mally 171 Man v. Drexel 108, 184 Manchester Ry. Co. v. Will- iams 748 Manhattan Ins. Co. vv, Broughton 59 Manigault v. Deas 165 Mankin v. Chandler 259 Manning v. Boston El. Ry. 38 Manny v. Harris 98 Mansfield v. Hoagland 146 Manson v. Duncanson 51, 55 v. Peake 438 CASES PAGH Mansur v. Haughey 640, 693 Manufacturers’ Bank v. Haz- ard 687 Manuf. Co. v. Elizabeth 397 v, Montgomery 502 Maple v. Railroad Co. 135, 137 Maquoketa v. Willey 744 Mara v. Quine 86 Marble v. Keyes 215 Marco v. Fond du Lac Co, 509, 511 Marcy v. Oswego 507 Marine Bank v. Fiske 618 Marine Ins. Co. v. Hodgson 224 Mariner v. Milwaukee & St. Paul R. Co. 781 Marion Bank v. Dunkin 500, 503 Marion Road Co. v. McClure 671 Markham »v. Middleton 187 v. O’Connor 660 Markland Co, v. Kimmel 648 Markley v. People 95 Marlborough v. Sisson 215 Marquart v. Bradford 650 Marquette R. Co. v. Marcott 787 Marqueze v. Fernhadez 695 Marriot v. Marriot 235 Marriott v. Hampton 85, 102, 201, 212, 213 Marsh v. Atlantic Coast Line R. R. 61 v. Harris Manuf. Co. 598 v. Matheas 500 v. Pier 94 v. Thompson 388, 590 Marshall v. Fisher 132 vw. Foltz 648 v. Pierce 779 v. Shafter 144 Marston v. Hobbs 423 v. Swett 598 Martel v. East St. Louis 497 Martin v. Jersey City Ins. Co. 719 v. Kennard 355 v. Kennedy 123 v. Martin 88 v. Nichols 285, 286, 332 v. Stovall 255 v. Talley 163 v. Walker 112 v. Webb 613 v. Zellerbach 631 Marvin v. Dutcher 170 Mary, The 47, 278 Mason v, Anthony 604 v, Eldred 120 v. Finch 744 CITED. xlix PAGE Mason v. MHarper’s Ferry Bridge Co. 631, 634, 637, 641 v. Mason 380, 730 v. Messenger 239 v. Patterson 87 v. Philbrook 660 Masser v. Strickland 163 Massey v. Bldg. Assoc. 500 Massie v. Sebastian 370 Masterson v. Matthews 69 Matheney v. Mason 594 Mather v. Maidstone 530 Mathes v. Cover 160 Matthews v. Houghton 154 v. Matthews 76 Matthey v. Wiseman 156 Mattill v. Baas 486 Mattis v. Hosmer 389 Mattison v. Aussmuss 389 Mattock v. Lee 486 Mattoon v. Clapp 298, 312 v. Young 634 Mattox v. Hightshue 131 Maury v. Coleman 645 Maxwell v. Bay City Bridge Co. 641, 648, 695, 724, 729 v. Stewart 302 May, In re 59, 93 185, 209, 213 May v. Gates 631 v. Marks lll Mayenborg v. Haynes 618, peed 09 Mayer v. Erhardt 608 ov, Ramsey 682, 763 Mayfield v. Wadsley 220 Mayo v. Ah Loy 229 v. Cartwright 660 v. Leggett 608 v. Wood 160 Mayor v. Lord 223 v. Pyne 220 Mays v. Stoneum 69 Mead v. Bunn 683 v. Figh 615° v. Keeler 748 v. Mitchell 88 Meadows v. Duchess of Kings- ton 232, 236, 243 Meads v. Merchants’ Bank of Albany 540, 545 Means v. Hicks 162 Mecca, The 51, 277, 279, 330 Meddoweroft v. Huguenin 237, 242, 252, 253 Meeus v. Thellusson 330 Megargel v. Megargel 509 Megee v. Beirne 51, 52, 65, 259 Meily v. Butler 624 1 CASES CITED. PAGE Meiss v. Gill 762 Meister v. Birney 696, 702 Meley v. Collins 744 Melick v, First National Bank 207 Melms v. Werdehoff 609 Meltzer v. Doll 53, 127 Meluish v. Milton 235 Menasha v. Hazard 410, 507 Menaugh v. Chandler 406 Mendenhall v. Mendenhall 733 Menlove v. Oakes 327 Mercantile Co. v. River Plate Co. 128, 159, 160, 379 Mercantile Co-operative Bank v. Brown 667 Mercer County v. Hacket 507 Merchants’ Bank v. Chandler 154 v. National Bank 530 v. State Bank 505, 541 Merchants’ Ins. Co. wv. De Wolf 315 Merchants of the Staple v. Bank of England 493, 534, 712, 714 Mercier v. Chace 226, 229 Meredith v. Santa Clara As- 98 soc. Meredith Mechanics Ass’n v. American Twist Co. 94 Meriam v. Rundlett 154, 345 Merrells v. Phelps 656 Merriam v. Boston R. Co. 370, 380, 382, 621 v, Cunningham 626 v. Hassam 589 v. Merriam 65 v. Sewall 257 Merrick’s Estate 735 Merrill v. Welsher 641 Merritt v. Campbell 60 v. Harris 430, 438 v. Horne 628 Merryman v. Bourne 389 Mershon v. Williams 94 Mervin v. Kumbel 328 Messina v. Petrococchino 289 Metcalf v. Williams 733 Metropolitan Ry. Co. v. Chi- cago R. Co. 756 Metters v. Brown 146, 368 Mey v. Gullman 63 Meyer v. Clark 732 v. Mitchell 756 v. Muscatine 507 v. Purcell 147 ». Ralli 289, 290 v. Wiltshire 496 PAGE Michell v. Ingram 407 Michels v. Olmstead 787 Michigan v. Phoenix Bank 244 Michigan Cent. Ry. Co. v. Bullard Michigan Central R. Co. v. Phillips Michigan Co. v. State Ins. Co. Michigan Panelling Co. v. 570 514 722 Parsell 641, 651, 695 Michigan Ry. Co. v. Mellen 745 Middlesex Bank v. Beltman 290 Middleton’s Case 146 Middleton v. State 406 Midgeley v. Midgeley 119, 122 Midland R. Co. v. Hitchcock 666 v. Martin 67 Miester v. Spartanburg 503 Mihills Manuf. Co. v. Camp 663 Mildway v. Smith 605, 700, 701 Miles v. Caldwell 143 v. Furber 612 v. Lefi 609 v. Lingerman 622, 623 Milford v. Holbrook 148 Millard v. McMullin 364 Miller’s Appeal 652, 664 Miller v. Boss 187 v. Brooklyn Ins. Co. 509 ». Brown 724, 727 v. Cook 78, 110 v. Covert 215 v. Eagle Ins. Co. 720 v. Ewing 440, 441 v. Goodwin 515, 517 v. Hyde 744 ov. Lang 552, 562, 576 v. McBrier 569, 573 v. Manice 94, 208, 209 v. Miller 253, 330, 744 v. Moses 414 v. Noble 87 v. Phoenix Ins. Co. 722 v. Ross 648 v. Shacklefor 378 v. Sullivan 511 v. Weldon 761 v. White 154 v, Wilkins 633 Miller Brew. Co. v. Capital Ins. Co. 302 Millisent v. Millisent 254 Mills v, Catlin 439 ». Duryee 294, 297, 318 v. Graves - 778 v. Martin 230 Milne v. Van Buskirk 308, 334 Milster v. Spartanburg 632 CASES CITED. li PAGE Minet v. Gibson 524 Ming v. Olster 604 Minna Craig Steamship Co, ». Bank of India 47, 51 Minneapolis Assoc. v. Canfield 89 Minnesota Gas Light Co. »v. Denslow 500 Minor v. Walter 87, 221 Minot v. Sawyer 65 Miranville v. Silverthorn 652 Mitchel v. Barry 388, 591 Mitchell v. Cook 60 v. Darley Colliery Co. 172, ; 189 v. First Nat. Bank 112, 172 ». Horton 744, 751 v. Ingram 615 v. Kintzer 238 v. Lipe 588 v. Ostrom 612 v. Reed 708, 709 ». Sanford 85 v. Winslow 476, 483 Mix v. People 397 Mobile v. Kimball 63 Mobile Ry. Co. v. Wilkinson -515, 518 Moffat v. Strong 490, 549 Moffett v. Bates 738 Mohr v. Marks 785 Mojarrieta v. Saentz 641 Monarque v. Monarque 88 Mondel v. Steele 199, 200 Monin v. Beroujon 600 Monks v. Belden 695 Monroe v. Douglas 273, 291 v. Luke 784 Monson v. Tripp 618 Montague v. Weil 608 Montgomery’s Case 393 Montgomery v. Clark 271 ». Gordon 627 v. Keppel 687 v. Montgomery Plank Road Co. 503 v. Wasem 229, 723 v. Whitbeck 502 Mookerjee v. Deb 629 Mooney v. Hinds 336 Moore v. Beasley 552 v. Boyd 618 v. Byrum 483 v, Frazer 777 v. Fulham 212 v. Metropolitan Bank 608, 610 ». Russell 55 v. Spiegel 53, 685 PAGB Moore v. Toppan 226 v. Willis 464 Moore Brothers, In re 666 Moores v. Citizens’ Bank 539 Moors v. Albro 641 Moran v. Miami 504 Moran v. Miami County 507 Morback v. Young 763 More Hardware Co. v. Curry 168 Morgan, Ex parte 113 Morgan v. Bliss 59 v. Burr 98, 111, 170 v. Chester 125, 137 v. Elam 641 v, Larned 587 v. Moore 403 v. Muldoon 36, 147, 149 v. Railroad Co. 651, 693 ..v. Rowlands 188 v. Spangler 618, 709 v, Vaughan 786. Morin v. St. Paul Ry. Co. 257 Morrell v. Morgan 56, 62 Morris v. Bethell 530 v. Hall 745 v. Rexford | 732 v., Shannon 608 v. State 496, 748 v. Webber 254 Morris Co. v. Hinchman 153 Morris R. Co. v. Railroad Co. 504 Morrison v. Atkinson 783 Morrison v. Bassett 550, 552 v. Bowman 734 ». Holloday 49 v. New Bedford Inst. for Savings 156 v. Wilson 621 Morriss v. Garland 785 Morse v. Byam 633 ». Curtis 477 v. Dearborn 665, 666 v. Elms 106, 170, 179 v.- Goddard 562, 563, 564 v. Goold 69 v. Lowell 96, 752 v. Presby 226, 227, 228 v. Tappan 131 Morton v. Hodgdon 693 v. Noble 486 v. Sweetser 59 v. Woods 3938, 395, 582, 583, 584 Mosely v. Hunter 444 Moses v. McClain 380 v. MeFerlan 212 v. St. Louis Dock Co. 619 v. Sanford 724 2 lii CASES CITED. PAGE Moshier v. Frost 732 Moss v. McCullough 153, 164 v. Oakley 153 v, Sallimore 587, 589 Motley v. Harris | 94 Mott v. Consumers’ Ice Co. 787 Motz v. Detroit 502, 751, 755 Moulton v. Reid 145 v. Trask 216 Moultrie v. Savings Bank 507 Mount Morris Square, In re 74 Mountnoy v. Collier 582 Mowatt v. Castle Steel Co. 160, 489, 618 Mowrey v. Walsh 608 Moyer v. Lobengeir 157 Mudgett, In re 255 Mueller v. Henning lll Muhlenberg v. Druckenmiller 411 Mull v. Orme 73 Muller v. Pondir _ 685 Mulligan v. Smith 37, 227 Mullins v. Shrewsbury 146 Multnomas County v. White 598 Mumford v. Stocker 116 Muncey v. Joest 229 Munford v. Overseers 163 v. Pearce 388 Munroe v. Luke 784 Munson v. Munson 313 Murdock v. Chapman 403 ». Gaskill 62 Murphy v. Barnett 478 v. Ganey 648 v. People’s Ins. Co. 695 Murphy’s Estate, In re 600 Murray v. Blatchford 620 v, Jones 645, 746 v. Succession of Spencer 786 Murray Hill Min. Co. »w Havenor 490, 781 Murrell v. Smith 170 Muse v. Dantzler 644 Mussey v. Eagle Bank 540 Mutual Ben. Ins. Co. v. Eliza- beth 506 Mutual Ins. Co. v. Norris 666, 684, 697 Myers v. Beeman 52 v. Byas 696 v, Cronk 618 v. O'Hanlon 236 v. Uhrich 157 N. Naftzgen v. Gregg 64 Naglee v. Ingersoll 413 -Napton v. Leaton PAGH 325 Nashua Ins. Co. v. Moore 500 Nashville Ry. v. Proctor 389, 399 Nashville Ry. Co. v. United States 80 Nason v. ‘Allen 375 Nass v. Vanswearingen 651 Nathans v. Hope 94, 215 National Bank v. Bangs 520, 530, 531, 532 v. Case 610 v. Gillilan 133 National Ins. Co. v. Bowman 500 Nations v. Johnson 313 Neal v. Electric Co. 735 Neale v. Jeter 116 Near v. Green 693 Needham v. Bremner 253 Needles v. Frost 300 Neff v. Bates 693 Neill ». Devonshire 36, 128, 259 Nellis v. Lathrop 561 Nelson v. Boynton 254 v. Cowing 610 v. Kelly 682 v. Oldfield 271 v. Woodruff 514 Nemetty v. Naylor 85, 142 Nesbit v. Riverside 90, 107 v. Riverside Indep. Dist. 111, 210 Neusbaum v. Keim 80 Nevett v. Berry 408 Neville v. Hancock 122, 124 Nevitt v. Woodburn 163 New Bedford v. Hingham 722, 723 Newbery v. Fox “497 ov. Ruffin 55 Newburyport Inst. v. Puffer 171 Newcomb v. Presbrey 442 Newell v. Holton 519, 603 v. Meyendorfft 783 v. Nixon 612 New England Ins. Co. v. Dun- ham 247 New Eng. Structural Co. ». Everett Co. 403 Newhall v. Hatch 763 New Haven v. Fairhaven & W. R. Co. 650 New Haven R. Co. v. Chat- ham 497 Newington v. Levy 95, 209, 225 New Jersey Franklinite Co. v., Ames 153 Newlands v. .National Em- ployers’ Accident Assoc. 614 CASES CITED. PAGE Newman v. Moore 622 v, Waterman 255 Newnham v. Stevenson 743 New Orleans v. Citizens’ Bank 10, 95, 112, 152 v. Riddell 430 New Orleans R. Co. v. Jones 730 Newport Bridge Co. v. Doug- lass 371 New Providence v. Halsey 506 Newsom v. Coles 611 Newton v. Egmont 153 v. Marshall 362 v, Walters 155 New York v. New York R. R. Co. 110 v. Sonneborn 597, 598 New York Ins. Co. v. Clem- mitt 78, 110 New York Rubber Co. v. Rothery 651, 661 New Zealand Banking Cor- poration, In re 678 Nichol v. Alexander 471 v. Mason 342 Nicholas v. Austin 650 Nichols v. Crosby 632 v. James 612 v. Lord 168 v. Pool 608 Nicholson v. Caress 370, 437 v. Randall Banking Co, 489 v. Snyder 763 Nickells v. Atherstone 568 Nickels v. Hancock 76 Nickerson v. Mass. Title Ins. Co. 688 Nickless v. Pearson : 61 Nicodemus v. East Saginaw 755 Niehoff v. People 138 Nieto v. Carpenter 372 Nims v. Sherman 547, 552, 778 Nispel v. Laparle 61 Nitche v. Earle 783 Niven v. Belknap 628, 650, 723 Nix v. Collins 778 Nixon v. Halley 624 Noble ». Blount 763 ». Chrisman 675 v. Cope 412 v. Gold 294 Noe v. Splivalo 362, 734 v. Union River Logging Co. Noel v. Bewley 476 v. Kinney 620, 624 Noell v. Wells 233, 254 Noonan v. Ilsley 471 liii PAGE Norfolk v. Nottingham 693 Norridgewock v. Madison 721 Norris v. Hall 154 v. Norton 384 v. State 406 v. Wait 627 North v. Henneberry 383 v. Mudge 80 North Bank v. Brown 342 Northern Bank v. Porter 410, 503, 504, 505, 506 Northern P. R. Co. v. Slaght 61 Northern Packet Co. v. Platt 695 Northern Trust Co. v. Crystal Lake Ass’n 86 Northwestern Packet Co. v. Shaw 504 Norton v. Coons 635 v. Doherty 92 v. Huxley 92 v. Norton 391, 743 Norwood v. Kirby 184, 553, 555 v. Lassiter 746 Noton v. Brooks 598 Nougué v. Clapp 243, 333 Nourse v. Nourse 380 Nouvion v. Freeman 263, 288, 313, 338, 339, 770 Novelli v. Rossi 288 Nugent v. Powell 35 Nunn v. Mather 63 0. Oakes v. Manufactures Ins. 0. 718, 733 Oakland v. Oakland 64 Oakland Paving Co. v. Rier 496, 505 O’Beirne v. Lloyd 216 Obicini v. Bligh : 288, 338 O’Brien v. Wetherell 590 O’Bryan v. Glenn 733 Ocean Bank v. Olcott 331 Ocean Ins. Co. v. Francis 49, 267 Ochsenbein v. Papelier 281, 336 O’Connell v. McNamara 115 v. O’Leary 53 O’Connor v. O’Connor 65 v. Malone 53 v. Varney 207, 208 Oddie v. National Bank 532 O'Dell v. Little 624 O’Donaghue v. Smith 87 O’Donnell v. Clinton 685 v. Penney 675 O’Dougherty v. Remington Paper Co. 215 liv CASES CITED. PAGE PAGE Offley v. Ormes 548 Padbury v. Clark 736 Ogden v. Rowley 789 Padfield v. Pierce 746 Ogdensburgh R. Co. v. Ver- Page v. Austin 632, 703 mont R. Co. 786 v. Butler 407 Ogle v.: Atkinson 586, 594 v. Kinsman 552 v. Smith 699 v. Smith 392 Oglesby Coal Co. v. Pasco 624 Page Co. v. B. & M. R. Co. 751 O’Halloran v. Fitzgerald 589 Paige v. Sherman 517 Ohning v. Evansville 163 Painter v. Hogue 112 O’Keefe v. Irvington Co. 63 Palmer v. Bowker 582 Oklahoma v. McMaster 53 ». Ekins 548 Oleott v. Little 121 v. MeNatt 688, 695 Old Colony Co. v. Parker 153 v. Meiners 695 Oldham v. Ledbetter 157 vo. Sanger 67 O’Linda v. Lothrop 403 v. Smith 746 Oliver v. Bank of England 603, v. Temple 792 664 v. Williams 642 v. Holt 215 Pancoast v. Travelers’ Ins. Olney v. Sawyer 378 Co. 502, 589 O’Meara v. McDermott 744 Pappe v. Trout 550 O’Mulcahey v. Holley 648 Pardon v. Dwire 226 O’Neal v. Brown 215 Pargeter v. Harris 393, 583, 584 ‘ Ontario v. Hill 410, 507 Parham v. Randolph 683 Onward Bldg. Soe. v. Smith- Parish v. Parish 229 son 2 399, 641, 671 Park Bank v. Remsen 64 Oregonian Ry. Co. v». Oregon Parker v. Banks 663 Ry. Co. 495, 500, 501, 502, 514, v. Barker 658 670, 746, 772 v. Bennett 403 Organ v. Stewart 697 o. Crittenden 630 Orient Min. Co. v. Freckleton 652 v. Dacres 764, 781 Orleans v. Platt 129, 410, 507 v. Judges 224 Ormes v. Dauchy 788 ». Manning 373 Ormond v. Moye 52 .~. Moore 146, 151, 685 Osborn v. Elder 614 v. Smith 403 v. Phoenix Ins. Co. 722 v, Thompson 38 Osgood v. Abbott 366 = Parkes v. Clift 171 v. Nichols 593 Parkhurst v. Burdell 114 Osterhout v. Shoemaker 376, 389, v. Van Courtland 651 : 390, 478 Parkinson v. Sherman 404 Otis v. McMillan 554, 577 Parks v. Dunlap 56 v. Sill 652 Parnell v. Hahn 142, 170, 173 Otterson v. Middleton 239 = Parrotte v. Dryden 61 Outram v. Morewood 103, 796 =Parry-Herrick v. Atwood 713 Over v. Schiffling 612 Parsons v. Rolfe 382 Overseers v. Overseers 553 ~—- Partridge v. Bere 589 Overton v. Banister 627 ». Kingman 612 v. Harvey 792 v. Messer 383 Owen v. Robbins 377 Pasley v. Freeman 604, 635, 665, v, Slatter 654 669, 684 Owens v. Henry 330 Patch v. Ward 238, 336 Owensboro v, Commonwealth 112 Pate v. Harper 699 Oxborough v. Borsser 74 v. Turner 555 Patrick v. Jones 696 Patterson v. Baumer 755 P. v. Fraser 131 v. Hansel 570 Pacific R. R. v. United States 786 v. Lawrence 269, 624 Packet Co. v. Sickles 38, 97 v, Read 745 CASES CITED. lv PAGE Patton v. Loughridge 207 Paul v. Keenz 625 v, Witman 149 Pausch v. Guerrard 640 Pawling v. Bird 290, 294 Payment v. Church 666 Payne v. Burnham 604, 710 v. O’Shea 238 v. Payne 185 Peabody v. Lloyd’s Bankers 161 Peake v. New Orleans 755 v. Thomas 684 Pearce v. Olney 224, 300, 333, 334 Pearl v. Harris 75 Pease v. Whitten 75 Peaslee v. Robbins 538 Peck v. Vandenberg 509 v. Woodbridge 241 Pederson v. Chiefstofferson 392 Peebles v. Pate 127 Peek v. Gurney 628, 643, 708, 709 Peery v. Hall 632 Pells v. Webquish 380 Pelletreau v. Jackson 393 Pelton v. Platner 355 Pemberton v. Hughes 55, 318, 326 Pence v. Arbuckle 608, 618, 684, 687 Pendleton v. Dalton 64, 224, 789 vw. Dyett 563 v. Richey 647 Pendley v. Madison 377 Pennell v. Felch 747 Pennington v. Gibson 313 Pennoyer v. Neff 51, 325 Penny v. Corey 210 Penobscot R. Co. ». Weeks 226, 229 Penrose v. Curren 624 v. Griffith 372, 432 People v. Baker 270 v. Bank of North Amer- ica 662, 688, 697 wv. Brown 372, 631 v. Dawell 270 v. Goodwin 754 ». Hall 145 ». Hammond 406 v. John 130 v. Johnson 170, 184 v. Judges of Monroe Co. 148~ v. Lundquist 551 v. Maxon 497 v. Murray 145, 751 v. New York 756 v. Phoenix Bank 238 ©, Plumpke 674 v. Reeder 511 PAGH People v. Sherman 318 v, Schuyler 76 v. Sterling Manuf. Co. 748 v. Stockton R. Co. 786, 787 v. Townsend 238 0. Waite 749 v. White 539 People’s Bank v. Hodgdon 87 Peoria R. Co. v. Thompson 504 Pepper v. Zahnsinger 612 Perdue v. Brooks 496 Perkins v. Coleman 127 v. Conant 609 v. Gay 673, 674, 675 v. Hart 220 v. Jones 789 v. Moore ; 61 v. Parker 60, 67, 98, 94 v. Walker 98, 179, 184, 769 Perrine v. Serrell © 205 Perry v. Cheboygan 662, 755 v. Dow 661 v. Harrington 220 v. Meddowcroft 237, 242, 252, 253 v. Williams 615 Perryman v. Greenville 590, 592, 748, 752 Pershing v. Canfield 592 Pervear v. Kimball 135 Peters v. Bowman 388 v, Sanford 120 v. Warren Ins. Co. 265 Petersine v. Thomas 171 Peterson v. Kinkead 547 v. Woolen 406 Petitpierre v. Maguire 403 -Petrie v. Nuttall 127 Petring v. Chrisler 775 Pettis v. Johnson 131 v. McLain 61 Pettyjohn v. Nat. Exchange Bank 648 Peyton-v. Stith 578 ». Woolen Mills 764 Pfiffner v. Krapfel 54, 336 Phelan v. Moss 534 v. Tyler 87 Phelps v. Harris 56, 63 v. Illinois Cent. R. Co. 634 v. White 665 Philadelphia v. Matchett 609 Philadelphia R. Co. v. How- ard 789 Philbrick v. Shaw 363 Philips v. Bury 254 Phillipps v. Van Shack 763 Phillips v. Berick 98, 215, 767 li CASES CITED. PAGE Phillips v. Brown 650 v. Gallant 684 v. Godfrey 310 ». Hunter 284, 344 v, Rogers 745 ©. Thurn 524, 529 v. Ward 122 Phillpotts v. Blasdell 144 Phinney v. Johnson 682 Phoenix Ins. Co. v. Doster 718, 722 Phoenix Warehouse Oo. v. Badger 500 Phosphate Sewage Co. v. Mal- leson 224 Pickard v. Sears 491, 494, 604, 605, 609, 617, 628, 649, 686, 687, 690, 698, 700, 723, 779 Pickering v. Busk 608 v. Cape Town Ry. Co. 77, 78 Pickett v. Merchants’ Bank 744 v Nelson 675 v. Pipkin 50, 168 Pico v. Webster 142 Pierce v. Andrews 685, 693, 694 »v, Carleton 157 v. Chicago R. Co. 158 Pierrepont v. Barnard 647 Pike v. Fay 635 v. Galvin 441 v. Potter 113 », Stallings 745 Pilcher v. Ligon 216 Pim v. Curell 36, 128, 259 Pinckard v. Milmine 397 Pinney v. Barnes 215 Pitcher v. Dove 672, 674, 684 Pitman v. Albany 74, 258 Pitt v. Berkshire Ins. Co. 509 v. Chappelow 536, 537 Pittapur v. Garu 46, 103, 251 Pittsburgh Ry. Co. v. Swin- ney 785, 786, 790 Placer Co. v. Astin 590 Planché v. Colburn 216 Plant v. Carpenter 61 v. Voegelin 644 Planters’ Bank v. Merritt 746 Planters’ Ins. Co. v. Selma Bank 645, 685 Platt v. Squire 363, 393, 775 Platter v. Elkhart 619 Plets v. Johnson. 524 Plott v. Chicago R. Co. 722 Plumb v, Cattaraugus Mut. Ins. Co. 774 Plume v. Beale 271 v. Howard Inst. 226, 254 Plumer v. Lord 638, Plummer v. Farmers’ Bank v. Mold PAGE 684 644, 645 682 v. Woodburne 313, 318, 338, 343, 355, 770 Pole v. Somers 737 Pollard v. Cocke 377 v. Hanrick 111 v. Railroad Co. 143 Pomeroy v. Prescott 216 Pond v. Makepeace 166, 348 v. Pond 165, 359 Pool v. Lamb 552 v. Lewis 781 Poole v. Dilworth 111 v. Whitt 564 Poor v. Robinson 368, 369 Poorman v. Crane 322 v. Mitchell 771 Pope v. Bank of Albion 545 v. Benster 746 Porter v. Armstrong 764 v. Ingraham 124 v. Lazear 486 v. Porter 229 v. Purdy 231 v. Robinson 132 v. Wagner 64, 170, 171 v. Wheeler 660 Portland v. Bituminous Pav. Co. 502 Potter v. Brown 748 v. Hollister 633 »v. Parsons 334 Potts v. Coleman 592 Poulton v. Adjustable Cover Co. lll Powell’s Appeal 370, 621, 624 Powell v. Clelland 74 v. Monson & M. Co. 371, 385 v. Rodgers 695 Power v. Clelland 74 Powers v. Bohuslar 783 v. Harris 608 v. Patten 437 Pratt v. Cunliff 156, 157 v. Farrer 582 v. Nixon 404 Pray v. Hegeman 168, 170, 171, 172, 184 Preble v. Baldwin 517 v. Conger 641 Prentice v. Stefan 633 Prescott v. Hull 346 Presidio County v. Noel- Young Co. 410 Presstman v. Silljacks 559 CASES PAGH Preston v. Mann 644, 665, 667 Prestwick v. Marshall 536 Prevot v. Lawrence 570 Price v. Breckenridge 784 v. Dewhurst 281 v. Jennings 626 v. Neal 520, 531, 666 v. Pollock 364 v, Stratton 660 v. Thompson 693 Prichard v. Houlditch 550 Prickett v. Sibert 664 Priest v. Foster 64 Priestly v. Fernie 135, 139 Priestman v. Thomas 234 Prince v. Antle 55 v. Brunette 536 Princeton v. Templeton 750 Pritchard v. Hitchcock 162 Pritchet v. Clark 290 Probate Court v. St. Clair 695 Probstfield v. Czizek 597 Proctor’s Case 69 Proctor v. Bennis 651, 660, 664 v. Cole 56 v. Putnam Machine Co. 673 Prondzirski v. Gorbut 63 Proskauer v. People’s Sav. Bank 755 Prosser v. Evans 117, 214 Prout v. Wiley 744 Prouty v. Mather 439 Providence v. Adams 170 v. Washington Ins. Co. 732 Providence Ins. Co. v. Fen- nell 509 v. Wolf 785 Prudam v. Philips 234, 254 Pruitt v. Holly 98, 767 Puckett v. Pope ~ 320 Pulaski v. State 372, 619 Pulliam v. Burlinghame 593, 594 Pullman v. Upton 507, 610 Purdy v. Coar 389 v. Doyle 116 Pursly v. Hays 746 Putnam v. Clark 111 v. Tyler 664 Pyle v. Piercy 56 Q. Quackenbush v. Ehle 60 Queen v. Hutchins 53 Quigley v. Mexico Bank 127 Quinlan v. Myers 727 Quirk v, Thomas 709 CITED. lvii PAGE R. Rabitte v. Orr 608, 609, 612, 732 Radcliff v. United States Ins. Co. 49, 267 Radford Trust Co. v. Tenn. Lumber Co. 36 Radway v. Graham 785 Railroad v. Brigman 64, 193 Railroad Co. v. Dubois 652 v. National Bank 127 vo. Schulte 179 v. Schurmeir 372 Railway Ass’n v. Beddow 720 Railway Co. v. Daniel 611 v. Graham 610 v. McCarthy 504, 783 v. Ramsey 226, 784 Rainbolt v. Eddy 534 Rainey v. Hines 28, 702 Rainford v. Massengale 612 Raley v. Ross 590 v, Williams 670 Ralston v. Lahee 132 Ramsden v. Dyson 664, 674, 723, 724, 729 Ramsey v. Henderson 786 Ranclyffe v. Parkyns 736 Rand v. Hanson 322 Randall v. Hill’s Dry Docks 731 v. Lower 391, 429, 448, 449 Randolph v. Keiler 313 Rangeley v. Spring 621, 781 Rangely v. Webster 301, 341 Rankin v. Barnes 312 v. Godard 290 ov. Warner 361 Rannels v. Gerner 621, 624 Ransom v. Stanberry 763, 764 Rape v. Heaton 325 Rapelee v. Stewart 746 Rapelye v. Prince 149 Raphael v. Crittenden 500 Rathbone v. Boyd 617 v. Hooney 146 Ravee v. Farmer 76, 185, 211 Rawlinson v. Stone 536 Ray v. Gardner 389 v. Indianapolis Ins. Co. 502 v. MeMurtry 696 Raymond v. Crown Mills 139 v. Holden 371, 485 v. Richmond 127, 168 Raynor v. Timerson 674 Read v. Hall 624 v. Sutton 38 v. Walker 177 Reagan v. Hadley 696 Iviii PAGE Reciprocity Bank, In re 610 Rector v. Board of Improve- ment 648, 660, 661, 750 v. Waugh 445 Rectro v. Waugh 445 Redd v. Muscogee R. Co. 608 Redgrave v. Hurd 281, 664, 682, 683 Redington v. Woods 534 Redman v. Graham 608 Redwood v. Tower 397 Redwood Cemetery Assoc. v. Bandy 691, 726 Reed v. Citizens Ry. Co. 764 v. Douglas 172 v. Farr 7 674 v. Girty 302 v, Jackson 36 v. Lyon 568, 570 v. McCourt 416, 674 v. Nicholson 53 v, Peterson 748, 750 Rees v. Chicago 750 v. Lloyd 432 Reese v. Caffee 547 v. Smith 471 Reese Silver Mining Co. ». Smith 664 Reeves v. Brooks 486 v. Howes 370 Regina v. Ambergate Ry. Co. 618 v. Blakemore 161 v. Buckinghamshire 790 vo. Guyot 288 v. Liverpool, 790 v. Salop 790 v. Shropshire Union Co. 608 v. Wright 281 Reichert v. Voss 744 Reid v. Darby 278 ov. Holmes 133 ». State 371, 619 Reigard v. McNeil 748 Reilly v. Perkins 64 v. Sicilian Pav. Co. 94, 189 Reimers v. Druce 289 Reis v.' Lawrence 624, 626 Reiss v. Hanchett 648 Remillard v, Authier 145 Remington Paper Co. vw. O’Dougherty 767 Remmett v. Lawrence 701 Remsden v. Dyson 651 Remsen v. Graves 538 Renaud v. Abbot 302, 303 Rennick v. Bank of Chilli- cothe 746 Rennie v. Robinson 555 CASES CITED. PAGE Rennie v. Young 723 Reno v. Cleveland-Trinidad Pav. Co. 114 Renovo v. Half Moon 257 Repass v. Richmond 695 Requa v. Holmes 745 Ressequie v. Byers 84, 199, 203 Ressier v. Grimme 74 Reutzer v. McKinney 634 Rex v, Bentley 257 v. Bradenham 258 v. Cirencester 257 ». Grundon 70, 254 v. Rhodes 254 v. St. Pancras 102 v. Scammonden 517 ». Vincent 233, 254 Reynolds v. Blackburn - 788 v. Fitzpatrick 785 v. Hennessy 63 #. Lyon Co. 112 v, Pascoe 764 v. Stockton 134, 169, 173, 313 Rhodes v. Ashurst 598 Ricard v. Sanderson 404 Ricardo v. Garcino 288 Rice v. Barrett 612 v. Bunce 664 v. Dewey 660 v. Reed 125, 786 v. Rice 512, 608 v. Rock Island R. Co. 748 Rich v. Coe 136 v. Morisey 56 v. Rich 182 Richards v. Barlow 267, 288, 302 v. Johnston 631 vo. Shepard 637 Richardson v. Boston 192, 771 v, Hickman 156 v. Penny 406 v. Stewart 143 v. Wyman 485 Richey v. Bues 60 Richie v. Cralle 764 Richman v. Baldwin 697 Richstein v. Welch 98 Riddle v. Hill 496 v. Murphy 376, 377 Rider v. Alexander 314 Ridgefield v. Reynolds 755 Riggan v. Green 538 Riggs v. Pursell 65 Riggs Cypress Co. v. Albert Lumber Co. 59 Right v. Bucknell 398, 410, 411, 432, 460 CASES CITED. 4 PAGE Riker v. Hooper 94 Rikhoff v. Brown’s Sewing Machine Co. 498 Riley v. Murray 308 Rimmer v. Webster 512, 608 Rio Grand Ry. Co. v. Tellu- ride Co. 763 Ripley v. Aetna Ins. Co. 720, 744 v. Billings 642 Ritchey v. Withers 254 Ritchie v. McMullen 282, 292, a Rivard v. Gardner 701 Riverdale Cotton Alabama Mfg. Co. Mills vu. 226 Riverside Co. v. Townshend 171, 202 Roach v. Brannon 641 v. Curtis 94 v. Garvan 254, 269 v. White 484, 652 Robb v. Shephard 685 v. Vos 693, 708, 733, 739 Robbins v. Blodgett 695 v. Bridgewater 243 v. Magee 764 v. Potter 682 Roberts v. Abbott 632 v. Cooper 78 v. Davis 697 v. Northern P. R. Co. 109, 210, 652, 730, v. Read 191 v. Rice 185 . Wentworth 699 Rdlier tau v. Pickrell 376, 377, 388 v. Roberts 156 v. Smith 120 v. Struth 287, 338 Robeson v. Carpenter 156 Robins v. Crutchley 233, 252, 254 Robinson’s Case 146 Robinson v. Bates 485 v. Douthit 469, 481 v. Green 220 v, Howard 60 v. Jones 47, 276 ». Pebworth 745, 746 v. Prescott 350 v. Salt Lake City 59 v. Snyder 220 v. Thornton 389 v. Ward 322 v. Yarrow 525, 527 Robson v. Eaton 321 Roby v. Chicago 497, 745 Rochell v. Benson 389 Rock v. Leighton 86, 147 lix PAGD Rockwell v». Brown 192 Roderick v. McMeekin 397 Rodermund v. Clark 732, 739, 746, 784 Rodgers v. Levy 56 Rodney v. Gibbs 53 Roe v. Jerome 647 v. Roe 194 Rogers v. Beauchamp 36, 38 v. Blackwell 538 v. Brown 633 v. Burlington 507 v. Burns 308 v, Cromack 699 v, Grannis 166, 359 v. Gwinn 333 v. Haines 143 v. Higgins 622 v. Kimsey 89 v. Lambert 597 v. Marsh 695 v. Odell 342 v. Pitcher 565, 573, 575 v. Portland & B. St. Ry. 685 v. Ratcliff 184 . Rogers 62, 304, 309 . Wood 67 Rollins v. Quimby 683 Romford Canal Co., In re 397, pee 50 Root v. Crock 432, 445 v. French 608 v. Lowndes 192, 194 Rose v. Himely 277 v. Hurley 644 Rosebrough v. Ansley __, 604 Rosenthal v. Mayhugh 486, 624, 684 v. Renick 348 Ross v. Banta 4, 634 v. Dysart 564 v. New England Ins. Co. 113 v. Thompson 651 Rossire v. Boston 750 Roswald v. Hobbie 515, 594, 615 Rothrock v. Dwelling House Ins. Co. 319 Roundtree v. Turner 78 Rountree v. Denson 446 Rousillon v. Rousillon 54, 226, 263, 292, 318, 326, 330 Routledge v. Hislop 223 Rowe v. Smith 84 v. Williams 75 Rowell v. Weinemann 675 Rowley v. Bigelow 513, 514 v. Howard 228 v. Towsley 735 lx CASES PAGH Rubber Co. v. Goodyear 73, 652 Ruckelschaus v. Borcherling 648 Rudd v. Cornell 53, 64, 113 v. Matthews 532 Ruegger v. Indianapolis R. Co. 170 Ruff v. Ruff 157 Ruffin v. Johnson 432 Ruggles v. Bernstein 138, 163 Rumball v. Metropolitan Bank 608 Rumfelt v. Clemens 623 Ruppin v. McLachlan 86 Rush Co. v. State 508, 619 . Rusk v. Fenton 624 Russ v. Alpaugh 422, 423, 438, 468 Russell v. Chicago Ry. Co. 727 ov. Erwin 554 v. Fabyan 552 v. Kierney 633, 774 v. Mallon 147, 148 o. Place 63, 64, 67, 172 v. Smyth 263 Rust v. Bennett 641 Ruth v. Oberbrunner 254 Rutherford v. Davis 72 v. Taylor 693 ». Tracy 674 Rutland v. Rutland 166 Rutledge v. Mo. Pac. Ry. Co. I11 Rutter v. Puckhover 133 Rutz v. Kehn 480 Ryan v. Growney 628 v. Maxey 624 v. United States 429 Ryder v. Mansell 548, 559 Ss. Sacket v. Loomis 84 Sadler v. Jefferson 559 Saeger v. Mueller 503 Sage v. Halverson 548 v. McLaughlin 619 Sahler v. Signer 586 Sainsbury v. Jones 669 St. John v. Building Ass’n 751 v. Palmer 564 v. Quitzow 559 v. Roberts 409, 546, 634 St. Joseph v. Union Ry. Co. 149 St. Joseph Manuf. Co. v. Dag- gett 619, 697 St. Louis v. Davidson 501, 746 v. St. Louis Gas Co. 682 v. Shields 500 St. Louis Gas -Co. wv. St. Louis 502 St. Louis & Iron Mountain R. Co. v. Larned 664, 665 CITED. PAGE St. Louis R. Co. v. Belleville 367, 508, 619 St. Louis Stock Yards v. Wig- gins Ferry Co. 724 St. Paul’s Church v. Homer 652 St. Paul R. Co. v. First Div. St. Paul & P. R. Co. 372 Sale v. Eichberg 198 Salem v. Eastern R. R. 49, 127 ‘Salem Imp. Co. v. McCourt 431 Salisbury Sav. Soc. v. Cut- ting 469 Salter v. Kidley 398 Saltus v. Everett 608 San Antonio v. Mehaffy 504, 507 Sanborn v. Fellows 243 Sanders v. Robertson 618 Sanderson v. Collman 537, 763 Sands v. Davis 376, 389 Sanford v. Cloud” 592 v. Sanford 332, 438, 742° v. Tanner 145 Sanger v. Wood 370, 624, 739: Sanitary Dist. v. Met. El. Ry. Co 497 Saratoga Bank v. Pruyn 370, 624 Sarchet v. Sloop Davis 312 Sargeant v. Andrews 154 Sargent v. Fitzpatrick 208 ' ». Flaid 784 Saunders v. Merryweather 395, 583 Savage’s Case 154 Savage v. Burnham 738 v. Dowd 634 v. Russell 500, 783 Saveland v. Green 147 Savings v. Littlefield 654 Sawyer v. Maine Insurance Co. 265, 278 »v. Woodbury 67, 171, 204, 208 Saxton v. Dodge 599 Sayles v. Briggs 38, 98 v. Smith 592 Sbarbero v. Miller 146 Scanlan v. O’Brien 615 ». Grimmer 404 Scanlon v. Walshe 783 Scarborough v. Woodley 764 Seates v. King 159, 378, 664, 682 Schaefer v. Werling 314 Schaeffer v. Bonham 503, 504, 505 Schaidt v. Blaul 651, 724 Scharfenburg v. New Decatur 489 Schenck v. Stumpf 622 Schertz v. People 56 Schettler v. Lynch 693 CASES PAGD Schibsby v. Westenholz 45, 226, 263, 317, 318, 326, 330 Schloss v. Estey 787 Schmaltz v. Avery 701 Schmidt v. Mutual Ins. Co. 721 v. San Francisco 727 Schnell v. Chicago 622, 626 Scholey v. Rew 732, 737 v. Olympia Light Co. 392 Scholfield v. Leondesborough 493, 524 School Directors v. Ashville 61 School Dist. v. Atherton 744 53, 170, 184, 278 397, 398, 399, 410, 506 53 634 v. Stocker v. Stone School Trustees v. Stocker Schoonover v. Osborn Schraeder Mining Co. vw. Packer 673, 674 Schroeder v. Lahrman 129, 151 Schuler v. Ford 159 v. Israel 116 v. Schuler 300 Schultz v. Allyn 629 Schwallback v. Chicago R. Co. 377 Schwartz v. Saunders 622, 624 Schwinger v. Hickok 325 v. Raymond 196 Scolly v. Butler 787 Scotland v. Hill 112 Scott v. Avery 75 v. Bank of New Bruns- wick 688 v. Board of Comm’rs 754 v. Liverpool 75 ov. Pilkington 286, 287, 288, 315, 341 v. Shearman 248 v, Strawn 727 v. Ware 36, 164 Seovill v. Thayer 507 Seranton v. Stewart 621 Serimshire v. Scrimshire 270 Seabrook v. Brown 406 Seavey v. Kirkpatrick 388, 591 Sears v. Davis 608 Seaton v. Grimm 499 Seavey v. Kirkpatrick 388, 591 Sebrell v. Hughes 388 Sebright v. Moore 608 Secombe v. Railroad Co. 228 Second Nat’l Bank v. Wal- bridge 514, 671, 677 Secor v. Sturgis 95, 220 Secrist v. Green 167, 229 v, Zimmerman 80 Security Bank v. Nat’l Bank 619 CITED. Ixi PAGR Seddon v. Tutop 187, 216, 217, 768 Seeman v. Springate 621 Segee v. Thomas 229, 318 Semple v. Bank 502 Seneca v. Allen 592, 745 Sergeant v. Ewing 112, 165 Serrao v. Noel 171, 172, 189, 191 Sessions v. Johnson 120, 125 v. Rice 684 v. Stevens 154 Seton v. Lafone 493, 534, 632, 671, 713, 715 Severin v. Eddy 150 Sewall v. Hebert 756 v. Sewall 270, 271 Sewell’s Case 678 Seymor’s Case 460 Seymour v. Page 642, 645 v. Slide Gold Mines 551, 586 v. Wallace 159 Sexton v. Chicago 619 Shakespeare v. Caldwell: Land Cc 198 0. Shamleffer v. Peerless Mill Co. 620 Shane v. Moberly 691 Shankle v. Whitley 202 Share v. Becker 766 Sharp, In re 506, 754, 755 Sharp v. Findley 132 v. Taylor 599 Sharpe v. San Paulo Ry. Co. 75 Shaver v. Shell 72 Shaw v. Beebe 480, 781 v. Gould 270 v. Lindsey 144 v. Shaw 738 Shawhan v. Loffer 229, 318 Shay v. McNamara 152, 160, 379 Shedd v. Webb 607 Sheehan v. Fitchburg 750 Sheehy v. Mandeville 117, 119, 120 Sheen v. Stothert 403, 727 Sheffey v. Gardiner 411, 412 Sheffield v. Collier 724 v. London Joint Stock Bank 614 Shelbury v. Scotsford 596 Sheldon v. Atlantic Ins. Co. 509 v, Cooke 406 v. Hopkins 355 ». Kibbe 125 v, Stryker 80 ». Wright 229 Sheldon Hat Co. v. Eichmeyer Hat Co, 493 lxii PAGE Shelley v. Wright 398, 401 Shelton v, Aultman 609 v. Carrol 576 v. Tiffin 282, 321, 325 Shepard v. Barron 751 Shepard Lumber Co. v. EI- dridge 530, 696 Shephard v. Little 515 Shepherd v. May 618, 710 Sheridan v. Barrett 674 »v. The New Quay Co. 596 Sherlen v. Whelen 380 Sherman v. Christy 80 uv. MeKeon 745, 785 «. Parish 744 ». Simons 506 v. Spaulding 559 Sherrard v. Nevius 232 Sherrod v. Langdon 612 Sherwood v. Alvis 499, 500 ». Vandenburgh 375 Shew v. Call 159 Shields v. Schiff 56 v. Smith 639 Shillock v. Gilbert 682 Shinew v. First Nat. Bank 648 Shinn v. Young 170, 184 Shipley v. Fox 682 Shirk v. North 620 Shirland »v. First National Bank 83, 85 Shirreff v. Wilks 612 Shivers v. Simmons 627 v. Wilson 355 Shoe Machinery Co. v. Cut- land 96, 112 Shoemaker v. Atkins 209 v. Finlayson 152 Shores v. Hooper 49 Shorman v. Eakin 380, 495, 547, 590 Short v. Currier 648 v. Taylor 80 Showers v. Robinson 778 Shreve v. Copper Bell Min. Co 431 Shroyer v, Richmond 406 Shubert v. Winston 783 Shufeldt v. Buckley 355 Shultz v. Elliott 569, 573 Shumaker v. Johnson 438, 621 Shumway v. Stillman 297, 321, 331 Shuttlesworth v. Hughey 112 Sickels v. Patterson Sidensparker v. Sidensparker 168 Sidney Coal Co. v. Sword 364 Sigerson v. Mathews 731 CASES CITED. PAGE Silloway v. Brown 418 Silva v. Pickard _ 112 Silver Lake Bank v. Harding 352 Simers v, Saltus 564 Simm v. Anglo-American Tel. Co. 699 Simmons v. Camp 608, 644 v. McKay 227 o. Saul 297 Simons v. De Bare 228 Simonton v. Liverpool Ins. Co. 637 Simplot v, Dubuque 750 Simpson »v. Biffle 663 v. Fogo 247, 269, 281, 288, 289, 290 v. Harris 647 v. Moore 644, 666, 667 Sims v. Chattanooga 728 v. Everhardt 627 Simson v. Hart 55 Sinclair v. Murphy 593 v. Sinclair 269 Singer Piano Co. v. Walker 404 Singleton v. Whiteside 677 Sinnett v. Moles 647 Sintzenick v. Lucas 98 Sioux City v. Chicago & N. W. R. Co. 750 Sizer v. Many 78 Skaife v. Jackson 509 Skinner v. Grace Church 755 Slade’s Case 222 Slarbero v. Miller 170 Slaughter v. Genson 646 v. State 619 Slee v. Bloom 153, 163 Sleeth v. Hurlbert 48 Slim v. Croucher 603, 667, 668, 670 Sloan’s Appeal 7 341 Sloan v. Holcomb 733 Slocum v. Mayberry 250 Slocumb v. Chicago R. Co. . 651 Sly v. Hunt 4, 170 Small v. Benfield 96 v. Reeves 388 Smelser v. Wayne Turnpike 0. 502 Smelting Co. v. Kemp 73 Smiley v. Fries 431 Smith v. Armstrong 624, 625 v. Auld 63 v. Bailey 613 v. Baker 445, 476 ° v. Borden 131 v. Brady 747 v. Brown 631, 641 v. Brunswick 171 CASES CITED. Ixtii PAGE Snape v. Norgate 347 Sneed v. Osborn 675 Snell v. Faussatt 279 Snider v. Croy 768 Snodgrass v. Ricketts 480 Snook v. Fries 220 Snow v. Howard 80 v. Moses 362 v. Prescott 85 v. Walker 75 Snowden v. Grice 362 Snowdon v. Davis 213 Snyder v. Mystic Circle 783 v. Wise 351 Society for Manuf. v. Lehigh Valley R. Co. 782 Society for Prop. of Gospel v. Pawlet 376, Soc. for Savings v, New Lon- don 497 Solberg v. Decorah 727 Solomon v. Bushnell 514, 677 Solomons v. United States 661 Somes v. Skinner 465, 466, 468 Soper v. Manning 55 Souffront v. Campagnie Des Lucrecries South v. Decatur So. Ala. R. Co. v. Henlein 40, South American Co., In re 79 141 547 215 , 83, PAGE Smith v. Busby 592 v. Carlow 754 v. Chadwick 648 . Connell 448 v. Crompton 148 v. Cropper 599, 695 v. De Russy. 429 v. Elliott 192, 220, 771 v, Fairfield 65 v, Fenner 271 ». Fowler 355, 633, 786 v, Graham 364, 404 v. Haire 788 v. Hall 781 v. Hamilton 676 v, Hitchcock 467 v. Hughes 684 v. Hutchinson 609, 651 v. Ingram 380 v, Jones 215, 219 v. Keen 239 v. Kernochan 101 v. Knickerbocker Ins. Co. 644 v. Kremer 682 v. Land and House Cor- poration 646 v. Lock 403 v. Lucas 735 ». Lumber Co. 763 v. McCluskey 212 v. McNamara 674 v. Marsack 536, 806 v. Mercer 530, 533 v. Morgan 146 v. Mundy 778 v. Munroe 644 v. Neal 53 v. Nicolls 318, 330, 337, 343 v. Palmer 197, 206 v. Penny 367 v, Rathbun 784 v. Rogers 406 v. Schirmer 66 v. Scott 552 v. Shann 39, 65. v. Sheeley 745 v. Shepard 563 v. Smith 171, 239, 252, 253, 271, 301, 742, 744 v. Strong 440 v. Sutton 599 vo. Way 112 v. Weeks 84 v. Whiting 211 v. Williams 267, 429, 443, 444 Smith Co. v. Farwell 404 Smythe v. Kennedy 372 v. Sprague 660 85 So. Am. & Mex. Co., In re 81 Southard v. Perry 746 v. Sutton — 640 Southeastern Ry. Co. v. War- ton 384, 414, 416 Southerland v. Atlantic Coast R. Co. 108, 112 v. Stout 422 Southern Ins. Co. v. Booker 509 South Ottawa v. Perkins 113, 502, 503, 752 So. Pac. R. R. v. United States 12 Soward v. Johnston 635 Sowles v. Minot 389 v. Sartwell 100 Spafford v. Hedges 556 Spalding v. Grotton 74 v. Mott 787 v. Wathen 133 Sparhawk v. Wills 65 Sparrow v. Kingman 369, a 38 Spears v. Walker 781 Speer v. James 165 v. Matthews 597 Spencer v. Carr 671 lxiv CASES CITED. PAGE Spencer v. Spencer 271 ov. Vigneaux 241 v. Williams 167 Spiller v. Scribner 781 Spinning v. Drake 592 Spokane v. Costello: 501 Sponenbarger v. Lemert 407, 615 Spooner v. Davis 199 Spotts v. Hanley 164 Sprigg v. Bank of Mt. Pleas- ant 757 Spring v. Hewston 676 Springer v. Shareuder 53 Springport v. Teutonia Bank 127 Springstein v. Schermerhorn 392 Spoor v. Tyzzer 76 Spurlock v. Sproule 695 Squires v. Brown 154 Staats uv. Wilson 746 Stables v. Eley 613 Stace & Worth’s Case 679 Stacey v. Walter 369 Stackpole v. Robbins 516 Stacy v. Thrasher 165, 347 Stafford v. Albany 74 ov. Clark 209 v. Elliott 641 - % Rice _ 519 Stamper v. Venable 732, 784 Stancill v. James 763 Standard Varnish Works v. Cushing _ | 407 Standish v. Parker 192, 771 Stanford v. Broadway Loan Ass’n 397 . Lyon 647 Stanley v. Epperson 641 Staple v. Bank of England 714 v. Spring 105 Staples v. Fillmore 407, 594, 615 Starbuck v. Murray, 325 Starin v. Genoa 410, 506 Stark v. Starr 189, 209, 215 Starke v. Wilson 164, 165 Starkie v. Richmond 648 Starkweather v. Loomis 351, 353 Starry v. Korab 637, 639, 645 Star Wagon Co. v. Swezy 79 State v. Adams 743, 756 v. Alling 69 v, Anderson 496 », Anone 69 v. Bevers 372 o. Bradish 477 v, Bradnack 130 v, Branch 146 v, Brewer 372, 619 v, Candler 300 R + o ct oO State v State SSSSSSSSSSSsssssssssssssssesssssessesesseses v. Carroll Cooper Corran Coste . District Court Dorton Enloe Graham Grammer Hardie Hauser Langer . Lesueur Little . Little Rock R. Co. McBride Mills Mitchell Mortensen Murphy Neuert Ober Ogle Penner Porter Prather Rainey Ramsburg Rhoades Roswell Sandifer Sargood Savage . Spaulding Stone . Superior Court Taylor Wertzel Williams . Woodside . Young Bank v. Fearing Thompson 163, 696 699 69 163, 696 153 111 163 148 36 99, 130 78 496 496 61 372 675 372 162 609 521 610 of Illinois v. Delafield 544 Staton v. Bryant Vv Mullis Stayton v. Graham Steadman v. Duhamel v. Stealey v. Kansas City Taylor Stearns v. Hendersass v Vv Swift Wrisley Stebbins v. Bruce wv Steckett v. East Saginaw Walker Stedman v. Davis 684 377 733 527 727 503 440 484 155 685, 693” 613 507, 754, 755 743 CASES CITED. PAGE Stedman v. Patchin 307 Steed v, Petty 622, 631 Steel v. Smelting Co. 73, 74, 682 v. Smith 330 Steele v. Adams 644 v. Lineberger 165 v. St. Louis Ins. Co. 696 Steele Lumber Co. v. Laurens Co. 733 Steen v. Bennett 254 v. Steen 228 Steffens v. Nelson 493 Steidl v. Link 675 Stein v. Prairie Rose 215 Steinbach v. Relief Ins. Co. 94, 170, 732 Steiner v. Baughman 439, 476 Stempel v. Thomas 212 Stephens v. Baird 617, 694 v. Crawford 539 Stephenson v. Walker 633 v. Wilson 144 Stevens v. Brown 225 . Dennett 631, 633, 684, 781 56 v v. Dunbar v. Fisher 155 v. McNamara 781 v. Miner 65, 159 v, Parish 621 v. Whistler 182 Stevenson v. Lewis 693, 727 v. Rogers 556 v. Saline Co. 408 Stewart v. Anderson 434, 588, 589 v. Beck 764 v. Carleton 675, 676 v. Dent 112 v. Keener 555 v. Lansing 210, 211 v. Metcalf 362, 682 v. Muirhead 732 v. Munford 608 v. Thomas 163 vo. Warner 267 Stickney v. Goudy 63 Stiff v». Ashton 664, 685 Stilley v. Folger 741 Stillman v. Stillman 633 Stilphen v. Houdlette 207 v. Stilphen 207 Stimpson v. Achorn 609 Stimson v. Farnham 695, 699 vo. Whitney 611 Stingley v. Kirkpatrick 124 Stockman v. Riverside Co. 676, 729 Stockton v. Williams 383 v. Wooley 741 Ixv PAGB Stockton Sav. Bank v. Staples 633 Stockwell v. Coleman 352 Stockyards v. Wiggins Ferry 0. 778 Stoddard v. Burton 127 v. Cutcompt 733 v. Shetucket Foundry Co. 505 v, Thompson 127, 128, 141- Stokeman v. Dawson 627 Stokes v. Foote © 170, 174 Stonard v. Dunkin 595, 705, 706, 707 Stone v. Covell 665 v. Dickenson 125, 126 v, Fitts 397 v. Great Western Oil Co. 666 v. Tyree 651, 777. v. Wood 164 Stoops v. Whistler 163, 168 v. Woods 146 Storer v. Storer 214 Storring v. Borren 735 Storrs v. Barker 635, 651 Stortzell v. Fullerton 133 Stout v. Lye 129 Stoutimore v. Clark 500 Stovall v. Banks 163, 167 Stowe v. Wyse 432, 445 Stowell v». Chamberlain 94, 96, 222 Strafford v. Albany 74 Strain v. Gardner 553 Strang v. Moog 56, 63, 101, 106, 111, 223, 224 Stratton v. Rastall 330 Straus v. Minzesheimer 696 Strauss v. Murtief 95 Straw v. Ill. Cent. R. Co. 61 Strawn v. Strawn 369 Strecker v. Conn 612 Street v. Augusta Ins. Co. 246 Stribling v. Prettyman 786 Striker v. Keller 183 Stringer v. Northwestern Ins. Co. 695 Stringfield v. Southern R. Co. 495, 637 Strong v. Harris 36 v. Makeever 74 v. Stevens Point 36 v. Strong 76, 77, 78 v. Waddell 370, 589, 590 Strosser v. Fort Wayne 72, 675, 676, 732, 743, 752, 754 Strother v. Butler 170 Stroughill v. Buck 384, 402, 496 Strowd v. Willis 398 Struble v. Malone 308 lxvi PAGE Struggle, The 615 Stryker v. Cassidy 695 v. Goodnow 113, 247 Stubbs v. Franklin Ry. Co. 685 v. Johnson 645 v. Pratt 674 Studdard v. Lemmond 650 Stump v. Findlay 736 Sturdy v. Jackaway 144 Sturgeon v. Hampton 508, 619 Sturgis v. Rogers 78 Sturm v. Boker 634, 635 Sturtevant v. Randall 38 Stutsman v. Thomas 696 Succession of Heber 56 Succession of Monette 732 Suddarth v. Robertson 781 Suessenguth v. Bingenheimer 635 Sulis v. Ferguson 761 Sullivan v. Conway 696 v. Davis 662 v. Louisville R. R. Co. 67 Sulphine v. Dunbar 660, 683, 695 Sumner v. Barnard 391, 448 v. Seaton 660 Sunderlin v. Struthers 364 Supervisors v. Kennicott 78, 110 Supples v. Cannon 98, 170, 768 Suthiff v. Brown 85 v Lake Co. Com’rs 410, 504, 506 Sutlive v. Jones 589 Suttle v. Richmond R. Co. 778 Sutton’s Appeal 745 Sutton v. Apex Min. Co. 607 v. Casselleggi 398 v. Dameron 399 ». Wood 667 Suydam v. Barber 302 Swager v. Lehman 645 Swan v. North British Co. 493, 534, 545, 663, 668, 712, 713 Swann v. Miller 505 v. Wright 501 Swanson v. Tarkington 745 Swartwout v. Mich. Air Line R. Co. 503 v, Payne 148 Swartz v. Swartz 724 Swayze v. Carter 648 Swedish-Am. Nat. Bank v. Dickinson 342 Sweet v. Brackley 300 v. Brown 438 v. Tuttle 174 Sweetser v. Odd Fellows As- soc. . 722 Swenson v. Creson 171 CASES CITED. PAGE Swick v. Sears 778 Swift v. Dean 569, 573 v. Dickerman 193, 194 v. Winterbotham 708, 709 Swihart v. Spaner 168 Switzgable v. Worseldine 675 Swope v, Jordan 404 Sykes v. Bonner 198 Syllivan v. Stradling 548, 552 Syme v. Badger 733 v. Montague 385 T. Taber v. Ferguson 750 Tadman v. Henman 372, 551, 556, 584 Talbot v. Bank of Rochester 525 v. Radnor 737 Talbott v. Curtis 406 Tallant v. Burlington 751 Talmadge v. Chapel 348 Tams v. Bullitt 156 v. Lewis 174 Tankersley v. Pettis 63 Tapley v. Wainwright 182 Tapp v. Lee 643 Tappan v. Bruen 121 v. Huntington 392 Tarleton v. Tarleton 286, 332 Tate v. Hunter 134 Taylor v. Agricultural Assoc. 778 v. Barron 290, 348, 350 v. Bradley 553 v. Brown 782 v. Bryden 290 v. Burnap 755 v. Castle 222 v. Croker 536 v. Dabar 476 wv. Ely 657 v. Kilgore 308 wv. McCrackin 60 v. Means 36 v. Nashville R. Co. 619, 631, 671 v. Needham 372 v. Phelps 155, 167, 290, 314, 344 v. Riley 619 v. Shew 287 v. Sledge 86 ». Wallace 371 ov. Zamira 557 Teague v. Corbitt 164 Telegraph Co. v. Davenport 627 Temple v. Williams 767 Tenant v. Elliot 599 CASES PAGH Tennessee R. Co. v. East Ala, Ry. Co. 592 Terra Haute Ry. Co. v. State 56 Terrell v. Grimmell 745 Terrett v. Cowenhaven 547 Terry v. Hammonds - 60 Test v. Larsh 785 Tetrault v. Labbe 63 Teutonia Bank v. Wagner 406, . 502 Teutonia Ins. Co. v. Anderson 509 Tewksbury v. Magraff 570, 571, 572, 573 Texas Banking Co. v. Hutch- ins 764 Texas Ry. Co. v. Gentry 504 Thames v. Jones 134, 153 Thatcher v. Howland 408 v. People 508, 755 Thayer v. Arnold 787 v. Bacon 673 v. Powell 355 v. Tyler 156, 157 Thellusson v. Woodford 734 Thielen v. Richardson 435 Third Street, In re 74 Thisler v. Miller 216 Thistle v. Berford 480 Thomas v. Citizens’ Ry. Co. 504 v. Commercial Assur. Co. 718 v. Cook 568 v. Hite 56 v. Hubbell 148, 149 v. Joslin 202 v. Ketteriche 179 v. Merry 89 wv. Pullis 675 v. Robinson 352, 355, 771 v. Romano 672 v. Sterns 166 Thomason v. Odum 170 Thommas v. Burrus 406 Thompson’s Appeal 240, 243 Thompson v. Borg 674 v. Building Assoc. 36 v. Campbell 778 v. First National Bank 612 v. Hoop 741 v. Howard 733 v. Ins. Co. 719 v. Lee Co. 315 v. Maxwell Land Co. 80, 111 v. MeKay 787 v. Merrill 485 v. Mott 239 o. Myrick 171 v. Nat. Bk. of Redemp- tion 61 CITED. Ixvii PAGE Thompson v. Roberts 143 v. Simpson 627 v. Whitman 226, 229, 297, 325, 770 v. Wood 216 Thomson v. Wooster 82 Thorne v. Tilbury 597 Thornton v. Baker 226, 784 v. Thompson 205 Thouvenin v. Rodriques 239 Threshing Mach. Co. v. Pe- derson 228 Thurlough v. Kendall 783 Thurston: v. Thurston 53, ae : 96 Tibbetts v. Shapleigh 122, 392, 785 v. Tibbetts 734 Tibbs v. Allen 227 Tichernon v. Owensboro Bank 667 Tiernan v. Roland 735 Tiffany v. Anderson 684. Tifft v. Munson 468 Tilghman v. Little 561, 592 Tilley v. Bridges 101, 106 v. Cottrell 718 Tillotson v. Mitchell 641, 672, 693 Tilson v. Davis 111, 223 Tilton, The 273, 278 Tilton v. Gordon 85 v. Nelson 635, 645 Tilyou v. Reynolds 395, 582 Tinsley v. Rice 632 Tioga R. Co. v. Blossburg & Cc. R. Co. 111 Tipton v. Locomotive Works 410, 507 Tobey v. Bristol 75 v. Taunton 364, 403 Tobias v. Morris 650, 653 Tobin v. Allen 696 v. Spann 627 Toby v. Brown 260 Todd v. Crail 72 v. Flournoy 159, 228 v. Gee 669 v. Kerr 751 v. Old Colony R. Co. 136 Tolman v. Smith 370 ». Sparhawk 673 Tomkinson v. Balkis Con. Co. 699 Tomlinson v. Ellison 783 Tompkins v. Holt 364, 379 v. Tompkins 271 Tone v. Columbus 502, 507, 751, 752, 754 Torrey v. Pond 114 Ixviii PAGE Tourigny v. Houle 290 Towles v. Fisher 622, 624 Town v. Blackberry 750 v. Needham 630 Towne v. Butterfield 581, 592 Towns v. Nims 178 Townsend v. Bush 519, 603 ». Cowles 685 v. Moore 271, 273 Townsend Bank v. Todd 618, 641, 642, 646, 695, 702, 708, 778 Tozer v. Ocean Corp. 732 Tracy v. Goodwin 148, 163 ». Lincoln 620, 667, 684, 687 v. Roberts 746 Trafton v. Hawes 576 ». United States 120 Trapp v. Off _ 785 Trask v. Hartford & New Haven R.R. 216, 217 Travellers’ Ins. Co. v. Ed- wards 613, 718 Trayhern v. Colburn 170, 172 Treadwell v. Stebbins 188 Treat v. Maxwell 226 Tredway v. McDonald 171 Tremblay v. Aetna Life Ins. Co. 170, 290 Trentman v. Eldridge 367, 368, 369 Trenton Banking Co. v. Dun- can 649, 651, 652 Trenton R. Co. v. Chambers 730 Trevivan v. Lawrance 373, 424, 452, 468 Trexlor v. Miller 235 Tribble v. Anderson 604, 614 Trieher v. Commercial Bank 610 Trimble v. King - 648 Trinidad Asphalt Co. vw. « Coryat 398, 408, 618 Trites v. Hitchcock 72 Trope v. Kerns 448 Troy v. Rogers 631, 637 Troyer v. Dyar 764 Trueblood v. Knox 407, 615 Trufort, In re ; 255, 287, 288 Trull v. Eastman 441 ». Skinner 480, 641, 730 Trustees v. Piedmont Realty Co. : 504 Tucker v. Clark 471 v Conwell 650 Tufts v. Charlestown 403 v. McClure 721 Tuite v. Stevens 404, 586, 746 Tully v. Tully 389 Tupper v. Phipps 236 CASES CITED. PAGE Turbill’s Case 154 Turnage v.. Joyner 86 Turner v. Conkey 72 v. First National Bank - 589 v. Flinn 512, 517 », Waddington 294 v. Waldo 703 Turnipseed v. Hudson 631, 637, 641, 763 Turnverein v. Hagerman 55 Tuska v. O’Brien 70, 184 Tuttle v. Harrill 172 Twitchell v. Bridge 665 Twogood v. Pence 89 Tyler v. Bailey 532 v. Mass. Ins. Co. 609 v. Odd Fellows Assoc. 685, 695 ». Shea 785 v. Wheeler 734 Uz \ Uhl v. Harvey 612 Umlauf v. Umlauf 89 Underwood v. McVeigh 225 Unfried v. Huberer 83, 85, 146, 621 Union Bank v. Memphis 95, 313, 315 v. Mersey Docks 494 Union Depot Co. v. St. Louis 497 Union Ins. Co. v. McGookey 746 v. Slee 695, 697, 744, 750 Union Mut. Life Ins. Co. v. Kirchoff 64, 170 Union Nat. Bank v. Rich 112 Union Pac. R. Co. v. Chicago Ry. Co. 503 Union Petroleum Co. vv. Bliven Petroleum Co. 144 Union R. Co., In re 226 Union Sav. Assoc. v. Kehlor 609 Union Sav. Inst. v. Wilmot 644 Union School Township », First National Bank 508, 619 United Society v. Underwood 125, 126 United States v. Ames 120 v. Bliss 112, 763 ». California Land Co. 146, 170, 216, 225 v. Chouteau 99 ©. Cushman 125 v. Elisworth 748 v. Flint 280, 336, 337 v. Hodson 383 v. Kilpatrick 372, 619 CASES CITED, PAGD United States v. Lane 769 v. Lawson 748 v. Parker 60, 79 v. Pratt 642 v. Price 120, 125 v. Reiter / 71 Unity Joint Stock Assoc. v. King 627 University v. Maultsby 60 Unthank v. Travelers’ Ins. Co. 723 Upshaw v. Gibbons ‘627 v. Upshaw 735, 740 Upton v. Tribilcock 507 Usher v. Richardson 484, 485 Usina v. Wilder 397 Utermehle v. Norment 734 Utterback v. Phillips 423 Vv. Vadalia v. Lawes 336 v. Lewis 281 Vagliano v. Bank of Eng- land 687, 712 Vaile v. Independence 755 Valentine v. Mahoney 147, 148, 150 Valle v. Clemens 434 Vallejo Land Assoc. v. Viera 434 Vallette v. Bennett 493, 756 Van Alen v. Rogers 185 Van Bibber v. Beirne 641 Vance v. Johnson 587, 589 Vandenheuvel v. United Ins. 0. 267 Vanderpoel v. Van Valken- burgh 257 Vanderpool v. Brake 644 Vanderwerker v. Vermont Cent. R. Co. Van Doren v. Horton 239 Van Fossen v. State 270, 271 Van Hook v. Whitlock 751 Van Horn v. Overman 671, 695 Von Horstrup v. Madison 507 Van Husen v. Omaha Ry. Co. 397 Van Metre v. Wolf 131 Van Ness v. Hadsell 509, 672, 696 Vanneter v. Crossman 684 Vanquelin v. Bouard 286, 330 Van Rensselaer v. Kearney 411, 431, 433 Van Santen v. Standard Oil Ha Co. Van Steenbergh v. Bigelow 231 Van Vechten v. Terry 152 Vardier v. Railroad Co. 619, 671 lxix PAGE Vardon, In re 736 Varnam v. Smith 551, 552 Vaughan v. Morrison 179 v. Suggs 254 v, Vanderstegen \ 624 Veale v. Warner 548 Venable v. Beauchamp 447 Vere v. Lewis 524 Verplanck v. Van Buren 134 Vibbard v. Roderick 612 Vickery v. Board of Commis- sioners 751 Vicksburg R. Co. v. Ragsdale 746 Viele v. Judson 662, 688 Vincent v. Walker 369 Vinton v. King 65 Vittoria v. Vittoria 56, 67 Vooght v. Winch 761, 762 Voorhees v. Seymour 168 Voorhies v. White 377, 390 Vorhis v. Olmstead 696, 703 Vose v. Cockcroft e 751 Vredenburgh v. Burnet 477, 478 Vreeland v. Ellsworth 648 W. Waddle v. Ishe 59 Wade v. Bunn 778 v. Howard 59 Wadhams v. Gay 81, 115 v. Swan 429 Wadleigh v. Marathon Bank Wadsworth v. Connell 53, 796 Waggener v. Lyles 592 Wagner’s Appeal Waite v. Santa Cruz 410, 506, 507 Wakefield Corp’n v. Cooke 72 94, 161 Walbridge v. Shaw 59 Walcott v. Swampscott 751 Walden v. Bodley 63, 578 Waldron v. McCarty 564 v. Sloper : 608 v. Toledo Ry. Co. 755 v, Waldron 53 Walker v. Ames 85 v, Arnold 468 vu. Baxter 764 v. Carleton 641 v, Chase 204 v. Hall 446 v. Mitchell 112 v. Mulvean 746 v. Richardson 568 v. Sioux City Co. 416 v. Walker 618, 789 vo. Witter 262, 282, 284, 286 Ixx PAGE Walker v. Worcester 403 Wallace v. McConnell 157 v. Goodlet 56 v. Maxwell 372 v. Miner 369 v. Minneapolis Elevator Co. 717 Walling v. Beers 54, 279, 318 Walsh v. Durkin 116, 340 v. McIntire 83, 108 v. Varney 733 Walthall v. Rives 392 Walton v. Shelly 519, 603 v. Waterhouse 427 Wampol v. Kountz 648 Wandling v. Straw 226, 228, 232 Wannell v. Kem 683 Wanzer v. Bright 54, 336 v. De Baun 244 Ward v. Allen 526 v. Berkshire Ins. Co. 628 v. Best 733 v. Johnson 119, 504 v. McIntosh 392 v. Rich 191 v. Ryan 547, 585 v. State 72 Warder v. Baldwin 695, 703, 763 Ware v. Percival 92, 96, 222 Warfield v. Davis 135 Waring v. Reynolds 132 Warner v. Comstock 137, 162 v. Middlesex Assur. Co. 780 Warner Glove Co. v. Jennings 696, 702 Warren v. Comings 215 v. Flagg 349 », Hearne 622 v. Lusk 232, 321 v. Milliken 704 v. New Orleans 755 ». Spencer Water Co. 58, 618 Warrender v. Warrender 270 Warrenton v. Arrington 597, 745 Warren’s Trusts, In re 735 Washington v. Moore 556 Washington Bridge Co. vw. Stewart 231 Washington Gas Light Co. »v. District of Columbia 147 Washington Home v. Chicago 489 Washington Ins. Co. v. Colton 416 Washington Packet Co. v. Sickles 98 Waterhouse v. Levine 56, 98, 170 Waters’s Appeal 374 Watertown v. Cowen 630 v. White 592 CASES CITED. PAGE Water Witch, The 745 Waterworks Co. v. Tilling- hast 784 Watkins v. Holman 330, 376, 390 v. National Bank 747 Watkins Land Co. v. Mullen 55 Watson v. Hewitt 619 v. Hopkins 232 v. Knight 655 v. Lane 586 v. McLaren 662 ». New England Bank 321 v. Watson ' 733, 743, 744 Watt’s Appeal 727 Watt v. McGalliard 743 Watters v. Smith 117 Watterson v. Lyons 633 Watts v. Gayle 163, 168 v. Julian 632 v. Welman 393 v. Watts 253 v. Wilson 184 Waxahacie Bank v. Bitcharz 695 Way v. Arnold, 474 v. Howe 331 v. Lewis 138, 163, 168 Wayland v. Porterfield 303 Wayne Life Ass’n v. McDon- ough 325 Weale v. Lower 453, 475 Weathersbee v. Farrar 622, 624 Webb v. Alexander 564 v. Austin 425, 456, 457 ». Buckalew 64, 65 v. Cook 254 v. Davis 380, 495 v. Herne Bay Com. 397, 410, 505, 507 Webster v. Bailey 683 v. Lee 76, 186 v. Lowell 157 v. St. Mut. Fire Ins. Co. 718 Wedding v. Meyler 326 Wedge v. Moore 375 Weed v. Burt 115 Weed Sewing Machine Co. ». Emerson 383, 430 Weedon v. Landreaux 733 Weeks v. Harriman 299 v, Pearson 116, 340, 342 v. Wilkins 432, 438 Wefel v. Stillman 604 Wehrman v. Conklin 115, 724, 777, 781 Weikel v. Long 80 Weil v. Raymond 139 v. Uzzell 377 Weinstein v. National Bank 665 CASES PAGE Weiser v. Weiser 446 Welby v. Welby 739 Welch v. Sykes 321 Weld v. Baxter 427 v, Farmington 721 Welland Canal Co. v. Hath- away 617 Wellborn v. Finley 383 Wells v. Boston & M. R.R. 169 v. Sheerer 578 Welsch v. Belleville Bank 496 Wendell v. Van Rensselaer 651, 723 West v. Menard Agr. Board 505 v. Platt 170 v. Tilghman 778 Westbay v. Gray 55 West Buffalo v. Walker 257 Westcott v. Brown 321, 325 Western Land Ass’n v. Banks 702 Western M. Co. v. Peytonia Coal Co. 429 v. Virginia Coal Co. 111, 143, 179 Western Union R. Co. wv Wagner 514 Western U. Tel. Co. v. Mis- souri 72 Westerwelt v. Lewis 330 Westminster Nat. Bank v. Electric Works 539 West Mo. Land Co. v. Rail- way Co. 500 Westobey v. Day 156 West Shore v. Edwards 559 Wetter v. Rucker 154, 156 Wetumpka v. Wetumpka Wharf Co. 170, 172, 223, 224 Weyauwega v. Ayling 505, 507 Weyh v. Boylan 378, 644, 662 Weyr v. Zane 308 Whalin v. White 553, 564 Wheatley, In re 736 Wheeler v. Aldrich 156 v. New Brunswick R. Co. 648 v. Raymond 355 v. Wheeler 620 ». Young 429 Wheelock v. Henshaw 393 v. Kost 503, 748 v. Lee 786 Whicker v. Hume 254, 255, 271 Whipple v. Parker 503 », Robbins 157 Whistler v. Webster 734, 735 Whitaker v. Bramson 80, 86 v. Merrill 244 v. Williams 667 CITED. Ixxi PAGE White v. Ashton 637 vo. Barlow 555 v. Brocaw 438 v. Buccleuch 81 v, Crow 54, 334 v. Garden 207 v. Hapeman 778 wv. Jones 232 w. Kyle 144 ». Merritt 84, 195, 198, 206 v. Morgan 613 ». Moseley 188, 216, 217 v. Patten 468 v. Russell 160 ». Smith 403 v. Walker 640 v. Ward 85 ». Wilks 513 Whitechurch v. Cavagnaugh 513 Whitehead Lamp v. Brass Co, 504 Whitehouse v. Frost 513 Whitfield v. Fausset 464, 472, 476 Whitford v. Crooks 142, 152 Whiting v. Beebe 116 v. Dewey 408 ». Johnson 330 Whitley v. Johnson 419 Whitman v. Bolling 650 v. Merrill 108 Whitmore v. Nickerson 613 Whitney v. Allaire 784 vo. Bayer 53 v. Clarendon 190 vo. Porter 132, 133, 226 . Robinson 502 v. Walsh - 249 Whitney Arms Co. v. Barlow 504 Whittaker v. Whittaker 429, 476 Whittemore v. Stephens 765 Whittier v. Wendell 342 Whittington v. Wright 627 Whitton v. Peacock 396 Whitwell v. Vincent 743 v. Winslow 634, 635 Wichmann v. Placerville 503 Wickersham v. Whedon 216 Wiece v. Marbut 376 Wieland v. Kobick 626 Wiethaupt v. St. Louis 59 Wiggin v. Wiggin 565 Wiggins Ferry Co. v. Ohio & M. R. Co. 61, 551 Wight v. Shaw 369, 440 Wilbur v. Abbot 302 v. Goodrich 724 v. Jones 622, 628 Wilcher v. Robertson 168, 225, 229 Ixxti CASES CITED. PAGE PAGE Wilcox v. Howell 646, 647, 679 Willmott v. Barber 723 ». Kassick 325 Willoughby »v. Fidelity Co. 745 Wilcoxon v. Osborn 337 v. Middleton 735 Wilder v. St. Paul 693 v. Stevens ~ 61 v. Wilder 624 Wilmer v. State . 696 Wilding v. Sanderson 80 Wilmington Mining Co. ». . Wiles v. Woodward 385 Allen 724 Wiley v. Pratt 226, 231 Wilmington R. Co. v. Als- Wilhelm v. Caul 216 brook 90 Wilkins v. Judge 111, 224 Wilmore v. Steller 746 v. May 389 Wilson v. Anderton 595, 596 v. McGehee 682 v. Chalfant 724 Wilkinson v. Blades 129, 609 v. Deen 89, 98, 107, 210, 223 v. Dent 736, 737 v. Henry 144 v. Hall 157, 344 v. Jackson 325 ». Johnson 528, 530 v. Maltby 586 v. Kirby 800 v. Niles 330 v. Scott 517 v. Otis 52 v, Searcy 644. v. Ray 60 v, Wilson 151, 633, 787 v. Salem 754 Wilks v. Georgia R. Co. 500 v. Townsend 735 v. Kilpatrick 625 ». Tunstall 339 Willard v. Sperry 215 v. Western Land Co. 380, 604 v, Whitney 36 v. Widenham 437 Willets v. Phoenix Bank 545 v. Williams 543 Williams v. Allison -743 v. Wilson 600, 734 v. Armroyd 267 Wilt v. Welsh 624 v. Barkley 114, 151 Wimmer v. Ficklin 778 », Clouse 172 Winchester v. Evans 290, 294 ». Colonial Bank 535, 634 v. Heiskell 128 v. Conger 377 », Jackson 336 v. Fitzhugh 204 Winegar v. Fowler 695 ». Gideon 745 Wingate v. Haywood 168, 226 v. Glenny 695 Winlock v. Hardy 377, 387, 390 v. Heales 553 Winn v. Cabot 408 ». Jackson 685 Winnard v. Robbins 592 v. Jersey 782 Winship v. Winship 741 v. Jones 263, 292 Winslow v. Everett Nat. Bank 530 v. Matthews 546 Winsmith v. Winsmith 512 v. Niagara Ins. Co. 608 Winsted Hosiery Co. v. Knit- v. Preston 290 ting Co. 613 », Saunders 255, 271 Winstell v. Hehl 564 v. Suffolk Ins. Co. 250 Winthrop Iron Co. v. Meeker 63 v, Sutton 126 Winton v. Hart ~ 608 v. Swetland 408 Wisconsin v. Torinus 95, 225 v. Vail 615 Wisconsin Central R. Co. v. ». Walbridge 519, 543, 603 Forsythe 74, 652, 730 v. Williams 48, 83, 169, 176, v. Wisconsin Land Co. 377 179, 184, 253, 256, 267 Wise v. Fuller 635 v. Wilmington R. Co. 514, v. Hilton 155 677 v. Rhodes 734 Williamson v. Jones 621, 622 Wiser v. Lawler 648, 650, 660 v. Mimms 645 Wishek v. Hammond 785 », New Jersey R. Co. 727 Withers v. Reynolds 220 ». Woodman 406 v. Sims 98, 170 Willink v. Morris Canal Co. 152 Withington v. Warren 76, 77 Willison v. Watkins 578, 588, Witte v. Lockwood 198 589, 590 Witzler v. Collins 514 CASES CITED. PAGH Wivel’s Case 473 Wixom v. Stephens 53 Woburn v. Henshaw 377, 389, 392, 590, 597, 744 Wohlford v. Compton 60, 80 Wolcott v. Wolcott 235 Wolf v. District Lodge *720 v. Holton 592 Wollaston v. King 734 Wolverton v. Baker 171 Womack v. Dearman 315 v. St. Joseph 159 Wood v. Bayard 133 v. Bullard : 146 v, Chapin 362, 418 v. Corl 188 v. Fant 56 v. Gamble 339 v. Humphrey 75 v. Jackson 65, 98, 179 v, Mystic Circle 504 v. Nichols 763 v. Ostram 763, 764 ». Rawlings 787 v. Seely 629, 745 v. Terry 369 v. Turner 588 v. Vance 627 v. Watkinson 378 »v. Wood 67 Woodbridge v. Banning 60, 447, 448 Woodford v. Alexander 622 Woodgate v. Fleet 170 Woodhull v. Rosenthal 662 Woodley v. Coventry 594, 705 Woodruff v. Erie Ry. Co. 555 vo. Taylor 259, 329 Woods v. North 471 ov. Pangburn 192, 194 v. Russell 220 v. Wilson 652 Woodward v. Tudor 664 Woodworth v. Paige 485 Wooley v. United States 72 Worcester Med. Inst. v. Hard- ing 502 Worman v. Worman 189, 275 Wormser v. Metropolitan R. Co. 747 Worrall v. Gheen 534 Worrell v. Forsythe 746 Wortham v. Gurley 629 Wray v. Davenport 756 Wright v. Andrews 151, 232, 318, 320, 321, 325, 326, 330 wv, Arnold 624 PAGE Wright v. Bagnall 731 v. Boynton 318 v. Carson Water Co. lll v. De Groff 367, 654 v. Deklyne : 64 vo. Lang 163, 613 v. Leonard 624, 625 v. McPike 695 v. Newton 666, 672. v. Parlee 72 v. Phillips 129 v, Snow 627 v. Tukey 408 v. Willis 691 v. Wright 464, 473, 476 Wyatt v. Henderson 783 v. Palmer 234 v, Rambo 157, 278 Y. Yarborough v. Avant 224 Yare v. Gough 347 Yates v. Hurd 489, 743 v. Jones Nat. Bank 56 v. Utica Bank 61, 93 Yeoman v. Younger 111, 254 York v. Allen 388 v. Sonneborn 745 Yorkly v. Stinson 733 Yorks v. Steele 151 Young, Ex parte 162, 163, 167 Young v. Babilon 651, 727 v. Braman 403 v. Grote 534 v. Holloway 122, 234, 609, 647 v. Mutual Ins. Co. 509 v. Plattner Imp. Co. 500 v. Pritchard 106, 171 v. Raincock 384, 402 v. Stoutz 127 v. Watson 38 Ixxiii Youngblood v. Cunningham 719 Young Trust Co. v. Wagener 663, 682 Z. Zell’s Appeal 687 Zeller v. Eckert 578 Zimmerman v. Wilson 423 Zimmler v. San Louis Water Co. ; 319, 399 Zoeller v. Riley 159, 767 Zottman v. San Francisco 747 Zuchtmann v. Roberts 685, 691 Zwietusch v. Walkins 749, 784 THE LAW OF ESTOPPEL. —_e—__—_—— INTRODUCTION. THE LAW OF ESTOPPEL. NATURE OF ESTOPPEL. Tue law deals with facts of two kinds, primary or immediate and secondary or inferential facts. Primary facts, as the term is employed here, may in all cases be a subject of dispute; ! secondary facts — facts to be inferred from the primary ones — may or may not be. What is called estoppel is an example. The primary facts, from which the inference of estoppel is to be drawn, may have been in dispute: but now that they are not, or if they are not (as for the purpose of the estoppel they no longer are) in dispute, the inference from them, legally speaking, is incontestable. That is to say, those who are legally concerned with the matter are estopped from question- ing the inference. And right here is found the crux of the estoppel, to wit: is the inference necessary or not? In ordinary cases the inference, unless mathematical or of that nature, may be one way or another, according to the judgment of those who have to decide. In the case of estoppel the inference, if the facts required for it are present, is certain, or at least it is necessary by law. And thus an incontestable right is created. Such is the relation of estoppel to the body of the law. All 1Sealed instruments, which at So of judgments; the primary facts first may seem inconsistent with this there relate to the jurisdiction of statement, are not so; the primary the court, the correctness of the facts there relate to the execution record, etc. It is only by assuming and sealing of the instrument. the primary facts that the estoppel These of course, are open todispute. arises. = 4 INTRODUCTION. cases of conclusive inference from established or undisputed facts might indeed be put under this head; but the term has always been restricted to certain definite lines of inference, as will presently appear, and it will be dealt with accordingly in this work. What legal rights in point of fact lie implicit within the name estoppel, that is, how such incontestable rights are created, will be unfolded, little by little, in the chapters which follow. The law of Estoppel is therefore the law of a class of incon- testable rights; which rights, it must now be added, are ac- quired in one of three ways, namely, by record, by deed, or by facts in pais. The term ‘record’ signifies, (1) the legis- lature’s roll, (2) the judgment roll of a court of competent jurisdiction; ‘deed,’ a contract under seal,1 and especially- a conveyance of land or some interest therein; ‘ facts in pais,’ (1) facts fixed by or in virtue of contract, (2) acts or conduct which have induced a change of position in accordance with the real or apparent intention of the party against whom the estoppel is alleged.2_ It may be observed of the third class of estoppels, however, that they sometimes arise upon sealed instruments also, as in the case of a tenancy by lease under seal; but in such cases, 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) 1Text quoted in Ross v. Banta, 140 Ind. 120, 39 N. E. 732. 2 For various definitions see Sly v. Hunt, 159 Mass. 151, 34 N. E. 187, 38 A. 8S. R. 403; Libby »v. Haley, 91 Me. 831, 39 At. 1004. Estoppel is sometimes treated as a subdivision of the law of evidence, which embraces exceptions to the general rules relating to admissi- bility of evidence under oath, and treats of matters forming a rule of evidence under which a party is precluded from showing the real fact or truth; a general statement of the rule being that a man is concluded and forbidden by law to give evidence against his own act or deed, or against a judg- ment to which he was a party, even though the evidence be true, and otherwise admissible. Coke, Litt. 352 a; 3 BI. Com. 308; Demarest v. Hopper, 22 N. J. L. 599, 619. NATURE OF ESTOPPEL. ° 5 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 divi- sion of the subject. These divisions of the law of estoppel find their origin early in this common conception; but they do not appear together~ from the first. Historically, they are separated by three long and indefinite periods, which may be termed the ancient, middle, and recent. To the first period belongs the doctrine of estoppel by record; 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 Coke; to the third belongs the modern doctrine of estoppel in pais. No definite limits can be assigned, as has been intimated, to the origin of either of these branches of estoppel. The first has existed of course from the time of the constitution of courts; the second is found in the earliest col- lections of the English law;! the third has grown up within a century,” and is still growing rapidly, though some of its growth is little’more than a change of nomenclature. But though the conception of rights by estoppel is a very old one, and though it has been steadily expanding, especially in recent times, it has not always been regarded with favor. The courts used to call estoppels odious; indeed, they have not yet ceased altogether to apply the term to them. The definition given by 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 ac- ceptance stoppeth or closeth up his mouth to allege or plead the truth.’ ? The definition certainly was not felicitous; and 1Statham’s and Fitzherbert’s printed by authority of the Master Abridgments, and Year-Books of the Rolls. temp. Edw. 2, annis 1307-1326. 2 See chapters 2, 5, 6, 7, 11, 13, These are the earliest printed vol- 14. umes of the Year-Books, except 3 Coke, Litt. 352 a. For other some of the reign of Edw.I.recently definitions see cases cited ante, p. 4. 6 ‘INTRODUCTION. 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, perhaps because it was in fact sometimes used to shut out the truth against reason and sound policy.? In modern times the doctrine has lost all ground of odium and become one of the most important, useful, and just factors of the law.? It is safe to say that at the present day it is seldom employed in any questionable way to exclude the truth; its whole force being directed to preclude parties, and those in privity with them, from unsettling what has been fittingly determined. A just principle, it can be and is daily administered to the well-being of society; unfortunate indeed would it be if this were not true. Estoppel would hardly have needed a justi- fication but for the authority of a definition by Sir Edward Coke. The right acquired by an estoppel may be a right in personam, available only against or by determinate persons; or it may be a right in rem, available inter omnes. Where, by the estoppel, a right in personam only is acquired, as ordinarily is the case, the meaning is that the claims -of others than those who were parties to the transaction in ques- tion were not carried into the estoppel. There is a perfect estoppel, but a limited right. Where on the other hand the claims of all who were legally interested were embraced, a right in rem arises as perfect as in the sale of a chattel by one exclusively owning it. Thus, if those who have the exclusive right to try a cause before the 1 Messrs. Everest & Strode, in a new and creditable piece of work, have collected and commented upon the English dicta in regard to the supposed odiousness of estop- pels. Estoppel, 9-16. 2 Note to Duchess of Kingston’s Case, 2 Smith’s L. C. 693, 6th Eng. ed. A survival may be seen in Fol- ger v. Palmer, 35 La. An. 743, ad- mission of a witness held conclusive. See chapter 3. 4 Caldwell v. Smith, 77 Ala. 157, 165; Hallowell Bank v. Marston, 85 Me. 488, 493, 27 At. 529; Ball v. Rowe, 13 S. C. 355, 369. NATURE OF ESTOPPEL. 7 courts try it lawfully, or if a cause is tried to which all the world are made parties according to law, judgment for the plaintiff will create a right available not merely between the contestants but generally; though this would not be true in regard to the findings or the grounds of the decision. The right in regard to those would be in personam.’ Again, if A, having no title to a piece of land, should undertake to convey it to B, with warranty, and should afterwards acquire full title to it, the full title would inure to B, and his right, beginning and ac- cruing by estoppel, would be ‘fed’? into a right in rem of the broadest; for in the case supposed no one else has any right in the property.’ So again if the sole owner of a horse stand by and permit another to sell it as his own, and I buy it in ignorance of the real ownership, I have acquired a right by estoppel against the owner; and that right is an equally broad right in rem, because he was the sole owner.* The inference or conclusion called estoppel, found upon the facts in cases such as those above described, being a certain and necessary one, must be drawn therefore by the judge and never left to a jury; for which reason the conclusion is apt to be called a matter of law.> But the term estoppel has in modern times come to be wrongly applied to other cases, such as waiver, in which the inference or conclusion from the facts is not cer- tain or necessary, whether to be found by judge or jury. An outline of the principles of the law of estoppel will now be made, to be expanded and illustrated in the text following. 1 See chapter 2. which must be found as a necessary 2 A figure of the older law, which inference from the facts upon now must be taken cautiously. See which it is founded. Hence it is chapter 11, § 4. said that estoppel raises an issue 3 See chapter 11. of law, while waiver raises an issue 4See chapter 18. of fact. Libby v. Haley, 91 Me. 331, 5 It is really a fact still; ouly itis, 39 At. 1004, as in certain other cases, a fact OUTLINE. THERE is a twofold estoppel arising by 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 a judgment. In the first case mentioned, the record has conclusive effect upon all the world. It imports absolute verity, not only against the parties to it and those in privity with them, but against strangers also; no one may produce evidence to impeach it.! The estoppel of a record as a judgment is of greater impor- tance. The force and effect of a judgment depend, first, upon the nature of the proceeding in which it was rendered, i. e. upon the question whether it was an action in rem or in per- sonam; and secondly, upon the forum in which it was pro- nounced, i. e., upon the question whether it was a judgment of a domestic or of a foreign court. A judgment in rem, a description of which — the term can- not be concisely defined — will be found in the second chapter of the text, is conclusive upon all persons.? Proceedings in attachment, replevin, and the like, are sometimes spoken of as proceedings in rem, but not with accuracy. The judgment in these cases binds only parties and privies, not strangers also. A judgment in personam binds only the parties to the proceed- ing and those in privity with them. It has ordinarily no effect upon the rights of third persons.’ 1 Chapter 1. Chapter 2. ‘Tb., where the distinctions between the two kinds of judgments are set out. OUTLINE. 9 In order to work an estoppel and preclude the parties from relitigating questions once adjudicated, the judgment must have been rendered by a legally constituted court.!| This conclusive- ness has, however, sometimes been extended to the decrees of tribunals other than the ordinary public courts of justice. A college sentence of expulsion was held conclusive in a case before Lord Mansfield.2 Judgments of military courts and of courts-martial are also conclusive.’ The judgments of the ordinary domestic courts of inferior jurisdiction are conclusive, if it appear that they have acquired jurisdiction.* The following classes of judgments among others have also been held to be unimpeachable within limits, except by appeal or by some direct proceeding to set them aside: the decisions of the comptroller of the currency, the commissioner of patents, agreed judgments, awards of arbitrators, judgments by confession, and judgments by default.® In all cases, however, in order to preclude the parties and their privies from contesting the matters again, the judgment must have been final, and rendered upon the merits, and judg- ment must in fact have been entered. It must also have been valid. If void it cannot work an estoppel; but it is otherwise of voidable judgments.” If, however, the judgment possess all these elements, it is held to be immaterial whether it was rendered before or after the commencement of the action in which it is interposed as an estoppel.® Judgments, however, possess this conclusiveness only in re- spect of such matters as were necessary to the decision of the case. In regard to facts not material the judgment is not conclusive, but may be collaterally impeached.® With this qualification, matters once determined in a court of competent jurisdiction may never again be called in question by parties or privies against objection, though the judgment may have 1Chapter 2. = * Ib. Th. 7Ib. 9 Chapter 3. 2 Tb. 4 Tb. 6 Ib. 8 Tb. 10 OUTLINE. been erroneous and liable to and certain of reversal in a higher court.! We must now proceed to a more detailed examina- tion of this subject. And first, of domestic judgments in personam. This subject is divided into four branches: first, estoppel by former judgment; secondly, estoppel by verdict; thirdly, the special 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 bis vexari debet pro una et eadem causa.’ The rule in criminal law, that no one shall twice be put in jeopardy of life or limb for the same offence, is the counterpart of this doctrine; but it is not the same thing. 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 same 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 effect and operation of judgment and ver- dict estoppels, it is, in the case of proceedings in personam, a general rule that only parties and privies are bound by or 1 Chapter 3. Quoted in New Orleans ». Citizens Bank, 167 U.S. 871, 17 Sup. Ct. 905, 42 L. Ed. 202. 2 Ib. 3 Tb. OUTLINE. 11 may take advantage of the adjudication. The estoppel must be mutual; it cannot be employed by or against strangers. The term ‘ parties ’ embraces all persons having a right to con- trol the proceedings, make defence, adduce and cross-examine witnesses, and to appeal from the decision when an appeal lies.? In some cases, however, persons not parties to an action may take advantage of the judgment. In the case of a judgment against one of several joint contractors, if 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 pro- eeeds upon the ground of merger. The plaintiff had but one cause of action, and this was merged by the former proceedings into the higher claim of a judgment.’ This result, however, is not effected, according to the Amer- ican law, by a judgment against one of several joint tortfeasors; only the defendant and those claiming under him can plead the judgment. The tort is considered as joint and several.* In England the same rule prevails in such a case 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 judgment whether rendered against a part, or all, of the wrongdoers.® 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 suie 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 acquiescéd in, by the principal or bailor.”. Judgment in ejectment, under the old fictitious form of proceeding, is an- ‘other instance of this kind.® A different rule prevails where ‘Tb. * Tb. 6 Ib. 7b. 2 Chapter 3. ‘Ib. ° Ib. * Ib. 12 OUTLINE. . the parties are nominally the same but really different; judg- ment in such cases does not per se operate as an estoppel upon the real parties.! Persons liable over are bound by judgments against the parties to whom they are so liable, 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 ap- pearing as a witness does not give a person the rights of a party.? Judgment upon garnishment or trustee process operates as an estoppel in an action by the original creditor of the gar- nishee 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.* It is an important qualification of the rule that judgments bind the parties, that they bind them only in the character in which they appeared in the proceedings. A judgment against a person as administrator does not bind him in his own character. And the like is true of estoppels generally.§ 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.® And generally judgments in personam, when not fraudulent, are conclusive upon third persons of the relationship established between the parties, and of the extent of that relationship.’ In the law of estoppel a person stands in the relation of privy to another (1) by succeeding to the position of that other as 1 Chapter 3. 3 Tb. 5 Tb. 7 Tb. 2 Tb. ‘Ib. 6 Tb. OUTLINE. 13 regards the subject of the estoppel, (2) by holding in subordi- nation to the rights of that other. Privity may exist in law, in blood, or in estate; and the privy will be bound by the estoppel as a burden, or have the benefit of it as a right, according to the case.! There is no privity in the relations of guarantor and principal, surety and principal, co-sureties, and the like, in the sense of making judgments against the one operate directly against the other, without notice to appear and defend.? Nor is a judgment against an administrator or executor conclusive at common law against an heir or devisee of the deceased.2 But an adminis- trator is in privity with his intestate in respect of the per- sonalty; 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 conflict among the au- thorities. The weight of authority is probably in the nega- tive.® We have already remarked that judgments are only con- clusive of matters essential to the decision; but it often be- comes a question of difficulty to determine the proper ap- plication 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, actually passed upon, 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 1 Chapter 3. 3 Tb. 5 Tb. 2 Ib. 4 Ib. 6 Tb. 14 OUTLINE. operates only upon such matters as were necessary parts of the cause of action. There is no estoppel, therefore, except in re- spect of such matters as the parties to the cause were bound to litigate in it; and the parties are not bound to litigate anything 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 a case where he fails to produce suffi- cient 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, though not universally accepted, that there can be no impeachment of the jurisdiction 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 jurisdic- tion.’ In the case of the superior courts proceeding according to the course of the common law, the jurisdiction will be con- clusively presumed in the absence of anything 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 whether the same presump- tions will be raised; but most of the courts hold that in such cases judgments are reduced to the grade of judgments of the inferior courts, so far as any presumptions respecting jurisdic- tion are concerned.’ Judgments of inferior courts may be impeached for want of 1 Chapter 3. 3 Ib. 5 Tb. Tb. 2 Tb. ‘Ib. 8 Tb, OUTLINE. 15 jurisdiction, except, possibly, in certain cases where there has been an adjudication of jurisdiction by the inferior court on general appearance of the defendant.! According to the weight of authority, domestic judgments of the superior courts are not liable to impeachment on the ground that they were obtained by fraud, except in the sense of collu- sion, corruption of the court or of counsel, or the like case.” Nor is it probable that judgments of inferior courts may be impeached for fraud in the cause of action; but judg- ment obtained by fraud at the trial would make a different case.? Of domestic and foreign judgments in rem, the most familiar example 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.* So of the condemnation and acquittal of goods in the Exchequer, so far as the judgment is concerned.* So of decrees establishing pedigree,® decrees in matters of marriage and divorce,’ decrees of the Court of Pro- bate,® orders in some of the states concerning the settlement and removal of paupers,® decrees appointing tutors to minors,” and judgments confirming the reports of commissioners of boundary. But probably only judgments in prize cases are conclusive inter omnes in regard to the findings and grounds of decision.” Foreign judgments in rem have, from an early period, been regarded with high favor by the courts; they are held equally conclusive with the judgments of domestic courts in respect of the merits of the matter adjudicated." : In respect of both foreign and domestic judgments in rem, the same rules prevail concerning the extent and operation of the 1 Chapter 3. 4 Chapters 4, 5. 7Ib. 10 Tb. 12 Th, 2 Ib. 5 Tb. 5 Ib. 11 Tb. Tb, * Tb. 6 Ib. Tb. 16 OUTLINE. judgment itself (as distinguished from findings and grounds), 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.'' But the jurisdiction is, in all cases probably, open to inquiry.” Until within a recent period the position to be accorded to judgments in personam, rendered in foreign nations, was a matter of much doubt and fluctuation in the courts of Eng- land;? but it has finally been settled that the judgments of foreign and colonial courts of competent jurisdiction are con- clusive and unimpeachable upon the merits.‘ The doctrine is not yet altogether settled in America, but the tendency of authority is in the same direction.® In regard to judgments rendered in courts of the sister states of the Union, the matter was made the subject of a constitu- tional 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 provi- sion was generally construed 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 impeachment for want of jurisdiction.* Judgments of courts of the sister American states are regarded by most of the courts as record evidence, and entitled to much of the high considera- tion due to records of the domestic judgments. But it is agreed 1 Chapter 5. 3 Chapter 6. 5 Tb. Tb. 2 Ib. 4Ib. 6 Tb. 8 Ib. OUTLINE. 17 that parties and privies are not estopped to inquire into the court’s jurisdiction, though the record sets out facts which if true would be sufficient to give jurisdiction to the tribunal.! 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, or even in the same, state.? It is settled that judgments of the sister states may not be impeached at law for fraud in obtaining them or in the cause of action; * but there is some conflict whether proceedings upon such judgments may be restrained in equity. The question has never received an authoritative answer from the Supreme Court of the United States. Fraud in obtaining judgment is a proper ground for impeaching judgments rendered in a foreign country.> The doctrine of merger is held inapplicable to judgments rendered in foreign nations; and the plaintiff may therefore sue de novo in the domestic courts if he desire. A different tule obtains in respect of the judgments of the sister Ameri- can states, As these have the force 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 judg- ment.’ 7 The relation of privity does not exist between administrators 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; 1 Chapter 6. + Tb. 5 Ib. Ib. 2 Tb. ‘Tb. * Ib. 18 OUTLINE. but it has been said to be otherwise in the case of an executor in one state and a succeeding administrator de bonis non in another.! The authorities are in conflict upon the question whether judgments of the sister states of inferior jurisdiction are em- braced within the language of the Constitution and act of Congress.” The second principal division of estoppel is denominated estoppel by deed: The law declares that no man shall be al- lowed to dispute his own solemn deed.* The same rule pre- vails too, 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 understood with the qualification 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 competent to contract; and hence there can be no estoppel by deed against a married woman not sui juris, or an infant.® Of the further limitations of the doctrine the following should be observed: 1. The deed must be valid; a void deed cannot create 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. Es- toppel against estoppel sets the matter at large; as where the deed is encountered by a later one intended to discharge or modify the first.” 5. And there is no estoppel concerning any 1 Chapter 6. 8 Chapter 7. 5 Tb. 7 Chapter 9. 2 Tb. ‘Chapter 8. ® Tb. 3 OUTLINE. 19 particular allegation where the deed contains other clear State- ments 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 indefinite manner.* The subject of title by estoppel, or estates by estoppel, is the most extensive branch of estoppels by deed. Such a title arises in general terms where a grantor without title makes a lease or conveyance of land by deed with warranty, and sub- sequently, by descent or purchase, acquires a title to the premises. In such a case the after-acquired title ‘inures’ by way of estoppel to the benefit of the grantee and his privies.® By the early common law the feoffment, fine, common recov- ery, and lease possessed the efficacy of actually passing and transmitting all future estates. But in conveyances of the present day this result is not so fully accomplished, except perhaps in the case of leases. ‘The rule in the case of leases by deed is that where no inter- est passes, by reason of the fact that the grantor possesses none, an estoppel arises in relation to any future estate acquired by him, and the estate inures to the grantee; but if an interest passed by the lease, no estoppel will arise in relation to future estates, and the leasor in such cases may set up the new interest and eject the lessee.” In modern times the doctrine that after-acquired interests inure to the grantee of one whose actual title was not sufficient for his grant, holds good even without a warranty, provided it 1 Chapter 9. 3 Tb. 5 Chapter 11. 7Ib. 2 Chapter 10. ‘Tb. 8 Tb. 20 OUTLINE. 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 quitclaim 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.* The estoppel, however, in these cases is a mere rebutter, given to prevent circuity of action, and arises from the warranty. If it were not permitted, and the grantor were allowed to re- cover 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 whether the general’ war- ranty in a grant in fee operates directly to transmit future interests, 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 and trans- ferred it, the title of the first grantee should prevail; but on the contrary if the grantor, not having possession when he executed the first deed, had possession when he made the second convey- ance, the second grantee should prevail.® The last rule which we notice under estoppels by deed is that concerning the release of dower. By this act of releasing dower, the widow of the grantor is estopped to set up any claim 1 Chapter 11. 3 Tb. 5 Ib. 2 Tb. ‘Ib. OUTLINE. 21 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 different time.’ And it seems that a married woman who releases dower in a deed made in fraud of her husband’s creditors, is estopped to claim dower against a purchaser for a valuable consideration from the grantee. This brings us to the third division of estoppel, to wit, estoppel in pais, ancient in name, but in its present manifestations of so recent growth, that to call it modern would scarcely tell the truth; it is still taking on new forms, from time to time. We have divided this subject into Estoppel by Contract, and Estoppel by Conduct. Under the first head we have two classes of cases: first, a class in which the estoppel arises by reason of the fact that the parties to the contract have actually or vir- ‘tually agreed to treat some fact as settled specifically; secondly, a class in which the estoppel arises upon the legal effect of the performance of the contract. Under the first class we have (inter alia) for particular con- sideration, the right of a corporation to defeat its contracts by showing that they are beyond its powers, in regard to which the general rule is that if the contract was wholly ultra vires, the corporation cannot be estopped to show the fact; whereas, if it had power to make the contract, but some unauthorized act was done by it in the transaction, or some requirement of the law was omitted, without the knowledge of the other party, an estoppel to set up the fact may arise.® For further consideration under this class we have the rule that acknowledgment of receipt of consideration in a written contract, even under seal, 1 Chapter 12. 2 Tb. 3 Tb. 4 Tb. 5 Chapter 14, 22 OUTLINE. is not conclusive in ordinary cases; 1 also that the ordinary acknowledgment of receipt of a commodity in a bill of lading is not conclusive.2. But the acknowledgment in either case may become binding in favor of a third person properly acting upon it.$ Acceptance of a bill of exchange is a conclusive admission of the genuineness of the drawer’s signature, in favor of a bona fide holder for value who has taken the bill after the act- of acceptance.* And the indorsement of a bill or note pre- cludes the party from denying the genuineness of any of the prior signatures.® , Acceptance, however, does not preclude the acceptor ordinar- ily 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 indorse- ment 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 admission extends only to the signature of the drawer.” This admission of genuineness extends only to the signature itself, and does not embrace the handwriting of the body of the bill; the party may show that there has been a forgery in this part of the paper.® 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 a case it is said that the acceptor may allege that the drawing is a forgery, if the forgery be discovered within a rea- sonable time.? This doctrine puts the rule strictly upon grounds of estoppel. And the same principle is declared to prevail when the duty of inquiry rests upon the holder." ‘Chapter 15. 2 Ib. 5 Ib. 7 Ib. ° Tb. 2 Tb. 4 Chapter 16. 6 Ib, 8 Ib. 10 Tb, OUTLINE. 23 It is held too that one who receives as genuine, from an innocent party, paper purporting to be his own, which, how- ever, has in fact been forged, will not be permitted upon a late discovery of the forgery to shift the loss upon ‘the other party.! It has been held that a person selling commercial paper as a chattel does not warrant its genuineness; but a contrary doc- trine has been maintained with convincing force, and the weight of authority is that way.? The execution of a negotiable promissory note payable to a party named, amounts to a conclusive admission 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.2 But the admission extends only to the payee’s capacity at the time the paper was made or accepted.* So too by indorsing commercial paper the party conclusively admits 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 subject of conflicting opinion. The doctrine held in New York and elsewhere is that the correctness of the certifi- cate is a matter which the certifying bank has the means of knowing, and is bound to state correctly; and that if the presenting party relies upon its accuracy, and is caused to forego a remedy, the certifying bank will be held to its statement.6 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 treated as an external fact which the holder is not bound to ascertain.’ In Massachusetts, however, it has been held that the certification of checks is not within 1 Chapter 16. 3 Th. 5 Tb. Ib. 2 Tb. 4 Tb. 6 Tb. 24 OUTLINE. 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, and estops the party from alleging a want of demand and notice after the transfer.” Under the second class, where the estoppel arises upon the le- gal effect of the performance of the contract, we have a subject denominated ‘ Estoppel arising.from taking Possession;’ the most important branch of which is the estoppel 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 es- toppel as known to former times. In the time of Coke, and after- wards, the estoppel arose only in the case of a sealed lease, and then only against the party sealing; so that there was no con- clusion upon the tenant in the case of a deed-poll or verbal lease. At the present day, however, the estoppel arises by reason of permissive possession, 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 follows that the same rules prevail in relation to the competency of parties as in the case of estoppels by deed. Like other con- tracts a lease binds only parties sui juris; hence persons under disability, not being bound by the contract, cannot be estopped. to deny its force.® The 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 land- 1 Chapter 16. 3 Chapter 17. 5 Tb. 2 Ib. 4 Ib. 8 Ib. OUTLINE. 25 lord’s title, whether by setting up an outstanding title or in any other way, the rule has several qualifications. One of these arises where a person in possession has made an acknowledg- ment of tenancy through mistake or through the fraud of the lessor; in such a 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 an attornment was made.? Another important qualification of the rule is that the tenant may always show that his landlord’s title has expired.* This may be done, for example, by showing that the tenant has been evicted by title paramount.* And according to the more gen- eral doctrine in America, it is sufficient to show a constructive eviction. § It has been a matter of conflict among the authorities whether the tenant may contest the title of his lessor by merely showing that he was 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 a case, the weight of authority is 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 adverse possession.’ The same doctrine applies to the case of mortgagors 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.” 1 Chapter 17. 8 Ib. 5 Ib. Ib. ° Tb. 2b. «Ib. 8 Ib. 8 Ib. 10 Ib. 26 OUTLINE. 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 tenancy: be created by a deed which may show 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 has also been held to arise 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 purchaser, before the payment of the purchase-money; in such a case the purchaser will not be permitted to escape payment by disputing the title of the vendor. So of one entering under a contract for the purchase of land.® 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, 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 a case, in an action by the bailor, the bailee may set up the jus tertii.2 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 1 Chapter 17. 'Tb. 5 Ib. TIb. °Tb. 2 Tb. : ‘Tb. 5 Ib. 8 Ib. OUTLINE. 27 be entitled to relief under an interpleader. The bailee can only set up the title of another against his bailor when he acts upon the asserted right, title, and authority of that person.! A similar rule applies to the case of assignees and licensees of patents, and persons in employment generally. Persons who have acted under a patent and received profits from its use, will not be permitted to deny the validity of the patent in an action by the patentee to obtain an account.? The princi- ple is also seen in the case of an agent, who, having collected a debt for his principal, must pay the money over to his prin- cipal regardless of the question whether the debt was legally due.’ ‘ Executors and administrators also are estopped to set up adverse claims to the property of the estate which has come into their possession; but, in cases of mistake, they may amend their inventories and leave out property which had been em- braced therein and recognized as property of the estate, if no prejudice will result to the parties in interest.* In like manner devisees for life will be estopped by taking possession from saying that the testator had no sufficient estate to create the interest. This brings us to the division called Estoppel by Conduct, in which the estoppel may arise without regard to the existence of any contract between the parties. Several classes of cases fall under this head, the typical and most important class being estoppel arising from misrepresentation. The general rule in regard to that is, that where a person by, his words or conduct 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 position, he will be estopped to aver against the latter a different state of things.® In order to this estoppel it will be 1Chapter 17. 8 Tb. 5 Ib. 2 Tb. ‘Ib. 6 Chapter 18. 28 OUTLINE. ‘ necessary, according to many American authorities, that the following facts actually or virtually concur: 1. There must have been a false representation concerning 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 to the damage of the party acting.! According to English and much American au- thority, the second of these elements is unnecessary to the estoppel. In all ordinary cases the representation must have reference to a present or past state of facts only; it should not look 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.’ Estoppel by conduct may arise from misleading silence or concealment as well as from active conduct.* A party who, knowing his own rights, stands by and allows another to con- tract 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 de- ceiving. Or as the principle has been forcibly stated in the Court of Chancery, where a man has been silent when in con- science he ought to have spoken, he shall not speak when conscience requires him to keep silent.® In this 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; 7? but the weight of authority seems to favor the doctrine that both infants of years 1 Chapter 18. See Rainey v. Hines, 120 N. C. 376, 27 8. E. 92. 2Th. 3 Ib. ‘Ib. 5 Ib. 8 Ib. 7 Ib. OUTLINE. 29 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 con- nected with matter of contract that the action must ‘ sound in contract,’ no estoppel arises.? Many cases of boundary have been decided upon the party’s knowledge or ignorance of the facts represented. The rule in some 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.2 In other states long acquiescence in the wrong boundary line has been held sufficient. The former cases are more in accord with the nature of this estoppel.‘ In respect of the intention that the representation should be acted upon, the term ‘ wilful’ was at first connected with it as though it were an essential part of the intention; but this doc- trine was soon modified and the principle settled that, if the representation was such as to lead an intelligent person to infer an intention and it was voluntary, it is sufficient to work an estoppel.® The rule that the representation must have been acted upon, in order to the estoppel, is fundamental. It proceeds upon the ground that the party would unjustly be put to damage by al- lowing the truth of the representation to be disproved. But it has been held in cases of authority that specific proof of dam- age is not required, and that it is sufficient if it may be fairly presumed that damage did result.® Another kind of estoppel by conduct may arise by a party 1Chapter 18. 3 Tb. 5 Tb. 2 Tb. ‘Tb. 8 Ib, 30 OUTLINE. to a contract or transaction inducing the other to act in the belief that the former will waive certain rights he might other- wise maintain against the latter. This estoppel does not con- sist in misrepresentation by the party to be estopped, nor does it require that the opposite party should be ignorant of the facts. Waiver by an underwriter of the terms of an insurance contract is an example; encouraging a licensee to expend money on one’s premises in the belief that the former will thereby acquire rights or privileges is another.’ This completes estoppel proper, in substantive law, and brings us to what may be called quasi-estoppel. 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.” Accord- ingly where a party takes a beneficial interest under a will, he will not be allowed to contest the validity of the testament.’ So if a person assist in procuring the passage of an uncon- stitutional act by the legislature for his own benefit, and pro- ceed to act upon it, it is held that he will not afterwards be allowed to deny its constitutionality.* So, too, if a party bring a suit upon a contract or purchase, or with knowledge of the facts receive money upon the same, he will be held to have conclusively affirmed its validity.® Lastly, of estoppels in procedure. 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 prevail- ing and better opinion at the present time is that it is conclu-. sive 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 1Chapter 19. 8 Tb. 5 Th. ? Chapter 20. ‘Ib. 6 Chapter 21. P OUTLINE. 31 statutory regulations upon the whole subject in some of the states.? The proper general issue, at common law, to an action upon the judgment of a court of record is nul tiel record, both in the case of domestic judgments and of the judgments of a sister state of the Union.? But nil debet may be pleaded to a judg- ment rendered in a foreign country. The practice in declar- ing 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 judgment 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 by misrepresentation have already been referred to.” It has been held that estoppel in pais when applied to real estate is available only in equity, and not at law; " but a contrary rule prevails in many states.}? Parties are not permitted to take inconsistent positions in the 1 Chapter 21. 4Tb. 7b. 10 Ante, p. 25, 2 Chapter 22. 5 Ib. 5 Ib. 4 Chapter 24. 3 Tb. 6 Chapter 23. ® Tb. 12 Tb. 32 OUTLINE. conduct of litigation. And the principle upon which a party is estopped by his course of action in the trial of a cause seems to be that a prejudice would result to the opposite party if a change were to be allowed by the court; where no prejudice would arise by a change of position, there is no rule of law against permitting one.! 1 Chapter 25. PART IL ESTOPPEL BY RECORD. PART L ESTOPPEL BY RECORD. CHAPTER I. PRELIMINARY VIEW: THE RECORD. WE have seen that the term ‘ record ’ signifies (1) the legis- lature’s roll, (2) the judgment roll of a court of competent juris- | diction; 1 and that estoppel by record is a right conferred or fixed by record. But the record is attended with another two- fold estoppel; the roll as a memorial creates one kind of es- toppel, the fact enrolled another. To the first, the roll as a memorial, attention is now directed. Of estoppel arising from legislative records ? it is only neces- sary to say that all persons are bound. There can be no such thing as individual parties to such records; all the world are parties, and all are therefore bound so long as the record remains unchanged. Estoppel arising from judicial records requires closer examination. This concerns not merely record evidence arising from enrolment, but also the conclusiveness of judg- ments generally. Strictly speaking, this estoppel may perhaps embrace only the effect of judgments of the domestic courts technically of record; but it has in fact been expanded so as to include judgments of all courts of justice, whether of record or not of record in the technical sense, and those of other states and countries. 1For a description of roll or 2See Field v. Clark, 143 U. S. record see Coke, Inst. 260 a; Glynn 649, 12 Sup. Ct. 495, 36 L. Ed. v. Thorpe, 1 B. & Ald. 153; Nugent 294.- v. Powell, 4 Wyo. 178, 186, 33 P. 23, 62 A. S. R. 17. 36 ESTOPPEL BY RECORD. [CHAP. I. In one respect this estoppel is like the estoppel arising from a legislative record; as a memorial simply it has conclusive effect against all the world.1_ No one, whether party, privy, or stranger, is permitted to deny the fact that the proceedings narrated in the record took place,? or the time when they purport to have taken place,’ or that the parties there named as litigants actually or constructively ‘participated in‘ the cause, or that judgment was given as therein stated; * unless in a direct proceeding instituted for the purpose of correcting or annulling the record.® So far, however, as the record purports to declare rights and duties, its material recitals * import absolute verity indeed, but this only, in ordinary cases, between the parties to it (including those who claim under the parties), and then only in collateral proceedings.” The rights of strangers are not affected; stran- gers can neither be bound by nor take advantage of recitals in the record.® 1 Willard v. Whitney, 49 Me. 235; Campbell v. Butts, 3 N. Y. 173; Strong v. Harris, 3 Humph. 451; Coke’s Inst. 260 a; State v. Sandi- fer, 68 S. C. 204, 46S. E. 1006. 2 Reed v. Jackson, 1 East, 355; Kelly v. Dresser, 11 Allen 31. 3 Floyd v. Ritter, 56 Ala. 356. So the clerk of a court may bind himself in collateral proceedings by an entry of record concerning his own acts. Thompson v. Building Assoc., 23 Kans. 209. See Strong v. Harris, 3 Humph. 451. 4Morgan v. Muldoon, 82 Ind. 347, 355; Scott v. Ware, 64 Ala. 174, 183; Taylor v. Means, 73 Ala. 468; Central R. Co. v. Smith, 76 Ala. 572, 578; Kelly v. Dresser, 11 Allen 31; Ex parte Rice, 102 Ala. 671, 15 So. 450; Radford Trust Co. v. Tenn. Lumber Co., 92 Tenn. 126, 21 8. W. 329; Hess v. Heeble, 4 S. & R. 246. 5 See Rogers v. Beauchamp, 102 Ind. 33, 36, and Exchange Bank »v. Ault, ib. 322, in regard to such pro- ceedings. Indeed, even between parties and privies the ®Stipulations filed with the record of a cause may be binding in regard to the facts recited therein as much as if they were part of the very record. Strong »v. Stevens Point, 62 Wis. 255. 7A finding of prescription or of reputation, as in regard to the exist- ence of a ferry or a fishery, is prima facie evidence against strangers, but nothing more. Reed v. Jack- son, 1 East, 355; Neill v. Devon- shire, 8 App. Cas. 135, 147; Pim v. Curell, 6 Mees. & W. 234; Hemp- hill ». McKenna, 8 Ir. L. R. 438, 51, 52; Carnarvon »v. Villebois, 13 Mees. & W.313; Dickens v. Long, 109 N. C. 165, 13 S. E. 841; Noon’s Case, 2 Leon. 67; Berry v. Banner, 1 Peake, 156. 8 Perhaps an admission of record might be made for the benefit of a third person, or with a view to his acting upon it, so as, when materi- ally acted upon, to become conclu- sive. Dahlman »v. Forster, 55 Wis. 382. CHAP, I.] PRELIMINARY VIEW: THE RECORD. 37 recitals of a judicial record of another state or country or of an inferior domestic court ! in respect of jurisdiction are but prima facie evidence; and it has been adjudged in New York that the same is true in that state of recitals of jurisdictional facts of even the superior domestic courts.? On the other hand, the record of a judgment in rem (a term to be explained later), apart from findings and recitals of jurisdiction, is con- clusive of the rights of all persons. The term ‘record,’ it may be remarked, had no such sense originally as that applied to it in modern times. It did not at first signify enrolment or writing of any kind; as applied to the courts it signified proof, in manner prescribed by law, of the proceedings of the king’s superior courts, which proof was furnished by witnesses bearing oral testimony of the. facts. But owing to the dignity attached to the proceedings of the king’s courts, and apparently to the solemn manner in which the same were proved, the ‘record’ of those courts (i. e. the due report of their proceedings) was held to import absolute verity; a character not, except in a partial degree, accorded to testi- mony concerning the proceedings of the inferior courts. From this circumstance it came to be said in reference to the con- clusiveness of the evidence, at least as early as the twelfth century, that only the king’s courts ‘had record’;* an ex- 1 Mulligan v. Smith, 59 Cal. 206, 233. 2 Ferguson v. Crawford, 70 N.Y. 253. See Case Threshing Mach. Co. v. Pederson, 6 §. D. 140, 60 N. W. 747. 3 History of Procedure in Eng- land, 319. In the Dialogue of the Exchequer, a work of the king’s treasurer, Richard, Bishop of Lon- don, written in the year 1177, it is said of the Exchequer, ‘ Habet enim hoc commune cum ipsa do- mini Regis Curia in qua ipse [i. e. rex] in propria persona jura decernit quod nec recordationi nec senten- tie ... licet alicui contradicere.’ Stubbs’s Select Charters, 176 (2d ed.). The record here referred to consisted of short tax rolls made up by the fiscal officers of the king in the spring and fall of each year; the word being used in the modern sense of enrolment. On the ‘ rec- ord ’ of the King’s Court (the King’s Bench of modern times) a century later, a case of Mich. 18 Edw. 1 may be referred to. The case was an assize by writ of certiorari be-’ tween William de la C. and Richard de P. and Margaret, his wife, con- cerning certain land in W., which the defendants claimed had been adjudged to them in a previous trial by recognition. Whereupon ‘ scru- tatis rotulis [short entries or memo- randa of proceedings of the court] compertum est quod predicta re- cognicio rite facta fuit in Curia domini Regis et contra hujus- 38 ESTOPPEL BY RECORD. [cHaP. I. pression which in modern times, still used as then only of the superior courts, has come to mean that such courts alone have of right enrolment of their proceedings under seal. Using the term now in the modern sense, it remains to say that the record, though to be received between the parties and their privies as conclusive evidence, in proceedings not begun on the one side or the other to impeach it, may always be cor- rected, as has been intimated, by a direct proceeding instituted for the purpose. Thus, if facts are erroneously inserted, the court may order an erasing of them or such a change as will make them conform to the truth; and if material facts have been omitted, the court may order that they be inserted.! Any evidence which would be proper in an ordinary proceeding for the purpose of correcting a written instrument would doubtless be admissible in such a case. But the evidence in support of the desired change in the record should be very strong. It may be observed that, before the record has been extended, the docket entries have the same force of conclusiveness as the later record. Indeed, the docket is the record until the final enrolment is made.? In either case, however, facts that do not appear by the record, if necessary to establish the subject- matter of a finding, or the grounds upon which the judgment proceeded, may be supplied by evidence ab extra, even in a collateral proceeding; a proceeding, that is to say, not insti- tuted to correct or enlarge the record.’ Thus far of the record as a memorial. The estoppel arising from or fixed by the fact enrolled is now to be considered. modi recognicionem sic in curia factam non jacet inquisitio patrie ad verificandum contrarium. Con- sideratum est quod predictum re- cordum stet in suo robore, et Ricar- dus et Margareta sine die.’ These rolls, it may be remarked, were not themselves under seal. 1 Balch v. Shaw, 7 Cush. 282; ‘Willard ». Whitney, 49 Maine, 235. See Rogers ». Beauchamp, 102 Ind. 33; Exchange Bank ». Ault, ib. 322; Young v. Watson, 155 Mass. 77, 28 N. E. 1135. 2 Read v. Sutton, 2 Cush. 115. See Sayles v. Briggs, 4 Met. 421, 424. See De Montague v. Bach- arach, 187 Mass. 128, 72 N. E. 938; Manning v. Boston El. R’y., do. 496, 73 N. E. 645. 3 Sturtevant v. Randall, 53 Maine, 149; Chase v. Walker, 26 Maine, 555; Dunlap ». Glidden, 34 Maine, 517; Parker v. Thompson, 3 Pick. 429, 434; Packet Co. -». oe 5 Wall. 580. See post, p. CHAP. 1.] PRELIMINARY VIEW: THE RECORD. jj 39 This is of far greater importance; it is the estoppel of a judgment. The first inquiry now must be, what is the legal conception of a judgment? Does a judgment necessarily create an estop- pel? The general answer is, yes, if it results in res judicata; no, if it does not.1_ The inquiry concerning a judgment as an estoppel turns then upon the meaning of the last-named term; to which attention will now be directed. 1 Discretionary license granted and objections. Smith ». Shann, by justices creates no estoppel as (1898) 2 Q. B. 347. to further action upon same facts 40 ESTOPPEL BY RECORD. [CHAP. II. CHAPTER II. PRELIMINARY VIEW: RES JUDICATA.’ §1. Meaning and Use of the Term. In the preceding chapter we have spoken of the effect of record evidence in its general features; in its relation, that is to say, to any and to all of the enrolled proceedings of the superior courts of justice. The doctrine of estoppel by record, however, is chiefly concerned with the enrolment or record of judgments in litigated causes, and the narrated proceedings leading as necessary preliminaries to them; and that doctrine, as may be inferred from what has heretofore been stated, bears alone upon the conclusiveness of the record in litigations not instituted for the.purpose of annulling or modifying the witness of the enrolment. In other words, using the technical language of the books, the record of a judgment is conclusive evidence only in collateral proceedings. It will not be necessary to speak further of the record. The great question is, what constitutes a judgment, and what mean- ing and modification attach to the doctrine of estoppel as applied thereto. Now the fundamental principle concerning judgments is that an issue once determined by a court of competent juris- diction may be relied upon as an effectual bar to any further dispute upon the same matter, whether by the parties to the litigation or by those who, termed privies, claim under them; this conclusiveness including of course as well the law 2 as the facts involved in the case. We speak of this as fundamental 1The expression ‘res adjudi- latter with few exceptions. See cata,’ sometimes used even by repu- table writers, is Latin made to order. The Roman jurists, and their successors in Europe, say ‘ res judicata,’ — the former always, the Dig. 44, 2. 2 South Alabama R. Co. v. Hen- lein, 56 Ala. 368; Imrie v. Cas- trique, 8 Com. B. Nn. s. 405; s. c. L. R. 4 H. L. 414; Case v. Beaure- gard, 101 U.S. 688.’ SECT. 1.] PRELIMINARY VIEW: RES JUDICATA. 41 because it is the very object of the institution of courts to put : an end to disputes. ‘ Interest reipublice ut litium finis sit.’ This is of course true under every system of justice; it is pecul- iar to none. It would therefore be wide of the truth to speak of the doctrine of judgments in the English law as derived from the principles of any other system of law. On the other hand, it would be arrogant and false to assert that the prin- ciples of the English law in regard to the effect of judgments had been wholly worked out from within, regardless of that great system of law which Rome developed and gave for an inheritance to most of the continental nations of Europe, and for a light to all the world. From Rome our law has at least borrowed the convenient term * res judicata’; to Rome let us go and see what that term signified among those who invented it. In its most obvious and general meaning the term ‘ res judi- cata’ signified at Rome, as it signifies in England and in America, that a matter in dispute had been considered and settled by a competent court of justice. The term had, however, a special meaning, which turned upon what we should call a point in pleading. In the time of Gaius, the second century, a distinction existed between the effect of judgments rendered under the native system of justice and judgments rendered in the pretor’s courts. In contests tried under the former sys- tem, judgment for the plaintiff in a personal action had the effect, by way of ‘novation,’ of terminating the original obli- gation of the defendant; ! merging it, that is to say, as in the English law, in the higher obligation of a judgment debt. The result of this was that if the same plaintiff for any reason after- wards brought another action upon the same demand, a simple denial, such as might be called a plea of the general issue in the English law, was sufficient for the defendant. Then, when, the trial having come to an issue, the case came to be heard as.we should say, the defendant in answer to the plaintifi’s evidence proved the former judgment; and this, disproving the existence of the obligation or liability alleged by the plain- tiff, ended the cause in favor of the defendant. The proceeding 1 See Greenidge, Procedure of Cicero’s Time, 246. 42 ESTOPPEL BY RECORD. [CHAP. II. in which such a course of things took place was called ‘ judi- cium legitimum.’! If the litigation occurred in the pretor’s court, the effect of judgment for the plaintiff was like that of judgment rendered in a country foreign to Great Britain or to the United States. Being a ‘foreign judgment’ no novation was deemed to have been created when the original demand was again sued upon (in Rome, it seems). The original obligation or liability therefore continuing to exist notwithstanding the judgment, it was necessary by some plea in avoidance to show that the plaintiff was not entitled to enforce his demand. For this purpose the defendant en- tered a plea of the former judgment, or, as it was called by the Roman jurists, an ‘exceptio rei judicate.’? The pro- ceeding in which this took place was called ‘judicium im- perio continens.’* By the time of Justinian, the sixth century, this distinction had ceased to prevail, the rule governing in the pretor’s court having become universal. No novation occurred even of judgments rendered in the courts of the city, and a special ‘ plea’ of the former judgment was therefore the only escape from a second judgment upon the same cause of action; unless of course some new defence, such as payment, had arisen. Concerning the nature of the judgment behind which the defendant might shield himself, it was necessary in the Roman, as it must be in every other well-founded, system of law that the subject-matter general or special of the former litigation, and the parties thereto, should be the same as in the new action, except (as for the matter of parties) that the judgment was equally available by or ‘against those who had succeeded as privies to the rights of the original parties.4 The parties should also have litigated in the same character in both actions.* The conclusiveness of the judgment probably extended to every point necessarily decided; and it was not necessary that the 1Greenidge, Procedure of Ci- cero’s Time, 172-175, 246. 2 The exceptio, it may be ob- served, was unlike our plea in con- fession and avoidance, in that it did not confess anything, it only avoided; and the plaintiff was still put to the proof of his demand. Sandars, Justinian, p. 475, 6th Eng. ed. Upon the subject of the text see Gaii Inst. iii. 181; ib. iv. 106, 107; Inst. Just. iv. 13, 5, and notes by Sandars. 3 Greenidge, ut supra. 4Id. 247. 5 Dig. 44, 2, 14. SECT. I.] PRELIMINARY VIEW: RES JUDICATA 43 former cause of action should have been the same as the second except when that cause of action was itself the subject of dis- pute. It was enough that the point in dispute was the same in the two actions.’ : The benefit of judgments was equally available to plaintiff and to defendant. If the plaintiff had obtained judgment, he could bring an action thereon, — an actio judicati, the con- clusiveness of which the defendant could not deny; if judg- ment had gone for the defendant, he could avail himself of the same as a conclusive determination of the question in his favor. And we have already spoken of the defence to a second suit upon the same cause of action after judgment in favor of the plaintiff. In the English law the doctrine of res judicata depends for its effect, first, upon the nature of the proceeding in which the matter became res judicata, to wit, whether it was an action in rem or an action in personam; this is the great and most important division of the subject, and it will presently receive an explanation. Its effect depends, secondly, upon the forum in which the cause was tried, to wit, whether it was tried in the courts of the state in which it is interposed as an estoppel, or in a foreign court. In strict law the doctrine is applicable only to the judgments of domestic courts; but from motives of policy or of ‘comity’ it has been extended to the judgments of foreign courts of civilized countries,? with certain limitations which will appear in the chapters relating to foreign judgments. The term ‘in rem’ had in the Roman law, from which the English law has of course borrowed it, a double signification, one as applied to the nature of a certain class of rights, the other as applied to the actions by. which those rights were enforced. A right was a right in rem when it availed against all the world, thus corresponding generally to that sort of right in the English law the breach of which constitutes a tort. It was distinguished from a right in personam in that it might be infringed by anybody. The term is frequently used in the same sense by writers on the English law. Thus, a right of See Dig. 44, 2,7; ib. 44,2,21. Algiers. The Helena, 4 Ch. Rob. 3. 2In one case the doctrine was Per Sir William Scott. extended to a decree pronounced in [cHAP. II. 44 ESTOPPEL BY RECORD. property is said to be a right in rem, for it avails against all the world; whoever infringes it is liable, and the right is not defined in regard to the party who may be sued until it is infringed. The term was used in the Roman law 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, Gaius says: ‘In rem actio est, cum aut corporalem rem intendimus nostram esse, aut jus aliquod nobis competere, velut utendi, aut utendi fruendi, eundi, agendi, aquamve ducendi, vel altius tollendi, vel prospiciendi.’! Ulpian’s definition is this: ‘In rem actio est per quam rem nostram que ab alio possidetur petimus; et semper adversus eum est qui rem possidet.’? On the other hand, a right in personam was, as it is in the English law, 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 obli- gation.? In regard to the effect of an adjudication in rem the rule, as we should expect from what has been said above, commonly at all events was ‘res judicata inter partes jus facit;’ ‘ not, it is to be observed, inter omnes, but inter partes.’ + There would seem, then, to be no difference in this respect between a pro- ceeding in rem and one in personam; neither binding any but parties to the litigation, and their successors in right. Certain kinds of judgment in the Roman law did, however, bind third 1 Gaius, iv. 3. 2See Tomkins & Lemon, Gaius, p.601. See also Inst. iv. 6, 1, San- dars; Bracton, 102. The term ‘in rem’ indicated, not the object, but the nature of a demand; and there could be a pactum in rem as well as in personam. Goud- smit, Roman Law, p. 248, by Gould. 2? Goudsmit, Roman Law, p. 247, 4Tomkins & Lemon, Gaius, p. 275. Judgment granting probate of a will procured by fraud can be set aside against objection of an inno- cent party, as the will must be good or bad against the whole world. Birch v, Birch, (1902) P. D. 62, 130, C. A. Compare Cole v. Lang- ford, (1898) 2 Q. B. 36; London St. Tramways Co. v. London Council, (1898) A. C. 375. SECT. I.] PRELIMINARY VIEW: RES JUDICATA. 45 persons, though not upon any distinction between judgments in rem and judgments in personam;! and the same fact reap- pears in modern Roman law. In a recent work? it is said that while generally speaking a judgment affects only the parties to the suit and their successors, it does extend ‘to third par- ties 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.’ Actions in rem, in the Roman law, corresponded to rights in rem, and actions in personam to rights in personam. To this, the English law, while following the Roman nomenclature, has never been conformable. Thus, our great Romanizing writer, Bracton, could merely say, that that only was an action in rem the sole object of which was to obtain possession of a res; when the proceeding was in the disjunctive for possession or damages, it was an action not in rem but in personam. And those actions only were considered as in rem which were brought for the recovery of land. Actions in personam (besides the case mentioned) arose out of contract or tort.’ Whether there was any such difference in the time of our older writers as now prevails between judgments in rem and judgments in personam in their effect upon third persons does not clearly appear; probably there was not. There was a class of proceedings, however, which would now be called proceed- ings in rem that led to judgments binding inter omnes. Thus Bracton says: ‘ Effectus vero legitimationis probate hic est, quod cum semel probata fuerit et judicium pro tali reddatur in Curia Regis semper quoad omnes legitimus erit, nisi in pro- batione 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 outlawry, and de- 1 Keller, Romische Civil Proc- 4Bracton, p. 420, §17. The ess, § 73, 4th ed. 2Tomkins «& Jencken, Rom. Law, p. 94. 3 Bracton, pp. 102, 102 b. Brac- ton fashioned and fixed the nomen- clature. Mod. principle is probably taken from the Roman law; Bracton no doubt found it there. See Keller, R6- mische Civil Process, § 73, 4th ed. 46 ; ESTOPPEL BY RECORD. [CHAP. II. mand judgment if he [the defendant or plaintiff] shall be an- swered.’! Lastly, Lord Coke says: ‘ Where the record of the estoppel doth run to the disability or legitimation of the per- son, there all strangers shall take benefit of that record; as outlawry, excommenqement,” profession, attainder of pra- munire, of felony, etc., bastardy, mulierty, and shall conclude the party though they be strangers to the record. But of a record concerning the name of the person, quality, or addition, no stranger shall take advantage, because he shall not be bound by it.’ 3 Confusion was the inevitable result of adapting the Roman nomenclature to usages and conceptions at variance with those of Rome. It began at the outset, when the term ‘ real actions ’ was applied solely to actions for the recovery of land; ¢ it grew when later, in recent times, writers and judges came to speak of proceedings in attachment as proceedings in rem in regard to the property taken; it was complete, or at least the Roman meaning was lost, when without any clear discrimination, and upon discordant views, sentences in prize and revenue causes, decrees in probate and divorce cases, judgments in questions of pedigree and legitimacy,° and orders relating to the settlement of paupers were lumped together and treated as adjudications in rem.® ; One thing has been agreed with regard to these cases, and that is, that for some purposes, not well defined, the judgment is binding not merely inter partes but inter omnes. With 1Litt. Ten. §197; Coke, Litt. 128 a. ? Excommunication. § Coke, Litt. 352 a,b; Behr v. Conn. Mut. Life Ins. Co. 4 Fed. Rep. 357, 363. 4 Upon this subject see a learned article in the Law Quarterly Review for October, 1888, entitled ‘The Terms Real and Personal in Eng- lish Law.’ 5JIn Pittapur v. Garu, L. R. 12 Ind. App. 16, an attempt was made to raise a question of blood relation- ship, decided in a former and differ- ent kind of suit, between the same parties, but without success. ®The category in De Mora v. Concha, 29 Ch. D. 268, C. A., prize, revenue, pauper, and probate cases, does not profess to be complete. ‘ The words as to an action being in rem or in personam, and the common statement that the one is binding on third persons, and the other not, are apt to be used by English [and by American] lawyers without attaching any very defi- nite meaning to those phrases.’ Blackburn, J. in Castrique v. Imrie, L. R. 4H. L. 414, 429, SECT. 1.] PRELIMINARY VIEW: RES JUDICATA. 47 regard to such purposes, and not upon the distinction of the Roman law, judgments conclusive generally are said to be in rem, according to the English and American law; while those which bind only the defined parties to a cause (including those who derive title under them) are in personam, though by the Roman law they might belong to the other class. The difficulty heretofore has mainly been to ascertain some principle upon which to rest this class of judgments, so as to determine what cases fall within it. It has often been said that judgments in rem bind all persons, because all persons are deemed to be parties to them; ! thus eliminating the supposed distinction, to a great extent, between judgments in rem and judgments in personam. The statement is true in a general sense in regard to prize, revenue, probate, and some other cases; at these all persons having civil rights depending upon the questions involved, and having a right to be heard in regard to them, are by some sort of public monition or notice warned to appear and present their claims. And this is all that the nature of the case permits; hence the judgment may well conclude all such persons, and probably all others.” Still another ground has been taken with regard to prize cases, to wit, the propriety of leaving the cognizance of such cases to courts having the more appropriate jurisdiction to try them. It is said that there would be ‘ very great inconvenience, amounting nearly to an impossibility, of fully investigating such causes in a court of common law;’ and there would be an ‘ im- propriety of revising (the decisions of the maritime courts of other nations, whose jurisdiction is co-ordinate throughout the world,’ # It might also be said with regard to prize and revenue cases that the question raised is an impersonal one; rights of owner- 1 See e. g. Croudson v. Leonard, 4 Cranch, 434. 2See Beardsley v. Beardsley, (1899) 1 Q. B. 746; Minna Craig Steamship Co. v. Bank of India, (1897) 1 Q. B. 460. 3 The Mary, 9 Cranch, 126, 145, quoted by Holmes, J. in Brigham ». Fayerweather, 140 Mass. 411, 414. See also the grounds stated in Bax- ter v. New England Ins. Co., 6 Mass. 277, 300; Robinson v. Jones, 8 Mass. 536, 540; Lothian v. Hen- derson, 3 Bos. & P. 499, 545; Cas- trique v. Imrie, L. R. 4.H. L. 444, 434; and the arguments in De Mora v. Concha, 29 Ch. D. 268; s. c. nom. Concha v. Concha, 11 App. Cas. 541. 48 ESTOPPEL BY RECORD. [CHAP. II. ship, or other property rights, have ordinarily no bearing upon the proceedings. The question to be decided is simply this, Is the property forfeit? + Again, it is often said that judgments in rem determine status; and this is sometimes put, apparently, by way of ex- planation of their broadly conclusive effect.2_ But however con- venient and useful the term, it is doubtful whether saying that a particular judgment has decided a status materially helps out any difficulty. Besides, if the term is borrowed from the Roman jurists, a new sense is given to it. Judgment of status by the Roman law was a judgment, it seems, relating to the quality of citizenship, or the want of it, as e. g. freedom, slavery, marriage. To apply the term that way * would be useful even in the non-Roman conception of judgments in rem of the English law; for as the juridical condition of a human being within the state is a matter in which he himself is chiefly concerned, a direct adjudication thereon, in a cause to which he is actually a party, and in which his condition is the very ques- tion to be tried,* may justly bind all men. Upon this ground the general conclusiveness of decrees in regard to pedigree,* or legitimacy,® might well be explained; so of decrees of divorce, though only husband and wife could be parties.’ Perhaps this would sufficiently explain the pauper settlement cases also. It will help, however, to an understanding of this broadly con- clusive character of judgments in rem to look to the purposes for which they are thus conclusive; and to this, searching examination has recently been directed both in England and in the United States. As was stated above, the purposes for which a judgment in rem may be used inter omnes have not 1See post, p. 257, note 1. 2See e. g. Hood v. Hood, 110 Mass. 463, 465, divorce case; State v. District Court, 34 Mont. 96, 85 P. 866; Sleeth v. Hurlbert, 25 Can. 620, 630. 3 See Markby, Elements of Law, §§ 168-180, 3d ed. 4 Comp. Williams v. Williams, 63 Wis. 58. 5 Ennis v. Smith, 14 How. 400. § Bunting v. Lepingwell, 4 Coke, 29; Duchess of Kingston’s Case, Everest & Strode, 424; Bracton, 420; ante, p. 46. 7 See, however, Williams v. Will- iams, 63 Wis. 58, under special laws in regard to divorce. 8 De Mora v. Concha, 29 Ch. D. 268, C. A.; affirmed on appeal nom. Concha v. Concha, 11 App. Cas. 541; Brigham v. Fayerweather, 140 Mass. 411, Holmes, J. SECT. I.] PRELIMINARY VIEW: RES JUDICATA. 49 heretofore been clearly defined. It has been supposed, to a greater or less extent,’ that not only judgments in prize causes, but judgments in revenue, settlement, divorce, and probate pro- ceedings ? carried with their own general conclusiveness the same effect in respect of their grounds and any necessary findings in the cause. This, however, has now become extremely doubtful in England,’ and in Massachusetts has, in regard to probate cases at least, been denied altogether.* Such grounds and find- ings will, if the cases referred to point aright, bind at most only the parties litigant and their privies; only findings and grounds of decision in prize causes bind inter omnes like the judgment itself. Indeed, it has been said that findings even in prize cases bind only those who were entitled to be heard; * at all events, the case of prize appears to be exceptional.’ It has its peculiar effect, it has been strongly said, because the sovereign has declared that it should be so.” The judgment itself, however, with all that is done in virtue of it, is agreed to be binding inter omnes; and there is no diffi- culty in understanding this in regard to any of the cases above mentioned, to which others, indeed, might be added. One reason has already been foreshadowed; if all who have a right to ap- 1 Upon authority of such casesas Mackinnon, (1896) 2 Q. B. 455, Hart v. McNamara, 4 Price, 154, C. A. note, Magoun v. New Eng. Ins. Co., 1 Story, 157, and Bouchier v. Tay- lor, 4 Bro. Parl. Cas. 708. 2 Petitioner in lunacy proceed- ings is not bound by decree of lunacy and may show sanity of respondent in later action;' and where inquisition found title to certain Jands to be in the lunatic this finding has no force against one claiming title to the lands under a deed from the lunatic. Hughes v. Jones, 116 N. Y. 67, 22 N. E. 446, 15 A. S. R. 386. 3De Mora v. Concha, supra; a judgment that a lien exists on a vessel is conclusive against all the world, but it is not conclusive against a stranger as to the grounds upon which the judgment must have proceeded. Ballantyne »v. ‘Brigham v. Fayerweather, su- pra; Shores v. Hooper, 153 Mass. 228, 26 N. E. 846; Morrison »v. Holladay, 27 Or. 175, 39 P. 1100. 5 The Mary, 9 Cranch, 126, 146; Salem v. Eastern Railroad, 98 Mass. 431, 439; Brigham v. Fayerweather, 140 Mass. 411, 4138, Holmes, J. Comp. also the New York cases, holding that the facts upon which the adjudication proceeds are but prima facie evidence in other cases. Ocean Ins. Co. v. Francis, 2 Wend. 64; s. c. 6 Cowen, 404; Radcliff v. United States Ins. Co., 9 Johns. 277; post, chapter 5. 5 De Mora v. Concha, 29 Ch. D. 268; Brigham v. Fayerweather, 140 Mass. 411. 7 Mr. Justice Holmes in Brigham v. Fayerweather, supra. 50 ESTOPPEL BY RECORD. [CHAP. IL. pear and be heard in a cause have been duly made parties, the judgment establishes a perfect and complete right against all, as much as would a conveyance of a joint estate by all the parties interested. Judgment in an action strictly in personam, indeed, binds third persons in that way; all that is necessary is that all those who have the exclusive right to litigate the cause are proper parties to it, and that the question should be determined without collusion. Judgment that A is debtor of B is an exam- ple! Such a judgment would not, however, profess to establish rights in respect of its grounds or of preliminary findings in the cause; in regard to these it is enough that the decision is bind- ing inter partes. Indeed, the difference between judgments in rem and judgments in personam in our law, as regards their effect, appears at bottom to be only a difference of degree. In the case of proceedings leading to judgment in personam, all parties interested are generally present or duly represented in point of fact, or may well be, for they are clearly defined. In the case of proceedings leading to judgment in rem the parties are not defined, and it is not always true that they are present or represented in point of fact; it is contemplated that they are in point of law because on the whole it is deemed that public policy so requires. A word more in regard to judgments in rem: It may be that a judgment is made conclusive upon all persons, by virtue of local law, which would not be so in other countries. In such a case it is clear that so far as the citizens, and probably residents, ? of the state in which: the law in question prevails are concerned, _ judgments there rendered * should be treated as binding inter omnes everywhere; for citizens, and residents to some extent, _ 1 Candee v. Lord, 2 Comst. 269; Brigham v. Fayerweather, 140 Mass. 411, 413; Pickett v. Pipkin, 64 Ala. 320; post, chapter 3. Still, the judgment in personam is not to be considered, for such a purpose, as a judgment in rem. The latter sort of judgment binds all interested persons everywhere, by force of the monition; while the former can bind only those inter- ested persons who are defined par- ties, and only citizens or residents of the State and others served with process therein can be such parties. Further in regard to judgments in. rem, see chapters 4 and 5. 2Comp. Rousillon v. Rousillon, 14 Ch. D. 351; Schibsby v. Westen- holz, L. R. 6 Q. B. 155. , 8 And possibly rendered any- where, in causes between the citi- zens of such state. SECT. I.] PRELIMINARY VIEW! RES JUDICATA. 51 are bound by the laws of such state. Again, it may be that a judgment rendered abroad operates in rem not by virtue of mere local law but under a general system of law, as e. g. one per- vading the Latin states generally, which judgment would not so operate in a contest governed by the laws of England or of America. In such a case also the judgment should be treated everywhere as binding inter omnes; and that too, it seems, upon non-residents, assuming of course that proper notice or monition according to such foreign system of law has been had.? Some further remark should be made in this connection about attachment in suits in personam. Attachment in such suits is. often spoken of as acting in rem; but that does not mean that the title to the property attached is adjudicated so as to bind all persons. Attachment is simply resorted to in order 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 is simply to declare a judgment against the person of the defendant, and not to determine any question in regard to the liability of the property to forfeiture, such as would arise in a proper proceeding in rem. Sir John Jervis, in pronouncing judgment in The Bold Buccleugh,* thus distin-, guished the case of attachment: ‘The foreign attachment is founded upon a plaint against the principal debtor, and must 1 Cases in note 2, page 50; Hood v. Hood, 11 Allen, 196. 2In Castrique v. Imrie, L. R. 4H. L. 414, Lord Chelmsford said that the rule was that a proceeding in a foreign court to enforce a mari- time lien, which by the law of that foreign country, and of all foreign codes founded upon the Roman law, was a proceeding in rem, though not so recognized by the law of England, must be so treated there. Comp. The Mecca, 6 P. D. 106. See Minna Craig Co. v. Bank of India, (1897) 1 Q. B. 460, C. A. Bill of lading issued for goods never on board; by German law ship sub- ject to lien; judgment of German court res judicata in England, Also see Manson v. Duncanson, 166 U. 8. 533, 17 Sup. Ct. 647, 41 L. Ed. 1105, where a decree affecting real éstate within the jurisdiction of the court making it was held unimpeachable in collateral pro- ceedings by a party to the original action. 3 This is all that is meant by Cooper v. Reynolds, 10 Wall. 308. It must be observed ‘that the court in that case is speaking only of the means used to obtain jurisdiction; in which respect the proceeding by attachment is in the nature of the true proceeding in rem. See also Pennoyer v. Neff, 95 U. S. 714; Easterly v. Goodwin, 35 Conn. 273. 47 Moore, P. C. 267, 282. See to the same effect Megee v. Beirne, 39 Penn. St. 50. 52 ESTOPPEL BY RECORD. [cHaP. II. be returned nihil before any step can be taken 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, like a common- law distringas, is merely for the purpose of compelling an appearance.’ It may, however, be said that an order of sale of perishable goods levied on by attachment operates as a proceeding in rem, since the sale gives a title against all persons; 1 the order is given upon a determination of the perishable nature of the property, and the case obviously requires the most ample pro- tection to purchasers. But apart from such cases, the authori- ties agree that attachment in causes in personam has no effect upon the property taken except between the parties to the proceeding.? It is called a proceeding in rem simply because property is seized at the outset instead of in execution of judg- ment for a plaintiff. The attachment cannot rise higher than the ultimate judgment. § 2. Requisites of the Estoppel. 1. In order to an estoppel by res judicata there must have been a judgment; * verdicts or other findings not followed by 1 Megee v. Beirne, 39 Penn. St. 50. 28ee cases just cited. In the note of Hare and Wallace to the Duchess of Kingston’s Case, 2 Smith, Lead. Cas. p. 890, 5th Am. ed., it is said: ‘ Properly speaking, however, proceedings by attach- ment are not proceedings in rem, but against the interest of the de- fendant and those claiming under him in the thing attached. Thus, a judgment rendered on the attach- ment of a debt or fund, or of specific assets of any other description, will not be a bar to any other demand than that of the person against whom the attachment was issued and of those claiming under him even if it consist in an adverse claim to the property attached, or grow out of its negotiation when it is a negotiable security. Barber »v. Hartford Bank, 9 Conn. 407; Myers v. Beeman, 9 Ired. 116; Ormond ». Moye, 11 Ired. 564; Keiffer ». Ehler, 18 Penn. St. 388.’ And these remarks are also applicable to pro- ceedings in replevin. Ibid.; Cer- tain Logs of Mahogany, 2 Sum. 589; Dow v. Sanborn, 3 Allen, 181; Me- gee v. Beirne, supra. 3 Whether the judgment was entered in the technical form of a decree is immaterial in collateral proceedings. Wilson v. Otis, 71 SECT. I1.] PRELIMINARY VIEW: RES JUDICATA. 53 judgment are not binding.! A fortiori is lis pendens no bar to another suit, though it may be ground for a plea in abate- ment.’ 2. In the next place the judgment must have been valid.’ Tf for want of jurisdiction,‘ or for any other reason, it was void, it will have no effect; though it is otherwise, as we shall see, if it was only voidable.’ In Wixom v. Stephens, just cited, the former judgment (for the plaintiffs) was ineffectual by reason of a mistake in the name of one of the plaintiffs; and the court was of opinion that they were not precluded from bringing a new suit to recover upon the original demand. Chief Justice Cooley said that if for any reason the judgment was not valid, N. H. 491, 53 A. 439. As to the effect of a judgment appealed from without giving supersedeas bond see Rodney v. Gibbs, 184 Mo. 1, 82 S. W. 187. 1 Butler v. Butler, (1894) P. D. 25, 29; O’Connor v. Malone, 6 Clark & F. 572, 596; Bancroft »v. Bancroft, 3 Swab. & T. 597; Estate of Holbert, 57 Cal. 257; Hawkes v. Truesdell, 99 Mass. 557; Burlen »v. Shannon, ib. 200; Lea v. Lea, ib. 493; Thurston v. Thurston, ib. 39; Herbert v. Fera, ib. 198; Wads- worth v. Connell, 104 Ill. 369, 374; Huntsville R, R. v. Corpening, 97 Ala. 681, 12 So. 295; Waldron »v. Waldron, 124 Ga. 145, 52 S. E. 323; Brown v. Bonds, 125 Ga. 833, 54 S. E. 933; Chicago v. Good- willie, 208 Ill. 252, 70 N. E. 228; Bank v. Morse, 60 Kan. 526, 57 P. 115; MeNeely v. Hyde, 46 La. Ann. 1083, 15 So. 167; O’Connell v. O’Leary, 151 Mass. 83, 23 N. E. 826; Rudd v. Cornell, 171 N. Y. 114, 63 N. E. 823; Gapen v. Brit- ternitz, 31 Neb. 302, 47 N. W. 918; Glidden v. Whipple, 23 R. I. 304, 49 A. 997; Oklahoma v. McMaster, 196 U. S. 529, 25 Sup. Ct. 324, 49 L. Ed. 587. Verdicts are themselves binding where the parties have so agreed. Whitney v. Bayer, 101 Mich. 115, 59 N. W. 414; or where statute makes them conclusive, Whitney »v. Bayer, supra; or where the court has lost the power to vacate the verdict, Hume v. Schintz, 90 Tex. 72, 36S. W. 429. 2 Colt v. Partridge, 7 Met. 570, 574; Moore v. Spiegel, 142 Mass. 413, suit pending in another state. 3 Wixom v. Stephens, 17 Mich. 518. 4See e. g. Queen v. Hutchins, 6 Q. B. D. 300; s. c. 5 Q. B. D. 353; Smith v. Neal, 109 U.S. 426; Melt~ zer v. Doll, 91 N. Y. 365, 373 (ex parte proof in bankruptcy); Dodd v. Una,'40 N. J. Eq. 672, 713, that neither acquiescence nor request is sufficient to give a court jurisdic- tion of the subject-matter of a cause. To the same effect, School Trustees v. Stocker, 13 Vroom, 116; see also Beals v. Cone, 188 U. S. 184, 23 Sup. Ct. 275, 47 L. Ed. 435; see Andrews v. Andrews, 188 U. S. 14, 23 Sup. Ct. 237, 47 L. Ed. 366. The judgment could not be col- laterally attacked, even for want of jurisdiction, by matter in pais. Reed v. Nicholson, 158 Mo. 624, 59 S. W. 242. 5 Quéted in Springer v. Sharen- der, 118 N. C. 33, 23 8. E. 976, 54 A. 8S. R. 708. 54 ESTOPPEL BY RECORD. [CHAP. II. and the plaintiffs could not enforce it, it could not constitute a bar to a new suit. The bar in such a case sprang from the fact that the party had already obtained a higher security; where he had obtained no new security, his remedy upon the original demand was not taken away. To give a court, for purposes of res judicata, jurisdiction of a cause in personam, according to the explanation already given of that term,! it is necessary that both the person of the defend- ant and the subject-matter of the suit should be fully within the cognizance of the court, either at the beginning or in the course of the action.- If, however, the defendant is a citizen or resi- dent of the state of the forum, he will be bound by the laws of that state concerning the mode of acquiring jurisdiction over him; ? if not, jurisdiction can be obtained over him, so as to make the judgment available for any purpose other than the appropriation of property of his actually levied upon, only by personal service of process upon him within the state of the forum,’ lawfully made, or by his voluntary and general appear- ance (without fraud practised upon him,‘ it seems). Appear- ance for the mere purpose of contesting the court’s jurisdiction will not be sufficient to enable the court to proceed as upon full jurisdiction and pronounce a judgment that will be res judicata.® If, however, the cause be a true property proceeding in rem as explained heretofore, the presence of a party, assuming that proper monition or notice thas been given, becomes immaterial. 1 Ante, pp. 43, 44. 2 Hood v. Hood, 11 Allen, 196; Schibsby v. Westenholz, L. R. 6 Q. B. 155; Rousillon v. Rousillon, 14 Ch. D. 351; ante, pp. 50, 51. But probably no sovereignty would at- tempt to make a judgment binding upon its citizens beyond the disposi- tion of property attached, without service of process or general appear- ance, unless the judgment was a true judgment in rem, as e. g. a decree of divorce. Hood v. Hood, 110 Mass. 463. 3 Galpin v. Page, 18 Wall. 350; Cooper v. Reynolds, 10 Wall. 308; Durant v. Abendroth, 97 N. Y. 132; Bank of China v. Morse, 168 N. Y. 458, 61 N. E. 774, 85 A. S. R. 676; post, Foreign Judgments in Per- sonam. 4 Dunlap ». Cody, 31 Iowa, 260; Pfiffner v. Krapfel, 28 Iowa, 27. See Wanzer v. Bright, 52 Ill. 35. Perhaps it would be necessary in such a case to deny the justice of the claim as well as to allege the fraud. Luckenback »v. Anderson, 47 Penn. St. 123; White v. Crow, 110 U.S. 183. 5 Walling v. Beers, 120 Mass. 548; post, Foreign Judgments in Personam. SECT. II] PRELIMINARY VIEW: RES JUDICATA. 55 The presence of the subject-matter will be enough to give com- plete jurisdiction. But where, the court having proper jurisdiction, judgment is merely voidable, that is, where the court had jurisdiction to pro- nounce it and the judgment is simply erroneous, or the verdict wrongly found, it will be as conclusive in collateral actions as if it had been in all respects rightly determined.? A voidable judgment is perfectly valid until set aside or reversed; a judg- ment is, for the purposes of the decision, as conclusive upon the law involved in the cause as upon the facts, otherwise the doc- trine of res judicata would in many cases be a mere delusion. 3. Further, a judgment, in order to work an estoppel against another litigation upon the same cause of action, must have been rendered upon the merits of the cause. If the decision was ren- dered upon a mere motion ‘ or a summary application,’ or if the cause was dismissed * upon some preliminary ground,’ as upon a plea in abatement, e. g..because the wrong forum or mode of suit had been resorted to, for want of jurisdiction, defect in the plead- The erroneous judgment could not be collaterally attacked even by a stranger. Bedford v. Sykes, 168 Mo. 8, 67 S. W. 569. 2 Alleged irregular service of. process is no ground for question- ing in collateral action the validity of divorce in foreign country having jurisdiction of the parties and the cause. Pemberton v. Hughes, (1899) 1 Ch. 781; see also Manson v. Duncanson, 166 U. S. 533, 17 Sup. Ct. 647, 41 L. Ed. 1105; Deposit Bank v. Frankfort, 191 U. S. 499, 24 Sup. Ct. 154, 48 L. Ed. 276, — a very instructive case; Bank of Santa Fé ». Haskell Co. Bank, 51 Kan. 50, 32 P. 627; Watkins Land Co. v. Mullen, 62 Kan. 1, 61 P. 385; Prince v..Antle, 90 Ky. 138, 13 S. W. 4386; Lacy v. Brandhorst, 156 Mo. 457, 56 S. W. 1094; Turn- verein v. Hagerman, 232 Mo. 693, 135 S. W. 42; McNary »v. Bush, 35 Or. 114, 56 P. 646. Lawrence v. Milwaukee, 45 Wis. 306; Case v. Beauregard, 101 U.S. 688. 4See Bank v. Jennings, 4 N. D. 228, 59 N. W. 1058, as to when judgment on motion may be res ’ judicata. 5 Simson v. Hart, 14 Johns. 63, 76; Kanne v. Minneapolis Ry. Co., 33 Minn. 419; Bennett v. Denny, ib. 530, 533; s.c. affirmed nom. Denny v. Bennett, 128 U.S. 489. 6 Dismissal without prejudice is no bar. Westbay v. Gray, 116 Cal. 660, 48 P. 800; Hibernia Soc. ». Portener, 139 Cal. 90, 72 P. 716; Moore v. Russell, 133 Cal. 297, 65 P. 624, 85 A. S. R. 171; Soper v. Manning, 158 Mass. 381, 33 N. E. 516; Budlong v. Budlong, 48 Wash. 645, 94 P. 478; Averill Mach. Co. vy. Allbritton, 51 Wash. 30, 97 P. 1082; Newberry v. Ruffin, 102 Va. 73, 45 8. E. 733. Or if cause of dismissal does not appear. Genet v. Del. & Hud. Canal Co., 170 N. Y.. 278, 63 N. E. 355. 56 ESTOPPEL BY RECORD, [CHAP. II. ings, misjoinder, non-joinder, non-appearance of the plaintiff,! or the like, the parties are at liberty to raise the main issue again. in any other form they choose.? Thus, 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 plaintiff’s declara- tion. 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; * and so of a ‘ discontinuance,’ though by agree- ment of parties. Judgment proceeds upon the merits when the very cause of action is decided upon.’ 1 Chestnutt v. Frazier, 6 Baxter, 217; Pyle v. Piercy, 122 Cal. 383, 55 P. 141; Laird v. Morris, 23 Nev. 34, 42 P. 11. ? Hanchey v. Coskrey, 81 Ala. 149; Strang v. Moog, 72 Ala. 460; McCall v. Jones, ib. 368; Wood v. Fant, 55 Mich. 185; Clark ». Young, 1 Cranch, 181; Kendal v. Talbot, 1 A. K. Marsh. 321; Birch v. Funk, 2 Met. (Ky.) 544; Ste- vens v. Dunbar, 1 Blackf. 56; Camp- bell v. Hunt, 104 Ind. 210, 215; Proctor v. Cole, ib. 373; Dillinger v. Kelley, 84 Mo. 561, 569; Griffin v. Seymour, 15 Iowa, 30; Phelps v. Harris, 101 U. 8. 370; Schertz v. People, 105 Ill. 27; Brackett ». People, 115 Ill. 29; Andrews ». School District, 35 Minn. 70; Parks v. Dunlap, 86 Cal. 189, 25 P. 916; Terra Haute Ry. Co. v. State, 159 Ind. 438, 65 N. E. 401; Succession of Herber, 119 La. 1064, 44 So. 888; Waterhouse v. Levine, 182 Mass. 407, 65 N. E. 822; Couch v. Harp, 201 Mo. 457, 100S. W. 9; Rodgers v. Levy, 36 Neb. 601, 54 N. W. 1080; Yates v. Jones Nat. Bank, 74 Neb. 734, 105 N. W. 287; Clark v. Scovill, 198 N. Y. 279, 91 N. E. 800; Cook v. Lee, 72 N. H. 569, 58 A. 511; Rich ». Morisey, 149 N. C. Such a decision 37, 62 8. E. 762; Hoover »v. King, 43 Or. 281, 72 P. 880, 99 A. S. R. 754; Flynn v. Gorman, 22 R. I. 536, 48 A. 797; McPherson ». Swift, 22 S. D. 165, 116 N. W. 76, 133 A. 8. R. 907; Wallace v. Good- let, 104 Tenn. 670, 58 S. W. 343; Harris v. Columbia Water Co., 114 Tenn. 328, 85S. W. 897. So, where magistrate makes a decision not warranted by his authority, this does not operate as res judicata to prevent new proceedings in the same matter. Vittoria v. Vittoria, (1894) 2 Q. B. 387. 31 A. K. Marsh. 321. *See also Thomas v. Hite, 5 B. Mon. 590; Birch v. Funk, 2 Met. (Ky.) 544; Stevens v. Dunbar, 1 Blackf. 56. ® Thomas v. Hite, 5 B. Mon. 590. Or upon demurrer for want of equity. Deitrich v. Hutchinson, 81 Vt. 160, 69 A. 661. : *Kronprinz v. Kronprinz, 12 App. Cas. 256, affirming 11 P. D. 40, C. A. But the effect would turn upon the nature of the agree- ment. If there was a release of all aa there could be no new suit. * Judgment sustaining a plea of the Statute of Limitations is not SECT. 11.] PRELIMINARY VIEW: RES JUDICATA. 57 concludes the parties and their privies from relitigating the claim. However, judgment upon a point not touching the merits of the principal matter in dispute will, it seems, in respect of that point, ordinarily + raise an estoppel. The parties and their privies will be precluded from asserting the contrary of the fact found in such judgment.? Thus, dismissal of a suit ‘ for want of jurisdiction ’ will estop the plaintiff from alleging, after the ex- piration of the Statute of Limitations, that he had begun suit (no other one having been undertaken) within the proper time.’ And, indeed, it appears to be true as a general proposition that where a party succeeds in defeating an action by his pleading, by motion, or the like, he cannot defeat a second action by taking a position inconsistent with that taken in the first.* The question of the effect of a judgment of non-pros of part of a cause of action arose in Howes v. Austin,® in a subsequent suit upon the matter non-prossed. The plaintiff in the former action had been called and defaulted for want of a replication to the defendant’s plea to the first and second count of the declara- tion. The plaintiff had failed to reply within the time required by a rule of court; and a judgment was entered for the defend- - ant in regard to those counts, that he go hence without day. upon the merits. McElmoyle v. Cohen, 13 Peters, 312; Morrell v. Morgan, 65 Cal. 575. But in a tificate of the chief clerk is res judi- cata. Bland v. Low, (1894) 1 Ch. 147. subsequent suit in the domestic courts, between the same parties or those claiming under them, after judgment therein for the plaintiff, the Statute of Limitations could not be alleged against the cause of action. See Shields v. Schiff, 124 U. S. 351, 357, prescription. A judgment was obtained in Scot- land against administrator for debt of deceased not barred by the Stat- ute of Limitations but barred in England, where intestate had domi- cile, died, and estate administered. Effects in Scotland small. Chief clerk of England disallowed the claim and refused to wait for de- cision of Scotch court. The cer- 1 But see cases supra as to the decision of a mere motion or sum- mary application. | 2 See Adams v. Graves, 75 Iowa, 642. 3 Gray v. Hodge, 50 Ga. 262. The subject is of special impor- tance in relation to judgments of courts of a sister state. The reader is referred to the chapter on Foreign Judgments in Personam. 4 Lehman v. Clark, 85 Ala. 109, 113; Jones v. McPhillips, 82 Ala. 102, 116; Hill v. Huckabee, 70 Ala. 183; Hooker v. Hubbard, 102 Mass. 239; Clay v. Buchanan, 69 Iowa, 88. See post, chapter 26, at end. 535 Ill. 396. 58 ESTOPPEL BY RECORD. [CHAP. II. The defendant contended that this judgment barred any subse- quent 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-prossed; leaving him at liberty to proceed for the recovery precisely as though the counts non- prossed had never been filed.” In like manner the Supreme Court of tne United States in Homer »v. Brown? said that a judgment of nonsuit was given only 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, as he ought to do. For such delinquency or mistake he might be non-prossed, and was liable to pay the costs. But as nothing positive could be implied from the plaintiff’s error in regard to the subject-matter of his suit, he might reassert it by the same remedy in another suit, if appro- priate to his cause of action, or by any other which is so, if the first was not.* It is not, however, for a non-appearance only, or for delays or defaults, that a nonsuit may be entered. The plaintiff’s pro- ceeding 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 a view to submit the law of the case to the court upon an agreed state- ment of facts, under an agreement that the plaintiff shall be non-prossed if the facts stated are insufficient to maintain the right which he claims. The court in such a case will order a nonsuit if it 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 12 Archbold, Practice, 229. 28ee also 3 Black. Com. 296. 316 How. 354. 4 Ensign v. Bartholomew, 1 Met. 274. ‘The case where a party is not barred, by a judgment of non- suit, from having a new action, is where he has either mistaken his remedy and brought an action which he could not maintain, or where he has two collateral, inde- pendent remedies, in which an assertion of one is not repugnant to the existence of the other.’ The court in Butler v. Hildreth, 5 Met. 49, 52, quoted in Warren v. Spencer Water Co., 143 Mass. 9, 15. SECT. II.] PRELIMINARY VIEW: RES JUDICATA. 59 same as if he had been non-prossed 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 Indeed, nonsuit is declared to be ne judgment at all; it is only a withdrawal of the case before verdict, where a verdict is the essential thing. Hence a nonsuit taken by the plaintiff, at whatever stage of the case, cannot estop him to bring a new action, even though the case had gone to judgment, if on appeal or other proceeding the judgment had been reversed and the cause remanded before he dismissed his suit.? If, however, 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.4 And judgment by ‘ retraxit’ 1 Homer v. Brown, 16 How. 354. ‘Judgment of nonsuit, even upon an agreed statement of facts, can- not be pleaded in bar to a new suit although it was rendered by a court of competent jurisdiction, and was between the same parties and for the same subject-matter.’ Per Clifford, J. in Derby v. Jacques, 1 Cliff. 425, 432; citing Homer v. Brown, supra; Morgan »v. Bliss, 2 Mass. 111; Knox v. ough, 5 Greenl. 185; Bridge »v. Sumner, 1 Pick. 371; Wade ». Howard, 8 Pick. 353. See also Coit v. Beard, 33 Barb. 357; Dex- ter v. Clark, 35 Barb. 271; Jones v. Underwood, ib. 211; Jay ». Carthage, 48 Maine, 353. —- 2In re May, 28 Ch. D. 516, Brett, M. R.; Manhattan Ins. Co. v. Broughton, 109 U. S. 121; Bucher v. Cheshire R. Co., 125 U.S. 555; Keane v. Pittsburg Min. Co., 17 Idaho 179, 105 P. 60; Hanchett v. Gardner, 138 Ill. 571, 28 N. E. 788; Johnson v. New Orleans, 50 La. Ann. 920, 24 So. 635; Riggs Cypress Co. v. Albert Lumber Co., 127 La. 450, 53 So. 700; Haskell v. Friend, 196 Mass. 198, 81 N. E. 962; Wiethaupt »v. St. Louis, 158 Mo. 655, 59 S. W. Waldobor-’ 960; Guthiel v. Gilmer, 27 Utah, 496, 76 P. 628; Robinson »v. Salt Lake City, 37 Utah, 520, 109 P. 817. See Everest & Strode, Es- toppel, 29, 30. 3 Bucher v. Cheshire R. Co., supra; Holland v. Hatch, 15 Ohio St. 464. See Loeb v. Willis, 100 N. Y. 231; -post, p. 65. 4 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 following may be mentioned: Where the record of a suit showed that by the plain- tiff’s failing to appear to his ac- tion his writ was ‘ abated and dis- missed,’ and judgment given for the defendant 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 ren- dered solely for informality in a replevin bond, a new ‘action may be brought. Walbridge v. Shaw, 7 Cush. 560; Morton v. Sweetzer, 12 Allen, 134. So of a cause tried upon the merits, but eventually dismissed for want of jurisdiction. Waddle v. Ishe, 12 Ala. 308. In McFarlane ». Cushman, 21 Wis. 60 ESTOPPEL BY RECORD. is held binding collaterally, being distinguished from non- suit.? A decision upon a demurrer which has, however, clearly gone to the merits of the case, by being based distinctly upon a specific allegation of the facts touching the substance of the action or the defence, is an effectual bar to further litigation; 7, 401, the fact that the plaintiff, obligee in a bond sued on, had pre- viously brought suit upon the same bond before its maturity, was de- cided to be no bar to the present action, instituted after the bond had become due. To the same effect, Dillinger v. Kelley, 84 Mo. 561, 569; Gray v. Dougherty, 25 Cal. 266; Quackenbush v. Ehle, 5 Barb. 469; Jepson v. Fraternal Alliance, 17 R. I. 471, 23 A. 15; Hewett v. Williams, 48 La. Ann. 686, 19 So. 604. The assignee of a mortgage having sued to foreclose the same, judgment was given against him for a defect in the assignment; and it was decided that this was no bar to a subse- quent suit brought after the as- signment had been perfected. Mitchell v. Cook, 29 Barb. 243. So 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 having acquired the proper title. University v. Maultsby, 2 Jones Eq. 241; Woodbridge ». Banning, 14 Ohio St. 328; Taylor v. McCrackin, 2 Blackf. 261; Per- kins ». Parker, 10 Allen, 22; Bacon v. Schepflin, 185 Ill. 122, 56 N. E. 1123; Kenealy v. Gloss, 241 Ill. 15, 89 N. E. 289; Richey v. Bues, 31 Utah, 262, 87 P. 903. 1 Judgment on retraxit, being an admission of record by the plaintiff that he has no cause of action, is held to be as perfect a bar as a judgment after verdict. United States v. Parker, 120 U. S. 89, 95; 3 Black. 296; Bank of Common- wealth ». Hopkins, 2 Dana, 395; Merritt v. Campbell, 47 Cal. 542; Wohlford v. Compton, 79 Va. 333; Coffman v. Brown, 7 Smedes & M. 125. In the last 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, be- tween the same parties, in which the plaintiff in his own proper person came into court and con- fessed that he would not further prosecute his said suit against the said defendant, but from the same altogether withdrew himself; where- upon it was considered by the court that the plaintiif should take noth- ing, and that defendant go without day.’ So where a plaintiff with- drew and submitted to non-suit which was not to prevent his right to bring any suit in any court, he was not estopped from bringing a second suit in another court for the same tort. Gardner v. Michi- gan Cent. R. R. Co., 150 U. 8. 349, 14 Sup. Ct. 140, 37 L. Ed. 1107. 2 Bissell v. Spring Valley, 124 U. S. 225; Bouchaud v. Dias, 3 Denio, 238; McLaughlin v. Doane, 40 Kans. 392; Carlin v. Brackett, 38 Minn. 307; Johnson v. Pate, 90 N. Car. 334; Los Angeles v. Mellus, 58 Cal. 16; Felt v. Turnure, 48 Iowa, 397; Gray v. Gray, 34 Ga. 499; Wilson v. Ray, 24 Ind. 156; Estep v. Larsh, 21 Ind. 190; Campbell v. Hunt, 104 Ind. 210, 215; Robinson v. Howard, 5 Cal. 428; Terry v. Hammonds, 47 Cal. 32; City Bank of New Orleans v. [CHAP. II. SECT. II.] PRELIMINARY VIEW: RES JUDICATA. 61 and upon the facts admitted it is held to be as conclusive as a verdict; 1 and this will be true in regard to such facts, though the second litigation, being between the same parties, is not upon the same cause of action.2 But where a demurrer pre- sents two objections, and is sustained generally, one of the grounds being a preliminary defect and the other going to the merits of the case, it is held that it will be presumed that the decision rested upon the former ground. Where judgment had been given in a small sum for failure to perform a contract 4 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, though upon a demurrer to the declaration, it had been conclusively determined that the contract had been performed, Welden, 1 La. Ann. 46; Keater »v. Hock, 16 Iowa, 23; Coffin v. Knott, 2 G. Greene, 582; Perkins ». Moore, 16 Ala. 17; Yates v. Utica Bank, 206 U. S. 181, 27 Sup. Ct. 646, 51 L. Ed. 1015; Northern P. R. Co. v. Slaght, 205 U. 8. 122, 27 Sup. Ct. 446, 51 L. Ed. 738; Mc- Clarin v. Anderson, 104 Ala. 201, 16 So. 639; Nickless v. Pearson, 126 Ind. 477, 26 N. E. 478; Dil- lavore v. Dillavore, 142 Jowa 291, 120 N. W. 628; Cain v. Union Life Ins. Co., 123 Ky. 59, 93 S. W. 622, 124 A.S. R. 313; Straw v. Ill. Cent. R. Co., 73 Miss. 446, 18 So. 847; Conn. Mut. Life Ins. Co. v. Smith, 117 Mo. 261, 22 S. W. 623, 38 A. S. R. 656; Kleinschmidt ». Binzel, 14 Mont. 31, 35 P. 460, 43 A. 8. R. 604; Parrotte v. Dry- den, 73 Neb. 291, 102 N. W. 610; Aiken v. Lyon, 127 N. C. 171, 37 S. E. 199; Willoughby v. Stevens, 132 N. C. 254, 43 8. E. 636; School Directors v. Ashville, 187 N. C. 503, 50 S. E. 279; Marsh v. At- lantic Coast Line R. R., 151 N. C. 160; Pettis v. McLain, 21 Okl. 521, 98 P. 927; El Reno v. Cleveland- ‘Trinidad Paving Co., 25 Okl. 648, 107 P. 163; Duke v. Postal Tele- graph Co., 71S. C. 95, 508. E. 675; Hanrick v. Gurley, 93 Tex. 458, 55 S. W. 119; Bréchlin v. Night Hawk Mining Co., 49 Wash. 198, 94 P. 928, 126 A. S. R. 863; State v. Superior Court, 62 Wash. 556, 114 P. 427. A plaintiff in a bill in equity is not concluded on demurrer by his allegations of law. Thompson ». National Bank of Redemption, 106 Mass. 128; Brown v. Newall, 2 Mylne & C. 555, 576. 1 Bissell v. Spring Valley, 124 U. S. 225; Bouchaud v. Dias, 3 Denio, 238; Nispel v. Laparle, 74 Ill. 306; Wiggins Ferry Co. »v. Ohio & M. R. Co., 142 U. 8. 396, 12 Sup. Ct. 188, 35 L. Ed. 1055; Plant v. Carpenter, 19 Wash. 62, 53 P. 1107. Judgment sustaining a demurrer to a declaration in a suit for seduction, based upon the Stat- ute of Limitations, is no bar to subsequent suit by the same plaintiff against the same defendant, averr- ing her infancy, if that fact was not set up in theformer action. Morrell v, Morgan, 65 Cal. 575. ? Bissell v. Spring Valley, supra. * Bissell v. Spring Valley, supra; Griffin v. Seymour, 15 Iowa, 30. 4 Chapin v. Curtis, 23 Conn. 388. 62 ESTOPPEL BY RECORD. (CHAP. II. except so far as the judgment for the small sum indicated the contrary. But the court ruled otherwise.1 Dismissal of a bill in equity, upon the merits, is of course a bar to further proceedings in the same court for the same pur- pose, and this, too, though the court may not have gone into the evidence,’ as in the case of a dismissal by agreement.’ In the case of Borrowscale v. Tuttle * the plaintiff sought 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 chancery ‘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 dismissed and judgment given for the defendant for costs.° The time had expired within which the plaintiff might have 1‘Did that demurrer prove,’ said Mr. Justice Ellsworth, ‘ that the facts contained in the declara- tion were not true? and it must be this to help the plaintiff. It rather proved the contrary if it proved anything; and for the purposes of that case it certainly did prove the contrary. How then did it prove full performance by the plaintiff, which was flatly denied in the dec- laration? The whole effect of the judgment on a demurrer, and the $100 damages, is that on that dec- laration, on some of the counts, the defendant had subjected/himself to pay $100 for not performing his contract, or for his fraudulent war- ranty, or his conversion of the plaintiff's goods. The admission by the demurrer is rather that the common carriers did nothing than that they performed anything, much less that they had done every- thing except to the amount of $100, which damages might have been given, and probably were given, for the carriers’ destroying a por- tion of the shippers’ lumber in the port of New York; and so that record furnished no evidence at all of the performance of the voyage, . any more than a record of a recovery by a proprietor, who has sued his contractor for stealing and wasting the timber he furnished him to build the proprietor’s house, and a recovery for the value of the - lumber destroyed, proves that the house was built in time and manner as agreed; and there being other counts for not performing in due time and in proper manner makes no difference, for an admission even of the whole cause of action in such count has no tendency to prove performance by the builder.’ See also concerning judgment on demurrer Murdock v. Gaskill, 8 Baxter, 22; Jameson v. McCoy, 5 Heisk. 109; McNairy v. Nash- ville, 2 Baxter, 251; Gould »v. Evansville R. Co., 91 U. S. 546. 2 Lyon v. Perin Manuf. Co., 125 U. 8. 698. Text quoted in Rogers v. Rogers, 37 W. Va. 407, 16 S. E. 633. 8’ Kronpring v. Kronprinz, 12 App. Cas. 256, 259; The Bellcairn, 10 F. D. 161, C. A. 45 Allen, 377. 5If there is no judgment for costs, and especially if the mort- gagee receives rent after the filing SECT. 11.] PRELIMINARY VIEW: RES JUDICATA. 63 filed a replication and taken testimony. The court held the defence perfect. It was a judgment which, as had been set- tled in Foote v. Gibbs,! was conclusively presumed to have been upon the merits, and was a final determination of the controversy.” Ordinarily a decree in equity is in fact (though not as matter of law) rendered upon the merits when no qualifying words, such as ‘ without prejudice,’ are used.? Still, where an answer in equity sets up various matters in defence, some going to the merits of the case and others not, and there is a general decree of dismissal, the decree will not bar another action for the same demand because of the uncertainty whether it was rendered on the merits,* unless the uncertainty were entirely removed by of a decree fixing the amount to be paid to redeem and the time of payment, the decree does not be- come absolute, and is no bar to a subsequent suit. Tetrault v. Labbe, 155 Mass. 497, 30 N. E. 173. 11 Gray, 412. 2 Further see Case v. Beaure- gard, 101 U. S. 688; Phelps v. Harris, ib. 370; Flanders v. Hall, 159 Mass. 95, 34 N. E. 178. 3Lyon v. Perin Manuf. Co., supra; Durant v. Essex Co., 7 Wall. 107; Walden v. Bodley, 14 Peters, 156; Hughes v. United States, 4 Wall. 237; Bigelow v. Winsor, i Gray, 301; Foote v. Gibbs. ib. 412; Tankersleysv. Pettis, 71 Ala. 179, 185; Strang v. Moog, 72 Ala. 460, 465; Knowlton v. Hanbury, 117 Ill. 471; Adams v. Graves, 75 Iowa, 642, 646. See Langmead v. Maple, 18 C. B. n. s. 255; Mey v. Gull- man, 105 Ill. 272; Garrick v. Cham- berlain, 97 Ill. 620; Winthrop Iron Co. v. Meeker, 109 U. S.° 180; Bradley v. Bradley, 160 Mass. 258, 35 N. E. 482; Corbett v. Craven, 193 Mass. 30, 78 N. E. 748; Nunn v. Mather, 60 Wash. 484, 111 P. 566; Stickney v. Gondy, 132 Ill. 213, 23 N. E. 1034; Smith ». Auld, 31 Kans. 262, 267. In the last case it is declared, upon the au- thority of Loudenback 2. Collins, 4 Ohio St. 251, and Love »v. True- man, 14 Ohio St. 45, that it should affirmatively appear that the dis- missal was on the merits to make it a bar. And in the absence of evidence upon the point, that ap- pears to be correct, for an estoppel can only be founded upon a cer- tainty. Besides it should appear in some way that the fact in ques- tion was necessarily decided. See The Busteed, 100 Mass. 409. The fact that the dismissal is not stated to be without prejudice does not necessarily show that it was on the merits. When such words are used a dismissal leaves the parties as if no action had been instituted. Hamlin v. New York R. R., 176 Mass. 514, 57 N. E. 1006; Prond- zirski v. Gorbut, 10 N. D. 300, 86 N. W. 969; O’Keefe v. Irvington Co., 87 Md. 196, 39 A. 428; Reyn- olds v. Hennessy, 17 R. I. 169, 20 A. 807, 23 A. 639. 4 Foster v. Busteed, 100 Mass. 409; Burlen v. Shannon, 99 Mass. 200; Cook v. Burnley, 45 Tex. 97,. 117. See Mobile v. Kimball, 102 U. S. 691; Russell v. Place, 94 U. S. 606; Fayerweather v. Ritch, [cHaAP. II. 64 ESTOPPEL BY RECORD. evidence.! Dismissal of a bill seeking relief in equity in respect of an instrument on which a party can sue at law is no bar, how- ever, to an action at law upon the same instrument, though the decree does not state the dismissal to have been without preju- dice. The dismissal merely means that there is no equity in the plaintiff’s case, and a suit at law upon the instrument is not inconsistent with this.” 4, The judgment, further, should have been final.? We have seen that a preliminary decree or judgment, or a decision upon a motion ‘ in the course of a trial, cannot ordinarily 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, for the purpose of the suit, to settle the rights of the parties or the extent of those rights. Thus, an order in garnishment directing the garnishée to deliver certain property of the defendant to the sheriff for sale, from the proceeds of which the garnishee is to be paid a sum named in the order, is not an adjudication that the defendant owes the garnishee the amount fixed by the order, 195 U. S. 276, 25 Sup. Ct. 58, 49 L. Ed. 193; Oakland ». Oakland Water Co., 118 Cal. 165, 50 P. 277; Priest v. Foster, 69 Vt. 417, 38 A. 78. See also McCarty v. Lehigh Valley R. Co., 160 U. S. 110, 16 Sup. Ct. 240, 40 L. Ed. 358. 1 Russell v. Place, 94 U. 8. 606; Christman v. Harman, 29 Gratt. 494, 2 Pendleton v. Dalton, 92 N. Car. 185; Cramer v. Moore, 36 Ohio St. 347; Porter v. Wagner, ib. 471; Beere v. Fleming, 13 Ir. C. L. 506. See also Wright v. Deklyne, 1 Peters C. C. 199; McNamara ». Arthur, 2 Ball & B. 349. 3 Webb v. Buckalew, 82 N. Y. 555; Dowell v. Applegate, 152 U. S. 327, 14 Sup. Ct. 611, 38 L. Ed. 463; Brown v. Campbell, 100 Cal. 635, 35 P. 4388, 38 A. S. R. 314; Reilly v. Perkins, 6 Ariz. 188, 56 P. 734; Naftzgen v. Gregg, 99 Cal. 83, 33 P. 757; 87 A.S. R. 28; Rudd v. Cornell, 171 N. Y. 114, 63 N. E. 823; Board of Trustees ». Whalen, 17 Mont. 1, 41 P. 849; Railroad v. Brigman, 95 Tenn. 624, 382 S. W. 762; Anderson ». Bur- goyne, 60 Wash. 511, 111 P. 777; Linington ». Strong, 111 Ill. 152, that judgment reversing and re- manding a cause is not final, in the sense of the rule. See also Union Mut. L. Ins. Co. v. Kirchoff, 169 U. 8. 103, 18 Sup. Ct. 260, 42 L. Ed. 677. Reserving and re- manding with order to enter spec- ified judgment is not a final judg- ment. Haseltine v. Central Bank, 183 U. S. 130, 22 Sup. Ct. 49, 46 L. Ed. 117. Nevertheless unanimous rulings of a court of high authority ought to be regarded by every court as, at least, most persua- sive although the case has not yet gone to final judgment. Park Bank v. Remsen, 158 U. 8. 337, 15 Sup. Ct. 891, 39 L. Ed. 1008. ‘Ford v, Doyle, 44 Cal. 635. SECT. I1.] PRELIMINARY VIEW: RES JUDICATA. 65 unless there was an issue concerning the sum due.! Nor will an estoppel arise upon the mere verdict of a jury or upon the finding of a judge or a referee unless the same is followed by a valid judgment.? But it is laid down that judgment cannot be prevented by an attempt on the part of the plaintiff to dismiss a cause after judgment against him, appeal and affirmance, and remanding of the action for further proceedings. A condi- tional judgment is binding for its own purpose equally with an ordinary judgment.‘ 5. In the next place the judgment should be in force at the time of the alleged res judicata.> If the question is still sub judice, and the judgment in question suspended meantime, there is no estoppel; ® while if, notwithstanding any subsequent pro- 1Collins v. Jennings, 42 Iowa, 447. See also Burnes v. St. Louis Ry. Co., 71 Mo. 163. The rule as to interlocutory orders has been somewhat enlarged by statute in New York; but still they are not deemed to possess the full efficacy of judgments. Webb v. Bucka- lew, 82 N. Y. 555; Easton v. Pick- ersgill, 75 N. Y. 599; Riggs »v. Pursell, 74 N. Y. 370; Dwight »v. St. John, 25 N. Y. 203. Before the Code they had no force as res judi- cata. Riggs v. Pursell, supra; Webb v. Buckalew, supra. In any event the interlocutory decree must have been final, so as to be the subject of a present appeal. Webb ». Buckalew. Concerning ex parte orders see Burnes v. St. Louis Ry. Co., 71 Mo. 163; Collins v. Jen- nings, 42 Iowa, 447. And see Megee v. Beirne, 39 Penn. St. 50; ante, p. 52. Text quoted in Burner v. Havener, 34 W. Va. 774, 12S. E. 861, 26 A. S. R. 894. 2 Webb v. Buckalew, supra; Car- lisle v. McCall, 1 Hilt. 399; Au- dubon v. Excelsior Ins. Co., 27 N. Y. 216; Leonard v. Baker, 5 Denio, 220; McLaughlin v. Mc- Gee, 79 Penn. St. 217. 3 Croft v. Johnson, 8 Baxter, 390. 4Fuller v. Eastman, 81 Maine, 284; Merriam v. Merriam, 6 Cush. 91, 93; Burke v. Miller, 4 Gray, 114; Sparhawk v. Wills, 5 Gray, 423; Stevens ». Miner, ib. 429, note; Minot v. Sawyer, 8 Allen, 78; Freison v. Bates College, 128 Mass. 466; Divoll v. Atwood, 41 N. H. 449. Beyond its own pur- poses, including therein what is necessary to establish them, con- ditional judgment is not binding, of course. Fuller v. Eastman, supra; Ladd v. Putnam, 79 Maine, 568; Vinton v. King, 4 Allen, 562; Minot v. Sawyer, supra; Davis v. Bean, 114 Mass. 361. The only question, then, is of the proper purpose of the judgment. 5 Periodically recurring grants of licenses, resting in the discretion of magistrates, creates no estoppel, and same objections may be made of recurring hearings and be sus- tained at one time and denied at another, without regard to the state of the record in the given case. Smith v. Shann, (1898) 2 Q. B. 347. 8 A fortiori if it has been reversed or set aside. Smith v. Fairfield, 77 N. Y. 414; Wood »v. Jackson, 8 Wend. 9; Delanney v. Burnett, 4 Gill, 453; Butler v. Butler, (1894) Prob. 25, 29; O’Connor v. O’Con- 66 ESTOPPEL BY RECORD. [CHAP. II, ceedings, it remains in full force and vigor, as in the case of a writ of error,! there is a case of res judicata.” On the other hand, if suit has been discontinued even after judgment, the effect is to remove the estoppel.? In the case cited a mortgagee, after judgment of foreclosure against both the mortgagor and one who had assumed the mortgage and was found liable accordingly, obtained leave, before sale, to discontinue and bring suit upon the mortgage bond; which suit was brought accordingly. It was now held that the judgment of foreclosure did not, under the circumstances, conclude the defendant who had assumed the mortgage to set up a failure of consideration for his agree- ment to assume that security.4 6. Finally, it is of the essence of this (as indeed it is of every other) kind of estoppel that the subject of it should be certain. The suggestion above made concerning dismissal of bills in equity may be enlarged, and the rule broadly laid down as applicable to all cases of judgments, decrees, and sentences, that when it is doubtful (either from the record or from evidence designed to explain the same) upon which of several issues the judgment, decree, or sentence proceeded, the subject is nor, 6 Clark & F. 572. The verdict falls with the judgment. Butler v. Butler. The effect of carrying versed by direct proceedings. De- posit Bank v. Frankfort, 191 U. 8S. 499, 24 Sup. Ct. 154, 48 L. Ed. 276. a cause to a higher court is a matter largely of local law. 1Hughes v. Dundee Mortgage Co., 28 Fed. Rep. 40. An unre- versed judgment of a circuit court is not a nullity and cannot be col- laterally attacked. Cutler v. Hus- ton, 158 U. S. 423, 15 Sup. Ct. 868, 89 L. Ed. 1040. See also In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092; Dowell »v. Applegate, 152 U. 8. 327, 14 Sup. Ct., 611, 38 L. Ed. 463. 2 But see Haseltine v. Central Bank of Springfield, 183 U. S. 130, 22 Sup. Ct. 49, 46 L. Ed. 117. Although the law of a case be over- ruled in a subsequent case the judgment of the first case remains res judicata between the parties to it and their privies while unre- As to appeals see Smith v. Schirmer, 86 Wis. 19, 56 N. W. 160, 39 A. 8. R. 869; Harvard Law Rev. December, 1893, p. 240. 3 Loeb v. Willis, 100 N. Y. 231. See Holland v. Hatch, 15 Ohio St., 464; ante, p. 59. 4‘By the discontinuance of an action the further proceedings in the action are arrested not only, but what has been done therein is also annulled, so that the action is as if it had never been. If a suit be discontinued at any stage, or the judgment rendered therein be set aside, or vacated, or reversed, then the adjudication therein concludes no one, and it is not an estoppel or bar in any sense.’ Earl, J, in Loeb v. Willis, SECT. III.] PRELIMINARY VIEW: RES JUDICATA. 67 still at large for further litigation.! There is no presumption available to make the record binding in such a case. Another requisite remains, which should be considered in a separate section. : §3. Special Tribunals.’ ‘In order that a judgment may be relied on as res judicata it must have been one of a legally constituted court.? It is of the very root of the idea of the right of the state to settle the dis- putes of individuals that the machinery employed for the pur- pose should itself be constituted according to law. The point is illustrated by Rogers 1. Wood.* 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 docu- ment was produced from the remembrancer’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 1 Russell v. Place, 94 U. S. 606; Burlen v. Shannon, 99 Mass. 200, don, 49 La. Ann. 913, 22 So. 214; Board of Trustees v. Whalen, 17 204; McDowell v. Langdon, 3 Gray, 513; Perkins v. Parker, 10 Allen, 82; Sawyer v. Woodbury, 7 Gray, 499; Lall v. Pershad, L. R. 9 Ind. App. 64; McCarthy v. Lehigh Val- ley R. R. Co., 160 U. S. 110, 16 Sup. Ct. 240, 40 L. Ed. 358; De Sollar v. Hanscome, 158 U. 8. 216, 15 Sup. Ct. 816, 39 L. Ed. 956; Wood »v. Wood, '134 Ala. 557, 33 So. 226; Sullivan ». Louisville R. R. Co., 128 Ala. 77, 30 So. 528; Palmer v. Sanger, 143 Ill. 34, 32 N. E. 390; Ledoux Heirs v. Lave- Mont. 1, 41 P. 849. 2 Jn regard to such tribunals in England see Everest & Strode, 43- 50, 91 et seq. *The court must have power to act upon the case. Midland Ry. Co. v. Martin, (1893) 2 Q. B. 172; Vittoria v. Vittoria, (1894) 2 Q. B. 387. That the judgment is not subject to reexamination by an- other court is immaterial. John- son Co. v. Wharton, 152 U. S. 252, 14 Sup. Ct. 608, 38 L. Ed. 429, 42 Barn. & Ad. 245. 68 ESTOPPEL BY RECORD. [CHAP. II. show that the usurpation had been committed within the juris- diction of the court and county above named. The court was of opinion that it was improperly received. Lord Tenterden said that no one could 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 members of the Court of Exchequer, joined with others who were not. He said it was therefore evident that it was a pro- ceeding before persons not forming any court known to the laws of the land as having authority to decide the matter in issue or to make the decree in question. And he said that the docu- ment was not even evidence of reputation. In a case in Pennsylvania 1 the defendant, to sustain a plea of res judicata, gave in evidence the record of proceedings before a justice of the peace by the same plaintiff against the defend- ant 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 plaintiff did not want the summons served. Afterwards and before the return day the defendant required notice to be given to 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. The ground was that there was a substantial discontinuance of the first suit, and that the subsequent proceedings were there- fore coram non judice. Without a due return of service upon the defendant the justice of the peace had no hold upon him; and after the discontinuance neither party could carry on 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 nonsuit; this also showed that it was no bar. A court consisting of several judges does not cease to be a legal court for the purpose of a cause by reason of the fact that the judges are equally divided in opinion. In a case before the Supreme Court of Massachusetts,” the defendant having pleaded 1 Fisher v. Longnecker, 8 Barr, ? Durant v. Essex Co., 8 Allen, 410. 103; s. c. 7 Wall. 107. SECT. 111.] PRELIMINARY VIEW: RES JUDICATA. 69 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. Mr. Justice Chapman, speaking for the court, after re- ferring 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 Massachusetts. And the practice was otherwise also in New York and in the United States courts.2_ The record had all the elements of a final de- cree; 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 decided the case. The statement that it was rendered by a divided court did not mean that they were divided upon the question whether it should be rendered; it merely meant that they were divided upon the questions of law involved in it. The same is true of a special court made up by agreement of parties, to take the place of judges disqualified.* The regular judgments too of a de facto court whose existence has after- wards been pronounced unconstitutional and void are held valid. Judgments rendered in the courts of the Southern states during the rebellion are valid; * they were the judgments of courts of a de facto government, at all events.® Though it is commonly said that only the judgments of the public courts of justice are to be held conclusive, there are cases in which the proceedings of other bodies are on special grounds regarded with the same consideration. Of this nature, so far as questions of liberty and property are concerned, must be acts done in the proper enforcement of reasonable regulations of institutions of learning, charity, or discipline. The decisions 1 Proctor’s Case, 12 Coke, 118. 390; State v. Porter, 1 Ala. 688. 2 Bridge v. Johnson, 5 Wend. See State v. Carroll, 38 Conn. 449; 342; Morse v. Goold, 11 N. Y. 281; Den v. Reddick, 4 Ired. 368; State Jessup v. Carnegie, 80 N. Y. 441; v. Alling, 12 Ohio, 16; Case v. State, Etting v. Bank of United States, 5 Ired.1; State v. Anone, 2 Nott & 11 Wheat. 59. M. 27. 3 Donnell v. Hamilton, 77 Ala. 5 Horn v. Lockhart, 17 Wall. 610. 570; Hill v. Huckabee, 52 Ala. 155; 4Masterson v. Matthews, 60 McQueen v. McQueen, 55 Ala. 433. Ala. 260; Mays v. Stoneum, 2 Ala. 6 Comp. note 4, p. 71. 70 ESTOPPEL BY RECORD. [CHAP. II. of the managing boards, lawfully constituted, upon individual delinquencies touching the institutions alone must be con- clusive; conclusive, that is to say, upon the matter of delin- quency, and hence no court of justice can have a right to interfere with the imposition of reasonable pains or penalties in consequence. A case of the kind‘! occurred before Lord Mansfield in the year 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 in substance was that the prosecutor had been expelled under an order of rustication 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 prosecutor endeavored to attack as illegal. But the court refused to allow this, for reasons stated in the note.” This doctrine concerning the rulings of institutions having the temporary tuition or charge of men is doubtless confined to requirements and delinquencies over which the governing body has exclusive jurisdiction; a jurisdiction founded upon the fact that the institution and the individual are the only parties concerned. Where the rights of others are immediately concerned, the rulings of the governing body should have no 1 Rex v. Grundon, 1 Cowp. 315. 2?Lord Mansfield, after having shown that the prosecutor was only @ 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 in- sisted that the sentence of expul- sion is illegal. And at the trial the statutes of the college were offered in evidence to show that it should have been signed by the master and a majority of the fellows, whereas it was signed by the mas- ter and one fellow only. The an- swer to it is that, even if the alle- gation were well founded, the merits, the justice, or the regular- ity of the expulsion cannot be en- tered into at the assizes; but the proper mode of impeaching it is by appeal to the visitor. Mr. Jus- tice 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 a 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.’ SECT. II.] PRELIMINARY VIEW: RES JUDICATA. 71 such effect.1 No decision of such a body can, for instance, bar the state from prosecuting a member of an institution who has violated the criminal law of the land; nor where such a matter is in issue can the decision of the body in any event be more than prima facie evidence for or against the party prosecuted. The decisions of church courts, councils, or syn- ods in this.country concerning the acts and the rights and duties of members are probably to be viewed in the same light.? In this connection we may refer to the judgments of military courts. In the recent case of Hefferman v. Porter * the defend- ant 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 plaintiff 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 said that in a country held by military power the authority of the occupying force was paramount, and necessarily operated to the exclusion of all other independent authority in it. The judgments of courts-martial and of naval courts are a fortiori conclusive determinations of matters necessarily in- 1See Ginnett v. Whittingham, 16 Q. B. D. 761. 2See Chase v. Cheney, 58 IU. 509, 537, 538, and cases cited. 36 Cold. 391. 4Mr. Justice Ellett, speaking for the court, said: ‘The establish- ment of legal tribunals for the ad- judication and protection of civil rights is the most favorable condi- tion for the conquered people. There is always more or less se- curity in a judicial body organized according to the forms of law for the administration of justice ac- cording to the rules that obtain in courts of judicature. There is a dignity and responsibility about such a position 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 bellig-’ erent military occupation, and if their judgments and decrees are held to be binding on all parties during the period of such occupa- tion, as the acts of a de facto gov- ernment, we are not able to see on what grounds we can refuse to them a like effect when pleaded as res judicata before the regular judicial tribunals of the state since the re- turn of peace.’ 54 Am. Law Reg. n. 8. 534. See Grafton v. United States, 206 U. 8. 333, 27 Sup. Ct. 749, 51 L. Ed. 1084. 72 ESTOPPEL BY RECORD. [cHAP. II. volved. In such as in all the cases now under consideration it must, however, be shown by the party relying upon the decision that the court or governing body had jurisdiction of the sub- ject and of the parties. ' The judgments of the ordinary domestic courts of inferior jurisdiction are equally conclusive with the judgments of the superior courts, provided it appear from the record that the court had acquired jurisdiction of the cause.” In the case first cited the plaintiff in trespass quare clausum fregit under a lease from the defendants offered in evidence certain proceedings in- stituted in a former suit by the present defendants, before jus- tices of the peace, to recover possession of the premises, in which the justices had refused to award restitution. The evidence was held to have conclusively shown that the present defendants were not entitled to have restitution of possession, and that the plaintiff was rightfully in possession. The decisions of bodies or individuals, not constituting courts of justice in the ordinary sense, may also, in virtue of statutes, be binding upon questions of property ;* as, in general, the deci- sions of a body to which have been given semi-judicial powers, with a mode of review prescribed by law.* The decisions of the 1S$ee Dynes v. Hoover, 20 How. claims is conclusive unless reversed. 65; Wooley v. United States, 20 Law Rep. 631. 2 Hallock v. Dominy, 69 N. Y. 238; Cumberland Coal Co. v. Jef- fries, 27 Md. 526; Burke »v. Elliott, 4 Ired. 355; Ward v. State, 40 Miss. 108; Shaver v. Shell, 24 Ark. 122; Flitters v. Allfrey, L. R. 10 C. P. 29; Turner v. Conkey, 1382 Ind. 248, 31 N. E. 777, 32 A. S. R. 239; Todd »v. Crail, 167 Ind. 48, 77 N. E. 402; Wright v. Parlee, 16 N. B. 381. 3 See Wakefield Corpn. v. Cooke, (1902) 1 K. B. 188; Bland v. Low, (1894) 1 Ch. 147. Decision of Sec. of Interior under Statute powers, cannot be revoked by his successor. Noble v. Union River Logging R., 147 U.S. 165, 13 Sup. Ct. 271, 37 L. Ed. 128. Judgment of a County Board in auditing and allowing Trites v. Hitchcock, 53 Neb. 79, 73 N. W. 215. As to decisions of land departments on questions. relating to land see Hardin v. Jor- dan, 140 U. S. 371, 11 Sup. Ct. 808, 838, 35 L. Ed. 428; Wis. R. Co. ». Forsythe, 159 U. 8. 46, 15 Sup. Ct. 1020, 40 L. Ed. 71. * Logansport v. La Rose, 99 Ind. 117, 127; Grusenmeyer v. Logans- port, 76 Ind. 549; Board of Com- missioners v. Karp, 90 Ind. 236; Cicero v. Williamson, 91 Ind. 541; Rutherford v. Davis, 95 Ind. 245. See Strosser v. Fort Wayne, 100 Ind. 443, and cases in notes following. See Western U. Tel. Co. v. Mis- souri, 190 U. 8. 412, 23 Sup. Ct. 730, 47 L. Ed. 1116. Decision of Board of Equalization is in nature of a judgment. SECT. III.] | PRELIMINARY VIEW: RES JUDICATA. 73 comptroller of the currency with reference to certain questions of the national currency are collaterally so treated.!_ The deci- sions of the United States commissioner of patents for invention are also binding in collateral actions.?. In Jackson ». 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 should be regularly put in issue. The principle had been frequently 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 from 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.® Patents issued in due form and manner from the United States land department at Washington are also conclusive in collateral actions until set aside.* In Cassidy ». Carr, just cited, the claimant of a Mexican land grant proceeded to have the same confirmed at Washington, 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.® Mr. Justice Field, of the Supreme Court of the United States, 1 Casey v. Galli, 94 U. 8. 673. 2 Jackson v. Lawton, 10 Johns. 23; Rubber Co. v. Goodyear, 9 Wall. 788, 796; Eureka Co. v. Bailey Co., 11 Wall. 488; Field ». Seabury, 19 How. 332; Hosmer »v. Wallace, 51 Cal. 368. 3 Rubber Co. v. Goodyear, ut supra. In an English case upon an action for infringement of a patent, the court held that one of the claims in the specification had been anticipated, and declared the patent invalid. Defendant pre- sented a petition for revocation of the patent. It was held that the plaintiffs were not estopped from setting up the validity of the claim, on the petition. In re Deeley’s Patent, (1895) 687. 4 Steel v. Smelting Co., 106 U.S. 447; Smelting Co. v. Kemp, 104 U. S. 636; Jackson v. Lawton, 10 Johns. 23; Cassidy v. Carr, 48 Cal. 339; Gallagher v. Riley, 49 Cal. 473. See also Herbst v. Smith, 71 Ind. 44; Mull v. Orme, 67 Ind. 95. 5 Judgment against an inchoate Mexican land grant is not a bar to proceedings after the grant has been perfected, for obvious rea- sons. Amesti v. Castro, 49 Cal. 325; ante, p. 59, note 4. 74 ESTOPPEL BY RECORD. [CHAP. II. has recently said that the land department was established to , supervise the proceedings of conveyances of the lands of the United States, and to see that the requirements of the acts of Congress have been fully complied with. It must therefore of necessity ‘ consider and pass upon the qualifications of the appli- cant, the acts he has performed to secure the title, the nature of the land, and whether it is of the class which is open to sale. Its judgment upon these matters is that of a special tribunal, and is unassailable except by direct proceedings for its annul- ment or limitation.’! The decisions of local supervisors in regard to the sufficiency of fences are held conclusive in Minnesota; so of the reports of commissioners appointed to fix boundaries between towns in New Hampshire; * and so of decisions of county commissioners in Indiana in matters of drainage.* On the other hand, the decisions of municipal commissioners in Indiana appointed by virtue of statute to lay out streets and assess damages are not judgments of courts of justice.’ But all that is a matter of statute, which of course might otherwise provide,® or be silent in regard to the effect of the proceedings.’ 1 Steel v. Smelting Co., 106 U. S. 447, 450. Decision of land depart- ment does not estop unless it had jurisdiction over the case. Hardin v. Jordan, 140 U. 8. 371, 11 Sup. Ct. 808, 838, 35 L. Ed. 428. See also Wis. Cent. R. R. Co. v. Forsythe, 159 U.S. 46, 15 Sup. Ct. 1020, 40 L. Ed. 71; where patents are is- sued by land office as a result of adverse proceedings and compro- mise agreements, the parties and their successors are estopped from asserting rights adverse to the patents. Kennedy Mining Co. ». Argonaut Mining Co., 189 U. 8. 1, 23 Sup. Ct. 501, 47 L. Ed. 685. 2 Oxborough v. Borsser, 30 Minn. 1. . 3 Pitman v. Albany, 34 N. H. 577. See also Dana v. Craddock, 66 N. H. 593, 32 A. 757; Farm- ington v. Downing, 67 N. H. 441, 30 A. 345; Spalding v. Grotton, 68 N. H. 77, 44 A. 88; Bryant ». Tamworth, 68 N. H. 483, 39 A. 431. _ 4 Power v. Clelland, 82 Ind. 24. See Farm Invest. Co. v. Carpenter, 9 Wyo. 110, 61 P. 258, 87 A. S. R. 918 (matters of used water); Res- sier v. Grimme, 130 Ind. 219, 28 N. E. 866 (matters of highway); Alexander v. Gill, 180 Ind. 485, 30 N. E. 525 (Justice of Peace). 5 Elkhart v. Simonton, 71 Ind. 7, 21, citing McMicken v. Cincin- nati, 4 Ohio St. 394; In re Mt. Morris Square, 2 Hill, 14; In re Third Street, 6 Cowen, 571; Staf- ford v. Albany, 7 Johns. 541; In re Beekman Street, 20 Johns. 269. § Logansport v. La Rose, 99 Ind. 117, 127. As to orders of commis- sioners of highways see Strong ». Makeever, 102 Ind. 578. 7In such case the proceedings would not have the effect of a judg- ment; and so a fortiori where the SECT. III.] | PRELIMINARY VIEW: RES JUDICATA. 75 The award of arbitrators under an agreement which does not oust the jurisdiction of the courts,! if final and regular, is also in the absence of fraud conclusive upon the parties in respect of all questions properly brought before and considered by the arbitrators.” The case first cited was an action on a note against a prior indorser by a subsequent one, 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 joined, it was con- tended that the judgment was not an estoppel to the present defendant to deny demand and notice. But the court ruled otherwise.’ Nor can the award of statutory or perhaps ordinary proceedings were not under stat- ute. See Gaylord v. King, 142 Mass. 495. 1 Pearl v. Harris, 121 Mass. 300. On the effect of an agreement to submit disputes to arbitration Lord Watson says: ‘ The jurisdiction of the court is not wholly ousted by such a contract. It deprives the court of jurisdiction to inquire into and decide the merits of the case, whilst it leaves the court free to entertain the suit and to pronounce a decree in conformity with the award of the arbitrator.’ Hamlyn v. Talisker Distillery Co., (1894) A. C. 202, 211. If the arbitration proves abortive, the jurisdiction of the court revives. Id. 2 Lloyd v. Barr, 11 Penn. St. 41; Pease v. Whitten, 31 Maine, 117; Males v. Lowenstein, 10 Ohio St. 512; Burrows v. Guthrie, 61 Ill. 70; Snow v. Walker, 42 Texas, 154; Harris ». Harris, 82 Vt. 199, 72 A. 912. Especially is one estopped who has partly performed the award. Bryant v. Jeffreys, 104 N. C. 242, 10S. E. 167. An agree- ment to arbitrate, which ousts the jurisdiction of the courts, is void both at law and in equity. Pearl ». Harris, 121 Mass. 390; Wood ». Humphrey, 114 Mass. 185; Tobey v. Bristol, 3 Story, 800. But an agreement which merely suspends the action of the courts would not be within the rule. Thus, parties may enter into a valid agreement to arbitrate before, or as a condi- tion precedent to, bringing suit. Scott v. Avery, 8 Ex. 487; s.c. 5 H. L. Cas. 811; Wood v. Hum- phrey, supra; Rowe v. Williams, 97 Mass. 163; Scott v. Liverpool, 3 De G. & J. 334; Jones v. St. Johns College, L. R. 6 Q. B. 115; Elliott v. Royal Assur. Co., L. R. 2 Ex. 237; Sharpe v. San Paulo Ry. Co., L. R. 8 Ch. 597; Gray v. Wilson, 4 Watts, 39; Herrick v. Belknap, 27 Vt. 673; Hill v. Moore, 40 Maine, 515. 3 The opinion of the court was thus stated by Mr. Justice Bell: ‘The now defendant had then a full opportunity to controvert his liability on the note in question, and to cross-examine the witnesses produced by the bank to prove it; a privilege which constitutes one of the principal tests of estoppel by judgment. The very point, too, to establish which that judgment is now pleaded, was then in issue. No- tice to the defendants of the dis- honor of the note was a material al- legation of the narr. in that action. And though no technical issue was formed by a formal plea, there was a substantial one under our sys- tem of arbitration, requiring proof 76 ESTOPPEL BY RECORD. [CHAP. II. appraisers be attacked collaterally for mere error of judgment.t But it is proper to show that the arbitrators refused to consider a claim properly offered in the case,? or that a demand which might have been embraced within the arbitration was not laid before the board.? The awards of referees and auditors under appointment of the courts, after the award has been entered as a judgment of court, are binding, it seems, upon the same footing as ordinary judgments.* An award not entered as a judgment of court is not in the full or, it should seem, proper sense a case of res judicata;° it is the result of an agreement between the parties, and has charac- teristics flowing from agreement quite as much as characteristics of a judgment. Thus, the question whether the award is bind- ing will, from one point of view, depend upon the consideration whether it is in accordance with the submission, i. e. with the agreement to arbitrate; if it is in excess of the authority, it is without effect. So, too, if on the face of the award it is obvious that it is founded in mistake of law or of fact,’ at least if the mistake is gross, the award by the law of this country is not binding at law or in equity.® It is not enough, indeed, merely to show, however clearly, that the arbitrators came either in law or in fact® to an erroneous conclusion; for the agreement to submit evidently implies the possibility of that. To impeach the award it should be shown, with regard to a case of mistake, that by reason of some error the arbitrators were so misled that of everything necessary to show the bank’s right to recover. Darling- ton v. Gray, 5 Whart. 487. The award of the arbitrators has there- fore the same legal effect as the verdict of a jury and judgment thereon under an issue strictly made up.’ 7 1People v. Schuyler, 69 N. Y. 242 (canal appraisers). 2 Gaylord v. Norton, 180 Mass. 74. 3 Lee v. Dolan, 39 N. J. Eq. 193. See Ravee v. Farmer, 4 T. R. 146; Golightly v. Jellicoe, ib. note; Web- ster v. Lee, 5 Mass. 334. 4See e. g. Blodgett v. Dow, 81 Maine, 197, putting the judgment on the same footing with judg- ments on verdict of a jury. 5 Lanigan v. New York, 70 N. Y. 454, 6 Boston Water Co. v. Gray, 6 Met. 131; Nickels v. Hancock, 7 De G. M. & G. 300. 72 Story, Equity, § 1453. 8 Davis v. Henry, 121 Mass. 150; Boston Water Co. ». Gray, 6 Met. 131, 169, 170; Withington v. War- ren, 10 Met. 431; Strong v. Strong, 9 Cush. 560, 569; Cutting v. Carter, 29 Vt. 72; Matthews ». Matthews, 1 Heisk. 669. But comp. James v. James, 23 Q. B. D. 12, C. A. 92 Story, Equity, § 1454. SECT. III.] PRELIMINARY VIEW: RES JUDICATA. 77 they did not apply correctly the rules which they intended to apply,’ or that there was some gross and obvious error in the result, as distinguished from a mere error in judgment, or per- haps that the arbitrators intended to decide according to the law and mistook the same.” And the award could, it seems, be col- laterally impeached in such cases; clearly it could in an action upon the same.? It follows that fraud or other gross miscon- duct, misleading the arbitrators, will be ground for impeaching the decision.* Thus, if a party should procure the allowance of a claim before arbitrators, which he knows to be fictitious, effect- ing the result through fabricated testimony, or by withholding books or papers which would show the truth, the award may be set aside,* or doubtless in this country impeached in a collateral action.® It is necessary as yet, no doubt, to speak with some caution concerning the collateral impeachment of awards for other causes than such as would avail against judgments; but still it seems reasonable to conclude that an award, not made a judgment of court, cannot take higher rank than a very de- liberate contract to pay so much money, or to do or not to doa particular thing. It must be upon some such view, it would seem, that it is not considered necessary to have the award set aside even when only voidable, in order to impeach it in an action upon or concerning it. Indeed, it appears to be the sub- stantial result of such authoritative cases as Boston Water Co. v. Gray’ that when a contract could be reformed or avoided for 1 Davis v. Henry, 121 Mass. 150; Boston Water Co. v. Gray, 6 Met. 131, 169; Carter v. Carter, 109 Mass. 306; Spoor v. Tyzzer, 115 Mass. 40; Vanderwerker v. Ver- mont Cent. R. Co., 27 Vt. 130. 2 Boston Water Co. v. Gray, 6 Met. 131, 168. 3 Boston Water Co. v. Gray, 6 Met. 131; Withington v. Warren, 10 Met. 431; Strong v. Strong, 9 Cush. 560. Most of the cases are proceedings to set aside the award, but Boston Water Co. v. Gray, supra, the most important perhaps of all, was an action upon an award (a collateral proceeding of course); and no distinction was made in the elaborate judgment of the court between collateral and direct im- peachment. The same may be said of Withington »v. Warren, and Strong v. Strong. 4 Pickering v. Cape Town Ry. Co., L. R. 1 Eq. 84; Beddow »v. Bed- dow, 9 Ch. D. 89; Cutting v. Carter, 29 Vt. 72; Boston Water Co. v. Gray, supra; Strong v. Strong, supra. 5 Cutting v. Carter, 29 Vt. 72. 6 See Boston Water Co. v. Gray, supra; Strong v. Strong, supra. 76 Met. 181. Our authorities, 78 ESTOPPEL BY RECORD. [CHAP. II. mistake or fraud, an award may be impeached when sued upon. And it may be doubted whether an award, if not agreed to be under seal, would merge the original cause of action. The case, however, will be changed, it seems, when once the award is entered, at least after contest, as a judgment of court. However all this may be, it seems clear that besides the ob- jections available on the ground that the award originated in an agreement to submit to arbitration, any other objection that could be urged successfully against a judgment may be made. Thus, an award may be impeached collaterally as well as di- rectly for corruption on the part of the arbitrators. Indeed, evidence of conduct of a far less reprehensible character may afford a good defence in this country to an action upon an award. It is laid down that not corruption and fraud only, but also the exercise of undue or improper influence, applied by one of the parties upon an arbitrator, by separate conference or other approaches, is a defence to such an action.? It would seem hardly necessary to state that a judgment of a court of last resort cannot be collaterally attacked, in regard to Jaw or fact, in that or in any other court,‘ and it is remarkable that any question of the conclusiveness of such a judgment should ever have been raised. But questions of the kind have often been raised and a decision thereof made necessary.> It as indicated by this case, perhaps go further than the English. 1Boston Water Co. v. Gray, 6 Met. 131; Strong v. Strong, 9 Cush. 560. So an injunction will be granted in such a case against en- forcing the award. Pickering v. Cape Town Ry. Co., L. R. 1 Eq. 84; Beddow v. Beddow, 9 Ch. D. 89. 2 Strong v. Strong, 9 Cush. 560, 574. ’ Braden v. Graves, 85 Ind. 92, 96; Roberts v. Cooper, 20 How. 467. 4Even if the evidence upon which the case was heard be sent up with the record. Franklin ». German Sav. Bank, 142 U. S. 93, 12 Sup. Ct. 147, 35 L. Ed. 948; Brownsville v. Loague, 129 U. S. 493, 9 Sup. Ct. 327, 32 L. Ed. 780, explained; and even though the law was incorrectly applied. State v. Savage, 64 Neb. 684, 91 N. W. 557. 5 Sturgis v. Rogers, 26 Ind. 1; Braden v. Graves, 85 Ind. 92, 96; Hawley v. Smith, 45 Ind. 183; Dodge »v. Gaylord, 53 Ind. 365; Sizer v. Many, 16 How. 98; Lucas v. San Francisco, 28 Cal. 591; Don- nell v. Hamilton, 77 Ala. 610; Roundtree ». Turner, 36 Ala. 555; Camden v. Werninger, 7 W. Va. 528; Logansport v. Humphreys, 106 Ind. 146; New York Ins. Co. v. Clemmitt, 77 Va. 366; Miller »v. Cook, ib. 806; Supervisors v. Ken- nicott, 94 U. S. 498; Chouteau ». SECT. Iv.] PRELIMINARY VIEW: RES JUDICATA. 79 was well said in Sturgis v. Rogers, just cited, that to say that a judgment of affirmance by the Supreme Court, when the parties were before the court and the case was brought within its law- ful jurisdiction, was not an end of that litigation, would be a startling doctrine; asserting in effect that a cause could never have a termination. §4. Special Judgments (on the Merits) of the ordinary Tribunals. 1. First of the conclusiveness of agreed, confessed, or consent judgments. In a case in Kentucky‘ the defendants pleaded that the same plaintiffs having 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 controversy; 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 judgment at their instance.? The Gibson, 76 Mo. 38, 51; Star Wagon Co. v. Swezy, 63 Iowa, 275; Le Roy v. Collins, 165 Mich. 380, 130 N. W. 635. 1Bank of Commonwealth »v. Hopkins, 2 Dana, 395. 2In re South American Co., (1895) 1 Ch. 37, C. A.; United States v. Parker, 120 U. S. 89; Dunn »v. Pipes, 20 La. An. 276; Jar- bor v. Smith, 10 B. Mon. 257; The -Bellcairn, 10 P. D. 161, C. A; Kronprinz v. Kronprinz, 12 App. Cas. 256, 259. See also Fletcher v. Holmes, 25 Ind. 458; Brown »v. Sprague, 5 Denio, 545; Donnell ». Hamilton, 77 Ala. 610; Lemmon », Osborn, 153 Ind. 172, 52 N. E. 1058; Lindsay v. Allen, 112 Tenn. 637, 82S. W. 171. But it is held that the mere words of record ‘ dis- missed agreed’ are not enough for the purposes of res judicata. It should be shown that it was agreed that the controversy should be fully terminated, otherwise the words will have no more effect than that of a nonsuit. Haldeman v. United States, 91 U. S. 584, a case from Kentucky, in which the Kentucky rule was considered. Davis, J.: ‘There must be at least one de- cision on a right between the par- ties before there can be said to be a termination of the controversy, and before a judgment can avail as a bar to a subsequent suit.’ Further see Jacobs v. Marks, 182 U.S. 583, 21 Sup. Ct. 865, 45 L. Ed. 1241. The terms of the agreement which was the basis of the dismissal were not performed, and therefore no estoppel. 80 ESTOPPEL BY RECORD. [CHAP. II. agreement, however, should be an 4greement to terminate the controversy fully.1 In Chamberlain v. Preble ? the court said 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 agreement of parties or coun- sel to matters thought not to be in controversy. The execution of written instruments, the testimony of absent witnesses, and the date of the happening of particular events, were of this class. A mistake, however, in the admission of any one such fact, if material, would be quite as fatal in its effects upon the conclu- siveness of the judgment as an error in an agreed statement of facts.? Indeed, it is commonly held in this country that where the agreement, confession, or consent is certain,* the judgment will be conclusive.® In Sheldon v. Stryker there was an attempt in 1Haldeman v. United -States, supra. In Wohlford v. Compton, 79 Va. 333, the words ‘ dismissed agreed’ were treated as a ‘re- traxit’ and so held an estoppel. Ante, p. 59. 211 Allen, 370. 3 See Huddersfield Banking Co. v. Lister, (1895) 2 Ch. 273; Wilding y, Sanderson, (1897) 2 Ch. 534 (set- ting aside consent order on the ground of mistake); Cothran ». Brower, 75 Ga. 494; McCreery »v. Fuller, 63 Cal. 30. A consent order made while a party was under a mistaken belief as to a basic fact involving juris- diction estops such party in subse- quent proceedings from contending that the order was not within the jurisdiction of the court. Joint com- mittee v. Croston Council, (1897) 1Q. B. 251. -* Nashville Ry. Co. ». United States, 113 U. S. 261. The effect of a consent decree extends to all matters within the consent, whether litigated or not. Ibid. In England a consent judgment on a contract ultra vires, the issue of ultra vires not having been raised in the pleadings or facts stated, is of no greater validity than the contract, and no_ estoppel. Great Cent. Ry. Co. v. Charlebois, (1899) A. C. 114, 5 Sheldon v. Stryker, 34 Barb. 116; Neusbaum v. Keim, 24 N. Y. 325; Dean v. Thatcher, 3 Vroom, 470. See Snow v. Howard, 35 Barb. 55; North v. Mudge, 13 Iowa, 496; Twogood v. Pence, 22 Iowa, 5438; Sherman v. Christy, 17 Iowa, 322; Whitaker v. Bramson, 2 Paine, 209; Secrist v. Zimmerman, 55 Penn. St. 446; Kirby »v. Fitzgerald, 31 N. Y. 417; Weikel v. Long, 55 Penn. St. 238; Goff v. Dabbs, 4 Baxter, 300; Thompson v. Maxwell Land Co., 168 U. S. 451, 18 Sup. Ct. 121, 42 L. Ed. 539; Adler v. Van Kirk Land Co., 114 Ala. 551, 21 So. 490, 62 A. 8. R. 133; Chicago Tire Co. »v. Chicago Nat. Bank, 176 Ill. 224, 52 N. E. 52; Short ». Taylor, 137 Mo. 517, 33S. W. 952; Harris ». Harris, 82 Vt. 199, 72 A. 912; Citizens Light Co. ». St. Louis, 34 Can. 495. See Alabama R. Co. v. South Ala- bama R. Co., 84 Ala. 570, decree SECT. Iv.] PRELIMINARY VIEW: RES JUDICATA. 81 a collateral action to impeach such a judgment, on the ground that it had not been confessed in conformity with the provi- sions 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 there- fore that it could not be collaterally impeached, and should not have been rejected when offered in evidence. A different rule prevails in England unless the suit was dis- missed by agreement.'! In a Scotch case before the House of Lords ? it appeared that 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 compromise was effected; and in pursuance thereof the court pronounced the judgment agreed upon. Subsequently the present action was brought, laying before the court the same cause which had been compromised; and the question arose whether the matter was res judicata. Lord Chancellor Chelmsford said that the judg- ment 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 con- clusion that one side was right, and having pronounced a de- cision accordingly. And this was the opinion of the House of Lords. The weight of reasoning appears to be this way.* pro confesso. A consent decree can be impeached only by an original bill in the nature of a bill of review. Krieger v. Krieger, 221 Ill. 479, 77 N. E. 909; Hohenadel v. Steele, 237 Ill, 229, 86 N. E. 661. Stay of exe- cution being deemed a judgment by confession, the judgment is equally conclusive and cannot be im- peached. Anderson v. Kimbrough, 5 Cold. 260. 1Kronprinz v. Kronprinz, 12 App. Cas. 256, 259; The Bellcairn, 10 P. D. 161, C. A., holding that the agreement could not afterwards be rescinded by consent of the parties, to the injury of others. 2 Jenkins v. Robertson, L. R. 1 H. L. Scotch, 117. 3 See to the same effect, White v. Buccleuch, 1 H. L. Scotch, 70; Lamb v. Gatlin, 2 Dev. & B. Eq. 37; Egerton v. Muse, 2 Hill, Eq. (S. Car.) 51; Wadhams v. Gay, 73 Ill. 415. See also Gay v. Parpart, 106 U. S. 679, 696, 698. It will be observed that such a judgment is less effective than a judgment by de- fault. Butsee In re South American Co., (1895) 1 Ch. 37, holding that 82 ESTOPPEL BY RECORD. [CHAP. IL. The same would be true, a fortiori, in the case of such a judg- ment rendered without an issue.! The case cited was a suit to restrain an infringement of a patent against certain persons. Several years before, the plaintiff, having discovered the same firm (composed of the same persons, with two others who sub- sequently joined it) violating his patent, commenced an ac- tion 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 imme- diately took a license from the plaintiff to use his patent for a certain 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. 2. Judgment by default * is virtually judgment rendered ex parte.* It is of course conclusive for its own purpose, for ap- -pearance or contest by a party served with process, or otherwise a consent judgment raises an es- toppel just the same as though it were arrived at in the ordinary way. Joint Committee v. Croston Council, (1897) 1 Q. B. 251; see also Kennedy Min. Co. ». Argo- naut Min. Co., 189 U.S. 1, 23 Sup. Ct. 501, 47 L. Ed. 685, for effect of land patent issued from land office as result of contest and compromise agreement. 1Goucher v. Clayton, 11 Jur. Nn. s. 107. 2 Wood, V. C. said: ‘I do not think that even if all the present defendants were parties to the rec- ord in the action a court of common law would have held, in a new ac- tion by the plaintiff, that there was an estoppel. There is no evidence of any issue between the parties. The defendants are supposed to say, “We thought it not worth our while to try the question, and we therefore did not raise the issue.” They submitted and paid 40s. dam- ages and costs, possibly because they might have been unwilling to give over working, or incur the ex- pense of litigation. At any rate there appear to have been no plead- ings in the action; and the defend- ants would not be estopped by their submission to the judgment unless the plaintiff had declared validly and they had pleaded, denying the infringement.’ But further he said that he could not prevent the two defendants, who were not parties to the former action, from setting up the defence; and he must there- fore hold that there was no estoppel. 3 The term is here used broadly to include final decrees in equity pro confesso on default. _Such are of course conclusive in collateral suits for their own purpose, that is, as to the facts clearly found. See Hefner v. New York Life Ins. Co., 123 U. S. 747, 756; Thomson »v. Wooster, 114 U. S. 104, 111. But quzere whether such a decree would conclude facts in the way of avoid- ance, concerning which the plead- ings were silent? 4 See Mass. Pub. Sts. c. 167, § 81. SECT. Iv.] PRELIMINARY VIEW: RES JUDICATA. 83 bound by notice, is unnecessary;! but it is laid down in Eng- -land that such a judgment concludes the defendant only from denying the averments of the declaration and contesting 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 re- spect of the same subject-matter; as for subsequently accruing rent under the same lease upon which the first action was brought.? And the court in the case cited proceeded to say that the omission to plead a good defence would in no case of the kind prevent the defendant from pleading it in a second action. The law of this country upon the subject is not perhaps en- tirely settled. The English rule, it will be noticed, goes only to the extent of allowing the party who made the default to avail himself afterwards of facts not actually or necessarily in issue in the cause that went by default. Facts in avoidance of the plaintiff’s claim, if not pleaded, can be availed of under the rule; while facts directly in bar, such as payment, or probably in bar pro tanto, such as part payment, cannot, whether pleaded or not, be made use of by the defendant. The tendency of the later authorities in this country is towards the English rule in its first branch, to wit, permitting the subsequent use of facts in avoidance of the first action.® 1In re South American Co., (1895) 1 Ch. 37, holding judgment by consent like judgment by de- fault, to be conclusive. Aslin »v. Parkin, 2 Burr. 665, 668; Hasluck ' v. McMaster, 1 N. B. 4; Lewis ». Board of Commissioners, 70 Ga. 486; Board of Commissioners »v. Welch, 40 Kans. 767; Walsh »v, McIntire, 68 Md. 402, 420. It is held that judgment by default in a suit not controverted, ase. g. ina suit alleging a partnership against the defendants, is an admission, and as such may be used, like any other admission, by third persons. Cen- tral R. Co. v. Smith, 76 Ala. 572. Secus if the suit was controverted, even under the general issue. Ibid. 2 Howlett v. Tarte, 10 C. B. n. s. 813; Hanham v. Sherman, 114 Mass. 19. See also Williams »v. Williams, 63 Wis. 58, a striking case. 3 Cromwell v. Sac, 94 U. 8. 351, 356; Hanham »v. Sherman, 114 Mass. 19; Harrison v. Phoenix Ins. Co., 83 Ind. 575, 577; Unfried v. Huberer, 63 Ind. 67. See Shirland v. First National Bank, 65 Iowa, 96; Crowder v. Red Mt. Min. Co., 127 Ala. 254, 29 So. 847. But see Ebersole v. Latimer, ib. 164. See also Adams v. Adams, 25 Minn. 72, where it is held that upon mere judgment by default in a suit on one of several promissory notes all tainted with the same illegality, the defendant may when sued upon an- other of the notes still avail himself of the defence. Hughes v. Alexan- 84 ESTOPPEL BY RECORD. [CHAP. II. On the other hand, cases, now however treated as overruled, have been decided in this country which allowed a defendant after judgment against him by default to maintain an action to recover the amount of a part payment not set up or allowed in the former action.! 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 had not been allowed in a former suit brought by the present de- fendant upon the note. The present plaintiff appeared and de- fended 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 earlier cases of Rowe v. Smith * and Fowler v. Shearer.* The point of distinction was that in those cases the judgment was obtained 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. This distinction has, however, been disregarded in later cases of the same court, and the two cases above men- tioned have been declared overruled.® In a recent case before the Supreme Court of New York, affirmed by the Court of Appeals,® the rule in Rowe v. Smith, with the distinction on which it was founded, is also rejected. In the New York case referred to the maker of a promissory note had made a partial payment upon it, which had not been ‘der, 5 Duer, 488. With the case of defences to judgment by default in general should be compared cases of cross-demands hereafter to be examined at length. White v. Mer- ritt, 7 N. Y. 352; Bodurtha »v. Phelon, 13 Gray, 413; Ressequie v. Byers, 52 Wis. 650; Goble v. Dil- lon, 86 Ind. 327. Judgment by de- fault for the sale of lands to satisfy an execution precludes one from setting up a homestead exemption. Kimbrough v. Harbett, 110 Ky. 94, 60 8S. W. 836. 1 Rowe v. Smith, 16 Mass. 306; Fowler v. Shearer, 7 Mass. 14; Smith v. Weeks, 26 Barb. 463. 217 Mass. 394. 316 Mass. 306. 47 Mass, 14. 5 Fuller v. Shattuck, 13 Gray, 70. See also Sacket v. Loomis, 4 Gray, 148; Jordan v. Phelps, 3 Cush. 547; Greenabaum v. Elliott, 60 Mo. 25, 30; Decker v. Adams, 4 Dutch. 511, 514; Corey v. Gale, 13 Vt. 639, 645. 6 Binck v. Wood, 48 Barb. 315; 37 How. Pr. 653, where it is stated that the judgment of the Supreme Court was affirmed in June, 1869, So in 1 Abb. N. Y. Dig. p. xxxiv. 2d ed. SECT. IV.] PRELIMINARY VIEW: RES JUDICATA 85 indorsed. The payee sued upon the note and recovered judg- ment for the full amount, the maker not defending. A surety on 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 maintainable. 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 authorities they had been referred, except in Rowe v. Smith, which, as has been said, was considered as overruled.? ‘The law,’ it was said, ‘ 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 ex- pressly notified this plaintiff he would do, namely, take judg- ment 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.’ This appears to be the better opinion.? The meaning sim- ply is that judgment by default, like judgment on contest, is conclusive of what it actually professes to decide as deter- mined from the pleadings; in other words, that facts are not open to further controversy if they are necessarily at variance with the judgment on the pleadings.‘ If this be not true, judg- 126 Barb. 463. 2 The following cases were cited: Tilton v. Gordon, 1 N. H. 33 (over- ruled by Snow »v. Prescott, 12 N. H. 535); Broughton v. McIntosh, 1 Ala. 103; Mitchell v. Sanford, 11 Ala. 695; Loomis »v. Pulver, 9 Johns. 244; White v. Ward, ib. 232; Battey v. Button, 13 Johns. 187; Walker v. Ames, 2 Cowen, 428; Dey v. Dox, 9 Wend. 129; Le Guen v. Gouverneur, 1 Johns. Cas. 436; Marriott v. Hampton, 7 T. R. 269; Kist v. Atkinson, 2 Camp. 63. 3JIn re South American Co., (1895) 1 Ch. 37; Huffer v. Allen, L. R. 2 Ex. 14; Sutliff v. Brown, 65 Towa, 42. See Engstrom »v. Sher- burne, 1387 Mass. 152. 4In re South American Co., su- pra. See State v. McBride, 76 Ala. 51; McCalley ». Wilburn, 77 Ala. 549 (nil dicit, i.e. judgment with- out a plea); Barton v. Anderson, 104 Ind. 578; Shirland v. First National Bank, 65 Iowa, 96. The case of Ebersole v. Latimer, 65 Iowa, 164, goes too far. If the declaration set out no cause of action, there is no estoppel. Bosch v. Kassing, 64 Iowa, 312. Nor can the judgment be binding except in regard to matters properly averred in the declaration. Barton v. An- derson, 104 Ind. 578, citing Unfried v. Huberer, 63 Ind. 67, and other eases. Further in regard to judg- ments by default see Nemetty »v. Naylor, 100 N. Y. 562; Last Chance Min. Co. v. Tyler Min. Co., 86 ESTOPPEL BY RECORD. [CHAP. IL. ments by default are of little worth. The effect of the English rule in such cases is seen in the case of judgments by default against administrators. Thus, in the case of Rock v. Leighton 1 the plaintiff sued the defendant, a sheriff, for a false return. The fact was that the sheriff had returned a devastavit to an execution against the plaintiff as an administrator; he having suffered a judgment by default. The plaintiff contended that the-sheriff should have returned nulla bona, instead of a devas- tavit. The court, however, ruled that the confession of judg- ment, or suffering judgment by default, in the case of an execu- tor or administrator, was an admission of assets and estopped him to deny the fact. Judgment was therefore given for the defendant. The doctrine of this case is well settled.? It is, however, laid down for clear law by the Supreme Court of the United States that judgment by default admits the legality of the demand or claim in suit only for the purpose of the action, and that it does not make the allegations of the declaration evidence in an action upon a different demand; * by way, that is to say, of an estoppel by verdict.* Of course nothing short of final judgment upon default can have conclusive effect. Thus, judgment by default of appear- ance of the defendant does not operate as a bar to another ac- tion until after the damages have been determined.> Whitaker v. Bramson involved a judgment under a rule of court author- izing the plaintiff, in an action of 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 therefore only an interlocutory 157 U. S. 683, 15 Sup. Ct. 733, 39 L. Ed. 859; Ruppin v. McLachlan, 122 Iowa, 343, 98 N. W. 153; North- ern Trust Co. v. Crystal Lake Ass’n., 67 Minn. 131, 69 N. W. 708; Turn- age v. Joyner, 145 N. C. 81, 58 8. E. 757; Taylor v. Sledge, 110 Tenn. 263, 75 S. W. 1074. 11 Salk. 310; s.c. 1 Ld. Raym. 589. ?Leonard v. Simpson, 2 Bing. N.C. 176; s.c. 2 Scott, 355; Grace v. Martin, 47 Ala. 135. See also 2 Wms. Executors, 1953 (7th Eng. ed.). But judgment for the de- fendant is not, it seems, a bar to an action against him for after- acquired assets. See Mara v. Quine, 6 T. R. 1, 2, argument of Gibbs for executor. 3 Cromwell v. Sac, 94 U. S. 350, 356. 4See post, p. 100. 5 5 Whitaker v. Bramson, 2 Paine, 09. SECT. IV.] | PRELIMINARY VIEW: RES JUDICATA. 87 judgment, and did not work an estoppel to a new suit for the same cause.! 3. Judgment in proceedings supplementary to the main judg- ment 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 reliti- gating the same matter.’ 4, Judgment on a writ of partition at common law works an estoppel concerning the transfer of title; * while partition in chancery does not deal with or decide questions of controverted title. A decree in chancery does not transfer or convey title even after thé allotment of shares of the parties; the legal title remains as before.‘ In neither case does the judgment operate beyond the title held at the time of the suit; it does not affect a title afterwards acquired; * it is like judgments in general. _Judgment in partition binds parties only; ® it may indeed 1 See further, as to judgment by default, Fagg v. Clements, 16 Cal. 389; Mailhouse v. Inloes, 18 Md. 328; Green v. Hamilton, 16 Md. 317, 329; Minor v. Walter, 17 Mass. 237; Brummagim ». Ambrose, 48 Cal. 366; Mason v. Patterson, 74 Ill. 191; Last Chance Min. Co. », Tyler Min. Co., 157 U. S. 683, 15 Sup. Ct. 733, 39 L. Ed. 859. Under statutes of Illinois judgment by de- fault in a county court, for collec- tion of taxes, is not conclusive. Gage v. Pumpelly, 115 U. S. 464. 2 McCullough v. Clark, 41 Cal. 298. 3 Gay v. Parpart, 106 U. S. 679; Carter v. White, 1384 N. C. 466, 46 S. E. 983, 101 A. S. R. 853; O’Don- aghue ». Smith, 184 N. Y. 365, 77 N. E. 621. See Burroughs v. De Couts, 70 Cal. 361. Secus in Indi- ana under statutes. Luntz v. Greve, 102 Ind. 173; Elston v. Piggott, 94 Ind, 14. In that state, and probably in other states, it merely severs pos- session and awards to each tenant his part in severalty. Elston v. Pig- gott, supra. But title may there be put in issue and decided. Luntz v. Greve, supra, and cases cited. 4 Gay v. Parpart, at p. 689, Mil- ler, J.; De la Vega v. League, 64 Texas, 205, 215. See the second case for a further consideration of partition in equity. 5 See Elston v. Piggott, 94 Ind. 14, 24, citing Miller v. Noble, 86 Ind. 527, and other cases, in regard to decrees; Bryan v. Uland, 101 Ind. 477. So of other judgments, e. g. in ejectment; they do not bar an after-acquired title. Burns »v. Hodgdon, 64 Cal. 72; People’s Bank v. Hodgdon, ib. 95; Embrey v. Palmer, 107 U.S. 3, 11. Contra where the after-acquired title was only a formal conveyance of the title already litigated. Phelan ». Tyler, 64 Cal. 84. 6 Childs v. Hayman, 72 Ga. 791. 88 ESTOPPEL BY RECORD. [CHAP. II. conclude contingent interests of persons not in being, but this only in cases where the judgment provides for and protects such interests by substituting the fund derived from the sale of the land in place of the land, and preserving it to the extent neces- sary to satisfy such interests as they arise.* 1Monarque v. Monarque, 80 N. Y. 320, 326, Andrews, J.; Mead v. Mitchell, 17 N. Y. 210; Brevoort v. Brevoort, 70 N. Y. 136. A tenant in common may by agreement estop himself to claim partition. Eberts v. Fisher, 54 Mich. 294; Avery »v. Paine, 12 Mich. 540; Martin ». Martin, 170 Ill. 639, 48 N. E. 924, 62 A. S. R. 411. SECT. I.] JUDGMENTS IN PERSONAM. 89 CHAPTER III. JUDGMENTS IN PERSONAM. In presenting this subject we have adopted the following divisions: — 1. Estoppel by former judgment; 2. Estoppel by former ver- dict; 3. The limits and operation of judgment and verdict estoppels; 4. Under what circumstances judgments may be impeached in collateral actions. , §1. Former Judgment: Identity of Causes of Action. Judgment upon the merits of a cause in litigation rendered by any court of competent jurisdiction is a bar to all further litigation of the same claim or demand.! This rule gives rise to a defensive position called as a matter of pleading ‘ former judgment;’ the essential and the characteristic feature of which consists in this, that it must be shown that there is identity between the present and the previous cause of action. By his plea the defendant says in effect that the plaintiff has on a previous occasion brought an action against him, or against one under whom the defendant claims, in respect of the very same cause now alleged; in which action judgment was given for the plaintiff or for the defendant, as the case may be. He demands to know why he should now be pursued again; ‘ nemo bis vexari debet pro una et eadem causa.’? The question, then, to be decided is whether the two causes of action are the same; if they are not identical, the defence is not good. We 1See e. g. Cromwell v. Sac, 94 U. S. 351; Borer v. Chapman, 119 U. S. 587; Minneapolis Assoc. v. Canfield, 121 U. S. 295, 308; Wil- son ». Deen, ib. 525; Bissell v. Spring Valley, 124 U. 8. 215; Um- lauf ». Umlauf, 118 Ill. 580; Thomas v. Merry, 113 Ind. 83, 91; Rogers v. Kimsey, 101 N. C. 559; Bickett v. Nash, ib. 579; Magnus v. Sleeper, 69 Wis. 219, 223. 2See Johnson Co. v. Wharton, 152 U.S. 252, 14 Sup. Ct. 608, 38 L. Ed. 429. 90 ESTOPPEL BY RECORD. [CHAP. III. now present some of the cases which illustrate or explain this oint. e The case of Cleaton v. Chambliss,! decided by the Virginia Court of Appeals, will serve to illustrate the subject. Apart from unnecessary details the case was this: Wessen being indebted to the plaintiff Chambliss, paid him by unnegotiable bonds purporting to have been executed to him (Wessen) by the defendant Cleaton and T C, the defendant having before the transfer promised the plaintiff that he would pay them. The defendant having failed to pay the bonds at maturity, Chambliss sued him upon them in Wessen’s name; to which action the former pleaded non est factum, and obtained judg- ment on his plea. Chambliss then sued him on the special promise to pay the bonds. The defendant demurred to a count setting out the foregoing matters; and he contended inter alia that the judgment in his favor on the bonds was a complete bar to the action. But the demurrer was overruled.” In a case before the Supreme Court of the United States ? it appeared that the plaintiff had sued the defendant for salt sold and delivered. The defendant pleaded that having given in payment of the salt the 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 the maker and his insol- vency made to appear. But the plea was held bad. Chief 16 Rand. 86. issue, and which could not possibly 2 After having considered the questions of pleading and other matters involved, the court by Carr, J. said that the record must also show that issue was taken on the same allegation which was the foundation of the second action. ‘Here,’ to quote the language of the court, ‘the foundation of the action is the promise of Cleaton to Chambliss; there the foundation is the bond of Cleaton to Wessen. The issue there was upon non est factum; that was the point de- cided, the allegation taken and found; an allegation not put in be put in issue, in the case before us. If then the judgment on the bonds had been pleaded the plea could not have availed; for if it had stated the record correctly, ‘a demurrer would have lain; and if incorrectly, the replication of nul tiel record would have overthrown it.’ See Nesbit v. Riverside Dist., 144 U. S. 610, 12 Sup. Ct. 746, 36 L. Ed. 562. § Clark v. Young, 1 Cranch, 181. See Wilmington R. Co. v. Alsbrook, 146 U. S. 279, 302, 18 Sup. Ct. 72, 86 L. Ed. 972. SECT. I.] JUDGMENTS IN PERSONAM. 91 Justice Marshall 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 could not lie until a suit had been brought against the maker; in the second suit the point to be decided was whether the plaintiffs had lost their remedy on the original contract by their conduct re- specting 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,! also before the Supreme Court of the United States, the appellants filed a bill to recover damages for the sinking of the steamer Huron in the Chicago River. The casualty had been effected 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 work of removal, but, abandoned it before the work was accomplished. The defence among other things was a former judgment 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 remain, 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 remove 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 question 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 15 Wall. 566. 2 Goodrich v. City, 20 Ill. 445. 92 ESTOPPEL BY RECORD. (CHAP. III. that upon a careful examination of the declaration and the libel they must hold that there was no such difference between the cases as to take the present action out of the operation of the principle of res judicata. 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 unfortunate for him. In pursuance of this contract the plaintiff had furnished labor, materials, and money, for which the assignor of the contract had given him an order 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 whieh 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 sus- tain the other, the questions involved being essentially unlike. A judgment, however, for the defendant in an action for a false representation — the inducement to a contract, for ex- ample of soundness on an exchange of horses — is a bar to a sub- sequent action of contract on the defendant’s warranty of the fact falsely stated at the time of the contract; the two causes of action are identical.2 On the other hand, where an action ex contractu has been defeated by proof of some special agreement in regard to performance, the judgment will not bar an action by the same plaintiff upon the special agreement. Thus, in Harding v. Hale * it appeared 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 plaintiff, as a partial payment of the goods. The present action being brought upon this special promise, the defendant pleaded in bar the judgment in the action for the goods sold in 113 Gray, 285. 391; Clement v. Field, 147 U. S. * Norton v. Doherty, 3 Gray, 467, 13 Sup. Ct. 358, 37 L. Ed. 244. 372; Ware v. Percival, 61 Maine, 52 Gray, 399, SECT. I.] JUDGMENTS IN PERSONAM. 93 bar. But the court held the plea bad. Mr. Justice Thomas said that the first suit was not for the same cause of action, nor to be supported by the same evidence, as the second. The judg- ment 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. Again, in Fitch v. First National Bank! it appeared that one of a number of creditors, who were seeking to set aside certain conveyances of their debtor as fraudulent, had already obtained judgment against the debtor, and had levied upon one of the tracts conveyed; but it was held that the former judgment and proceeding did not estop him from maintaining (with the other creditors) the present suit. The second action was not to ob- tain another judgment upon his demand, but a decree setting aside the conveyances so as to make his execution available. In like manner, where it appears that judgment went against a demandant in a writ of entry on the ground that his grantor was disseised at the time of delivering the deed, he may show in a later suit that he has since fortified his title in this respect.” So judgment for a defendant in ejectment because a deed upon which the plaintiff relied was defective, owing to a mistake in it, is no bar to a proceeding to have the mistake corrected and the land then adjudged to the plaintiff. So also dismissal of a suit to enforce personal liability against the defendant for taxes is no bar.to a suit to subject land of his under a statutory lien to the payment of the same taxes.* The test referred to in some of these cases, whether the evi- dence, actually adduced or newly discovered,® which would 199 Ind. 443. An action for in- juries sustained in common with other creditors of a bank is not the same cause of action as one for in- dividual loss. Yates v. Utica Bank, 206 U.S. 181, 27 Sup. Ct. 646, 51 L. Ed. 1015. 2 Perkins v. Parker, 10 Allen, 22; Hawley v. Simons, 102 Ill. 115; ante, p. 59, note 4. 3 Hawley v. Simons, 102 Ill. 115. See Houstoun »v. Sligo, 29 Ch. D. 448, 4 Biggins v. People, 106 III. 270. Finding of lunacy is only presump- tive, not conclusive evidence of incapacity to make a deed, al- though made within period of find- ing and may be overcome by satis- factory evidence of sanity even by petitioner in the inquisition de lunatico, in collateral proceedings. Hughes v. Jones, 116 N. Y. 67, 22 N. E. 446, 15 A. 8. R. 386. 5In re May, 28 Ch. D. 516. Newly discovered evidence affords 94 ESTOPPEL BY RECORD. [CHAP. III. support the one case would sustain the other, is a universal one when applied to the judgment rendered in the former action, and not merely to the plaintiff’s cause of action as stated in his declaration.! The plaintiff’s action may have been turned aside by evidence which prevented a direct judgment upon the merits of his demand; and then, though the evidence in the second action, after the plaintiff has overcome the objection to the first, would have supported the first demand, there is of course no bar. Thus, as we have seen, if the former suit was defeated by a defect of title in the plaintiff, the judgment will not bar pro- ceedings after the plaintiff’s title has been perfected.” So too it is not enough to constitute an estoppel that the same facts must be used in the second action which were used in the first; for it may be that such facts constituted but one severable part of the plaintifi’s whole demand.’ Nor a fortiori is it enough that the two cases grew out of the same transaction or state of facts so as to require the same evidence to be produced in the second suit;* for the objects and causes of action relating to the fact may be successive or otherwise different.’ This will be seen in a class of cases now to be mentioned. no ground for a fresh action after judgment against the same plain- tiff. Ibid. 1See, besides the cases referred to in the text above, Steinbach ». Relief Ins. Co., 77 N. Y. 498; Daw- ley v. Brown, 79 N. Y. 390; Stow- ell v. Chamberlain, 60 N. Y. 272; Miller v. Manice, 6 Hill, 114; Riker v. Hooper, 35 Vt. 457; Marsh »v. Pier, 4 Rawle, 273; Motley v. Har- ris, 1 Lea, 577; Hudson v. Reming- ton Paper Co., 71 Kan. 300, 80 P. 568; Greene v. Merchants’ Bank, 73 Miss. 542, 19 So. 350; Mershon v. Williams, 63 N. J. L. 398, 44 A. 211; Kimball v. Hilton, 92 Me. 214, 42 A. 394; Meredith Mechanic Ass’n. v. American Twist Co., 67 N. H.,450, 39 A. 330; Roach ». Curtis, 191 N. Y. 387, 84 N. E. 283; Com. Nat. Bank v. Sloman, 194 N. Y. 506, 87 N. E. 811. 2 Amesti v. Castro, 49 Cal. 325; Perkins v. Parker, 10 Allen, 22; ante, p. 59, note 4; Central Baptist Church v. Manchester, 21 R. I.'357, 43 A. 845. 3 Nathans v. Hope, 77 N. Y. 420. See also Lyon v. Robbins, 45 Conn. 513. ‘Decision by magistrate that highway was repairable by inhab- itants, under statute, no bar to raising same question by other frontagers in later action of same kind. Wakefield ». Cooke, (1902) 1 K. B. 188. Judgment for injury to person no bar to action for injury to property by the same wrongful act. Reilly v. Sicilian Paving Co., 170 N. Y. 40, 62 N. E. 772, 88 A. 8. R. 636. 5 As in the case of cross-demands or of an action for what might have been made a defence to the former suit, but was not required by law so to be used. See infra, pp. 193 SECT. I.] JUDGMENTS IN PERSONAM. 95 In the case of periodically recurring? 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 to an action for a sum subsequently falling due, it would seem, when the former judgment was for the plaintiff.5 And in the case of taxes the same must be true when the judgment was for the defendant, if there has since been any change of law or fact in respect of the defendant; ‘ for generally speaking a judgment decides the rights of the parties only from the time of the writ or the time laid in the declaration.* If, however, there has been no change, judgment based solely upon the validity of the de- mand ® and not upon facts in avoidance, such as payment or compromise, would doubtless operate as a bar.’ In the case of an action on a debt due by instalment, as for example on a prom- issory note, judgment against the validity of the main obliga- tion itself, applying to all instalments alike, would preclude the obligee from suing upon any of the instalments; ® but an adverse judgment based upon grounds relating merely to a particular et seq., where this subject is fully considered. 1 Continuing damage is another thing, to be considered later. 2 In some states, e.g. Tenn., the doctrine of res judicata is not ap- plicable to taxes other than those under consideration in the particu- lar case, and in cases coming from such states the United States courts cannot give any greater efficacy to the doctrine. Union Bank v. Memphis, 189 U. S. 71, 23 Sup. Ct. 604, 47 L. Ed. 712; Covington v.,First Nat. Bank, 198 U.S. 100, 25 Sup. Ct. 562, 49 L. Ed. 963. 3See Lake Shore Ry. Co. ». State, 46 Mich. 193; Hanham ». Sherman, 114 Mass. 19; Burritt v. Belfy, 47 Conn. 323; Secor v. Sturgis, 16 N. Y. 548. If, however, the plaintiff were to wait until the whole debt were due, he could or- dinarily bring but one action. Bur- ritt v. Belfy, supra. 4 Davenport v. Chicago R. Co., 38 Iowa, 634; Keokuk Co. v. Mis- souri, 152 U. S. 301, 14 Sup. Ct. 592, 38 L. Ed. 450. 5 Drake v. Vorse, 42 Iowa, 653; Wisconsin v. Torinus, 28 Minn. 175, 180; Newington v. Levy, L. R. 7 C. P. 180. 6See New Orleans v. Citizens Bank, 167 U. S. 372, 17 Sup. Ct. 905, 42 L. Ed. 202, and cases cited. Tenn., however, refuses to follow the United States.. Union Bank »v. Memphis, 101 Tenn. 154, 46 S. W. 557; State v. Enloe, 121 Tenn. 347, 1178. W. 223; Defries v. McMeans, 121 Iowa, 540, 97 N. W. 65; Ex- position Park v. Kansas City, 174 t Mo. 425, 748. W. 979. 7 But see Deposit Bank v. Frank- fort, 191 U. 8. 499, 24 Sup. Ct. 154, 48 L. Ed. 276. 8 Cleveland v. Creviston, 93 Ind. 831; Strauss v. Murtief, 64 Ala. 299; Koehler v. Holt Mfg. Co., 146 Cal. 335, 80 P. 73; Markley v. People, 171 Ill. 260, 49 N. E. 502, 63 A. S. R. 234. - 96 ESTOPPEL BY RECORD. [cHAP. III. instalment sued upon could not in principle bar an action on another of them.! Nor could a judgment, for example, in tres- pass bar an action for a previous demand distinct from the one sued upon, though of the same nature.” It will be seen that the fact that the form of action and precise remedy sought are different in the two suits will not prevent the existence of an estoppel.* The estoppel grows out of matter of substance, and form has little, if anything, to do with it. This is believed to be true at the present time even in. regard to matters of pleading, according to more widely prevail- ing modes.* After what has been said it need hardly be added that, where the court had jurisdiction and the judgment was not ‘ con- cocted ’ in fraud, it is entirely conclusive upon the parties, and cannot be impeached in any collateral action either because, e. g. the law was incorrectly applied to the case,° or because some statute under which the proceedings were taken, as, e. g. an in- solvency statute, was unconstitutional,® or because the facts before the court were incorrectly found, or because the facts were not all known at the time.’ A recent case in the Court of 180 of a series of notes given by the same person. Felton v. Smith, 88 Ind. 149, 152; Gardner v. Buck- bee, 3 Cowen, 120; post, p. 105. See further, concerning rights of action for recurring liability, Dun- can v. Bancroft, 110 Mass. 267. 2De la Guerra v. Newhall, 55 Cal. 21. 3 Edwards v. Baker, 99 N. Car. 258; Stowell v. Chamberlain, 60 N. Y. 272; Ware v. Percival, 61 Maine, 391; Johnson v. Knudson- Mercer Co., 167 Ind. 429, 79 N. E. 367. ‘See chapter 21. ® Decision of House of Lords upon question of law is conclusive and binds the House in subsequent eases. An erroneous decision can be set right only by an Act of Parlia- ment. London Co. »v. London Council, (1898) A. C. 375. 6 Clay v. Smith, 3 Peters, 411; Chapman ». Forsyth, 2 How. 202; Baldwin v. Hale, 1 Wall. 223; Gil- man v. Lockwood, 4 Wall. 234; Morse v. Lowell, 7 Met. 152; Buck- lin v. Bucklin, 97 Mass. 256; Fogler v. Clark, 80 Maine, 237. The rule was at one time taken to be contra in regard to insolvency laws. Kim- berly ». Ely, 6 Pick. 440; Agnew v, Platt, 15 Pick. 417. 7 The validity of a patent upheld in equitable proceedings becomes res judicata, and estops collateral denial. Shoe Machinery Co. ». Cutlan, (1896) 1 Ch. 667. Text quoted in Hardwick v. Young, 110 Ky. 504, 62 S. W. 10. See also Deposit Bank »v. Frankfort, 191 U.S. 499, 24 Sup. Ct. 154, 48 L. Ed. 276; Small v. Benfield, 66 N. H. 206, 20 A. 284; Holland v. Laconia ee 68 N. H. 480, 41 A. 178. SEcT. 1.] JUDGMENTS IN PERSONAM. 97 Exchequer ! shows in a very strong light how rigidly the English courts hold to the doctrine under consideration. It was an action against the defendant for maliciously signing judgment for £28, the amount of the plaintiff’s debt originally, after the present 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 compelled,'in order to procure his discharge, to pay the full sum ‘indorsed and the sheriff’s fees. The declara- tion then alleged that at the date of the judgment only £18 were due, and claimed damages 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.2 The American rule, on the whole, as we have seen, is to the same effect.® It should be added that, in the silence of the record of a jury trial, evidence is admissible to show the ground of the verdict, or what was found; and the same is true of non-jury trials, and a fortiori of arbitrations.t Thus in Packet Co. v. Sickles the 1 Huffer v. Allen, L. R. 2 Ex. 14. 2‘Qur judgment,’ said Kelly, C. B. ‘ must be for the defendants. I say so with regret, because no doubt if the act of the defendants was knowingly done, that is, if they knew that the debt was reduced below £20 at the time of signing the judgment, their act was highly unjustifiable. But we must here determine the legal question, which is whether the previous judgment . estops the plaintiff from bring- ing this action, the first step in which is to impeach that record. It is a simple and unanswerable ar- gument against its maintenance : that it is not competent to either party to an action to aver anything either expressing or importing a contradiction to the record; which, while it stands, is as between them an evidence of incontrollable verity. . .. The then defendant now avers that the judgment was signed and the execution issued wrongfully and maliciously ... and on this averment founds his action against the judgment creditor. But he cannot make this averment, and therefore cannot maintain this ac- tion, whilst the judgment, against which no averment can be admitted, stands as evidence that, when judg- ment was signed, the debt which the then defendant owed was £28, and not £18.’ Bramwell, B. did not regret the result; the plaintiff himself had caused the difficulty by not pursuing the proper course. He should have had the judgment corrected. ; 3 See ante, pp. 84-86; Laing »v. Rigney, 160 U. S. 531, 16 Sup. Ct. 366, 40 L. Ed. 525. ‘There are many illustrations. See Carter ». Shibles, 74 Maine, 273; Packet Co. v. Sickles, 5 Wall. 98 ESTOPPEL BY RECORD. [CHAP. III. question of the proof of the identity of the contract sued upon with that involved in a former judgment arose; and it was deter- mined that where the declaration in the former action, as set out in the record, alleged a special contract, without stating whether it was a written or parol contract, and where jurors in that action were brought to testify to the identity of that con- tract with the present, evidence was admissible on the other side that the contract was in parol.! It is held, however, that 580; Cromwell v. Sac, 94 U. S. 351, 355; Campbell v. Rankin, 99 U. S. 261; Wilson v. Deen, 121 U. 8. 525; Chicago R. Co. v. Schaf- fer, 123 Il. 112, 121; Withers ». Sims, 80 Va. 651, 658; Allebough v. Coakley, 75 Va. 629; Fowlkes v. State, 14 Lea, 14; Bryan v. Malloy, 90 N. Car. 508; Morgan ». Burr, 58 N. H. 167; McCall v. Jones, 72 Ala. 368; Pruitt v. Holly, 73 Ala. 369; -Foye v. Patch, 182 Mass. 105; Boynton v. Morrill, 111 Mass. 4; Hood v. Hood, 110 Mass. 463; Wood v. Jackson, 8 Wend. 10; Washing- ton Packet Co. v. Sickles, 24 How. 333; Lawrence v. Hunt, 10 Wend. 80; Supples v. Cannon, 44 Conn. 424; Dutton v. Woodman, 9 Cush. 255; Bigelow v. Winsor, 1 Gray, 299. See also Phillips v. Berick, 16 Johns. 136; Perkins v, Walker, 19 Vt. 144; Gardner v. Buckbee, 3 Cowen, 121; Burt v. Sternburgh, 4 Cowen, 559; Waterhouse v. Le- vine, 182 Mass. 407, 65 N. E. 822; Richstein v. Welch, 197 Mass. 224, 83 N. E. 417; Hearne v. Boston & M. R. R., 67 N. H. 320, 29 A. 970; Hubbard v. Gould, 74 N. H. 25, 64 A. 668. So, too, the judge may look into the pleadings of the former trial, though not fully set out in the plea of res judicata. Houstoun ». Sligo, 29 Ch. D. 448. See Boone »v. St. Paul Foundry Co., 33 Minn. 253. Or into the authorized reports of a cause. Hood v. Hood, 110 Mass. 463. Formerly, it seems, evidence was not received to help \ out the record when silent, except perhaps in regard to matters with- out the issues. Sintzenick v. Lucas, 1 Esp. 43; Manny v. Harris, 2 Johns. 24; Meredith v. Santa Clara Assoc., 56 Cal. 178, 181. See Sayles v. Briggs, 4 Met. 421. The burden of proof is of course upon the party alleging the decision of the fact in question. Pruitt v. Holly, 73 Ala. 369. 1Mr. Justice Nelson, speaking for the majority of the court, said: ‘As we understand the rule in re- spect to the conclusiveness of the verdict and judgment in a former trial between the same parties, when the judgment is used in plead- ing 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 determined; that is, if the record of the former trial shows that the verdict could not have been rendered without deciding the particular matter, it will be con- sidered as having settled that mat- ter as to all future actions between the parties; and further jn cases where the record itself does not show that the matter was neces- sarily and directly found by the jury, evidence aliunde 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 SECT. 1.] JUDGMENTS IN PERSONAM. 99 while evidence may be offered to identify the issues submitted, it is not proper to prove the course of action of the jury or what was considered by them. 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 life or limb,* has a close relation to this subject of estoppel by former judgment, and may be considered as the criminal law counterpart of the same doctrine. But the doctrine rests upon technical views of jeopardy and not upon the prin- ciple of res judicata,* and we shall not examine it with that minuteness which we have brought to the consideration of the preceding matters, but shall be content with a reference to some of the main features of the doctrine. The bar of a former acquittal or a former conviction arises after the defendant was technically in jeopardy on the former trial; and jeopardy begins, according to the better authorities, when the petit jury is sworn.* When the jury, being full, is sworn and added to the other branch of the court, and all the preliminary matters of record are in readiness for the trial, the prisoner, according to the better opinion, has reached the jeopardy which protects him from a second trial.6 Whatever is done thereafter is immaterial, so far as the question of an- other 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,’ unless the prisoner consents, or other- within the issue controverted in the former suit, if it be not shown that the verdict and judgment neces- sarily involved its consideration and determination, it will not be concluded.’ . 1Crum »v. Boss, 48 Iowa, 433; Lawrence v. Hunt, 10 Wend. 80. 2 4 Black. Com. 335. See United States v. Chouteau, 102 U. 8. 603. 3 Const. Amend. art. 5. 4 Justice v, Commonwealth, 81 Va. 209, 217. An issue of fact in a criminal case is conclusive in a sub- sequent criminal proceeding be- tween the same parties. State vc. Sargood, 80 Vt. 415, 68 A. 49, 130 A. 8. R. 995. 5 Bishop, Crim. Law, §§ 856, 857. 6 Ibid. § 858. . 7 Ibid. [CHAP. III. 100 ESTOPPEL BY RECORD. wise waives his right. In some states, however, the jeopardy of the defendant is deemed not to exist until the case has been submitted to the jury for verdict.? But if after the case has thus been submitted the trial be terminated by the government for any cause not founded upon the invalidity of the proceed- ings, the effect is a virtual acquittal of the prisoner; and he may so plead upon any new prosecution for the same offence. We shall see in a subsequent part of this chapter that the rules relating to the binding effect of judgments in civil causes are quite different in this particular. The case is different where the trial is terminated by an adju- dication 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 a 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 in jeopardy at all.? This doctrine, it will be seen, is in strict accord with that in relation to civil judgments. § 2. Former Verdict: Identity of Point in Issue. The class of cases now to be considered is that in which an estoppel arises regardless of any identity in the cause of action; the only requirement now being that the point in issue, as dis- tinguished from the whole cause of action, shall be identical in the two cases. In these cases the judgment operates as an estoppel in regard to those matters in controversy upon which, or upon the determination of which, the verdict or finding,‘ as distinguished from the judgment itself, was rendered. And the same is true though the former judgment was rendered on 1See Commonwealth »v. Tuck, 20 Pick. 356. 2? Bishop, Crim. Law. The reader is referred to the work cited for a further consideration of the subject. The question hardly comes within the scope of this work, and it will not be further pursued. 5 Bishop, Crim. Law, § 873. 4 Special findings of the jury are part of the verdict and binding as such. Lamoille Nat. Bank v. Hunt, 72 Vt. 357, 47 A. 1078; Sowles »v. Sartwell, 76 Vt. 70, 56 A. 282. 5 Cromwell v. Sac, 94 U. 8. 350, 352; Davis v. Brown, ib. 428, 428; Bissell v. Spring Valley, 124 U. 8S. 225. See Hanna »v. Read, 102 IIl. SECT. I1.] JUDGMENTS IN PERSONAM. 101 demurrer, if the demurrer was based distinctly upon specific facts constituting the merits of the case.1 This may for con- venience be called estoppel by ‘ former verdict.’ The subject came under consideration from the technical point of view of pleading 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 plaintiff for the security of a certain promissory note specified in the mortgage deed. The defendant offered to prove that the note mentioned in the mort- gage 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 present 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 usuri- ous consideration, and that a verdict was given for the plaintiff. The debt not having been satisfied in that case, the present action was brought. The court held ‘the judgment conclusive of the matter. Mr. Justice Bristol said that when the cause or object of two actions was different, though the matter in dis- pute was the same in both, the prior judgment was, indeed, no bar to a subsequent action; but the verdict might still be con- clusive evidence upon the point in dispute. Commenting upon Lee v. Hopkins,’ he said that no one could suppose that, what-. ever 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 chancery was to get money refunded, alleged by a purchaser of an estate to have been necessarily expended 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 596; Tilley v. Bridges, 105 Tll. 336; Strang v. Moog, 72 Ala. 460; Smith v. Kernochan, 7 How. 198. ! Bissell v. Spring Valley, supra, a demurrer-to facts alleged concern- ing the issuance of certain munici- pal bonds, coupons of which were sued upon,- on which demurrer judgment was rendered overruling the same; the judgment being held conclusive in a subsequent suit between the same parties on other coupons cut from the same bonds. 25 Conn. 550. 36 Wheat, 109. 102 ESTOPPEL BY RECORD. [CHAP. III. 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 evidence, 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 ? should be referred to. That was an indictment 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 judg- ment obtained by her against Hervey in a suit for jactitation of marriage, — claiming and boasting a marriage with her, — whereby she was pronounced a spinster and free from all matri- monial alliance with Hervey ‘as far as yet appeared.’ The case having gone to the House of Lords, the lords spiritual and tem- poral 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 mar- riage in an indictment for polygamy? As one of the preliminary positions in the opinion of the judges Chief Justice De Grey said that, from the variety of cases relative to judgments 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 con- clusive, between the same parties, 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 par- 1Aslin v. Parkin, 2 Burr. 665; 2 Everest & Strode, Estoppel, Rex v. St. Pancras, Peake, 219; 410 (full report); 20 How. St. Tr. Marriott v. Hampton, 7 T. R. 269; 355; 1 Leach C. C. 73; 2 Smith’s 2 Phillipps, Evidence, 18, 19, 4th Lead. Cas. 679, 6th Eng. ed. Am, ed. SECT. I1.] JUDGMENTS IN PERSONAM. 103 ties when coming incidentally in question in another court for a different purpose. Having stated that the Spiritual Court had exclusive jurisdiction of questions of marriage, though the tem- poral 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 Spiritual Court were in- volved in criminal cases; for then the parties were in all cases different. The king, he said, in whom the trust of prosecuting public offences was vested, was no party to proceedings in the Ecclesiastical Court, and could not be admitted to defend, ex- amine witnesses, intervene in any way, or appeal. He then proceeded to say that whatever might be the doctrine in regard to the conclusiveness of a positive adjudication concerning mar- riage when involved in a criminal case, 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 1‘ This,’ he said, ‘is ranked as a cause of defamation only, and not as a matrimonial cause, unless where the defendant pleads a mar- riage; and whether it continues a matrimonial cause throughout, as some say, or ceases to be so on failure of proving a marriage, as others have said, still the sentence has only a negative and qualified effect; viz. that the party has failed in his proof, and that the libellant is free from all matrimo- nial contract, as far as yet appears; leaving it open to new proofs of the same marriage in the same cause, or to any proofs of that or any other marriage in another cause; and if such sentence is no plea to a new suit there... it cannot conclude a court which receives the sentence from going into new proofs to make out that or any other marriage. So that, admitting the sentence in its full extent and import, it only proves that it did not yet appear that they were married, and not that they were not married at all; and by the rule laid down by Holt, L. C. J. such sentence can be no proof of anything to be in- ferred by argument from it; and therefore it is not to be inferred that there was no marriage at any time or place because the court had not then sufficient evidence to prove a marriage at a particular time and place. That sentence and this judgment may stand well together, and both propositions be equally true; it may be true that the Spiritual Court had not then sufficient proof of the marriage specified, and that your lordships may now, unfortunately, find suffi- cient proof of some marriage.’ See Hughes v. Jones, 116 N. Y. 67, 22 N. E. 446, 15 A. S. R. 386. 23 East, 346. See Loan Asso- ciation v. Black, 119 N. C. 323, 25 S. E. 975. 3See among many other cases so treating Outram v. Morewood, Pittapur v. Garu, L. R. 12 Ind. [CHAP. III. 104 ESTOPPEL BY RECORD. was brought for digging and getting out coals from a mine alleged by the plaintiff to be within and under his close, called Cowclose. The defendants pleaded and showed title by a reg- ular chain in right of the wife from Sir John 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 bar- gained and sold. And that upon this point, whether the coal moines claimed by the plaintiff and mentioned 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. The question was, in the language of Lord Ellenborough, ‘ whether the defend- ants, the husband and wife, were estopped by this verdict and judgment thereupon from now averring (contrary to the title so then found against the wife) that the coal mines now in ques- tion are parcel of the coal mines bargained and sold by the in- denture above mentioned.’ And it was held that they were.! App. 16; De Mora v. Concha, 29 Ch. D. 268, C. A. (affirmed on ap- peal nom. Concha v. Concha, 11 App. Cas. 541). 1Jn delivering the judgment of the court, Lord Ellenborough, C. J. said: ‘The operation and effect of this finding, if it operate at all as a conclusive bar, must be by way of estoppel. If the wife were bound by this finding as an estoppel, and precluded from averring the con- trary of what has been so found, the husband in respect of his privity, either in estate or in law, would be equally bound. Coke, Litt. 352 a. [See Lindsey v. Dan- ville, 46 Vt. 144, 148]... The question then is, Is the wife herself estopped by this former finding? In Brooke, tit. Estoppel, pl. 15; ibid. Estate, 158, it is said to be “agreed that all the records in which the freehold comes in debate shall be estopped with the land, and run with the land; so that a man may plead this as a party, or as heir, as privy, or by que estate.” SECT. II] JUDGMENTS IN PERSONAM. 105 The case of Gardner v. Buckbee ! will also illustrate the prin- ciple under consideration. That case was an action upon a But if it be said that by the free- hold coming in debate must be meant a question respecting the same in a suit in which the freehold is immediately recoverable, as in an assize or writ of entry, I answer that ‘a recovery in any one suit upon issue joined on matter of title is equally conclusive upon the sub- ject-matter of such title; and that a finding upon title in trespass not only operates as a bar to the future recovery of damages for a trespass founded on the same injury, but also operates by way of estoppel to any action for an injury to the same supposed right of possession. In trespass for breaking the plaintiff’s close, reported in 3 Leon. 194, the defendant pleaded “that hereto- fore he himself brought an ejec- tione firme against the plaintiff of the same land in which the trespass is supposed to be done, and had judgment to recover, and demanded judgment if against, etc. It was moved that the bar was not good because that the defendant had not averred his title; and the recovery in one action of trespass is no bar in another,” etc. [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 assize the freehold is bound, so by recovery in ejectione firme the possession is bound.” And by Anderson: ‘“ A recovery in one ejectione firme is a bar in an- other, especially, as Periam said, if the party relieth upon the estop- pel.” And afterwards judgment was given that the plaintiff should be barred. This, it will be recollected, was an action of ejectione firme, and not an ejectment moulded and regulated by rules of court as it is at present. The court very prop- erly distinguishes 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 firme without title al- leged; and the plaintiff might, in respect of possession or other vary- ing circumstances of title, be well entitled to recover at one time, and not be so at another. And it is not the recovery, 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 dam- ages for the same injury; but the estoppel precludes parties and priv- ies from contending to the con- trary of that point or matter of fact, which, having been once dis- tinctly 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.’ In considering the com- plaint of Lord Coke, Preface, 8 Rep., concerning the multiplicity 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 pos- 13 Cow. 120. 106 ESTOPPEL BY RECORD. (CHAP. III, 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 and unseaworthy, to the knowl- edge of the plaintiff. The latter admitted that the note in ques- tion was one of two notes, for the same amount, given 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 session 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 injury to his pos- session done by the very person in whose favor the absolute right of property shall have been so affirmed in a real action. A judgment, therefore, in each species of action is final only for its own proper pur- pose 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 the trespass committed. In the real action it affirms a right to the free- hold of the land to be in the de- mandant at the time of the writ brought. Each species of judgment, from one in 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 thereby de- cided.’ See Arnold v. Arnold, 17 Pick. 4; post, p. 109; Morse v. Elms, 131 Mass. 151; Young z. Pritchard, 75 Maine, 513, 517; Hanna». Read, 102 Tl. 596; Tilley v. Bridges, 105 Ill. 186; Strang v. Moog, 72 Ala. 460; Kirkland v. Trott, 75 Ala. 321; Jenkins v. International Bank, 111 Ill. 462. After having consid- ered several earlier cases (Ferrer’s Case, 6 Coke, 7; Incledon v. Burges, 1 Show. 27; s.c. Comb. 166; Evelyn v. Haynes, Surrey Summer Assizes, 1782; Kinnersley v. Orpe, 2 Doug. 517), his lordship said: ‘ None of the cases, therefore, cited on the part of the plaintiff, negative the conclusiveness of a verdict found on any precise point once put in issue between the same parties or their privies. The cases adverted to by Lord Holt, and which have been fully explained and enforced by the defendants’ counsel, to- gether with the other authorities on the subject of protestation and estoppel (cited from Bro. Abr., Protestation, pl. 9; Fitzherbert, Estoppel, pl. 20), are in our opin- ion, as well as upon the reason and convenience of the thing and the analogy to the rules of law in other cases, decisive that the husband and wife, the defendants in’ this case, are estopped by the former verdict and judgment on the same point in the action of trespass, to which the wife was a party, from averring that the coal mines now in question are parcel of the coal mines bargained and sold by Sir John Zouch; and _ consequently that the plaintiff ought to recover.’ Steamer, out of coal, towed to port by trawler that claimed and recovered judgment: for salvage. Steamer claimed from underwriter. Defendant not estopped from set- ‘ting up that loss did not arise from peril insured against. Point de- cided in former case was that a maritime lien was established and judgment was in rem. What perils insured against is the issue in the second case. Issues not the same} parties not the same. Ballantyne v. Mackinnon, (1896) A. C. 455. sEcT. 11] , JUDGMENTS IN PERSONAM. 107 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 defendant on the ground that the sale was fraudulent. The evidence was objected to on the ground that the cause of action was different 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 evi- dence was conclusive. Mr. Justice Woodworth, speaking for the court, said it was clear that the question of fraud was tried be- tween the parties in the Marine Court on one of the notes given in payment of the vessel. That court had concurrent jurisdic- tion; and the law (as stated on a previous page) was well settled that the judgment of a court of concurrent jurisdiction, directly upon the point, was as a plea a bar, or as evidence it was conclusive between the same parties, upon the same matter directly in question in another court. An illustration of this subject is found again in Edgell ». Sigerson.? That, too, was an action upon a promissory note. The plaintiffs petition stated that he had formerly brought suit to recover an instalment of interest on the same note; that the defendant then pleaded that the note had been fraudulently altered in regard to the payment of interest, but that the plain- tiff recovered judgment. The defendant now admitted the exe- cution 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. Mr. Justice Richardson said that the integrity of the note was: necessarily 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, determined the question in relation to the alteration of the note, and was conclusive in the present case.* 1 Duchess of Kingston’s Case, Nesbit v. Riverside Indep. Dist., 20 How. St. Tr. 355; 2 Smith’s 144 U. 8. 610, 12 Sup. Ct. 746, 36 Lead. Cas. 679, 6th Eng. ed.; Wil- LL. Ed. 562. son v. Deen, 121 U. S. 525; Crom- 226. Mo. 583. well v. Sac, 94 U. S. 350. But see 3 See, in regard to a common de- ESTOPPEL BY RECORD. 108 [cHap. II. In a case in Kentucky 1 it appeared that the defendant in a former action for work and labor done had pleaded a special contract 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 plaintiff. 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. It was a well-established rule of law that every material fact involved in an issue must be regarded as determined by the final judgment in the action, so as not to be a subject of trial in any subsequent proceeding between the same parties.” The principle under consideration is enforced again by the effect given to a judgment for the plaintiff in ejectment in a subsequent action by him for mesne profits. It was held by all the judges in the leading case of Aslin v. Parkin * that the tenant was concluded in such a case by the judgment, and could not 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 ejectment, must show a possessory right not barred by the Statute of Limitations. But of course the judgment, like all others, concluded the parties only in regard to the subject- fence to a series of notes, Felton v. Smith, 88 Ind. 149, 152; Hazen »v. Reed, 30 Mich. 331; ante, pp. 95, 96. 1 Hanley v. Foley, 18 B. Mon. 519. 2 Quoted in Southerland v. At- lantic Coast R. Co., 148 N. C. 442, 62 So. 517. 32 Burr. 665. See Harris »v. Mulkern, 1 Ex. D. 31, 35. 4 Kille v. Ege, 82 Penn. St. 102; Man ». Drexel, 2 Barr, 202; Benson v. Matsdorf, 2 Johns. 369; Jackson v. Randall, 11 Johns. 405; Emerson v. Thompson, 2 Pick. 473, 487; Walsh v. McIntire, 68 Md. 402, 420 (that the rule applies only to the term laid in the declaration). So, too, judgment for the plaintiff in replevin conclusively establishes the plaintiff’s right to immediate possession at the time of the suit. Allen v. Butman, 138 Mass. 586. It does not show that the taking was unlawful, for the action lies for unlawful detention as well as for unlawful taking. Ibid.; Whit- man v. Merrill, 125 Mass. 127. SECT. I1.] JUDGMENTS IN PERSONAM. 109 matter of it; beyond the time laid in the demise it proved nothing at all. The identity of the particular points in controversy in the two cases is often a matter for critical discrimination. Arnold ». Arnold! is an illustration; a writ of right, to which the defendant pleaded an action of trespass quare clausum fregit brought by one under whom he claimed, against the present plaintiff, 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 controversy, 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 men- tioned. Both defences were overruled on the ground that the questions at issue were different.” 117 Pick. 4. See Roberts »v. Northern P. R. Co., 158 U. 8. 1, 17 Sup. Ct. 756, 39 L. Ed. 873. 2Mr. Justice Putnam, who de- livered the opinion of the court, said: ‘ The error lies at the thresh- old. It is in the assumption that the same cause of action was tried in the action of trespass quare clau- sum upon an issue of soil and free- hold, and the same cause of action was tried in the writ of entry sur disseisin upon the issue of nul dis- seisin, as is to be tried in the writ of right; an assumption which must strike the mind of every law- yer 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 right of property is in question? Who needs to be told that the ac- tions of trespass quare clausum fregit, and the various writs of entry, and the judgments upon them, affect only the right of pos- session and entry, and do not con- clude as to the mere right? (a) It will be answered that nobody doubts these general propositions, 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 impedi- ment from giving in evidence, in support of the issues joined in those actions, the same matters that he now has to establish his right of property. But how does that ap- pear judicially? 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. The issue to be tried was upon the soil and freehold; and the verdict fol- lowed the issue. If the verdict had been upon the mere right of prop- erty, it could not have warranted a judgment for the prevailing party on the issue of soil and freehold; for (a) If liberum tenementum is pleaded in trespass quare clausum fregit title may be shown, and be res judicata in a subsequent suit. Hersch- bach ». Cohen, 207 Ill. 517, 69 N. E. 932, 99 A. S. R. 233. 110 ESTOPPEL BY RECORD. (CHAP. IIT. The rule in these and other cases, to state it formally, is that a matter of fact, or generally speaking of law, once adjudicated by a court of competent jurisdiction, concurrent or exclusive, however erroneous ! the adjudication, may be relied upon as an estoppel in any subsequent collateral ? suit in the same or any it might be that the plaintiff might have the right of property, and his adversary might have the right of possession. A man entitled to the herbage for the current season might well maintain trespass quare clausum fregit against the owner of the fee. The judgment in such action would conclude the parties as to the rights drawn into ques- tion by the pleadings, but no further.(a) . . . In every action the verdict is conclusive as to the sub- ject-matter of the suit, and any matter particularly put in issue and found by the 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 fregit 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 were not in the tenant. So, if the tenant in a writ of right had before prevailed against the demandant in a writ of entry on a plea of nul disseisin, the demandant cannot be permitted to say, contrary to the verdict, that the tenant had disseised him. He must go to trial upon his writ of right with the disad- vantages 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 establish in the former action), or he cannot pre- vail.’ Referring to the language of Ferrer’s Case, 6 Coke, 7, the learned judge said it was not perfectly exact to say that the same right, or the same matter, was tried in the higher action, in cases of consec- utive remedies, which had before been tried in the lower action. The causes of action in trespass quare clausum fregit, and in the writs of entry, related to the right of pos- session and of entry; while in the writ of right the demandant counted upon a fee simple and a deforce- ment. It was true, indeed, 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 ac- tion. See Hymes v. Estey, 116 N. Y. 501, 22 N. E. 1087, 154.8. R. 421. 1 Anderson v. West Chicago R. R. Co., 200 Ill. 329, 65 N. E. 717; McFall v. Kirkpatrick, 236 Tl. 281, 86 N. E. 1389; Alexander v. Gill, 130 Ind. 485, 30 N. E. 525; Damon v. De Bar, 94 Mich. 594, 54 N. W. 300; New York v. New York R. R. Co., 193 N. Y. 548, 87 N. E. 1117. ? A second appeal of a cause to the same court is collateral to the first, within the rule. Questions decided on the first appeal cannot be opened on the second. New York Ins. Co. v. Clemmitt, 77 Va. 366; Miller v. Cook, ib. 806; Su- pervisors v. Kennicott, 94 U. S. (a) See Dennison v. United States 168 U. 8. 241, 18 Sup. Ct. 57, 42 L. Ed. 453. \ SECT. II] JUDGMENTS IN PERSONAM. 111 other court,! at law, in chancery,” in probate, or in admiralty, when either party, or the privies of either party, allege anything inconsistent with it; ? and this too whether the subsequent suit is upon the same or a different cause of action.‘ The cases upon this subject are very numerous.’ Nor does it matter that the former judgment was rendered after the second action was 498; Logansport v. Humphreys, 106 Ind. 146; Chouteau v. Gibson, 76 Mo. 38, 51; Davis v. McCorkle, 14 Bush, 746; Thompson v. Max- well Land Grant Co., 168 U.S. 451, 18 Sup. Ct. 121; 42 L. Ed. 539; Rutledge v. Mo. Pac. R’y. Co., 123 Mo. 121, 24S. W. 1053; Baker v. Kansas R’y., 147 Mo. 140, 48S. W. 838; State v. Mortensen, 27 Utah, 16, 74 P. 120. See Herriman Irr. Co. v. Keel, 25 Utah, 96, 69 P. 719. If no injustice or hardship would result they may. Bird »v. Sellers, 122 Mo. 23, 26 8. W. 668. Su- preme Court can review its own judgments only on a petition for a rehearing. Wright v. Carson Water Co., 22 Nev. 304, 39 P. 872. 1 Judgment on the merits for in- fringement of a patent recovered in the Circuit Court of the United States where the amount recovered is not sufficient to permit review by Supreme Court is a bar to de- feated party in an action for further like infringement where same de- fence and no other is set up as in the first case although the amount involved in second action is suffi- cient to authorize a review in the Supreme Court. Johnson Co. »v. Wharton, 152 U. 8. 252, 14 Sup. Ct. 504, 38 L. Ed. 429. 2 The fact that a plaintiff is ren- dered incompetent to testify in a cause by the death of the opposite party, against such party’s personal representative, is no reason why the judgment should not be conclu- sive, even in equity. Putnam »v. Clark, 34 N. J. Eq. 532. 3 Bigelow v. Winsor, 1 Gray, 299, 301; Fuller v. Eastman, 81 Maine, 284, 286; Clement v. Field, 147 U.S. 467, 13 Sup. Ct. 340, 37 L, Ed. 244, A judgment that a patent has been infringed is binding even though the patent is subsequently revoked because of prior user. Poulton v. Adjustable Cover Co., (1898) 2 Ch. 480, C. A. 4Quoted with approval, Cor- rothers v. Sargent, 20 W. Va. 351, 357; Poole v. Dilworth, 26 W. Va. 583, 593; McCoy v. McCoy, 29 W. Va. 794, 807; Hickson v. Ogg, . 53 Ohio St. 361, 42 N. E. 32; Kin- ports v. Rawson, 36 W. Va. 237, 58 S. E. 66. But see Nesbit v. River- side Indep. Dist., 144 U. S. 610, 12 Sup. Ct. 746, 36 L. Ed. 562. 5 Balkum v. Satcher, 51 Ala. 81; Strang v. Moog, 72 Ala. 460; Wil- kins v. Judge, 14 Ala. 185; May v. Marks, 74 Ala. 249; Pollard v. Han- rick, ib. 334; Baker v. Barclift, 76 Ala. 414; Morgan »v. Burr, 58 N. H. 167; Mueller v. Henning, 102 Ill. 646; Jenkins v. Interna- tional Bank, 111 Ill. 462; Yeoman v. Younger, 83 Mo. 424; Clark ». Wiles, 54 Mich. 323; Kelley ». Donlin, 70 Ill. 378; State v. Rams- burg, 43 Md. 325; De Proux ». Sargent, 70 Maine, 266; Adams ». Cameron, 40 Mich. 506; Tilson v. Davis, 32 Gratt. 92; Western M. Co. v. Virginia Coal Co., 10 W. Va. 250; Hendrickson v. Norcross, 4 C. E. Green, 417; Baldwin v. Mc- Crea, 38 Ga. 650; Tioga R. Co. 2, Blossburg & C. R. Co., 20 Wall. 137; Aurora City v. West, 7 Wall. 82; Beloit v. Morgan,.ib. 619; Goodrich v. City, 5 Wall. 566; Doyle v. 112 ESTOPPEL BY RECORD. [CHAP. III. begun,! though formerly the rule was otherwise in England; ? nor that it is in conflict with another judgment between other parties.’ But though verdict estoppels apply in a different as well as in the same cause of action, it must not be supposed that the parties would be estopped by a judgment in one cause of action from disputing, in another cause of action, the doctrines of law applied in the first. The facts decided in the first suit cannot be disputed, and for the purpose of the conclusiveness of those facts, but no further, the law applied must be accepted.‘ Thus, if a decree in a suit to declare a mortgage invalid proceed upon the constitutionality of a statute, the parties cannot after- wards deny the validity of the statute in question, when the mortgagee attempts to foreclose. But it could hardly be true that they could not raise the question again in a suit upon a Reilly, 18 Iowa, 108; Painter ». Hogue, 48 Iowa, 426; Allie ». Schmitz, 17 Wis. 169; Heath »v. Frackelton, 20 Wis. 320; Smith »v. Way, 9 Allen, 472; Jordan v. Fair- cloth, 34 Ga. 47; Demarest v. Darg, 32 N. . Y. 281; Eimer v. Richards, 25 Ill. 289; Babcock v. Camp, 12 Ohio St. 11; Bell ». McCulloch, 31 Ohio St. 397; Sergeant v. Ewing, - 36 Penn. St. 156; Cabot v. Washing- ton, 41 Vt. 168; Lynch v. Swanton, 53 Maine, 100; Bunker v. Tufts, 57 Maine, 417; Garwood v. Gar- wood, 29 Cal. 514; French v. How- ard, 14 Ind. 455; Shuttlesworth v. Hughey, 9 Rich. 387; Stewart v. Dent, 24 Mo. 111; Walker »., Mitchell, 18 B. Mon. 541; Bobe v. Stickney, 36 Ala. 482. See New Orleans v. Citizens Bank, 167 U. 8. 371, 17 Sup. Ct. 905, 42 L. Ed. 202; So. Pac. R. R. v. United States, 168 U.S. 1, 18 Sup. Ct. 18, 42 L. Ed. 355; United States v. Bliss, 172 U.S. 321, 19 Sup. Ct. 216, 43 L. Ed. 463; Mitchell v. First Nat. Bank, 180 U. 8. 471, 21 Sup. Ct. 418, 45 L. Ed. 627; "Baker v Cummings, 181 U. 8. 117, 21 Sup. Ct. 578, 43 L. Ed. 776; Owensboro »v. Com- monwealth, 105 Ky. 344, 49 S. W. 320; Bradley v. Brigham, 149 Mass. 141, 21 N. E. 301; Harrington »v. Harrington, 154 Mass. 517, 28 N. E. 903; Southerland v. Atlantic Coast R. Co., 148 N. C. 442, 62 8. E. 517; Union Nat. Bank »v. Rich, 116 Mich. 414, 74 N. W. 659. 1 Jenkins v. International Bank, 127 U.S. 484; Forsythe v. Ham- mond, 166 U. S. 506, 17 Sup. Ct. 665, 41 L. Ed. 1095. ? Houstoun v. Sligo, 29 Ch. D. 448; The Delta, 1 P. D. 393, 404; Martin v. Walker, 60 Cal. 94, 3 Scotland v. Hill, 112 U. 8. 183. 4 Bernard ». Hoboken, 3 Dutch. 412. See Boyd v. Alabama, 94 U. 8. 645, 648; Reynolds v. Lyon Co., 121 Iowa, 733, 96 N. W. 1096; Silva v. Pickard, 14 Utah, 245, 47 P. 144. This includes the consti- tutionality of the law, as, e. g. an insolvency statute under which one has taken proceedings. Fogler »v. Clark, 80 Maine, 237, and cases cited. Also validity of a patent upheld in equity. Shoe Machin- ery Co. v. Cutlan, (1896) 1 Ch. 667. 5 McDonald v. Mobile Ins. Co., 65 Ala. 358. SECT. I1.] JUDGMENTS IN PERSONAM. 113 different subject-matter; + and the same would appear to be the case with regard to any other question concerning the state of the law.? What is law for one must be law for all; * and there could be no advantage in extending the doctrine of res judicata to such cases. The court might deem it best to rely upon the maxim ‘stare decisis’ indeed; but that is another thing.* It is to be observed that we have been speaking of verdicts at common law, or in cases in which the common law effect of the verdict is produced. Verdicts out of equity, e. g. stand upon a different footing, and might not be held conclusive in another suit between the parties. Judgment against several defendants cannot, however, deter- mine the rights of the defendants inter sese.6 Thus, if judgment 1See Boyd v. Alabama, 94 U.S. 645, 648, where the point is not decided. The subject is not with- out its difficulties. See chapter 14, note. See Deposit Bank v. Frank- fort, 191 U.S. 499, 24 Sup. Ct. 154, 48 L. Ed. 276. 2 Bernard v. Hoboken, 3 Dutch. 412. 3See South Ottawa v. Perkins, 94 U.S. 260; post, chapter 20, § 2. 4See the distinction as put in Stryker v. Goodnow, 123 U. 8. 527, _538, 539; Chapman v. Goodnow, ib. 540; Litchfield v. Goodnow, ib. 549; McCormick v. Bauer, 120 Ill. 573. Construction of suicide clause in policy of insurance by the U. 8. Supreme Court does not estop State Court from giving a different con- struction under its statute embody- ing an important question of public _law with reference to such clauses. Knights Templars Indemnity Co. v. Jarman, 187 U. 8. 197, 23 Sup. Ct. 108,.47 L. Ed. 139. 5 Burlen v. Shannon, 99 Mass. 200, 206. In this case Mr. Justice Foster, speaking for the court, said: ‘The verdict [in an equity cause] is treated as weighty, but not al- ways as conclusive evidence. In England and in many American courts the verdict is sometimes wholly disregarded, and a decree is entered in opposition thereto, where the court is clearly satisfied that the verdict is contrary to the truth as established by the whole body of evidence in the cause. Ansdell v. Ansdell, 4 Mylne & C. 449; Day v. Hartshorn, U.S. Dist. Court for R. I. 1855, before Pit- man, J. quoting the opinions of Nelson, Curtis, Woodbury, and Sprague, JJ.; Pike v. Potter, U. 8S. Circ. Court, R. I. Dist. 1859, before Clifford and Pitman, JJ.; 2 Dan. Ch. Pr. 3d Am. ed. 1115 and notes.’ See also Allen v. Blunt, 3 Story, 746; Franklin v. Green, 2 Allen, 519; Ross v. New England Ins. Co., 120 Mass. 113; Ex parte Morgan, 2 Ch. D. 72. In accordance with this intimation, the court, in Burlen »v. Shannon, supra, declined to give to a verdict out of equity in another cause the same credit as would be given to a verdict at law. The difficulty, however, arose from the uncertainty of the verdict. 6 Rudd v. Cornell, 171 N. Y. 114, 63 N. E. 823. 114 ESTOPPEL BY RECORD. [CHAP. III. be given against several co-contractors, and satisfaction is ob- tained 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 existence and legality merely of the demand. The parties must be adversary.? So, too, though executors represent all parties in interest in a will, in proceedings for the probate thereof, still if two or more of the legatees or devises have ad- verse claims under the will, no decision on the question of pro- bate will bind such claimants inter se.2 Where, however, the respective rights of the parties are drawn in issue by them and adjudicated, the judgment is conclusive between them.* The general rule above stated ® is subject to one or two quali- fications of importance. It is held that when a complainant in equity seeks the means of carrying into effect a decree or judg- ment rendered in another litigation (as e. g. between persons under whom the present parties claim) but not providing such means of execution, it devolves upon the complainant to show 1 McCrory v. Parks, 18 Ohio St. 1; Leinkauff v. Munter, 76 Ala. 194; Duncan v. Holcomb, 26 Ind. 378; Buffington v. Cook, 35 Ala. 312. See Lloyd v. Barr, 11 Penn. St. 41. 2Tbid.; Beveridge v. New York R. Co., 112 N. Y. 1, 19; Leinkauff v. Munter, 76 Ala. 194. See:Cush- ing v. Laird, 107 U. 8. 69, 80. 3 De Mora v. Concha, 29 Ch. D. 268, 303, affirmed on appeal nom. Concha v. Concha, 11 App. Cas. 541. 4Harmon v. Auditor of Public Accounts, 123 Ill. 122; Parkhurst v. Burdell, 110 N. Y. 386; Graham v. Railroad Co., 3 Wall. 704; Cor- coran v. Chesapeake Canal Co., 94 U. S. 741; Louis v. Brown, 109 U.S. 162, 167; Leavitt v. Wolcott, 95 N. Y. 212; Demarest v. Darg, 32 N. Y. 281; Brown v. Mayor, 66 N. Y. 391; Torrey v. Pond, 102 Mass. 355; Williams v. Barkley, 165 N. Y. 48, 58 N. E. 765; El Reno ». Cleveland-Trinidad Pav. Co., 25 Okl. 648; 107 P. 163. See Cushing ». Laird, 107 U. S. 69, 80. ‘In chancery suits, where parties are often made defendants because they will not join as plaintiffs, who are yet necessary parties, it has dong been settled that adverse in- terests as between co-defendants may be passed upon and décided; and if the parties have had a hear- ing and an opportunity of asserting their rights, they are concluded by the decree as far as it affects rights presented to the court and passed upon by its decree.’ Corcoran *. Chesapeake Canal Co., 94 U. S. 741, quoted in Louis v. Brown, 109 U. 8. 162, 167, and again in Har- mon v. Auditor of Public Accounts, supra. That was said in answer to the objection that certain trustees and others were all defendants to a former suit, and that between them no issue was raised and no adversary proceedings had. 5P, 113. SECT. II] JUDGMENTS IN PERSONAM. 115 that the decree or judgment is right. So Lord Redesdale and the House of Lords held in the year 1820; so the Lord Keeper had declared in the year 1700; and so it has been laid down : by other and later authorities.1_ The former decree or judgment, in this view, is to be taken unquestioned only when it can be carried into effect by virtue of some order or direction contained within itself. At all events, if by the pleadings of a party en- titled to the benefit of a judgment, he, in seeking by a proceed- ing ab extra to enforce it, opens the judgment, it is open for general purposes, in the second proceeding; and the party open- ing it cannot insist upon the rule of res judicata, if the record of the judgment disclose error such as shows that there was no cause of action whatever.? So, too, it has recently been held that when a person partly opens in his pleadings the facts of a judgment on which he relies, he cannot object to the other party’s treating the whole case as opened.’ We have now ascertained the nature of the pleas of former judgment and of former verdict, and the distinction between them; the former operating as a bar to subsequent actions founded on the same demand; the latter operating as a bar to the further litigation of the special findings of the jury irre- spective of the nature of the cause of action. These distinctions now disappear; and we shall have no further occasion to pre- sent the divisions separately, or by special designation. 1Wadhams v. Gay, 73 Ill. 415 (consent decree; see, concerning this litigation, 8 Chic. L. News, 189); Gay v. Parpart, 106 U. S. 679, 699; Jenkins v. International Bank, 111 Ill. 462, 471; Hamilton v. Houghton, 2 Bligh, 169, 182, 193; Johnson v. Northey, Finch, Prec. Ch. 134. See also Lawrence v. Berney, 2 Rep. in Ch. 127; O’Con- nell v. McNamara, 3 Dru. & War. 411; Bean v. Smith, 2 Mason, 252, 299; Gibson v. Rees, 50 Ill. 383, 406, 410; Egerton v. Muse, 2 Hill, Eq. (8. Car.) 51; Lamb ». Gatlin, 2 Dev. & B. Eq. 37. Comp. the older view of foreign judgments: ‘When you call for my assistance to carry into effect the decision of some other tribunal, you shall not have it if it appears that you are in the wrong.’ Lord Hardwicke, 1 Eq. Cas. Abr. 83, pl. 3, quoted by Buller, J. in Galbraith v. Neville, 1 Doug. 5, note. But see chapter 6. 2 Brownsville v. Loague, 129 U. 8. 493, 505, explaining, at pp. 504, 505, Harshman v. Knox, 122 U.S. 306, 319. That is the better rule. See Franklin County v. German Savings Bank, 142 U. 8S. 93, 12 Sup. Ct. 147, 35 L. Ed. 948, ex- plaining Brownsville »v. Loague, supra. 3 Weed v. Burt, 78 N. Y. 191; Wehrman v. Conklin, 155 U. 8. 314, 15 Sup. Ct. 129, 39 L. Ed. 167. [cHAP. III. 116 ESTOPPEL BY RECORD. §3. The Special Effect and Operation of Judgment and Verdict Estoppels. First, of merger. It is a fundamental.rule of law that a judgment for the plaintiff, if not void, merges his cause of action into the higher claim of a judgment debt. That is, it destroys the original demand, and the result is that if the plaintiff for any reason should sue thereon in a domestic court, or in a court of a sister state,! he could be met with a plea of the former judgment as well as if that judgment had gone against him.? And it matters not that the judgment is void- able; it is still binding for the purpose of all collateral actions, of which a suit upon the original cause of action would be one. If it should be desirable to bring a new action, suit should be brought upon the judgment already obtained by the plaintiff. Care, however, should be taken before proceeding; for a new judgment would, it has been held, not only merge and destroy the old one, but would have the same effect upon all rights, such as liens upon land, created by the first judgment. And there is authority for the proposition that this would be true even where the judgment sued upon was rendered (not in a foreign country, but) in a sister state.* Neither of these positions, however, is settled, as the cases cited in the notes below show. In those which dispute the rule of merger it is pointed out that that rule applies only in favor of a higher obligation over a lower, as where a sealed obligation is given for a simple contract debt; 1 Bank of United States v. Mer- chants’ Bank, 7 Gill, 415; McGil- vray v. Avery, 30 Vt. 538; Green v. Starr, 52 Vt. 426; Hatch v. Spof- ford, 22 Conn. 485; Walsh v. Dur- kin, 12 Johns. 100. But see Mum- ford v. Stocker, 1 Cowen, 178; Griswold v. Hill, 2 Paine, 492; An- drews v. Smith, 9 Wend. 53. Comp. the rule of the Roman law. Ante, p. 41. ?Schuler v. Israel, 120 U. 8. 506. 3 Gould v. Hayden, 63 Ind. 443, citing Purdy v. Doyle, 1 Paige, 558, 561; Denegre v. Hann, 13 Iowa, 240; Whiting v. Beebe, 7 Eng. (Ark.) 421, 549; Chitty v. Glenn, 3 T. B. Mon. 424; Frazier ». Mc- Queen, 20 Ark. 68; Neale v. Jeter, ib. 98; Bank of United States ». Patton, 5 How. (Miss.) 200; Brown v. Clarke, 4 How. 4. ‘Gould v. Hayden, 68 Ind. 448. Contra, Weeks v. Pearson, 5 N. H. 324. See Bank of Old Dominion ». Allen, 13 Rep. (Va.) 509. SECT. III.] JUDGMENTS IN PERSONAM. 117 while in the case of the two judgments the obligations are of the same degree.! A special phase of the doctrine of merger must now be con- sidered. There has been some conflict of authority concerning the question 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.2_ The question received most thorough consideration in the English Court of Exchequer in the year 1844 in the case of King ». 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, the rule laid down in the first-named case has become well settled with us.° The English case re- ferred to was an action of debt against Hoare, who pleaded that the 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 re- covered a judgment against Smith for the same debt; and the plea was sustained.® 1See Story, Conflict of Laws, p. 823, 8th ed., criticising the rule of merger in such cases. 2See Prosser v. Evans, (1894) 2 Q. B. 101, affirmed in (1895) 1 Q. B. 108. 313 Mees. & W. 494. 4Sheehy v. Mandeville, 6 Cr. 253. 5 A judgment in a justice’s court in Michigan in a suit against one of two joint debtors does not merge the demand. The cause may be sued over again against both. Holcomb »v. Tift, 54 Mich. 647; Bonesteel ». Todd, 9 Mich. 371. 5 Rule applies where joint debt- ors are regularly made defendants and enter their appearance in the same action, but judgment by consent is taken against one. Ob- servations of Bowen, L. J. In re Hodgson, (1885) 31 Ch. D. 177, followed in McLeod v. Power, (1898) 2 Ch. 295. See Prosser v. Evans, (1895) 1 Q. B. 108, affirm- ing (1894) 2Q..B. 101. ‘It is re- markable,’ said Parke, B., ‘ that this question should never have been actually decided in the courts of this country. There have. been apparently conflicting dicta upon it. Lord Tenterden, in the case of Watters v. Smith, 2 Barn. & Ad. 892, is reported to have said that a mere judgment against one would not be a defence for another. My brother Maule stated, in that of Bell v. Banks, 3 Man. & G. 267, that a security by one of two joint debtors would merge the remedy against both. In the case of Lech- mere v. Fletcher, 1 Cromp. & M. 634, Bayley, B. strongly intimates the opinion of the Court of Ex- chequer that the judgment against one was a bar for both of two joint debtors, though the point was not actually ruled, as the case did not require it. In the absence of any 118 ESTOPPEL BY RECORD. [cHAP. III. In accordance with the principle in King v. Hoare it was held, where a vendor brought an action and recovered judgment positive authority upon the pre- cise question, we must decide it upon principle and by analogy to other authorities; and we feel no difficulty in coming to the conclu- | sion that the plea is good. If there be a breach of contract, or wrong done, or any other cause of action by one against another, and judg- ment be recovered in a court of record, the judgment is a bar to the original cause of action, because it is thereby reduced to a certainty, and the object of the suit attained so far as it can be at that stage; and it would be useless and vexa- tious to subject the defendant to another suit for’ the purpose of obtaining the same result. Hence the legal maxim, transit in rem judi- catam, the cause of action is changed into 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 judg- ment of a court of record changes the nature of that cause of action, and prevents its being the subject | of another suit; and the cause of action being single, cannot after- wards 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 sufficient bar to an action against the other for the same cause. Broome v. Wooton, Yelv. 67; s. c. Cro. Jac. 73; Moore, 762.(a) And though in the report in Yelverton expressions are used which at first sight appear to make a distinction between actions 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 circum- stance of the damages being un- liquidated. Chief Justice Pophan, , 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), ‘“ although 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 difference 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 satis- faction.” And it is quite clear that the chief justice was referring to the case of a joint and several obligation, both from the argument of the counsel as reported in Cro. Jac. and the statement of the case in Yel- verton. We do not think that the case of a joint contract can in this respect be distinguished 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 abatement in the one case and not in the other; but for the purpose of this decision they stand on the same footing. Whether the action is brought against one or two, it is for the same cause of (a) This doctrine has recently been reaffirmed in England. Brinsmead v. Harrison, L. R. 6 C. P. 584. But the rule is otherwise in America. Post, p. 125. SECT. I11.] JUDGMENTS IN PERSONAM. 119 against one of several partners, that the partnership debt was merged in the judgment, so that there could be no proof upon action. The distinction between a joint and several contract is very clear. It is argued that each party to a joint contract 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 severally liable in the same sense as he is on a joint and several bond; which instrument, 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 remedies 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 his 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 for the same cause; or the plaintiff might obtain another judgment against the co-contractor, so that there would be two separate judg- ments for the same debt. Further, the case would form another ex- ception to the general rule that an action on a joint debt barred against one is barred altogether; the only exception now being when one has pleaded matter of personal dis- charge, as bankruptcy and certifi- . cate. 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 ob- tained being sued singly and not pleading in abatement. These considerations lead us, quite satis- factorily to our own minds, to the conclusion 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 ac- tion for the same debt or tort. against another party.(a) During the argument a decision of the Chief Justice Marshall, in the Supreme Court of the United States, was cited as being contrary to the con- clusion this court has come to; the case is that of Sheehy v. Man- deville, 6 Cranch, 253. We need not say we have the greatest respect for every decision of that eminent judge, but the reasoning attributed to him by that report is not satis- factory to us; and we have since been furnished with a report of a sub- sequent case, in which that author- ity 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. Johnson, 13 Mass. 148. In the case referred to, Sheehy v. Mandeville, 6 Cranch, 253, decided (a) See Midgeley v. Midgeley, (1893) 3 Ch. 282. 120 ESTOPPEL BY RECORD. [CHAP. III. it against the joint estate in bankruptcy; the partners having failed, and execution upon the judgment having been defeated by an adjudication in bankruptcy.! by Chief Justice Marshall, the facts and issue were these: The plaintiff, having sold goods to R. B. James- son, one of the defendants, took his note for the sum due. Afterwards suspecting that the other defend- ant, Mandeville, was a partner, he instituted 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. James- son. Mandeville, among other things, pleaded that judgment 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 judg- ment bars an action against Robert B. Jamesson, the inquiry still re- mains, if Mandeville was originally bound, if a suit could originally be maintained against him, is the note, as to him, also merged in the judg- ment? 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 judg- ment. But that action was not brought against the firm. It was brought against Robert Brown Jamesson singly, and whatever other objections 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 manner 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 obliga- tion, so that a distinct action could not afterwards be maintained against the others, which is not ad- mitted) 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 other courts than those above mentioned. See Robertson v. Smith, 18 Johns. 459; Trafton v. United States, 3 Story, 646; Brown v. Johnson, 13 Gratt. 644. But perhaps it may be sustained on the ground that the note contract was regarded as sev- eral as well as joint. In a subse- quent case in the Supreme Court of the United States, United States v. Price, 9 How. 83, Mr. Justice Grier, who was speaking for the court, said that Sheehy v. Mandeville, - ‘though sometimes criticised and. doubted in other courts, goes no further than to decide that where one partner is sued severally on a joint or partnership contract, and judgment obtained against him, it is no bar to a suit against the other, because this contract was not merged in the judgment, and be- cause the first judgment was founded on a several, not a joint, promise.’ The English doctrine in King v. Hoare, lately reaffirmed in Kendall v. Hamilton, 4 App. Cas. 504, may now be considered as well settled here at common law. Ses- sions v. Johnson, 95 U. S. 3473. United States v. Ames, 100 U. S. 35, 44; Mason v. Eldred, 6 Wall. 231; Gibbs v. Bryant, 1 Pick. 118; Robertson v. Smith, 18 Johns. 459; Clinton Bank, v. Hart, 5 Ohio St. 33; Bowen v. Hastings, 47 Wis. 232, 236. 1 Ex parte Higgins, 3 De G. & J. 33. See Peters v. Sanford, 1 Denio, 224, SECT. III.] JUDGMENTS IN PERSONAM. 121 The doctrine of King ». Hoare must not, however, be taken as unlimited. Several cases! of high authority have recently touched upon the subject, and fortified an exception which appears to have long prevailed in equity, ‘to the effect that when one member of a firm has died, though at law the debt would from that time forth be only the debt of the survivors, in equity recourse might always be had to the estate of the de- ceased partner.’ ? It was accordingly held in the case last cited that judgment against the surviving partner will not bar pro- ceedings against the estate of the deceased partner; and that it matters not which is first made liable. It is not to be under- stood from this that equity treats the partnership debts other- wise than as joint; the debts are still deemed joint in equity, ‘ though it will allow the separate remedy.’ ® The converse, too, of this rule is equally true. In Olcott ». Little 4 an action was brought against the defendant as sur- viving 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 in regard to the latter the writ was returned non est in- ventus; and that Slyfield 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 exceptions wherever the necessity of the case required a separate suit to be brought. In the present instance a sufficient excuse appeared for the sev- eral 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.® 1 Kendall v. Hamilton, 4 App. Cas. 504; In re Hodgson, 31 Ch. D. 177; Liverpool Bank v. Walker, 4DeG. & J. 24. 2 Sir J. Hannen in In re Hodgson, at p. 184. 3 Lord Justice Bowen in the same case, Of course judgment against @ surviving member of a partner- ship does not conclude the repre- sentative of the deceased partner. Buckingham v. Ludlum, 37 N. J. Eq. 137. 49 N. H. 259. 5 See also to the same effect Tap- pan v. Bruen, 5 Mass, 193; Dennett [CHAP. III. 122 ESTOPPEL BY RECORD. The rule in King v. Hoare is not applicable where the judg- ment has been rendered in favor of a joint obligor defendant unless it was upon a plea which would operate as a discharge to all.1 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.? Again, judgment against liability upon a joint promise alleged to have been made to three is no bar to a suit upon the promise as made to two of the three. Lawrence v. Vernon * 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 pre- viously brought an action for widening both ends of the street, . v. Chick, 2 Greenl. 191. It is also to one is a release to all, and pay- held that an unsatisfied judgment against one joint promisor is no bar to a suit against the other who was at the time of the suit out of the country and a non-resident. Tib- betts v. Shapleigh, 60 N. H. 487. 1 Phillips v. Ward, 2 Hurl. & C. 717; Neville v. Hancock, 15 Ark. 511. . 2 Bramwell, B. said: ‘No doubt if a person jointly liable with others succeeds in an action against him alone, by pleading a release or pay- ment, that would afford a good de- fence to an action against the other joint debtors; ... for a release ment by one is a discharge of all. Therefore, in some cases, a judg- ment recovered by one of several joint debtors may be pleaded in an action against the others.(a) But this plea does not show that the former action was successfully re- sisted on some ground common to all the joint debtors; but only that the court gave judgment for the defendant, which may have been on some ground purely personal, as infancy, bankruptcy, or insol- vency.’ 33 Sum. 20. (a) In England executors are not bound to plead the Statute of Limita- tion in answer to a claim against their testator barred by it. In such a case, where there were two executors, one did plead it and obtained judg- ment, the other admitted the claim and did not plead the statute. After judgment against the claimant the second executor paid the claim from the estate. In an action against the paying executor, the solicitor who received the money knowing the facts, and the claimant, it was decided that the judgment was res judicata binding on both executors; payment was a devastavit; and all the defendants were liable. Midgeley v. Midgeley, (1893) 3 Ch. 282. ° SECT. I1I.] JUDGMENTS IN PERSONAM. 123 and recovered judgment; the jury specially finding ‘ that the de- fendant promised so far as to make himself liable for the dam- ages incurred by widening the wpper part’ of the street. The defendant contended that this judgment concluded the plaintiffs, as the declaration in the former suit embraced the widening of both ends of the street; and the jury 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 ». Campbell, the ru- ling in which was approved. The parties were not the same; the causes of action were not the same. The parties plaintiffs 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 main- tainable. Nothing was better settled 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 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 in regard 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 considered as altogether con- sistent with the demand now made by the two plaintiffs.” 12 W. Black. 779, 827. 2 The learned judge also stated his acquiescence in the test as gen- erally true that it would determine whether the causes of action were the same if the same evidence would support each case. Martin v. Ken- nedy, 2 Bos. & P. 71. But even tried by this test the defence must fail. The evidence necessary to sustain the former action was the proof of a joint promise to the three plaintiffs; evidence of a promise to pay two would not suffice, but it would clearly sustain the present case. The infirmity of the defend- ant’s argument was that it con- founded the evidence offered in an action conducing to establish the facts necessary to support it with the evidence indispensable to support it in point of law. Evi- dence might be offered in a clause conducing to prove a promise to three, and yet it might only prove a promise to two; and the law in such case holds that the evidence of a promise to two would not sup- port an action by the three. See also Fifield v. Edwards, 39 Mich, 264. ‘ 124 ESTOPPEL BY RECORD. [CHAP. III. In another case,! a suit upon a joint and several promissory note, the defendant pleaded that in a former action the plaintiff had impleaded him and the other joint and several makers of the note; and that the other defendants had pleaded the general issue, and obtained 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 questions were not identical; that in the present action the question was whether one was liable, while in the former action the question 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: of 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. Upon a similar principle, where judgment had been given against a joint attempt of two to restrain the enforcement of a judgment against them, it was held that the later judgment was no bar to a separate action by one of the two to enjoin en- forcement of the earlier judgment, on grounds personal to him- self. It was observed by the court that in the joint action to restrain the enforcement of the judgment the parties could only avail themselves of joint causes of action; neither of them could have set up a separate release not available to the other.” The parties maker and indorsers of a note, or drawer, acceptor, and indorsers of a bill, of course are not joint parties, nor is there any privity between them in the sense of the law of estoppel; and hence concurrent or successive actions may be maintained against them all by the holder, though he can have but one sat- isfaction.2 And in Neville ». Hancock this doctrine was held good in an action against the maker and indorser of a note jointly. It was decided that the maker was not discharged 1Stingley ». Kirkpatrick, 8 470; Britten v. Webb, 2 Barn. & C. Blackt. 186. 483; Burgess v. Merrill, 4 Taunt. > Bilsland v. McManomy, 82 463; Farwell v. Hilliard, 3 N. H. Ind. 139. 318; Porter v. Ingraham, 10 Mass. * Goodman v. Niblack, 102 U.S. 88; Neville ». Hancock, 15 Ark. 556; Bishop v. Hayward, 4 T. R. 511. SECT. 11.] JUDGMENTS IN PERSONAM. 125 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 upon a joint and several bond was a bar and satisfaction of the same. 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 sever- ally, 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 against all or each of the obligors was a satisfaction and extinguishment of the bond. It no longer existed as a security, being superseded, merged, and extinguished in the judgment. The creditor had no longer any remedy either at law or in equity on his bond; his remedy was on the judgment. By this the obligor was now bound, and not by the bond. The creditor having elected to obtain a joint judgment could not therefore sue the obligors severally.” A tort committed by more than one person is in America, contrary to the English rule, regarded as joint and several in nature; * giving remedies against each of the tortfeasors sepa- rately, or against all jointly.* And hence conversely judgment against one will not estop another to deny the cause of ac- tion against him. Thus, judgment in trespass quare clausum fregit against one co-tenant will not estop another, when subse- 19 How. 83. Luce v. Dexter, 185 Mass. 23; 2 United States v. Cushman, 2 Sum. 426, was directly overruled by this case. 3 See Rice v. Reed, (1900) 1 Q. B. 54, where action was maintained against second of two tortfeasors, for conversion, after settlement in Court recognized by judge’s order in suit against first, but no judg- ment. 4 Lovejoy v. Murray, 3 Wall. 1; Sessions v. Johnson, 95 U. S. 347; Stone v. Dickinson, 5 Allen, 29; Brown v. Cambridge, 3 Allen, 474; Elliott v. Hayden, 104 Mass. 180; Sheldon v. Kibbe, 3 Conn. 214; Morgan v. Chester, 4 Conn. 387; Gilbreath v. Jones, 66 Ala. 129; United Society v. Underwood, 11 Bush, 265; Knott v. Cunningham, 2 Sneed, 210. See Lee v. West, 47 Ga. 311; Cameron v. Kanrich, 201 Mass. 451, 87 N. E. 605. 126 ESTOPPEL BY RECORD. [CHAP. III. quently sued as a participant, from claiming the whole land.1 But satisfaction in favor of one is satisfaction in favor of all; and the same is true pro tanto of partial satisfaction.? It is, however, sometimes a point of difficulty to determine whether the parties are joint trespassers. In Stone v. Dickinson, just 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 credit- ors in bar of the action. The evidence was rejected in the court below; but on appeal it was held admissible.? | 1 Williams v. Sutton, 43 Cal. 65. 2Stone v. Dickinson, supra; United Society v. Underwood, su- pra; Luce ». Dexter, supra. 3 Mr. Chief Justice Bigelow, 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 be arrested and im- prisoned, 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 plaintiff might hold each of them liable for his tortious act, but that they could not be re- garded 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 undertaking. But a careful consideration of the nature of the action, and of the injury done to the plaintiff for which he seeks redréss in damages, will disclose the fallacy of this view of the case. The plaintiff alleges in his declara- tion that he has been unlawfully arrested and imprisoned. This is the wrong which constitutes 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 com- pensation. He has not in fact suffered nine separate arrests, or undergone nine separate terms of imprisonment. . . . The alleged trespasses on the person of the plaintiff were therefore simultane- ous 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 ar- rested and imprisoned. It is, then, the common case of a wrongful and unlawful act committed by a com- mon agent Acting for several and distinct principals. 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 trespassers by whom the tortious act was done were the agents of several different 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 principals who employed the officers 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 SECT. 111.] JUDGMENTS IN PERSONAM. 127 Secondly, of parties. It is a general principle, apart from the doctrine of merger, fundamental to the doctrine of res judicata, that personal judgments conclude only the parties to them and their privies.1 The bar must be mutual to the parties in the later action.? the number of principals who pro- cured it to be done so as to entitle the party injured to a compensa- tion graduated, not according to the damages sustained, but by the number of persons through whose instrumentality the injury was in- flicted. The error of the plaintiff consists in supposing that the sev- eral 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 persons for the same wrongful act and a right to recover damages against each and all therefor with a privilege of electing to take his satisfaction de melioribus damnis.... But no one would contend that he could recover satisfaction from each of the persons liable to an action. When the damages against him had been once paid by any one of those who procured the commission of the trespass, he could not claim to recover them again from each of the others.’ 1°The parties or their privies to the pending suit must have been adverse parties to the same issue ‘in the former suit, but it is not im- portant that the parties to the two “ Parties,’ says Greenleaf, ‘in the larger legal suits should be the same.’ John- son v. Knudson-Mercer Co., 167 Ind. 429, 79 N. E, 367. Where the estoppel does not merely affect the conscience of the parties but works an interest in the land and ‘is a title,’ a stranger to the transaction in an action of ejectment by the vendor may show that he has parted with interest. Perkins v. Coleman, 90 Ky. 611, 14 8S. W. 640. In Probate Court one who is not a party is bound by the proceedings if one is cognizant of them and has ‘capacity to make oneself a party. Young v. Holloway, (1895) Pro. Div. 87. 2 Petrie v. Nuttall, 11 Ex. 569; Springport ». Teutonia Bank, 75 N. Y. 397; Bissell v. Kellogg, 65 N. Y. 432; Fisher v. Banta, 66 N. Y. 468; Raymond v. Richmond, 78 N. Y. 351; Goodman v. Niblack, 102 U. S. 556, 562; Railroad Co. v. National Bank, ib. 14; Davis Machine Co. v. Barnard, 43 Mich. 379; Buttrick v. Holden, 8 Cush. 233; McDonald »v. Gregory, 41 Iowa, 513; Stoddard v. Burton, 40 Towa, 582; Hine v. K. & D. R. Co., 42 Iowa, 636; Stoddard v. Thomp- son, 31 Iowa, 80; Goodnow »v. Litchfield, 63 Iowa, 275; Betts v. New Hartford, 25 Conn. 180; Hutchinson v. Bank of Wheeling, 41 Penn. St. 42; Peebles v. Pate, 90 N. Car. 348; Meltzer v. Doll, 91 N. Y. 365, 373; Quigley v. Mexico Bank, 80 Mo. 289, 296; Young v. Stoutz, 74 Ala. 574; Cain v. Sheets; 77 Ala. 492; Dooley ». Potter, 140 Mass. 49; Salem ». Eastern Railroad, 98 Mass. 431, 446; McMahon »v. Merrick, 33 128 ESTOPPEL BY RECORD. [CHAP. III. sense, are all persons having a right to control the proceedings, to make defence, to adduce and cross-examine witnesses, and — to appeal from the decision if an appeal lies; ’ ' and it may be added, those who assume such a right.2_ The rule includes, among defendants, not only persons duly served with process, but also all such as have by appearance waived want of service.’ It should be noticed too that purchasers pendente lite of non- Minn. 262; Dodd v. Una, 40 N. J. Eq. 672, 722. It is difficult to understand Board of School Directors v. Her- nandez, 31 La. Ann. 158, or Louisi- ana Levee Co. v. State, ib. 250, or Folger v. Palmer, 35 La. Ann. 473. The same must be said of Hill v. Bain, 15 R. I. 75; the cases cited by the court in no way support the decision. They are such cases as that of principal and agent. See post, pp. 134 et seq. It would be better to look for light to cases like Pim v. Curell, 6 Mees. & W. 234, and Neill v. Devonshire, 8 App. Cas. 135, 147; ante, p. 36, note 5. Such estoppels are, indeed, odious. 11 Greenleaf, Ev. § 535; Litch- field v. Goodnow, 123 U. S. 549; Duchess of Kingston’s Case, Ever- est & Strode, Estoppel, 421. 2Stoddard »v. Thompson, 31 Iowa, 80; Landis v. Hamilton, 77 Mo. 554; Winchester v. Heiskell, 119 U.S. 450. See Hilton v. Guyot, 159 U. 8. 113, 16 Sup. Ct. 139, 40 L. Ed. 95; Lamberton v. Dinsmore, 75 N. H. 574, 78 A. 620. But as- sisting in defence and paying costs does not make one a party. Mer- cantile Co. ». River Plate Co., (1894) 1 Ch. 578; Central Baptist Church v. Manchester, 17 R. I. 492, 23 A. 30, 33 A. 8. R. 893. 3 See e. g. King v. Penn, 43 Ohio St. 57; Burpee v. Sparhawk, 108 Mass. 111, 114. One does not be- come a party toa cause, so as to be bound by the judgment, by merely obtaining leave of court to be made a party. Denny »v. Bennett, 128 U. 8. 429. But any one interested in a cause may in equity be made a party thereto against his will, so as to be bound by the decree ren- dered. There has been some doubt whether this rule applies to the case of a bill to foreclose a mort- gage, so that the plaintiff can make a prior incumbrancer, or one hold- ing a paramount title not prior, such as a tax title, a party to be bound by the decree, but the better opinion is that he can. Hefner ». New York Life Ins. Co., 123 U. 8. 463, where the conflicting decisions and dicta are reviewed. ‘To a bill in equity,’ said Mr. Justice Gray in that case, ‘ to foreclose a second mortgage, although the first mort- gagee is not a usual or necessary party when the decree sought and rendered is subject to his mort- gage, yet, at least when he holds the legal title, and his debt is due and payable, he may, and when the property is ordered to be sold free of all incumbrances, must be, made a party; and if he is, and the bill contains sufficient allegations, he is barred by the decree, the bill in such case being in effect both a bill to foreclose the second mort- gage and a bill to redeem from the first mortgage.’ For this various ‘cases are cited. Contestant against probate of a will, though not cited, cannot dispute its validity in col lateral proceedings after probate. Beardsley v. Beardsley, (1899) 1 Q. B. 746. SECT. III.] JUDGMENTS IN PERSONAM. 129 negotiable * property in litigation are, so far as the property is concerned, deemed to stand in the situation of parties.2 But parties, it is said, must be openly such; there can be no secret parties in benefit, unknown to the adverse side.? The recent case of Wright v. Phillips 4 may be referred to as a forcible illustration of the rule that personal judgments can- ’ not affect the rights of strangers.> It was there held that, not- withstanding a judgment rendered in favor of one of several distributees of an estate of a decedent against the administra- tor, the other distributees, not parties to the action, might show that the distributee in the first suit had by the judgment obtained more than his proper share of the estate.® In Petrie ». Nuttall’ the plaintiff sued in trespass for break- ing and entering the plaintiff’s land. The defence was that the part referred to was a public highway; and an indictment, ver- dict, 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 demurrer was sustained on the ground that the parties were not the same in the two actions.§ 1Orleans v. Platt, 99 U. S. 676. 2Stout v. Lye, 103 U. S. 66; Eyster v. Gaff, 91 U. S. 521; Dan- iels v. Henderson, 49 Cal. 243. 3 Schroeder v. Lahrman, 26 Minn. 87, where it was held that secretly employing counsel and ap- pearing as a witness were not enough to enable one to make use of the judgment as an estoppel. Central Baptist Church v. Manches- ter, 17 R. I. 492, 23 A. 30, 33 A. S. R. 897. 456 Ala. 69. 5 Mother’s suit for seduction of daughter not barred by decision of non-paternity in favor of de- fendant in affiliation proceedings. Anderson v. Collinson, (1901) 2 K. B. 107. Judgment against one erroneously disclosing oneself as trustee of a partner is no bar to suit by the firm. Gale v. Barnes, 66 N. H. 183, 19 A. 1001 § But see Wilkinson v. Blades, (1896) 2 Ch. 788. Person not a party but fully cognizant of the proceedings standing by and taking benefits of a decision is estopped from reopening same question in fresh action as to another fund under same will. 711 Ex. 569. 8 Alderson, B. said that it was essential to an estoppel that it should be mutual, so that the same parties or privies might be bound and take advantage of it. The crown and subject were parties to the indictment; and therefore it was not between the two parties to this action. ‘The distinction,’ he said, ‘ is shown by the authority cited in Viner’s Abr., Estoppel (F), 35, where it is said: “‘ If a man in- dicted of extortion or trespass puts himself into the grace of the king, and makes fine, and, after, the (CHAP. II. 130 ESTOPPEL BY RECORD. The point decided in Petrie v. Nuttall is well settled. Judg- ments in criminal causes are rendered between the state and the defendant; they are not binding in civil cases,1 though the defendant or the state be there a party, either for or against such party, for want of mutuality.2_ Hence an acquittal upon a charge of crime will not estop one who accuses the party ac- quitted from proving the charge true in an action for slander.’ Tn 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 of contract; 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 investigated, and the suit dismissed. But the court said that this was no bar, the suit in equity being between other parties. There is conflict of authority concerning the effect of judg- ment against parties under legal disability who failed to plead the defence of incapacity. In Griffith v. Clarke ® judgment by default had been obtained against a married woman in a suit party sues against him thereof by bill or writ, and he pleads not guilty, he shall have the plea, and the making of fine to the king shall not estop him.” That is precisely this case, and we ought to follow the same rule. No doubt the judgment in the indictment may be given in evidence upon the trial of the issue as to whether the locus in quo is a public highway; but it cannot be pleaded as an estoppel.’ 1 Nor are they binding in subse- quent criminal cases unless the measure of proof required in the adjudicated case is as great as that required in the case on trial. State v, Sargood, 80 Vt. 415, 68 A. 49, 130 A. 8. R. 995. *Castrique ». Imrie, L. R. 4 H. L. 414, 434; Corbley »v. Wilson, 71 Tl. 209. See McBee »v. Fulton, 47 Md. 403, and comp. Duchess of Kingston’s Case; ante, p. 102. Arm- strong v. State, 54 Ark. 364, 15 S. W. 1036; Frierson v. Jenkins, 72 8. C. 341, 51S. E. 862, 110 A. S. R. 608. It seems that judgment in a criminal case may be res judicata in a subsequent disbarment pro- ceeding for the same _ offence. People v. John, 212 Ill. 615, 72 N.E. 789. E converso, judgment in a civil action is not admissible in a subsequent criminal prosecution. State v. Bradnack, 69 Conn. 212, 37 A. 492, 5 Corbley ». Wilson, 71 Ill. 209. ‘Buttrick v. Holden, 8 Cush. 233. 518 Md. 457. SECT. III.] JUDGMENTS IN PERSONAM. 131 upon a promissory note; and an injunction having been ob- tained to restrain the former plaintiff from obtaining satisfac- tion of the judgment, 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,? which was an action of contract on a judgment 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.’ ? On the other hand, it has been decided in Indiana upon a long line of authorities in that state that judgment obtained against a married woman by default upon a contract void for coverture is binding; and the two cases above referred to were sharply criticised. So it has been held in Pennsylvania that where a married woman had executed a mortgage in her maiden name, upon which a scire facias was executed against her in the same name, judgment recovered, and the land sold, the pur- chaser gets a good title, and the feme cannot allege her cover- ture in ejectment for the premises against him.* However, it 13 Gray, 411. In North and South Carolina 2 Faithorne v. Blaquire, 6 Maule & S. 73. For the later rule in Mas- sachusetts see Freison v. Bates Col- lege, 128 Mass. 464. A married woman may now be bound by cove- nants of warranty in Massachusetts. Knight v. Thayer, 125 Mass. 25. 3 Burk v. Hill, 55 Ind. 419. This is of course a qualification to the general rule that an illegal or void contract cannot be made the basis of an estoppel. Mattox v. Hight- shue, 39 Ind. 95; Pettis v. Johnson, 56 Ind. 139. also judgment is binding. Grant- ham v. Kennedy, 91 N. Car. 148; Crenshaw v. Julian, 26 8. Car. 283. In Rhode Island judgment against a married woman founded on a tort is voidable and so binding until set aside. Smith v. Borden, 17 R. I. 220, 21 A. 351. ‘Hartman v. Ogborn, 54 Penn. St. 120. See also Van Metre ». Wolf, 27 Iowa, 341; Green v. Bran- ton, 1 Dev. Eq. 500; Gambetta v. Brock, 41 Cal. 78; Patterson »v. Fraser, 5 La. An. 586; . Elson »v. [CHAP. III. 132 ESTOPPEL BY RECORD. has also been decided in Pennsylvania, upon the authority of several cases in 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.! But the enabling acts concerning married women have made great changes in the law in reference to questions of this kind. In regard to infants the statutes generally give a day upon their attaining majority in which they may have judgments or decrees previously rendered against them reversed or set aside; and if they do not avail themselves of this immunity, the result is that the judgments or decrees become binding upon them.? In cases not arising under this class of statutes there is a con- flict of authority like that above mentioned. An infant duly represented by guardian in an action will indeed be estopped by judgment against the latter. And in Georgia, Kentucky, Indiana, North Carolina, and perhaps elsewhere, judgments against infants sued without guardian are held to be voidable only, and hence not impeachable in collateral actions.4 In Illinois such judgments are held void.’ And this appears to be the better doctrine, at least where the legislature has provided a special mode of action against infants. In such cases the pro- ceeding 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 O’Dowd, 40 Ind. 300; Guthrie ». Howard, 32 Iowa, 54. 1Graham v. Long, 65 Penn. St. 383; Dorrance v. Scott, 3 Whart. 309; Caldwell v. Walters, 18 Penn. St. 79. See also Baines v. Bur- bridge, 15 La. An. 628. 2 Waring v. Reynolds, 3 B. Mon. 59; Porter v. Robinson, 3 A. K. Marsh. 253. 3 Sharp v. Findley, 71 Ga. 654, 667; Bailey v. Bailey, 115 Hl. 551. 4Tbid.; Evans v. Collier, 79 Ga. 319, 322; Blake v. Douglass, 27 Ind. 416; Marshall v. Fisher, 1 Jones, 111. See also Grantham »v. Kennedy, 91 N. Car. 148; Austin v. Charlestown Female Sem., 8 Met. 196; Ralston v. Lahee, 8 Iowa, 11. The statements of the court in the latter case are only dicta. The proceeding was not collateral, but direct. 5 Whitney v. Porter, 23 Ill. 445. ®See post, § 4. SECT. III.] JUDGMENTS IN PERSONAM. 133 infant without guardian, and that no guardian ad litem was appointed.1_ 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 im- peached. 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 guardian or appearance is not binding in collateral actions, but if an appearance were entered, that the judg- ment cannot be disturbed.? This subject, however, is largely matter of statutory regulation, and will not be further pur- sued. Apart from statutory enactment, judgment against a lunatic,’ in a suit duly begun, is binding in collateral ac- tions; * and the same is true of judgment against a person deceased.> But the party or estate to be affected must be properly represented, otherwise judgment would be entirely void. There is a class of cases, resting upon a different ground from that of merger, in which also it is no valid objection to the plea of res judicata that the parties to the former action were more or less * numerous than in the present suit. Chief among these are cases in which real parties fight out a cause behind 1See Whitney v. Porter, supra. But see Austin v. Charlestown Fe- male Sem., 8 Met. 196; Rutter v. Puckhover, 9 Bosw. 638, to the effect that even then the judgment would be only voidable and not void. ? Judgment against an adult in an action by him against an infant is of course conclusive upon him. Kendall v. Titus, 9 Heisk. 727. The defence of disability is personal to | the one subject to it. Comp. First sae Bank »v. Gillilan, 72 Mo. 7. 3 See Hughes v. Jones, 116 N. Y. 67, 22 N. E. 446, 15 A. S. R. 386. 4 Wood »v. Bayard, 63 Penn. St. 320; Foster v. Jones, 23 Ga. 168; Lamprey v. Nudd, 29 N. H. 299; Clarke v. Dunham, 4 Denio, 262. 5 Carr v. Townsend, 63 Penn. St. 202; Stortzell v. Fullerton, 44 IIl. 108; Reid #. Holmes, 127 Mass. 326; Spalding v. Wathen, .7 Bush, 659; Coleman v. McAnulty, 15 Mo. 173. 6 Follansbee v. Walker, 74 Penn. St. 306; Davidson »v. State, 63 Ala. 432. 134 ‘ESTOPPEL BY RECORD. [CHAP. III. a nominal party.1 In Tate ». Hunter? it appeared that the complainant’s testator had brought an action of assumpsit against a sheriff for a sum of money collected by him under process of a court of law and retained to be applied to an exe- cution which had been assigned to the defendant. After a revivor by the complainants as executors, and a closely con- tested litigation, judgment had gone for the defendant. The complainants then filed the present bill, praying that the exe- cution and judgment in question (the one assigned to the. de- fendant) 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. Mr. Chancellor Dargan said that the only question to be con- sidered was whether the present suit was between the same parties as were before the court in the prior suit against the sheriff; and he was of opinion that they were the same. The sheriff in the former action was only a nominal party; the de- fendant 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 re- covered 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. A more difficult question arises from the relation of principal -and agent or of master and servant. What is the effect of judg- ment obtained against an agent or a servant, whose act is the act of the principal or master, when the superior has not been made a party to the suit? Clearly, if the principal or master ‘Tate v. Hunter, 3 Strob. Eq. character is the same in that each 136; Lyon v.' Stanford, 42 N. J. Eq. 411; Castle v. Noyes, 14 N. Y. 329. Comp. cases of representa- tive parties, pp. 134-142, 152. And see Verplanck ». Van Buren, 76 N. Y. 247, 256; Thames ». Jones, 97 N. Car. 121, numerous parties suing or defending through one. ‘True, the parties plaintiff in the two actions differ in name of person, but their representative stands for the estate and right of TWO. True, they were appointed at the instance of different credi- tors; but one succeeded the other in title, and took into possession the same estate and right, that of TWC. Folger, J. in Verplanck v. Van Buren. But see Reynolds »v. Stockton, 140 U.S. 254, 11 Sup. Ct. 773, 35 L. Ed. 464, 73 Strob. Eq. 136, SECT. 111.] JUDGMENTS IN PERSONAM. 135 has not participated in a tort committed by the agent or serv- ant, the two cannot strictly be joint or several tortfeasors. If there has been participation, joint or several judgments can in this country, as we have seen, be obtained; and perhaps, with-' out participation, a joint judgment against the two together might be obtained, based upon the act of the servant or agent alone, where that act binds the master or principal.1_ But can several judgments be had in such a case? Will the mere fact alone that A is liable for the act of B, be sufficient ground for an action and judgment against each separately? Now, if an ac- tion cannot be maintained against a master after judgment against his servant for the authorized act of the latter, it must be because the master is bound by the judgment just as if he had been a defendant with his servant, or because of merger of the cause of action, or because of election. But the first of the reasons cannot hold good; for it would always be open to a plaintiff, by collusion with a servant at variance with his mas- ter, to subject the latter’s property to execution. The second reason has a better foundation. There is no several liability because there has been no several tort by each; the master has in no way participated.in the wrong committed by his servant. The one action must therefore in principle include the whole cause of action; and the one judgment must merge the one cause of action, annulling it by transforming it into a judg- ment obligation.2 The case may also well stand upon the foot- ing of election; probably that is the better footing.’ The question, as it has been presented before the courts, has generally arisen in relation to officer and deputy; though it has sometimes taken the wider form in which we have thus far considered it, the result generally being in accord with the view above taken.‘ In Priestly v. Fernie the plaintiff sued the 1 But see Campbell v. Phelps, 1 Pick. 62; infra, p. 137. 2No action can be maintained against the sheriff upon a judgment against the deputy; the sheriff does not owe the judgment, not having been a party to the cause. Pervear v. Kimball, 8 Allen, 199. 3See Priestly v. Fernie, 3 Hurl. & C. 977; Kingsley v. Davis, 104 Mass. 178; King v. Chase, 15 N. H. 9; Anderson v. Fleming, 160 Ind. 597, 67 N. EH. 443. : 4 Priestly v. Fernie, 3 Hurl..& C. 977; Warfield v. Davis, 14 B. Mon. 40; Lyon v. Stanford, 42 N. J. Eq. 411, 414; Emery ». Fowler, 39 Maine, 326. But see Maple »v. Railroad Co.,40 Ohio St. 313. This doctrine was stretched too far in 136 ESTOPPEL BY RECORD. [CHAP. III. owner of a ship on a bill of lading, and the defendant 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, on the ground of election.? Hill vy. Bain, 15 R. I. 75. See also Atkinson v. White, 60 Maine, 396. 1Mr. Baron Bramwell said: ‘We are of opinion our judgment should be for the defendant. If this were an ordinary case of principal and agent, where the agent, having made a contract in his own name, has been sued on it to judgment, there can be no doubt that no sec- ond action would be maintainable against the principal. The very expression that where a contract is so made, the contractee has an election to sue agent or principal, supposes he can only sue one of them, that is to say, sue to judg- ment. For it may be that an ac- tion against one might be discon- tinued and fresh proceedings be well taken against the other. Further, there is abundance of authority to show that where the situation of the principal is altered by dealings with the agent as prin- cipal, the former is no longer sub- ject to an action. But this is the case here... . If this then were the ordinary case we have men- tioned, there could be no doubt on the subject. But it is said that the liability of the master of a ves- sel acting for his owners, and their liability where he acts for them, is different from the liabilities in or- dinary cases of principal 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 excep-. tional. 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 considera- tions as that of an ordinary agent, namely, he makes the contract in his own name. Rich v. Coe, 2 Cowp. 636; Story, Agency, § 296. But it is said that for purposes of commerce it is convenient both master and owner should be suable. So it is, but why to the extent con- tended for more than in any other case of principal and agent? It might be hard to make a person who deals with the master run after the owner to sue him; but why, if he sues the master, should he after- wards sue the owner merely be- cause it is very right he should be able to sue the captain or owner? In reality no reason can be given for the distinction attempted be- tween this and other cases of prin- cipal and agent. It is not said none could be given why in all cases, of principal and agent both should be suable, but that there is no par- ticular 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. Livermore (2 Livermore, Agency, 267). He shows that the former misunder- stands 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. Liver- more, it does not support that maintained in Story on Agency. SECT. II.] JUDGMENTS IN PERSONAM. 137 In the narrower form the question arose in Campbell ». Phelps.’ The action in that case was trespass de bonis aspor- tatis against the sheriff of Hampshire; to which the defence was that the taking complained of was by the defendant’s ‘deputy-sheriff, and that the plaintiff had obtained judgment for it against the deputy. The plaintiff replied that the judgment had not been satisfied; to which there was a demurrer, which the Supreme Court sustained. It was held by a majority of the court that the sheriff and his deputy were not to be considered as joint (or several) trespassers on their mere relation to each other so as to subject them to a joint action,? or to give the party injured a right to bring his action against one after obtain- ing judgment against the other.? The opposite view has been taken by the Supreme Court of Connecticut. But if upon judgment in favor of the plaintiff against the servant another action cannot be permitted for any reason, what shall be said of the effect of judgment for the defendant in the first suit? Merger being out of the question in such a case, must the plaintiff be permitted, if he desires, to sue the master? It should seem not, for the question of defendants is immaterial to him; the only question is whether the servant committed the illegal act sued for, and this may as well be de- cided once for all in an action against either the servant or the master. Nobody’s rights can be affected by allowing the master to produce the record of the judgment as conclusive evidence against the plaintiff’s demand. It is not the case of a stranger availing himself of the benefit of a record inter alios; and so it has been decided in New Hampshire,® and in effect in Maine.® 11 Pick. 62. 2This appears to be a purely technical position. The deputy must be liable because the tort is his; and the deputy’s act binds the sheriff in the situation under consideration. There is no reason, except the technical one, why both may not be sued together. 3 See further Todd v. Old Colony R. Co., 3 Allen, 18; Pervear v. Kimball, 8 Allen, 199; Bennett ». Hood, 1 Allen, 47; Elliott ». Hay- den, 104 Mass. 180. 4Morgan v. Chester, 4 Conn. 387. Comp. Warner v. Comstock, 55 Mich. 615. 5 King v. Chase, 15 N. H. 9, 19. The ground taken was the equally true one that the plaintiff, having an election, had elected to sue the deputy. 6 Emery v. Fowler, 39 Maine, 326. But see Maple v. Railroad Co., 40 Ohio St. 313. 138 ESTOPPEL BY RECORD. [cHaAP. III. This view, however, is based upon the assumption that the judgment in favor of the defendant proceeded upon a ground equally applicable in an action against the master; such, for ex- ample, as the lawfulness or unlawfulness of the act in question. Thus, 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 bailiff 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 Ellenborough held the judgment binding upon them. Similar principles ought to prevail in questions of principal and surety. While the question of a right of action against either after judgment against the other will depend upon the further question whether the engagement sued upon is joint or several,’ it seems clear that judgment in favor of the principal or the surety, in a suit against either, upon a ground applicable. to both, should (so far) be accepted as having conclusively decided against the plaintiff’s right of action.? The matter of newly discovered evidence, if such should be urged, should be disposed of (in this and the case above considered) as upon a motion for a new trial; but no new action should be permitted 1 Hancock v. Welch, 1 Stark. 347. 2 Judgment against a party without fraud or collusion will be binding not only upon him but upon a surety with him in a subsequent recognizance, or a bond to dissolve an attachment conditioned to pay the judgment. Way v. Lewis, 115 Mass. 26; Cutter v. Evans, ib. 27. Curtiss », Curtiss, 182 Mass. 104, 66 N. E. 635; Ruggles v. Bern- stein, 188 Mass. 232, 74 N. E. 366; Niehoff v. People, 171 Il. 243, 49 N. E. 214. Judgment on guard- ian’s bond is conclusive against guardian and his sureties. So principal or surety may have the benefit of a judgment against both in a subsequent contest with the opposite party involving the same question. See Ehle v. Bingham, 7 | Barb. 494; infra, p. 142. 3 State ». Coste, 36 Mo. 437. SECT. 11.] JUDGMENTS IN PERSONAM 139 upon the same evidence by simply changing the name of the defendant. In a case of principal and agent, where the agent, having made a contract in his own name, has been sued thereon and judgment rendered against him, it is in like manner laid down that no action can be maintained against the principal.!_ The rule is no doubt different in the case of an undisclosed agency; but if a case be carried to judgment against the agent after knowledge of all the facts has reached the plaintiff, he will not .be permitted to sue the principal.?- And on the other hand, if judgment has gone in favor of the defendant upon a ground affecting the very validity of the contract, this ought also to be conclusive in a subsequent action against the principal. It should be stated, however, that the effect here noticed of an action and judgment against the agent is by the authorities based upon the ground of election; * and in a recent case it has been said. that this election does not become binding until satisfaction, which is of course as much as to say that there is no binding election at all in such cases.4 But this, it is appre- hended, is not the better doctrine. When the cause has once reached judgment, the demand ought to be treated as deter- mined,*® unless matters exist which would justify a new trial, in which case there may be no sound objection to permitting the plaintiff to bring his action against the party not sued in the first proceeding. It may be added in this connection that judgment against the agent upon a cause of action for which the principal is liable is probably conclusive upon the principal in the absence of fraud or collusion on the part of the agent.® We have thus far spoken of the effect of a judgment for or against the servant or agent in a subsequent action against the’ master. 1 Weil v. Raymond; 142 Mass. 206, 213, 7 N. E. 860; Priestly v. Fernie, 3 Hurl. & C. 977. 2 Kingsley v. Davis, 104 Mass. 178; Raymond v. Crown Mills, 2, Met. 319; Jones v. Aitna Ins. Co., 14 Conn. 501. 3 Priestly v. Fernie, p. 135, note 4. 4Beymer v. Bonsall, 79 Penn. St. 298. Sometimes the converse situation is brought before 5 As for the subsequent discov- ery of an undisclosed principal a new action could consistently with this position be allowed, since the plaintiff, not knowing of the exist- ence of a principal, had not elected to sue him. 8 See Lyman »v. Faris, 53 Iowa, 498; Clark v. Wolf, 29 Iowa, 197. 140 ESTOPPEL BY RECORD. [CHAP. III. the courts, and a question presented of the effect of a judgment for or against the master in a subsequent action against the servant. But the same principles should prevail, and indeed have been held to prevail. In Calkins v. Allerton ' the plain- tiff brought trover for cattle. The defendant justified the taking as having been done under the orders of a third person and under his title. Thereupon the plaintiff, to prove his own title and right of possession, produced the record of a judg- ment 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 those to the present; but the record was received and held conclusive. The court thought, indeed, that if the present defendant had sustained the relation of co-trespasser with the defendant in the former action, the record would be inadmissible; but it was considered that the: defendant could not be so treated. It may be doubted if in this the court were not in error. It was by defendant’s vol- untary act that the conversion was effected, and the mere fact that the master would be bound to indemnify him for the consequences would not prevent the defendant being a co- trespasser. However, this would not militate against the ruling of the court, because the defendant claimed no title to. the cattle in himself. As the court well proceeded to say, the defendant justified under the master, alleging title in him; on this ground the judgment was conclusive concerning the title to the cattle. The court called the situation one of privity, but (it seems) it was not a case of privity in the ordinary sense of the law of estoppel; there was no succession of interests. The better ground for the decision would be that the judgment had decided a question in which the defendant, by his own admis- sion, had no interest. If, on the other hand, as we have already intimated, the defendant had claimed title to the property the record, it is clear, would have been inadmissible. Thus, in another action of trover, in answer to which the defendant. relied upon the record of a judgment in his favor in a replevin suit by him against the plaintiff’s servant for the same prop- 14 Barb. 171. ol SECT. 111.] JUDGMENTS IN PERSONAM. 141 erty, the record was held inadmissible.! It should be added that a sheriff is not the agent or servant of the owner of property attached and sold by him. The result is that judgment against the sheriff for a wrongful attachment of the plaintiffs’ goods is without avail against a purchaser at the officer’s sale; the pur- chaser deriving his title from the owner, not from the sheriff.? If in cases of principal and agent or of bailment the principal or bailor bring an action and proceed to judgment on the merits, the agent or bailee 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 for a conversion of the salt. Judgment 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 (by reason of having a special property) and the general owner might either of them sustain an action for the conversion of or an injury to property in which they were interested. The right to sue was indispensable to enable each to protect his par- ticular 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. 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 1 Alexander v. Taylor, 4 Denio, 302. 2? McKay v. Kilburn, 42 Mich. 614. And comp. Hunt v. Haven, 52 N. H. 162, which turned upon a like principle. 3 Green v. Clarke, 12 N. Y. 343; Kent v. Hudson River R. Co., 22 Barb. 278. 4One who instigates and pro-’ motes a suit for one’s own benefit, by employing counsel and binding oneself to the payment of costs and damages, is bound by the judg- ment obtained. Landis v. Hamil- ton, 77 Mo. 554, citing Stoddard »v. Thompson, 31 Iowa, 80; Lovejoy v. Murray, 3 Wall. 1, 18. Vendees are parties to actions brought by vendors in their own name for bene- fit of vendees and are bound by the judgment. Souffront v. Campagnie Des Lucrecries, 217 U. S. 475, 30 Sup. Ct. 608, 54 L. Ed. 846. Comp. ante, p. 129, note 3. [CHAP. III. 142 ESTOPPEL BY RECORD. by due authority,! or when he has received and retained the fruits of the judgment. Thus, in the case of Pico v. Webster ” an action had been brought by an agent, in his own name, for a trespass in taking gold coin from the possession of 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 tres- pass; and the former judgment was relied upon as a bar. But the court overruled the objection. ‘There was,’ it 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.’ Other cases than these (not of privity in the sense of the law of estoppel) 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;? as where judgment is rendered against B and C in a suit by A, and the same question is raised again in a suit by B against A. Ehle ». Bingham was such a case. The action was brought to recover damages for breach of warranty in the sale of sheep. The plaintiff had given his note for them, in which another had joined with him as surety; and the sheep having proved to be diseased he sued on the warranty of soundness. The defendant gave in evidence the record of an action by himself in which he obtained judgment upon the note against the plaintiff and his surety; 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 objected to this judgment as res inter alios acta; but the objection was overruled.‘ 1 Nemetty v. Naylor, 100 N. Y. 562. 212 Cal. 140. 3 Ehle v. Bingham, 7 Barb. 494; Whitford v. Crooks, 54 Mich. 261; Follansbee v. Walker, 74 Penn. St. 306; Davidson v. State, 63 Ala. 432; Parnell v. Hahn, 61 Cal. 131; Nemetty v. Naylor, 100 N. Y. 562 (that one of a partnership may represent the firm, in litigation). 4Upon this point Mr. Justice Edwards said: ‘It will be remem- bered that the former suit was upon a promissory note which grew out of a transaction to which the plaintiff and defendant in this suit alone were parties, and that the plaintiff in this suit put in a. separate plea and notice of a matter personal to himself; and the mere fact that another person was sued SECT. 111.] JUDGMENTS IN PERSONAM. 143 The case of Thompson v. Roberts! is another example of a different kind. Mr. Justice Grier, speaking for the court upon the 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 to 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 by reason of interest S was joined as complainant, and a certain company were made respondents, according to the practice in the Courts of Chancery, where all parties having an interest in the question to be tried are made parties that the decree may be final upon 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 ad- mitted by the practice of a Court of Chancery to assist on both sides.” The question of the conclusiveness of a former judgment in ejectment in a subsequent action of the same kind came before the Supreme Court of the United States in the case of Miles v. Caldwell. The complainant sought to evade the force of the defence on the ground that the verdict and judgment in ejectment had not that conclusive effect which they had in other proceedings. But the court, conceding that the point would be well taken with regard to the com- mon-law action of ejectment with its fictitious parties,* held with him ought not to deprive the defendant in this suit of the benefit of the former judgment.’ 124 How. 233. 2 Western M. Co. v. Virginia Coal Co., 10 W. Va. 250, 293. ‘It mattered not,’ said the court in this case, ‘that other parties were plaintiffs and defendants,’ such parties being joined as suc- cessors to the present plaintiffs and defendants. ‘The matters at issue common to both suits have been adjudicated.’ And Thompson ». Roberts was then quoted. See also Pollard v. Railroad Co., 101 U. S. 223 (that judgment in assumpsit by husband and wife in favor of the plaintiffs for injury caused the wife by a carrier of passengers bars an action by the husband alone for damages from the same cause of action); Lawrence v. Hunt, 10° Wend. 80. 32 Wall. 35. 4See Doe v. Harlow, 12 Ad. & E. 40; Doe v. Thomas, 1 Tyrwh. 410; Bailey v. Fairplay, 6 Binn. 450; Rogers v. Haines, 3 Greenl. 362; Richardson v. Stewart, 2 Serg. 144 ESTOPPEL BY RECORD. [CHAP. III. otherwise.! This is clearly the sensible view; but no uniform rule prevails upon the subject, ejectment having been variously treated according to the nature of statutory provisions or the persuasive force of the old common-law rule.? & R. 84; White v. Kyle, 1 Serg. & R. 515; Calhoun v. Dunning, 4 Dall. 120; Cherry v. Robinson, 1 Yeates, 525; Eldridge v. Hill, 2 Johns. Ch. 281; Doe v. Huddart, 2 Cromp. M. & R. 316; Jones ». De Graffenreid, 60 Ala. 145; Shaw v. Lindsey, ib. 344. In Pennsylvania two verdicts the same way become a bar to a third suit; but if there be verdict against verdict, another action may be brought, and judg- ment thereon will be conclusive. Gibson v. Lyon, 115 U. S. 439, 446; Britton v. Thornton, 112 U. 8. 526. 1Mr. Justice Miller, in deliver- ing judgment, said: ‘It must be conceded that such is the general doctrine on the subject as appli- cable to cases tried under the com- mon-law form of the action of eject- ment. One reason why the verdict cannot be made conclusive in those cases is obviously due to the ficti- tious 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 Rich- ard 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 be- tween John Doe and John 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 enforcing 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 nominal parties to the real ones) to interfere, after a sufficient num- - ber of trials had taken place, to determine fairly the validity of the title, and by injunction directed to the unsuccessful litigant compel him to cease from harassing his opponent by useless litigation. There was perhaps another reason why the English common law re- fused 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 sanc- tity, which the feudal system at- tached 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 forever 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 solemn actions, the writ of right and the writ of assize, the _ same force as estoppels which they did to personal actions in other cases.’ 2See Boyle v. Wallace, 81 Ala. 352, 355; Cagger v. Lansing, 64 N. Y. 417; Dawley v. Brown, 79 N. Y. 390; Doyle ». Hallam, 21 Minn. 515; Sturdy v. Jackaway, 4 Wall. 174; Barrows v. Kindred, ib. 399; Stephenson v. Wilson, 50 Wis. 95; Wilson ». Henry, 40 Wis. 594; Phillpots v. Blasdell, 10 Nev. 19; Marshall v. Shafter, 32 Cal. 176; Amesti ». Castro, 49 Cal. 325; Kimmel v. Benna, 70 Mo. 52; Brownsville v. Cavazos, 100 U. S. 138; Union Petroleum Co. v. Bliven SECT. 11.] JUDGMENTS IN PERSONAM. 145 Cases have arisen where the former judgment invoked as a bar was rendered in an action in which the parties were nomi- nally the same though the real parties were different. In such cases the 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 defend- ant pleaded in bar a former judgment against himself for the same matter, recovered in the name of the then sitting presi- dent of the Orphans’ Court, for the use of one Herr, trustee of Eshelman the present plaintiff. In the court below the plea was held good; but on appeal judgment was reversed. Chief Justice Gibson said that it was true the former suit, like the present, was brought nominally by the president of the Or- phans’ Court; but it was really for the use of Eshelman’s as- signees. 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 though it would be mischievous now to doubt the validity of such an action, it would be as much so to let it stand in the way of substantial justice for the sake of technical congruity. It is laid down in Alabama that a judgment rendered by a judicial tribunal authorized to try contested elections is conclu- sive in a subsequent quo warranto by the state on the relation of the defeated contestant.? But such a judgment clearly would not bar a subsequent inquiry into the facts by the state unless the first tribunal, like a state legislature or Congress, had exclu- sive jurisdiction? So it is held that a man who is not a party Petroleum Co., 72 Penn. St. 173; Gordinier’s Appeal, 89 Penn. St. 528; McLaughlin ». McGee, 79 Penn. St. 217. Bryar v. Campbell, 177 U. S. 649, 20 Sup. Ct. 794, 44 L. Ed. 926; Sanford v. Tanner, 114 Ga. 1005, 41 8. E. 668; Crowl ». Crowl, 195 Mo. 338, 92 S. W. 890; Remillard v. Authier, 20 8. D. 290, 105 N. W. 626. The consent rule in ejectment creates no estoppel. Day v. Case, 78 Ga. 58. Estoppel in pais not available in ejectment to defeat the legal title to perma- nent interest in land. Linnertz » Dorway, 175 Ill. 508, 51 N. E. 809, 67 A. S. R. 232; Grubbs v. Boon, 201 Ill. 98, 66 N. E. 390. 1 Eshelman vy. Shuman, 13 Penn. St. 561. 2 Davidson v. Siate, 63 Ala. 432; Moulton v. Reid, 54 Ala. 320. See People v. Hall, 80 N. Y. 117. See, however, Lee v. State, 49 Ala. 44. * People v. Hall, 80 N. Y. 117; . People v. Murray, 73 N. Y. 535. See State v. Hardie, 1 Ind. 42. / 146 ESTOPPEL BY RECORD. [CHAP. III. to a judgment in which he is interested, but from which he joins in appealing, is not estopped in another action by the judgment appealed from.! 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, trustee, agent, or attorney, as such, presumptively does not preclude him, in a different cause of action affecting his own proper person, from disputing the special findings in the former cause.2 And so appearing in an action as heir of A will not estop the party to claim the same property as devisee of A’s widow,‘ or as a creditor having a lien.® There are some apparent but perhaps no real exceptions to this rule. Thus, as we have already seen, a judgment by default of plea against an administrator is a conclusive admission 1 Majors v. Cowell, 51 Cal. 478. 2 Leggett v. Great Northern Ry. Co., 1Q. B. D. 599; Lord v. Wileox, 99 Ind. 491, 496; Lantz v. Maffett, 102 Ind. 23, 27; Elliott v. Frakes, 71 Ind. 412; Unfried v. Huberer, 63 Ind. 67; Cronan ». Frizell, 42 Ill. 319; Mansfield v. Hoagland, 46 Il. 359; Stoops v. Woods, 45 Cal. 439; Rathbone v. Hooney, 58 N. Y. 463; Beals v. Cone, 188 U. S. 184, 23 Sup. Ct. 275, 47 L. Ed. 485; Cra- mer v. Wilson, 202 Ill. 83, 66 N. E. 869; Abbott v. Hapgood, 150 Mass. 248, 22 N. E. 907; Bamka v. Chi- cago & St. P. R. Co., 61 Minn. 549, 63 N. W. 1116, 52 A. S. R. 618; State v. Branch, 134 Mo. 592, 36 8S. W. 226, 56 A. S. R. 533; Bank v. Smith, 110 Tenn. 337, 75 8. W. 1065; Harris v. Columbia W. & L. Co., 114 Tenn. 328, 85 8. W. 897; Mul- lins v. Shrewsbury, 60 W. Va. 694, 55 8. E. 736. So of other estoppels also. Jones v. Long, 50 Ala. 498 (in pais). Where the alleged new character is merely a new ground for re-litigation of the same matter, and not the introduction of a new party, the judgment is conclusive upon the parties to the original suit and their privies. United States v. Cal. Land Co., 192 U. S. 355, 24 Sup. Ct. 266, 48 L. Ed. 476. If one as administrator is acting for individual right a judgment is a bar to same one acting in private capacity. Bell’s Estate, In re, 153 Cal. 331, 95 P. 372. ; 3 Coke, Litt. 128 a; Robinson’s Case, 5 Coke, 32 b; Middleton’s Case, ib. 28 b; Legge v. Edmonds, 25 L. J. Ch. 125; Fenwick v. Thorn- ton, Moody & M. 51; Parker »v. Moore, 59 N. H. 454; Bernard ». Merrill, 91 Me. 358, 40 A. 136; Wood »v. Bullard, 151 Mass. 324, 25 N. E. 67; Sbarbero v. Miller, 72 N. J. Eq. 248, 65 A. 246. See Bras- well v. Hicks, 106 Ga. 791, 32 8. E. 861. Judgment in a petition to revoke a patent is not personal to the petitioner. In re Deeley’s Patent, (1895) 1 Ch. 687, C. A. See Smith v. Morgan, 2 Moody & R. 257, explained in Metters v. Brown, 1 Hurl. & C. 686, 691; post, p. 150. 4 Elliott v. Frakes, 71 Ind. 412. See Lantz v. Maffett, 102 Ind. 23, 26. 5 Lord v. Wilcox, 99 Ind. 491. SECT. III.] JUDGMENTS IN PERSONAM. 147 against him personally in an action by the creditor for a devas- tavit.' This, however, is only an apparent exception. The former judgment in this case affects the administrator person- ally, since it is a conclusive admission that he has in hand assets of the deceased unadministered at the time. So judgment in regard to title against a trustee as representing the cestui que trust will preclude him from claiming in the latter capacity adversely to the decision.’ Under certain circumstances interested persons are held bound by judgments when they were not in point of fact par- ties to the proceedings, by giving them due notice of the suit.* This occurs; for example, where the party notified is liable over to the notifying party to make good any recovery by the plaintiff; the notified party having opportunity as well as notice to appear.® In such a case judgment against the defend- ant becomes conclusive evidence in an action by him against the person liable over to him. In Love v. Gibson § the plain- tiff 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 de- fendant 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.’ So, if a landlord 1Leonard v. Simpson, 2 Bing. N. C. 176; Rock v. Leighton, 1 Salk. 310; ante, p. 86. 2 Thid. 3 Corcoran v. Chesapeake Canal ‘Co., 94 U.S. 741. 4So where such persons ‘ stand by’ during the trial and then take benefits under the judgment. In re Lart, (1896) 2 Ch. 788, 794. Chitty, J. But this is rather estoppel by conduct. 5 Saveland v. Green, 36 Wis. 612, 622; Valentine v. Mahoney, 37 Cal. 389; Russell v. Mallon, 38 Cal. 259; Altschul v. Polack, 55 Cal. 633; Douglas v. Fulda, 45 Cal. 592; Carr v. United States, 98 U. S. 433; Mor- gan v. Muldoon, 82 Ind. 347, 352; Brown v. Taylor, 13 Vt. 631; Boston & M. R. R. v. Brackett, 71 N. H. 494, 53 A. 304; Meyer v. Purcell, 204 Ill. 62, 73 N. E. 392. The en- tire record and testimony may be examined to find the subject of controversy, and fix scope of the judgment. Washington Gas Light Co. v. District of Columbia, 161 U.S. 316, 6 Sup. Ct. 316, 40 L. Ed. 712. But the government cannot be estopped by notice from its tenants or agents to defend pro- ceedings against them. Carr v. United States. 62 Fla. 598. 7 The court referred with appro- bation to the language of Mr. Jus- tice Buller in Duffield v. Scott, 3 [CHAP. II. 148 ESTOPPEL BY RECORD. defends for and in the name of his tenant, and puts his title in issue in aid of his tenant’s right of possession, judgment against the tenant will bar any subsequent action by the land- lord against the party recovering the judgment; the landlord’s title has been adjudicated.* The rule concerning the effect of notice to third persons to appear and defend suits the result of which may affect them is, indeed, somewhat wider than these special examples might indicate; its full extent is thus set forth by Mr. Justice Bell in Littleton v. Richardson:2 When a person is responsible 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 of controverting the claim as if he were the real and nominal party upon the record. In every such case if due notice is given to such person, the judgment, T. R. 374, where it was said: ‘ The purpose of giving notice is not in order to give a ground of action; but if a demand be made which the person indemnifying is bound to pay, and notice be given to him, and he refuse to defend the action, in consequence of which the person to be indemnified is obliged to pay the demand, that is equivalent to a jadgment, and estops the other party from saying that the defend- ant in the first action is not bound to pay the money.’ Several other leading authorities were also cited, showing that the doctrine was well settled. See Smith v. Crompton, 3 Barn. & Ad. 407; Kip v. Brigham, 6 Johns. 158; Swartwout v. Payne, 19 Johns. 294; People v. Judges of Monroe Co., 1 Wend. 19; Clark v. Carrington, 7 Cranch, 308, adding the qualification that the judgment must have been fairly and honestly obtained. See also Milford v. Hol- brook, 9 Allen, 17; Annett v. Terry, 35 N. Y. 256; Thomas v. Hubbell, 15 N, Y. 405; s. c. 35 N. Y. 120;. Chicago v. Robbins, 2 Black, 418; Huzzard v. Nagle, 40 Penn. St. 178; Carlton v. Davis, 8 Allen, 94; Tracy v. Goodwin, 5 Allen, 409; State v. Roswell, 14 Ohio St. 73; Lipscomb v. Postell, 38 Miss. 476; Lyon ov. Northrup, 17 Iowa, 314; McNamee v. Moorland, 26 Iowa, 96; Dane ». Gilmore, 51 Maine, 544; Brown ». Bradford, 30 Ga. 927; Knapp ». Marlboro, 34 Vt. 235. The court _ then stated the rule as follows: ‘ If the surety has notice of the suit, and he does not choose to defend it, he thereby waives all the de- fences he might otherwise have to the introduction of the instrument to be introduced in evidence; and his right is gone to contest its va- lidity in a collateral way in a suit brought by the co-surety for con- tribution, for it must be deemed res judicata.’ Love v. Gibson, 2 Fla. 598. Valentine v. Mahoney, 37 Cal. 389; Russell v. Mallon, 38 Cal. 259; Altschul v. Polack, 55 Cal. 633. 234 N. H. 179, 187. SECT. III] JUDGMENTS IN PERSONAM. 149 if obtained without fraud or collusion, will be conclusive against him whether he has appeared or not, for he is bound to take up the cause at that point, in exoneration of the defendant; the latter need not longer defend.!' That was the case of a party who had placed obstructions in a highway; who, being an- swerable to the town, was held bound by judgment in favor of a traveller against the town, which had given him notice of the suit. The rule in this case is referred to with approval in Boston v. Worthington ? and in Chamberlain v. Preble. In the latter case the plaintiff sued upon a breach of warranty in a convey- ance 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 paramount 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 treated as conclusive upon him, though entered upon an agreed statement of facts, and though there was an erroneous recital as to some 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 4See also, concerning notice to 1 Morgan v. Muldoon, 82 Ind. 347; Jackson v. Marsh, 5 Wend. 44. 210 Gray, 496. $11 Allen, 370. See also Lee ». Clark, 1 Hill, 56; Rapelye ». Prince, 4 Hill, 119; Bridgeport Ins. Co. ». Wilson, 34 N. Y. 275; St. Joseph v. Union R’y. Co., 116 Mo. 636, 22 S. W. 794, 38 A. S. R. 626, warrantors, Bell v. Dagg, 60 N. Y. 528; Blasdale v. Babcock, 1 Johns. 517; Kelly v. Dutch Church, 2 Hill, 105; Collingwood ». Irvin, 3 Watts, 306; Paul v. Witman, 3 Watts & 8. 407. 5 Thomas v. Hubbell, 15 N. Y. 405; s. c. 30 N. Y. 120; Fay ov. t 150 [cHAP. III. ESTOPPEL BY RECORD. construction to be placed on the contract of indemnity. On the other hand, since there can be no contribution between wrong- doers acting knowingly, no notice by one wrongdoer or defend- ant to another will be effectual to bind the latter; though had it not been for the participation of the defendant, the notice would have been good.! Of course the rule of estoppel does not prevail in other cases where parties interested are not legally notified,” even though they have full knowledge of the proceedings.* In Jones ». Oswald, before 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 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 a recovery against the others. Whatever might have been the effect of the recovery in regard 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 the first form of action. Indeed, judgment does not necessarily bind all the parties to an action; for it may happen that a special issue has been joined in a case in which there are more than two parties, be- tween a portion of them only. In such a case the decision of, the issue has no binding force against the others * except, of course, so far as it may without fraud establish some special relation between such particular parties. Ames, 44 Barb. 327; Bridgeport Ins. Co. v. Wilson, 34 N. Y. 275. 1Knox v. Sterling, 73 Ill. 214; Severin v. Eddy, 52 Ill. 189; Chi- cago v. Robbins, 4 Wall. 657. 2 Jones v. Oswald, 2 Bail. 214; Kramph v. Hatz, 52 Penn. St. 525; Chant v. Reynolds, 49 Cal. 213; Valentine v. Mahoney, 37 Cal. 389; Altschul v. Polack, 55 Cal. 633. Indeed, though a party liable over was duly notified, if suit was afterwards dismissed in regard to him and his defence stricken from the record, the judgment will not estop him. Altschul »v. Polack, supra. 3 Brooklyn v, Insurance Co., 99 U.S. 362. 4‘ Harvey v. Osborne, 55 Ind. 535. But in a case of separate pleading by two defendants in a proceeding to quiet title, the finding that one of them owns the land concludes the SECT. III.] JUDGMENTS IN PERSONAM. 151 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 decided in‘the negative.! Yorks v. Steele, just cited, was an action ta recover possession of a horse. The plaintiff was nonsuited at the trial on the ground that he had appeared as a witness for the then defendant in an action successfully brought by the present defendant against a sheriff who had taken the horse in execution in favor of ahother against him- self, the present plaintiff. This was adjudged error.? The case may be different if the witness were for any reason liable over to the defendant to make him good in case of judgment against him. ‘ In Barney v. Dewey*® the defendant had fraudulently induced the plaintiff to buy a horse as his. The horse really belonged to another, who now brought trover for it; in which action the defendant appeared as a witness for the then plain- other. Devin v. Ottumwa, 53 Iowa, 461. 1Leland v. Tousey, 6 Hill, 328, 334; Yorks v. Steele, 50 Barb. 397; Parker v. Moore, 59 N. H. 454; Wright v. Andrews, 130 Mass. 149; Blackwood v. Brown, 32 Mich. 104; Schroeder v. Lahrman, 26 Minn. 87; Williams v. Barkley, 165 N. Y. 48, 58 N. E. 765. See Hobbs v. Mc- Lean, 117 U. S. 567, 580. So, a party is not estopped to deny the statement of a witness by the fact that the witness had, in former trials of the same action, made the same statement without contradiction. McCormick v. Pennsylvania Cent. R. Co., 99 N. Y. 65. Nor is one estopped to deny what one has admitted on the witness stand. Wilkinson: v. Wilson, 71 Ga. 497. (Contra in Louisiana. Folger ». Palmer, 35 La. An. 743; ante, p. 127, note 2. Caldwell v. Nelson, 120 La. 879, 45 So. 927, 124 A.S. R. 446.) Unless, indeed, in a proper case it has been acted upon. Lein- kauff » Munter, 76 Ala. 194; Hobbs v. McLean, supra. 2In delivering judgment Mr. Justice Johnson said: ‘It is a gen- eral if not universal principle that an action and judgment between two persons shall not bind or affect a third person who could not be admitted to make a defence, to examine witnesses, or to appeal from the judgment. Case v. Reeve, 14 Johns. 79; Castle v. Noyes, 14 N. Y. 329, 332; Greenl. Ev. § 523. . . . It is of no consequence, prima facie, that the plaintiff was a wit- ness for the defendant in the action brought by this defendant. He had no right as a witness to examine or cross-examine other witnesses, or to call other witnesses, who might have a better knowledge of the facts than himself. In short, as a mere witness he had no charge or control of the case whatever. And suppo- sing that judgment was erroneous for any reason, he had no right of appeal, and no standing by which he could be heard to correct the error.’ 313 Johns. 224, 152 ESTOPPEL BY RECORD. [CHAP. III. tiff, who prevailed. Such appearance was thought tantamount to an averment of notice to defend, estopping the witness to question the judgment. So too a witness who is the or a real party in interest may be estopped by the judgment.' Again, a judgment for or against one properly occupying a representative position concludes, in ordinary cases, the per- sons represented.2 But it may be a difficult question whether such persons were duly represented, or how far they were repre- sented. In equity, to put a single case, it is usually necessary to join the cestui que trust with the trustee in order to obtain a decree which shall bind the former, for generally they are treated as independent of each other; * 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, and after the trust terminates may take advantage of, 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 foreclosure. So too when 1Cole v. Favorite, 69 Ill. 457; Bennitt v. Star Mining Co., 119 Til. 9, 15; Shoemaker v. Finlayson, 22 Wash. 12, 60 P. 50. A petition was filed in State Court of Nebraska for leave to sell or mortgage lands alleged to be owned by petitioner and his two infant cestuis que trust, in equal shares. A supplementary petition was filed certifying to in- tegrity of original petition and praying that the power to sell or mortgage be granted him and it was signed by several parties inter- ested including one Hilton. Court recited the title in the decree as set forth in the petition, and authorized the sale as asked. On a bill by the administrator of Hilton to establish his title to one undivided third of the land, it was held that the al- leged title of the deceased was res judicata, and thereby arose an estoppel against maintaining this suit. Hilton v. Jones, 159 U. 8. 584, 16 Sup. Ct. 108, 40 L. Ed. 267. 2 Graham v. Boston R. Co., 118 U.S. 161, corporation; Harmon », Auditor of Public Accts., 123 IIL. 122, 130, municipal corporation; Bennitt v. Star Mining Co., 119 Ill. 9; Cole v. Favorite, 69 Ill. 457. See New Orleans v. Citizens Bank, 167 U.S. 372, 17 Sup. Ct. 905, 42 L. Ed. 202; Cheney v. Patton, 134 Ill. 422, 25 N. E. 792. Compare In re Lart, (1896) 2 Ch. 788. § Collins v. Lofftus, 10 Leigh, 5; Shay v. McNamara, 54 Cal. 169. 4 Whitford v. Crooks, 54 Mich. 261. And where there are several cestuis que trust, it makes no differ- ence after a recovery of property by the trustee for them that their respective rights therein have not been determined. Upon the ter- mination of the trust any of them may have the benefit of the judg- ment. Ibid. 5 Johnson ». Robertson, 31 Md. 476; Corcoran v, Chesapeake Canal Co., 94 U. 8. 741. 6 Willink », Morris Canal Co., 3 Green’s Ch. 377; Van Vechten ». SECT. 111.] JUDGMENTS IN PERSONAM. 153 the beneficiaries are so numerous that it would be very incon- venient to bring them all before the court, it has been con- sidered sufficient for part of them to sue as plaintiffs on behalf of allt But this rule applies only to cases where there is one general right in all the parties; that is, where the character of all parties, 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.2 This in the case cited was said of creditors in a question of priority of charging real estate; but the principle 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, under statutes imposing a personal liability on the members of the corporation for the corporation debts.* Mr. 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 deciding that the judgment establishes a prima facie but not conclusive liability on the part of the stockholder. But it has since 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 Terry, 2 Johns. Ch. 197; New Jersey Franklinite Co. v. Ames, 1 Beasl. Ch. 507; Johnson v. Robert- son, 31 Md. 476. 1 Adair v. New River Co., 11 Ves. 429; Cockburn v. Thompson, 16 Ves. 321; Harrison v. Stewardson, 2 Hare, 530. 2 Newton v. Egmont, 5 Sim. 130, 137. Comp. Thames »v. Jones, 97 N. Car. 121. 3 Newton v. Egmont, supra. 4 Judgment against a corpora- tion of course binds the members thereof, in the absence of fraud, for all the purposes of the judgment. Graham v. Boston R. Co., 118 U.S. 161; Baines v. Babcock, 95 Cal. 581, 27 P. 674, 29 A. 8. R. 158; Barron v. Paine, 83 Me. 312, 22 A. 218. So, judgment against a mu- nicipality concludes the citizens thereof individually. Harmon ». Auditor of Public Accounts, 124 Til. 122, 130; State v. Rainey, 74 Mo. 229; Morris Co. v. Hinchman, 31 Kans. 729, 737; Lyman »v. Faris, 53 Iowa, 498; Clark v. Wolf, 29 lowa, 197. See, however, Jenkins v. Robertson, L. R. 1 H. L. Scotch, 117, 121; Old Colony Co. v. Parker, 183 Mass. 557, 67 N. E. 870. 5 Slee v. Bloom, 5 Johns. Ch. 366; reversed, 19 Johns. 456; s. c. 20 Johns. 669. ; 6 Moss v. Oakley, 2 Hill, 265. 7 Moss v. McCullough, 5 Hill 131; 8. c. 7 Barb. 279; 5 Denio, 567. ' 821 N. Y. 96. 154 ESTOPPEL BY RECORD. [CHAP. III. 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 proc- ess in suits by the original creditor of the garnishee or trustee against the latter has frequently arisen.2 Compulsory pay- ment in full is of course a discharge. Such a case, it was thought, was Wetter ». Rucker;* but it appeared as matter of law that the payment by the garnishees to the judgment creditor of their own creditor was not a compulsory but a vol- untary payment. The court therefore held that the gar- nishees were not discharged. A more difficult point is presented by the question whether judgment against the garnishee without satisfaction -bars an action by his original creditor. The English doctrine in Sav- age’s Case ® is that attachment and condemnation are a good discharge. So in Maine judgment against the trustee hav- ing been rendered and duly recorded is conclusive upon the creditor of the trustee to the extent of the judgment,® pro- vided the judgment be final. Judgment by default will not discharge the trustee.’ The same doctrine prevails in other 1See also Squires v. Brown, 22 How. Pr. 35; Miller v. White, 59 Barb. 434; s. c. rev. 13 Abb. Pr. nN. 8. 185, note; Hall v. Sigel, 13 Abb. Pr. n. s. 178; Lowry v. In- man, 2 Sweeny, 117; s. c. 46 N. Y. 119; Brooks v. Hill, 1 Mich. 124; Berger v. Williams, 4 McLean, 577; Merchants’ Bank »v. Chandler, 19 Wis. 434. 2 Covington & L. R. Co. v. Bow- ler, 9 Bush, 468. 5 The trustee or garnishee (duly notified) is bound by the judgment against himself, though he failed to appear and was defaulted. Flana- gan v. Cutter, 121 Mass. 96, over- ruling a dictum in Brown », Neale, 3 Allen, 74. 41 Brod. & B. 491; s. c. 4 B. Moore, 172. > 1 Salk. 291. But in note 1 to : Turbill’s Case, 1 Wms. Saund. 660, it is said the garnishee ‘shall be quit against the other after execu- tion sued out by the plaintiff;’ and this seems te be the modern English rule. Wetter v. Rucker, 1 Brod. & B. 491; and other cases, supra. § McAllister v. Brooks, 22 Maine, .80; Norris v. Hall, 18 Maine, 332; Matthews v. Houghton, 11 Maine, 377. 7 Sargeant v. Andrews, 3 Greenl. 199. In Florida: Sessions ». Ste- vens, 1 Fla. 233. In Massachusetts, execution must have issued: Mer- iam v. Rundlett, 13 Pick. 511. See also Cheongwo v. Jones, 3 Wash. C. C. 359. So in Maryland: Brown v. Summerville, 8 Md. 444. And in Pennsylvania: Lowry v. Lumber- man’s Bank, 2 Watts & S. 210. SECT. I11.] JUDGMENTS IN PERSONAM. 155 states.1_ But in some of the states the garnishee is not con- sidered discharged without satisfaction.2, The better opinion, however, would seem to be that the garnishee is discharged, as against his creditor, as soon as the law places him under a compulsory obligation to pay the plaintiff in attachment; otherwise he might be subjected to much unnecessary annoy- ance without fault of his own. ~ But according to the custom of London, execution must be executed before the garnishee is discharged from liability to his own creditor. In a case before the Common Pleas* the de- fendant to an action for money had and received pleaded a recovery by foreign attachment at the suit of a creditor of the plaintiff, and that the creditor had had execution. The plain- tiff replied that the execution 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 fact involved; and the court ruled that the replica- tion was good. It was said that if the execution in the gar- nishment process had not been executed, the garnishee was not discharged.‘ If, however, the execution was levied and satisfied, the gar- nishee 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.6 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 1In Indiana: Covert v. Nelson, 8 Stevens v. Fisher, 30 Vt. 200; Dole Blackf. 265. 2In Alabama: Cook v. Field, 3 Ala. 538. In Texas: Farmer v. Simpson, 6 Tex. 303. In Georgia: Brannon v. Noble, 8 Ga. 549. See algo Flower v. Parker, 3 Mason, 247. 3 Magrath v. Hardy, 4 Bing. N. C. 782. 4See Home Ins. Co. v. Gamble, 14 Mo. 407; Burnap v. Campbell, 6 Gray, 241; Brown v. Summerville, 8 Md. 444. 5 Brown v. Dudley, 33 N. H. 511; Stearns v. Wrisley, 30 Vt. 661; v. Boutwell, 1 Allen, 286; Wise ». Hilton, 4 Greenl. 435; Killsa ». Lermond, 6 Greenl. 116; Ander- son v. Young, 21 Penn. St. 443; Drake, Attachment, §706, and cases cited. 6 Funkhouser v. How, 24 Mo. 44; Gates v. Kerby, 18 Mo. 157; Dob- bins v. Hyde, 37 Mo. 114; Newton v. Walters, 16 Ark. 216; post, p. 158. 7 Barrow v. West, 23 Pick. 270; Taylor v. Phelps, 1 Har. & G. 492; Drake, Attachment, supra. 156 ESTOPPEL BY RECORD. [cHaP. I. garnishee; otherwise it would be in the power of the latter to practise an irreparable fraud upon the former.’ Nor is the 1 Robeson v. Carpenter, 7 Mart. n. 8.30; Brown v. Dudley, 33 N. H. 511; Tams v. Bullitt, 35 Penn. St. 308; Baxter v. Vincent, 6 Vt. 614. See also Hirth v. Pfeifle, 42 Mich. 31. Without pursuing this matter into detail, we give the concise statement of Chief Justice Drake of the rules upon the subject (At- tachment, § 711, a work to which it is hardly necessary to direct the reader’s particular attention): — ‘1. The-judgment against the garnishee, under which he alleges he made the payment, must be proved. Barton v. Smith, 7 Iowa, 85. . ‘2. It must have been a valid judgment. No payment made under a void judgment, however apparently regular the proceedings may have been, can protect the garnishee against a subsequent payment to the defendant [i. e. the garnishee’s creditor] or his repre- sentatives. Thus, where an attach- ment was obtained against one sup- posed to be living in a foreign coun- try, but who was dead when the suit was commenced, it was held that a payment made by a gar- nishee under execution was no de- fence against an action by the de- fendant’s administrator; the whole proceedings in the suit being a mere nullity. Loring v. Folger, 7 Gray, 505; Matthey v. Wiseman, 18 Com. B. n. s. 657. See Westoby »v. Day, 2 El. & B. 605. Nor will a judgment against a garnishee pro- tect him against a subsequent re- covery in favor of one who had pre- viously to the garnishment taken an assignment of the debt from the defendant in the attachment, the garnishee having notice of the as- -signment. Dobbins v. Hyde, 37 Mo. 114. ‘3. The payment must not have been voluntary. Any payment not made under execution will be re- garded as voluntary, and therefore no protection to the garnishee. Wetter v. Rucker, 1 Brod. & B. 491, and cases cited supra. ‘4. The payment must be ac- tual, and not simulated or con- trived. Thus, when certain per- sons were charged as garnishees, and credited the plaintiff on their books with the amount of the judg- ment, 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. Rucker, supra. ‘5. The judgment urder which the payment was made must have been rendered by a court having jurisdiction of the subject-matter and the parties.(a) If there be a defect in this respect, the payment will be regarded as voluntary, and therefore unavailing. Harmon ». Birchard, 8 Blackf. 418; Ford v. Hurd, 4 Smedes & M. 683; Robert- son v. Roberts, 1 A. K. Marsh. 247; Richardson v. Hickman, 22 Ind. 244, If, however, the court have (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, 18 Gray, 51; Morrison ». New Bedford Inst. for Savings, 7 Gray, 269; Thayer v. Tyler, 10 Gray, 164; Pratt v. Cunliff, 9 Allen, 90. SECT. III.] JUDGMENTS IN PERSONAM. 157 garnishee’s creditor estopped by judgment in favor of the garnishee in the garnishment proceedings.! The creditor has nothing to do with that matter. Though it is a general principle that the payment by a gar- nishee: of the full amount of his indebtedness will bar a pro- ceeding against him on the debt by his own creditor, the doc- trine is to be received with this qualification, that the judgment on the garnishment process was fairly obtained. If the gar- nishee was guilty of any collusion or fraud, he will be liable to pay a second time.? In the case first cited the defendant had been summoned as trustee or garnishee of the plaintiff in an action in Connecticut against the. latter instituted subse- quently to the present suit; he failed then to make any disclo- sure to the Connecticut court of the pendency of the action by his creditor in Massachusetts; and the court held that in view of this fact, which would have been sufficient to abate the trustee process,’ he must pay again. jurisdiction of the subject-matter and the parties, a payment on exe- cution under its judgment will pro- tect the garnishee though the judg- ment may have been irregular and reversible on error (Lomerson v. Hoffman, 4 Zabr. 674; Pierce v. Carleton, 12 Ill. 358; Gunn v. How- ell, 35 Ala. 144; Webster v. Lowell, 2 Allen, 123); and a reversal of it by the defendant for irregularity, after payment by the garnishee,’ will not invalidate the payment. Duncan v. Ware, 5 Stew. & P. 119. But if the garnishee contest the jurisdiction of the court, and his objection is overruled and judg- ment rendered against him, a pay- ment made by him under that judg- ment cannot be collaterally im- peached elsewhere on the ground that the court had no jurisdiction. Its decision on that point is con- clusive in favor of the garnishee. Gunn v. Howell, 35 Ala. 144; Wyatt v. Rambo, 29 Ala. 510; Thayer »v. Tyler, 10 Gray, 164; Pratt ». Cun- liff, 9 Allen, 90. ‘6. Though the court have ju- risdiction of the parties, and its judgment be valid against the gar- nishee, yet if the law require the plaintiff as a condition precedent to obtaining execution to do a particular act, and without per- forming 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 pay- ment until the condition be ful- filled; failing in which his payment is regarded as voluntary. Myers v. Uhrich, 1 Binn. 25; Moyer »v. Lobengeir, 4 Watts, 390; Oldham v. Ledbetter, 1 How. (Miss.) 43; Grisson v. Reynolds, ib. 570.’ 1 Ruff v. Ruff, 85 Penn. St. 333. 2 Whipple v. Robbins, 97 Mass. 107; ‘Wilkinson ». Hall, 6 Gray, 568; Hall v. Blake, 13 Mass. 153; 2 Kent, Com. 119. 3 See Wallace v. McConnell, 13 Peters, 186; Embree v. Hanna, 5 Johns. 100. 158 ESTOPPEL BY RECORD. [CHAP. IH. 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 gar- nishment.! 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 knowl- edge of the transfer, he was bound to disclose it. The garnishee to be protected against his creditor should, in a word, avail himself of all defences which exist at the time in regard to the debt owed by him (the garnishee) to his own creditor.” 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 garnishee for aiding in the same alleged fraudulent trans- fer of property 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 defend- ant was an issue between 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 the effect of judgment estoppels upon the actual parties to the record, let us now inquire into the effect and operation of personal judgments against those who were in no way parties to the former suit, but who still, as being privies, were affected by the judgment. In the law of estoppel one person becomes privy to another (1) by succeed- ang to the position of that other as regards the subject of the _' Barney ». Douglass, 19 Vt. 98; 2 Pierce ‘vy, Chicago R. Co., 36 Kimball »v. Gay, 16 Vt. 181; Chase Wis. 283; ante, p. 155. v. Haughton, ib. 594. ’ Bunker v. Tufts, 57 Maine, 417. SECT. III.] JUDGMENTS IN PERSONAM. 159 estoppel, (2) by holding in subordination to that other.! I:ord Coke divides privity 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, as by subordination of tenure represented by the case of feoffor and feoffee. These divisions are only important, as far as this work is concerned, in defining the extent of the doctrine of privity; and as the rules of law are not different in questions of estoppel in these divisions, it will not be necessary to present them separately. But it should be noticed that the ground of privity is prop- erty and not personal relation. To make a man a privy to an action he must have acquired an interest in the subject-matter of the action either by inheritance, succession, or purchase from a party subsequently to the action,? or he must hold property subordinately.* Thus, to give an illustration of privity by suc- cession, an assignee is not estopped by judgment against his assignor in a suit by or against the assignor alone, instituted after the assignment was made,‘ though if the judgment had preceded the assignment the case would have been different.® * 1 Quoted in Womach ». St. Jo- seph, 201 Mo. 467, 100 8. W. 443. 2 Bryan v. Malloy, 90 N. Car. 508, 511; Dooley v. Potter, 140 Mass. 49, 53 (doubting Stevens v. Miner, 5 Gray, 429, note); Scates v. King, 110 Ill. 456; Zoeller v. Riley, 100 N. Y. 102; Chester v. Bakersfield Assoc., 64 Cal. 42; Coles v. Allen, 64 Ala. 98; Schuler v. Ford, 10 Idaho, 739, 80 P. 219, 109 A.S. R. 233; Hargrave v. Moulton, 109 La. Ann. 533, 33 So. 590; Shew v. Call, 119 N. C. 450, 26 8. E. 33, 56 A. S. R. 678; Hart v. Moulton, 104 Wis. 349, 80 N. W. 599, 76 A. 8. R. 881; Mercantile Invest. Co. v. River Plate Co., (1894) 1 Ch. 578; Doe d Kerr v. Wetmore, 8 N. B. 140; Godard v. Frederickton Boom Co., 11 N. B. 448. Hence A and B, claiming under deeds made by the same grantor before the suit, are not privies under the judgment. Bryan v. Malloy, supra. So of C, who acquired title from B after the suit began, for he would be no better off than B. A fore- closure decree, however, could be offered in evidence by one claiming under it, as a link in his chain of title, against one claiming in opposi- tion to it. Scates v. King, supra. 3 Quoted in Seymour v. Wallace, 121 Mich. 402, 80 N. W. 242; Womach v. St. Joseph, 201 Mo. 467, 100 8. W. 443. 4Todd v. Flournoy, 56 Ala. 99; Coles v. Allen, 64 Ala. 98. Of course bona fide purchasers without notice are not privies. Hager v. Spect, 52 Cal. 579. So as between mortgagor and mortgagee. Keokuk R. R. Co. v. Missouri, 152 U. S. 301, 14 Sup. Ct. 592, 38 L. Ed. 450. 5 Not where the assignee repre- sents others, however, as e. g. cred- itors of the assignor. Of course judgment for or against an assignee in a suit with a third person has no force in regard to the assignor. Donald v. Gregory, 41 Iowa, 513; [CHAP. III. 160 ESTOPPEL BY RECORD. Nor is a grantee of land affected by judgment concerning the property against his grantor in the suit of a third person begun after the grant. Judgment in such cases bars those only whose interest is acquired after the suit;? and not even those if the title acquired since the judgment was some title para- mount not in issue legally in the former suit. Newly acquired rights of a distinct nature cannot be bound by any kind of estoppel except the peculiar kind called ‘ title by estoppel.’ 4 The case of privity by subordination may be illustrated, as we have seen, by the common-law relation of feoffor and feoffee. That is Coke’s illustration. A more familiar one to lawyers of the present time is afforded by the relation of landlord and tenant. A lawful judgment which deprives the landlord of the estate deprives the tenant, of necessity, of his subordinate right. But there is this important difference between privity by succession and privity by subordination. In privity by suc- cession the privy takes, commonly at least, as a volunteer, i. e. without value; hence a party, by joining in a collusive judg- ment, could bind the mere privy.® In privity by subordina- tion, however, the privy, commonly at least, has taken for value; hence the fraud of the party to a collusive judgment would not bar him. Fraud bars the wrongdoer and volunteers under him, not innocent purchasers for value. The rule, however, under either aspect of privity, is that a River Mercantile Invest. Co. v. ?Shay v. McNamara, 54 Cal. Plate Co., (1894) 1 Ch. 578. 1 Mathes v. Cover, 43 Iowa, 512. Indeed, the true reason why a grantee is affected in any case by the prior act of his grantor rests either on notice or on absence of title as the result of that act, and not on privity. Grantor and grantee are not in privity in the law of estoppel, as will be seen in chapter 8. Further, concerning privity, see Mayo v. Wood, 50 Cal. 171; Barrett v. Birge, ib. 655. Privity in estate in estoppel is rightly put in 20 Am. Law Rev. 407 et seq. 169; Campbell v. Hall, 16 N. Y. 575; Doe v. Derby, 1 Ad. & E. 783. 3 Bickett v. Nash, 101 N. C. 579; Johnson v. Farlow, 13 Ired. 84. There is no distinction between judgment touching land and judg- ment touching personalty. Bickett v. Nash, supra. 4 See e. g. Mowatt v. Castle Steel Co., 34 Ch. D. 58, estoppel in pais; East Alabama R. Co. v. Tennessee R. Co., 78 Ala. 274, same. See also note 2 to the first page of chapter 13. 5So conveyances in fraud of creditors bind the grantor’s heirs. White v. Russell, 79 Ill. 155. SECT. I.] JUDGMENTS IN PERSONAM. 161 valid judgment is conclusive, not only against the actual par- ties to the particular litigation, but also against all persons who claim under them as privies. The doctrine is illustrated in Regina v. Blakemore.1 The defendant was indicted for the non-repair of a highway which it was alleged he was bound to repair ratione tenure, in respect of certain lands called Sawpit. To prove this liability the record of the conviction of one under whom the defendant claimed was produced, in an indictment for the non-repair of the same premises, alleging his liability to repair ratione tenure. And the record was held conclusive. The plaintiff in Adams ». Barnes? brought an action to recover certain lands, in which the following facts appeared: The defendant Barnes had loaned money to one Ingersoll on a mortgage of the premises in question. Subsequently he brought an action against Ingersoll to recover possession, in which suit the latter pleaded usury. But judgment was given for Barnes, the present defendant; and he was put into posses- sion by the sheriff. -Afterwards Ingersoll sold and conveyed all his right, title, and interest in the premises to the present plaintiff, who brought this action to recover the premises. He offered evidence to prove usury in the original contract be- tween Barnes and Ingersoll, his grantor; but the defendant contended that he was estopped by the former judgment, and the court sustained the objection. Mr. Justice Jackson said that Ingersoll would have been estopped; and it was clear that the plaintiff 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 land, and extended to all who claimed under either of the parties. 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 possession of the land until the debt was paid. And it would be highly inequitable if Ingersoll 12 Den. Cr. C. 410. But see 902; Peabody v. Lloyd’s Bankers, Wakefield v. Cooke, (1902) 1K. B. 6N. D. 27, 68 N. W. 92. 188; Hodson v. Union Pac. R’y. Co., 217 Mass. 365. 14 Utah, 402, 47 P. 859, 60 A.S. R. [CHAP. III. 162 ESTOPPEL BY RECORD. could convey to a stranger the right to bring’ Barnes’s title again into controversy. Ingersoll after the judgment had no estate left in him except the right to redeem; and his grantee could not claim any greater estate. The learned judge 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 if 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 Pritchard ». 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 acceptor when in a state of complete insolvency had paid the amount to the plaintiff; but the money was subsequently recovered from the plaintiff in an action by the acceptor’s as- signees in bankruptcy. The guarantor now sued contended that the payment by the acceptor to the plaintiff was a satis- faction. The plaintiff, on the other hand, urged that the re- covery by the assignees was conclusive evidence against the guarantor that they were entitled to the money; and this being the case that the debt had not been satisfied. The court held the judgment to be evidence, but ruled that it was not conclusive. The decision shows that in the relation of guar- antor and principal no privity in the sense in which the law of estoppel is applied exists; and the same is true by the weight of authority of the relation of surety and principal, co-sureties inter se,” principal and agent,® and the like cases where parties are answerable over.* There is no succession of rights and , 16 Man. & G. 151; 6 Scott N. R. 851. 2 Means v. Hicks, 65 Ala. 241, holding that judgment against one of two sureties is no evidence of the common liability of the two, against the other for contribution, if he was not a party to the former suit. § Warner v. Comstock, 55 Mich. 616, 620. 4 Ex parte Young, 17 Ch. D. 668, C. A., following Douglass ». How- land, 24 Wend. 35; State ». Wood- side, 7 Ired. 296; McKellar ». Bowell, 4 Hawks, 34; Beall v. Beck, 3 Har. & McH. 242. See also King SECT. III] JUDGMENTS IN PERSONAM. 163 duties to the new party in such cases. Nor is there any just ground for holding with some of the cases! that the judgment should still be conclusive in the absence of fraud; unless the surety has agreed to pay whatever may be found due on the judgment.’ It is enough that the judgment has been held prima facie evidence of the surety’s liability. The relationship of privity does not exist at common law 4 v. Norman, 4 C. B. 884; Stewart v. Thomas, 45 Mo. 42. The early case of Baker v. Preston, Gilmer (Va.), 235, to the contrary in regard to principal and surety, with a few eases which followed. it (State v. Grammer, 29 Ind. 530; State v. Prather, 44 Ind. 287), has been effectually overruled. Munford »v. Overseers, 2 Rand. 313; Jacobs v. Hill, 2 Leigh, 393; Craddock »v. Turner, 6 Leigh, 116; Crawford v. Turk, 24 Gratt. 176; Obhning »v. Evansville, 66 Ind. 59; State »v. Rhoades, 6 Nev. 352. The old doctrine is followed within limits in Stovall v. Banks, 10 Wall. 583; Evans v. Commonwealth, 8 Watts, 398; Masser v. Strickland, 17 Serg. & R. 354, Gibson, C. J. dissenting; Hailey v. Boyd, 64 Ala. 399; Mar- tin v. Tally, 72 Ala. 23, 29, 30; Grimmet v. Henderson, 66 Ala. 521; Larkins v. Mason, 71 Ala. 227; Fretwell v. MeLenore, 52 Ala. 124; Watts v. Gayle, 20 Ala. 817, 825; Wright v. Lang, 66 Ala. 389; Grace v. Martin, 47 Ala. 135; Stoops v. Whistler, 1 Mo. App. 420. See also Fall River v. Riley, 140 Mass. 488, 489; Tracy v. Goodwin, 5 Allen, 409. In Stoops v. Whistler the court referred to Slee v. Bloom, 20 Johns. 669, and Bergen v. Williams, 4 McLean, 125. It was admitted that Douglass v. Howland, 24 Wend. 35, 58, was contra. Every distinct party should have the right to try his own case. The principal may be hostile to the surety, or indiffer- ent to the surety’s interests, and the surety ignorant of the fact. It is conceded in Martin v. Tally, 72 Ala. 23, 30, that the judgment does not bind the surety in a case in which he had no right to appear and defend. The law of Alabama is statutory. Ibid. 1 Cases in last note, supra, espe- cially Fall River v. Riley. But a surety in a bond to pay a judgment against his principal, rendered or to be rendered, will be bound by such judgment if obtained without fraud or collusion. Way v. Lewis, 115 Mass. 26; Cutter v. Evans, ib. 27; Ex parte Young, 17 Ch. D. 668; Nevitt v. Woodburn, 160 Ill. 203, 43 N. E. 385, 52 A. S. R. 315; McKim »v. Haley, 173 Mass, 112, 53 N. E. 152; Law v. O’Regan, 179 Mass. 107, 60 N. E. 397; Ruggles. v. Bernstein, 188 Mass. 232, 74 N. E. 366. That is another thing; it is merely a decision of debtor and creditor between those entitled to a decision. Sureties on a bond to comply with a statute or an order of court are estopped in the same way and to the same extent as the principal obligor by the judgment or decree that estops him to deny that he has failed to comply with the condition of the bond. State v. Corron, 73 N. H. 4384, 62 A. 1044. See Candee v. Lord, 2 Comst. 269; ante, pp. 49, 50; post, pp. 167-169. 2 Note 4, p. 162. 3The sureties may show that the court had no jurisdiction over the principal. Fall River v. Riley, 140 Mass. 488. 4It-is otherwise by statute in California. Cunningham v. Ash- 164 ESTOPPEL BY RECORD. [cHAP. III. between administrator or executor and heir or devisee so as to make a judgment against the decedent’s representative binding upon the lands of the heir or devisee.1_ Such a judg- ment upon a debt of the decedent would not, e. g. estop the heir or devisee to set up the Statute of Limitations to the debt in defence of a bill in equity by the personal represen- tative to subject the decedent’s land to the payment of the ley, 45 Cal. 485; Spotts v. Hanley, 85 Cal. 155, 24 P. 738. 1 Garnett v. Macon, 6 Call, 308; Stone v. Wood, 16 Ill. 177; Dorr v. Stockdale, 19 Iowa, 269; Moss v. McCullough, 5 Hill, 131; Alston v. Munford, 1 Brock. 236; Scott v.» Ware, 64 Ala. 174; Starke v. Wil- son, 65 Ala. 576; Boykin v. Cook, 61 Ala. 472; Lehman v. Bradley, 62 Ala. 31; Teague v. Corbitt, 57 Ala. 529; Howell v. Hughes, 168 Ala. 460, 53 So. 105. There is no privity between joint tenants. Al- fred v. Smith, 185 N. C. 448, 47 S. E. 597. Nor between husband and wife. Duffee v. Boston L., 191 Mass. 563, 77 N. E. 1036. In the case first cited Marshall, C. J. in the Circuit Court of the United States for Virginia, said: ‘The defend- ants insist that the decree against the personal representative of George Brooks is conclusive evi- dence against the devisee of the existence of the debt. The cases cited by counsel in support of this proposition do not decide the very point. Not one of them brings directly into question the conclu- siveness of a judgment against the executor in a suit against the heir or devisee. They undoubtedly show that the executor completely represents the testator as the legal owner of his personal property for the payment of his debts in the first instance, and is consequently the proper person to contest the claims of his creditors. Yet there are strong reasons for denying the conclusiveness of a judgment against an executor in an action against the heir. He is not a party to the suit, cannot controvert the testimony, adduce evidence in op- position to the claim, or appeal from the judgment. In case of a deficiency of assets, the executor may feel no interest in defending the suit, and may not choose to incur the trouble or expense at- tendant on a laborious investiga- tion 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 exhaust the personal ‘estate before the lands become liable to his claim. The heir as devisee may, indeed, in a Court of Chancery 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 execu- tor is in substance the foundation of the proceeding against the heir as devisee, the argument for con- sidering it as prima facie evidence 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 proprie- tor of the land.’ That the judgment is no evidence against the heir, see the Alabama cases above cited. SECT. 11I.] JUDGMENTS IN PERSONAM. 165 demand.! But it 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.2 Of course no act or omission of an ex- ecutor or administrator can bind those interested in the estate, unless they or the decedent or the law * duly authorized it.4 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 succeeds to the position of his testator.6 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 ad- ministrator; and so some of the authorities declare.2 But this position seems to be incorrect. 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, appointed by law, in whom the de- ceased cannot be said to have reposed any confidence, cannot transmit his office; and if he should die before closing his ad- ministration, the office would result back to the court for the appointment of a successor. So, when an executor dies in- testate, his administrator does not represent the testator; and 1 Starke v. Wilson, 65 Ala. 576. 2? Sergeant v. Ewing, 36 Penn. St. 156. 3 As by authorizing an adminis- trator to sell lands for the payment of debts of the estate. Speer v. James, 94 N. Car. 417. 4As where an executor before qualification failed to defend an application concerning homestead. Killen v. Marshall, 55 Ga. 340. See also Allen » Morgan, 61 Ga. 107. 5 Steele v. Lineberger, 59 Penn. St. 308. 6 Manigault v. Deas, 1 Bailey, Eq. 283; Ladd v. Durkin, 54 Cal. 395. An executor is in privity with the legatee. Pond v. Pond, 79 Vt. 352, 65 A. 97. 7 Boykin v. Cook, 61 Ala. 472; Brien v. Robinson, 102 Tenn. 157, 52 S. W. 802. 8Ibid.; Stacy v. Thrasher, 6 How. 44. The latter case, however, is but a dictum, and even thus is only to the effect that a scire facias or action upon a judgment obtained by the predecessor may be main- tained by the administrator de bonis non. Dykes v. Woodhouse, 3 Rand. 287. There was some dis- pute even on this point in the old cases. Ibid. ®’Contrary, however, analogous case of agency. to the - 166 ESTOPPEL BY RECORD. [CHAP. III. it now devolves upon the court, as in the other case, to commit administration afresh with the will annexed.1_ The adminis- trator de bonis non does not derive his title in any way from his predecessor in the administration; he does not succeed to the same property, but to the unadministered remainder. Hence there cannot in principle be any privity between them. It has even been held that judgment against an administrator in chief is no evidence against his successor of the justness of the demand; ? but that may be doubted. The judgment may bind the successor without privity. Tt is well settled that there is no privity between executors or administrators appointed in different states or countries.‘ A striking illustration of this rule is found in Pond ». Make- peace.® The case in substance was this: The plaintiff, as ad- ministrator of Oliver Capron under the laws of Massachusetts, brought suit in that state against the defendants on a note given to the intestate; and the defence was that an adminis- trator, appointed under the laws of Rhode Island, but not under those of Massachusetts, had brought suit in the latter state upon the same note, obtained judgment upon default, and had execution satisfied. But the court held that the sec- ond suit was proper. Mr. Justice Dewey, speaking for the court, said that the proceedings 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 neglected 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. The rule of privity applies also as well to the judgment itself as a valuable claim as to the subject of the judgment and the issues decided by it. Thus, one who buys a judgment 1 Coleman v. McMurdo, 5 Rand. 4 McLean v. Meek, 18 How. 16; 51; Thomas ». Sterns, 33 Ala. 137; Hatchett v. Berney, 65 Ala. 39. Hudgens v. Cameron, 50 Ala. 379. The point will be fully considered See Attorney-General v. Hooker, 2 in the chapter on Foreign Judg- P. Wns. 338, 340; Rutland v. Rut- ments in Personam. Of course an land, ib. 210. administrator is a stranger towards ? Rogers v. Grannis, 20 Ala. 247; his intestate in regard to land. Thomas v. Sterns, 33 Ala. 137, 143. Hall v. Armor, 68 Ga. 449. 5 Comp. pp. 167-169, infra. 52 Met. 114. SECT. III.] JUDGMENTS IN PERSONAM. 167 succeeds to the rights of the owner and vendor as a privy.) It may be added that the rule in regard to privity does not apply to the case of persons who might possibly have claimed through a party to the former litigation, and whose interests were almost identical with those of such party, if in fact they do not claim through him.’ 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 inci- dentally affect 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 upon them) of the relationship established between the parties, and of the extent of the relationship, supposing such third per- sons were not bound with or for the parties found liable. The 'See Bank of California v. Sha- ber, 55 Cal. 322; and comp. Kidder v. Blaisdell, 45 Maine, 461. 2Spencer v. Williams, L. R. 2 P. & D. 230. : 3 Baylor v. Dejarnette, 13 Gratt. 152, 172; Barney v. Patterson, 6 Har. & J. 182, 203; Taylor »v. Phelps, 1 Har. & G. 492. See In- man v. Mead, 97 Mass. 310; Secrist v. Green, 3 Wall. 744; Casler v. Shipman, 35 N. Y. 533. In Barney »v. Patterson, just cited, Buchanan, C. J. said: ‘The judgment is also objected to on the ground that it is res inter alios acta; the appellant not being a party to the proceed- ings. But the doctrine that judg- ments and decrees are only evidence in suits between parties and priv- -ies, though generally true, is not applicable to this case; the judg- ment of the Circuit Court being introduced, not as binding per se upon the rights of the appellant, but only as a document connected with the chain of the appellee’s title, and is no more obnoxious to objection than a deed from Brown, or any other title papers equally res inter alios acta, would be.’ 4 See ante, pp. 49. 50. We have elsewhere seen that by the better authorities a judgment against a de- fendant cannot be deemed conclu- sive evidence to bind others liable with the defendant who were in no way parties to the suit, as in the case of a judgment against a prin- cipal debtor, introduced in an action against the surety. Douglass »v. Howland, 24 Wend. 35; Ex parte Young, 17 Ch. D. 668, C. A. The record is evidence, however, against the surety. Ante, p. 163; Drum- mond v. Prestman, 12 Wheat. 516; King v. Norman, 4 C. B. 884. The cases in which the judgment is held conclusive upon the surety still permit the surety to show fraud or facts in defence personal to himself. Stovall v. Banks, 10 Wall. 583; [cCHAP. III. 168 ESTOPPEL BY RECORD. relation of debtor and creditor, for instance, established by a judgment in favor of A against B, cannot be disputed by C except upon the ground that a fraud against creditors, of whom he is one, or against himself in some other relation, e. g. as surety, has been committed; ! nor can the amount of the judg- ment debt be contradicted.? Third persons cannot object when those who have the exclusive right to settle a question have done so without fraud upon them;? in the absence of fraud upon them, those (not being privies) who are not, or from want of interest might not, be parties, have no concern with the judgment, and cannot attack it even for supposed want of jurisdiction, or for fraud upon others.* In Candee »v. Lord, just cited, the plaintiff having filed a bill against certain parties to set aside several alleged fraudulent judgments which stood in the way of a judgment recovered by him against one of the defendants in the bill, the other defendants, not having been Jones v. Ritter, 56 Ala. 270; Watts v. Gale, 20 Ala. 817, 825; Stoops v. Whistler, 1 Mo. App. 420. With the rule of the text may be compared the effect of decrees in divorce causes and in other cases of the kind, where judgment has been rendered between parties who had the exclusive right to try the cause. Ante, pp. 48-50. 1Raymond v. Richmond, 78 N. Y. 351; Pray v. Hegeman, 98 N. Y. 351, 362; Curtis v. Leavitt, 15 N. Y. 51; Hall v. Stryker, 27 N. Y. 596; Candee v. Lord, 2 Comst. 275; Brigham v. Fayer- weather, 140 Mass. 411, 418; Way v. Lewis, 115 Mass. 26; Cutter v. Evans, ib. 27; Pickett v. Pipkin, 64 Ala. 520; Swihart v. Spaner, 24 Ohio St. 432; Wingate v. Haywood, 40 N. H. 437. But see Inman ». Mead, 97 Mass. 310; Goodnow »v. Smith, ib. 69; More Hardware Co. v. Curry, 106 Ala. 284, 18 So. 46. ? Candee v. Lord, 2 Comst. 269; Acker v. Leland, 109 N. Y. 5, 16; Voorhees v. Seymour, 26 Barb. 569, 585; Sidensparker »v. Sidensparker, 52 Maine, 481; Moore Hardware Co. v. Curry, 106 Ala. 284, 18 So. 46; Nichols v. Lord, 193 N. Y. 388, 85 N. E. 1083. So of judgment upon indictment, that defendant is a felon. Ballantyne v. Mackinnon, (1896) 2 Q. B. 455, 462, quoting Castrique v. Imrie, L. R. 4 H. L. 414, 434. Secus as to the ground of the judgment, as for instance that defendant forged a bill of exchange. Id. as to suit on the bill. 3 See Cincinnati v. Dickmeier, 31 Ohio St. 242. _ 4 Wilcher v. Robertson, 78 Va. 602, non-resident. 5 Candee v. Lord, supra; Brigham v. Fayerweather, 140 Mass. 411, 413. The judgment is not to be confused, in its operation, with a judgment in rem binding all the world; that sort of judgment, unlike judgment in personam, binds all men in- definitely. Nor is the relation of debtor and creditor, fixed by a judgment in personam for the plaintiff, a ‘status’ in the sense of the law of judgments in rem. Ante, pp. 49-50. SECT. III] JUDGMENTS IN PERSONAM. 169 parties to the judgment last mentioned, sought to impeach it. But they were not allowed to do so.! The following illustration will also explain the doctrine. A obtains 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 insufficient to satisfy the two judgments, C cannot, in the absence of collusion or other fraud, 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 indebtedness.? The Duchess of Kingston’s Case declares that a judgment is not conclusive (1) of matters incidental thereto, or (2) of mat- ters to be inferred by (uncertain) argument from the judgment.® 1TIn delivering judgment Mr. not arise until the latter has vio- Justice Gardiner said: ‘In creating debts, or establishing the relation of debtor and creditor, the debtor is accountable to no one, unless he acts mala fide. A judgment, there- fore, obtained against the latter without collusion, is conclusive evidence of the relation of debtor and creditor against others: first, because it is conclusive between the parties to the record, who in the given case have the exclusive right to establish it; and secondly, because the claims of other cred- itors upon the debtor’s property are through him, and subject to all previous liens, preferences, or con- veyances made by him in good faith. Any deed, judgment, or assurance of the debtor, so far at least as they conclude him, must estop his creditors and all others. Consequently neither a- creditor nor a stranger can interfere in the bona fide litigation of the debtor, or re-try his cause for him, or ques- tion the effect of the judgment as a legal claim upon his estate. A creditor’s right, in a word, to im- peach the act of his debtor, does lated the tacit condition annexed to the debt, that he has done and will do nothing to defraud his creditors.’ See Hills v. Sherwood, 48 Cal. 386. 2 Ballantyne »v. Mackinnon, (1896) 2 Q. B. 455, 462, as to judg- ment of lien in rem. See also Chamberlain v. Carlisle, 26 N. H. 540, 553, and cases cited. 3See infra, p. 177, note; Law- rence v. Hunt, 10 Wend. 80; Forcey’s Appeal, 106 Penn. St. 508, 515; Coffey v. United States, 111 U. 8S. 486, 445; Williams ». Williams, 63 Wis. 58, 71; Ford »v. Ford, 68 Ala. 141, 148; Hougen v. Skjervheim, 13 N. D. 616, 102 N. W. 311; Wells». Boston & M. R.R.., 82 Vt. 108, 71 A. 1103, 1387 A. S. R. 987; Case v. Hoffman, 100 Wis. 314, 72 N. W; 390. For the second part of the rule in the Duchess of Kingston’s Case, see infra, pp. 178 et seq. Records and judgments are estoppels only with respect to the substance of the controversy and its essential concomitants. Reyn- olds ». Stockton, 140 U. 8. 254, 11 Sup. Ct. 773, 35 L. Ed. 464. 170 ESTOPPEL BY RECORD. [CHAP. II. The first part of the rule may be formally stated thus: A judg- ment is conclusive by way of estoppel of facts (necessary facts in a chain as well as the primary facts in issue '), and none other, without the existence and proof or admission of which it could not have been rendered.2, The judgment determines all questions that ought to have been presented.* It is often loosely said, indeed, and sometimes held, that a judgment is conclusive of everything that might have been litigated in the action; ¢ but 1§chool District v. Stocker, 42 N. J. 115; Tuska ». O’Brien, 68 N.Y. 446. But see King v. Chase, 15 N. H. 9; infra, p. 177, note. ? Burlen v. Shannon, 99 Mass. 200; s. c. 3 Gray, 387, and 14 Gray, 433; Morse ». Elms, 131 Mass. 151; Leonard ». Whitney, 109 Mass. 265, 268; West v. Platt, 127 Mass. 367; Fuller v. Eastman, 81 Maine, 284, 287; Hill v. Morse, 61 Maine, 541, 543; Morgan ». Burr, 58 N. H. 167; Biggins ». People, 106 Ill. 270; Porter ». Wagner, 36 Ohio St. 471; Crofton v. Cincinnati, 26 Ohio St. 571; Marvin v. Dutcher, 26 Minn. 391; Dixon v. Merritt, 21 Minn. 196; Dunham~v. Bower, 77 N. Y. 76; Steinbach v. Relief Ins. Co., ib. 498; Providence v. Adams, 11 R. I. 190; Cook v. Burnley, 45 Tex. 97; Pray v. Hegeman, 98 N. Y. 351, 358; Woodgate v. Fleet, 44 N. Y. 1; People v. Johnson, 38 N. Y. 63; Hardy »v. Mills, 35 Wis. 141; Shinn v. Young, 57 Cal. 525; McCalley v. Robinson, 70 Ala. 482; Johnston v. Riddle, ib. 219; Hamner ». ‘Pounds, 57 Ala. 348; Davidson »v. Shipman, 6 Ala. 27, 33; Strother v. Butler, 17 Ala. 733; Thomason vy. Odum, 31 Ala. 108; Belshaw 2. Moses, 49 Ala. 288; McDonald ». Mobile Ins. Co., 65 Ala. 358; Brad- ley v. Briggs, 55 Ga. 354; Hunter v. Davis, 19 Ga. 418; Supples »v. Cannon, 44 Conn. 424; Sly ». Hunt, 159 Mass. 151, 34 N. E, 187, 388 A. S. R. 403; Waterhouse ». Levine, 182 Mass. 407, 65 N. E. 822; Tremblay v. Aetna Life Ins. Co., 97 Me. 547, 55 A. 509, 94 A. S, R. 521; Hunter v. Carroll, 67 N. H. 262, 29 A. 639; Slarbero ». Miller, 72 N. J. Eq. 248, 65 A. 472; Blake v. Ohio River R. Co., 47 W. Va. 520, 35 S. E. 953. 3 Burlen v. Shannon, 99 Mass. 200, 202; Fuller v. Eastman, 81 Maine, 284, 287; Kelley v. Donlin, 70 Ill. 378; Hemenway v. Wood, 53 Iowa, 21. See Union Mut. Life Ins. Co. v. Kirchoff, 169 U. 8. 103, 18 Sup. Ct. 260, 42 L. Ed. 677; Hardwick v. Young, 110 Ky. 504, 62 8. W. 10; Stokes v. Foote, 172 N. Y. 327, 65 N. E. 176. What this means will be seen a little further on. All material issues appearing of record are presumed to have been passed upon. Davis v. McCorkle, 14 Bush, 746. But the presumption should not be conclusive. The judg- ment or decree on the merits is a bar as to all media concludendi or grounds for asserting the right known when suit was brought. United States v. Cal. & O. Land Co.,192U.'S. 355, 24 Sup. Ct. 266, 48 L. Ed. 476. 4 Wetumpka ». Wetumpka Wharf Co., 63 Ala. 611, 634; Murrell v. Smith, 51 Ala. 301; Coburn » Goodall, 72 Cal. 498, 506; Tray- fern ». Colburn, 66 Md. 277, 279; Withers ». Sims, 80 Va. 651, 660, 661; Ruegger v. Indianapolis R. Co., 103 Ill. 449; Hamilton »v. Quimby, 46 Ill. 90; Parnell ». Hahn, 61 Cal. 181; Green v. Glynn, SECT, III.] JUDGMENTS IN PERSONAM. 171 that is not generally held true,! as will be seen,” where the pres- ent suit is not upon or against ° the very same cause of action settled in the former, * except so far as it relates to some issue ac- tually joined and tried or to facts necessarily implied. 5 71 Ind. 336; Fischli ». Fischli, 1 Blackf. 360; Griffin v. Wallace, 66 Ind. 410, 420; Tredway v. Mc- Donald, 51 Iowa, 663. See Mally v, Mally, ‘52 Iowa, 654; Harris v. Harris, 36 Barb. 88; Thompson »v. Myrick, 24 Minn. 4, 11; Gardner v. Raisbeck, 28 N. J. Eq. 71; Smith v. Smith, 79 N. Y. 634; Petersine v. Thomas, 28 Ohio St. 596; Swen- son v. Cresop, ib., 668; Campbell v. Goodall, 8 Bradw. 266; Adams »v. Adams, 25 Minn. 72, 76; Aurora City v. West, 7 Wall. 82; Earle v. Earle, 173 N. Y. 480, 66 N. E. 398, explaining ‘might have litigated.’ This applies only to issues which might have been raised as matter of right. Newburyport Inst. »v. Puffer, 201 Mass. 41, 87 N. E. 562. 1 Cromwell v. Sac, 94 U. 8S. 351; Daggett v. Daggett, 143 Mass. 516, 521; Foye v. Patch, 132 Mass. 105, 110; Smith v. Brunswick, 80 Maine, 189, 193; Young v. Pritchard, 75 Maine, 513, 518; Hill v. Morse, 61 Maine, 541, 543; Riverside Co. v. Townshend, 120 Ill. 9, 18; Chicago v. Cameron, ib. 447, 459; Bennitt v. Star Mining Co., 119 Ill. 9, 14; Equitable Trust Co. v. Fisher, 106 Ill. 189; Brady »v. Pryor, 69 Ga. 691. It is not true, even in the form in which it is sometimes stated, that the judgment is conclusive of all material facts which the parties might by reasonable dili- gence have litigated (Henderson v. Henderson, 3 Hare, 100, 115; Parkes v. Clift, 9 Lea, 524; Wolver- ton v. Baker, 98 Cal. 628, 33 P. 731; MacLaren v. Grant, 32 N. B. 648), except so far as that proposition relates to facts within the actual and necessary issues. Cromwell v. Sac, 94 U.S. 351, 357. The ques- Every- tion is not what the court. might have decided, but what it did de cide. Smith v. Brunswick, 80 Maine, 189, 193; Young »v. Pritch- ard, 75 Maine, 513, 518; Porter v. Wagner, 36 Ohio St. 471; Brady v. Pryor, 69 Ga. 691, 697. 2 Post, p. 195. Indeed, the court of Alabama, has held that judgment in unlawful detainer is no bar to’ an action for damages by reason of the detainer when such damages were not claimed in the first suit. Bel- shaw v. Moses, 49 Ala. 283. But see Serrao v. Noel, infra. (It is no bar to ejectment clearly. River- side Co. v. Townshend, 120 IIl. 9.) A general judgment upon a general count no doubt carries prima facie all demands that might have been embraced within it, upon the nat- ural presumption that the parties probably litigated everything they could litigate in the particular action. Hungerford’s Appeal, 41 Conn. 322. But this presumption may be overcome. Ibid. See Saw- . yer v. Woodbury, 7 Gray, 499; Green v. Weaver, 63 Ga. 302. 3 As when it is brought to recover back money paid under a judgment: ‘This qualifying clause must be noticed. See Cromwell:v. Sac and the other cases cited in note 1, supra. 5 Cromwell v. Sac, 94 U. 8. 351; Bissell v. Spring Valley, 124 U. S. 225; Daggett v. Daggett, 143 Mass. 516, 521; Foye v. Patch, 132 Mass. 105, 110; Smith v. Brunswick, 80 Maine, 189, 193; Riverside Co. v. Townshend; 120 Ill. 9, 18; Camp- bell Printing Co. v. Walker, 114 N. Y. 7; Fairchild ». Lynch, 99 N. Y. 359; s. c. 1 Eastern Rep. 190; Pray v. Hegeman, 98 N. Y. 351, 172 ESTOPPEL BY RECORD. [CHAP. II. thing within the necessary issues is determined by the judg- ment, as e. g. in detinue for shares of stock, damages not only for the original unlawful detention but for the detention until the shares should be redelivered.? But the parties are not bound to litigate unnecessary questions, even though they might do so and settle the same forever,? and though there may be a pre- sumption that they did so of matters pertaining to the former 358; Williams v. Clouse, 91 N. Car. 322, 327 (virtually qualifying Tuttle v. Harrill, 85 N. Car. 456, 462); Russell v. Place, 94 U. S. 606. The estoppel extends to everything material ‘ within the issues, which was expressly litigated and deter- mined, and also to those things which, although not expressly de- termined, are comprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered.’ Pray v. Hegeman, 98 N. Y. 351, 358, Andrews, J.; Embury v. Conner, 3 Comst. 522; Dunham v. Bower, 77 N. Y. 76. This applies to conclusions ‘both of law and of fact. Pray v. Hege- man. See Last Chance Min. Co. »v. Tyler Min. Co. 157 U. 8S. 683, 15 Sup. Ct. 733, 39 L. Ed. 859; Mitchell v. First Nat. Bank, 180 U. S. 471, 21 Sup. Ct. 418, 45 L. Ed. 627, and cases cited. A judgment has of course no effect upon questions which could not be raised or determined upon the issues involved in the action. First National Bank v. Hastings, 22 Minn. 224; Daniels v. Henderson, 49 Cal. 243; Hall v. Levy, L. R. 10 C. P. 154. Thus, judgment at law upon a municipal bond es- tablishes the validity of that bond between the parties in all courts; but that judgment decides nothing concerning the question whether the bond attaches to a trust pro- vided by statute for the security of the bondholder. The bond may be good and yet not have been so issued as to bring it within the terms of the statute concerning the trust. Wetumpka v. Wetumpka Wharf Co., 63 Ala. 611. Indeed, when a court has no authority to try a question sought to ‘be put in issue properly in another court, it is universally true that there is no estoppel. See e. g. Bosquett v. Crane, 51 Cal. 505; Hardin ». Jordan, 140 U. 8. 371, 11 Sup. Ct. 808, 35 L. Ed. 428; Carpenter ». Strange, 141 U.S. 87; 11 Sup.-Ct. 960, 35 L. Ed. 640. 1Burlen v. Shannon, 99 Mass. 200; Fuller v. Eastman, 81 Maine, 284, 287; Blodgett »v. Dow, ib. 197, 201; Reed ». Douglas, 74 Towa, 244, 247. Immaterial issues though litigated are not within rule of res judicata. McGee v. Wineholt, 23 Wash. 748, 63 P. 571. ? Serrao v. Noel, 15 Q. B. D. 549, C. A. That proceeds upon the ground that the two items of dam- age constitute but one cause of action, a subject, however, beset with difficulties. See Belshaw »v. Moses, 49 Ala. 283, supra, which seems opposed in principle to Serrao v. Noel. See also Brunsden v. Humphrey, 14 Q. B. D. 141, C. A., reversing 11 Q. B. D. 712; Mitchell v. Darley Colliery Co., 14 Q. B. D. 125; s. c. 11 App. Cas. 127; post, pp. 189-193, for a con- sideration of the subject. 5 Post, pp. 193, 194. See Tray- hern v. Colburn, 66 Md. 277, 282. SECT. III] JUDGMENTS IN PERSONAM. 173 trial; and if not bound to litigate a matter, how can one be bound by a judgment in a cause in which one does not litigate the matter? ? The case of Hibshman 2. Dulleban ° illustrates the first part of the rule in the Duchess of Kingston’s Case.4 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 alleged that the release pleaded was exhibited to the Orphans’ Court as a full answer and a satis- factory 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.§ In Carter v. James ® an action of debt was brought on an in- denture of mortgage, whereby the defendant covenanted to pay the plaintiff £600, with interest, on a certain day. The defend- ant pleaded by way of estoppel that the plaintiff had brought suit against him in a former action of debt on bond conditioned in the penal sum of £1,200 for the payment of £600 and inter- est, alleging it to be the same principal sum and interest as were 1 Parnell v. Hahn, 61 Cal. 131. 2 Where the judgment does not respond to the pleadings one who answered the pleadings but took no further part in the litigation is not estopped to deny the matters which were actually tried and ad- judged. Reynolds »v. Stockton, 140 U. 8. 254, 11 Sup. Ct. 773, 35 L. Ed. 464. 34 Watts, 183. 4P. 169. 5 Mr. Chief Justice Gibson, in speaking for the court, said: ‘The validity of the release was drawn into contest incidentally; and the point, being thus incidentally de- cided against him, can no more prejudice his title in another court than can the decision of a surrogate or register prejudice the title of an unsuccessful claimant of ad- ministration to the estate of a decedent. Again, the point was not actually, or at least necessarily, decided. The plaintiff’s exceptions to the administration account were also the exceptions of Henry Dul- leban’s trustees; and whether the release were good or bad was a question whose decision could not supplant a decision of them on the merits. It did not supplant it; and the gratuitous determination of a point involving the question of fraud, which had no effect there, ought to have no effect here, es- pecially to deprive the plaintiff of a trial by jury.’ See Forcey’s Ap- peal, 106 Penn. St. 508, 515. 613 Mees. & W. 1387. 174 ESTOPPEL BY RECORD. [cHaP. II. secured to the plaintiff by a mortgage 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 pursuance of this agreement. The plaintiff trav- ersed the allegation thus averred; whereupon issue was joined and verdict found for the defendant. The question in the present action was whether the plea was a good estoppel against the plaintiff to deny the alleged usury. The court was of opinion that it was not.? In a Pennsylvania case ? the plaintiff brought an action of trespass on the case in the nature of a writ of conspiracy, alleg- ing that the defendant and J T, in pursuance of a fraudulent conspiracy, had secreted, assigned, and transferred to unknown 1 Alderson, B. said that the usurious agreement set out in the plea in the former action went on to state that it was agreed that a bond should be given to secure this usurious interest, and that in pursuance of that agreement the ‘bond in question was executed for the principal and interest named in it. This latter allegation alone being traversed, the only issue the jury had to try was whether the bond was given for the sum men- tioned, £600. The jury found that it had been so given; and inci- dentally it was taken for granted that, if the bond was given as a security for that debt and the amount of interest alleged in the former plea, the interest so secured was usurious, according to the previous averments in the plea, which were not put in issue by the plaintiff, but admitted by him for the purposes of that suit, and for the purposes of that suit only. ‘If, therefore,’ said he, ‘ the plain- tiff were to be deemed estopped now when the point in issue was not raised at all in the former suit, he would be deemed estopped by the finding of a matter which he never disputed, and on which the jury gave no verdict, and the court no judgment.(a) I take it that the party is only estopped by the form of the record in that action from recovering on the bond, or dis- puting that any of the issues then determined by the jury were wrongfully decided; but that he is not estopped by any of the other facts which were taken in that case to be true merely for the purpose of deciding the question at issue.’ ?Tams v. Lewis, 42 Penn. St. 402. (a) Parke, B. also says that the material facts alleged by one party which are indirectly admitted by taking a traverse on some other facts are only conclusive in case the traverse is found against the party, making it. Boi- leau ». Rutlin, 2 Ex. 665. And of course there is no estoppel concerning an immaterial allegation. Sweet v. Tuttle, 14 N. Y. 465. See Hymes v. Estey, 116 N. Y. 501, 22 N. BE. 1087, 15 A. S. R. 421; Stokes ». Foote, 172 N.Y. 327, 65 N. E. 176. Even though litigated. McGee ». Wineholt, 23 Wash. 748, 63 P. 571. SECT. III.] JUDGMENTS IN PERSONAM. 175 persons the goods and chattels of the defendant, thereby pre- venting the plaintiff from having execution thereof upon a judg- ment which he had obtained against the defendant.! It was pleaded in defence that after the conspiracy and acts charged the plaintiff had sued out an attachment execution against J T (above mentioned), and therein had summoned the present de- fendant as garnishee; that on the trial of the issues joined in the scire facias against the garnishee the same questions were raised and tried which were now raised; and that the verdict and judgment were in favor of the garnishee. These allegations were then traversed by the plaintiff, but the defendant (the garnishee) had the verdict. To the present action the general issue was also pleaded; and upon that the jury found for the plaintiff. The court below now entered judgment for the plaintiff, and this judgment was affirmed by the Supreme Court. The ground was that the only question properly before the court on the garnishment was whether the defendant was debtor to or had in his hands by bailment any goods of J T. The issues in question were immaterial. There is an observation by Lord Chelmsford ? (founded ap- parently upon but hardly borne out by language of the court in the Duchess of Kingston’s Case *) to the effect that a distinc- tion exists between the judgments of courts of concurrent and courts of exclusive jurisdiction in respect 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.’ By ‘incidentally’ in this connection the Lord Chancellor appears to refer (not to immaterial issues, but) to external facts drawn into the case by the course of plead- ings diverging from direct denial of an allegation, as by con- fession and avoidance. The intimation appears not to have been acted upon.* , 1 As to the supposed cause of action 3 Everest & Strode, Estoppel, in such cases, see 1 Bigelow, Fraud,69. App. B, p. 421. 2 Mackintosh v. Smith, 4 Macq. 4The whole passage, in the 913, 924. : language of the court in the Duchess ‘ (CHAP. III. 176 ESTOPPEL BY RECORD. This suggests the question, What is to be considered , the point in issue within the meaning of the law? Is the rule this, that the judgment is conclusive upon every point which by the evidence in the action became necessary to the decision of the case? Or is it this, that it is conclusive only of such matters as, being alleged by the plaintiff as the ground of his action, and controverted by the defendant, are necessary to the de- cision, in contrast with such matters as in themselves alone in- volved questions foreign to the cause of action, but which in the position of the case became necessary to its decision? There is of Kingston’s Case, is as follows: ‘From the variety of cases relative to judgments being given in evi- dence in civil suits, these two de- ductions seem 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 parties, upon the same matter directly in question in another court; secondly, that the judgment of a court of exclu- sive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court, for a different purpose.’ That is a different thing from saying that a judgment of a court of exclusive jurisdiction is evidence ‘whether the matter arises in- cidentally or is the matter directly in issue.’ The facts pleaded in the second action were directly in issue — ‘directly upon the point’ — in both kinds of courts, according to the language of the Duchess of Kingston’s Case; and then, as they were found in courts of er- clusive jurisdiction, the finding is conclusive in a second action, though the question should there arise incidentally. The very next sentence shows this conclusively. ‘But neither the judgment of a concurrent or exclusive jurisdic- tion is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.’ Duchess of Kingston’s Case, Everest & Strode, Estoppel, 421. The two passages are constantly quoted. Coffey v. United States, 111 U. S. 486, 445; Williams ». Williams, 63 Wis. 58, 71. As the text, however, states, no distinc- tion appears to have become estab- lished between courts of concurrent and of exclusive jurisdiction in this respect; the only question, and it applies to both courts alike, is whether a finding upon external issues between the parties, drawn into the case by the course of the mutual allegations, and necessary to the decision of it, is binding in a cause arising directly upon such issues. That, as appears in the text, is not entirely agreed. It may be added that by the words ‘matter to be inferred by argument from the judgment,’ the court clearly meant matter which was arguable, and not a certain and necessary inference from the judgment. Matter of the latter kind clearly is within a judgment. Post, p. 184. SECT. III.] JUDGMENTS IN PERSONAM. 177 much conflict of authority upon the subject. Without attempt- ing to follow the course of the many cases upon this point, we shall venture to make the suggestion that by the weight of au- thority the judgment is conclusive upon all issues which have become necessary to the decision of the case, whatever their relation to the cause of action.! 1See p. 169, ‘necessary facts in a chain, as well as the primary facts in issue.’ Chief Justice Parker of New Hampshire has taken the opposite view. 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, he says: ‘Any fact attempted to be estab- lished by evidence, 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 evidence would show him to have been at a certain time, it may be said that this controverted 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 the parties. But this is not the matter in issue within the meaning of the rule. It is that matter upon which the plaintiff proceeds by his action, and which the defendant contro- verts by his pleadings, which is in issue. The declaration and pleadings may show specifically 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 establish the matters in issue are not themselves in issue within the meaning of the rule, although they may be controverted on the trial. (a) 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 action, 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 collateral. Jt is not a matter necessary, of it- self, 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 consider- ation the question whether this is a case between 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 the jury passed. They found that the pléintiff had no title, or that the defendant did not convert them, (a) Evidentiary facts though controverted are not in issue within the meaning of the rule. Boston & M. R. R. v. Sargent, 72 N. H. 455, 57 A. 688. 178 ESTOPPEL BY RECORD. [CHAP. III. The recent case of Dickinson v. Hayes * illustrates the second part of the rule in the Duchess of Kingston’s Case.” The action which may be involved in the first. It may be shown by: parol evi- dence, if necessary, upon which ground the verdict proceeded; and it appears in this case that they found the plaintiff had no title. The conversion by the defendant in that case was not denied if the plaintiff had title. That matter is settled. The verdict and judgment may be given in evidence in an- other action 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 mort- gage. In finding that the plaintiff had no title, the jury must have been of opinion that the mortgage was fraudulent. It is contended that this was in issue, and the only matter in issue. But this was only a controversy about a par- ticular matter of evidence upon which the plaintiff had relied to show title. If that was the only matter in issue, the plaintiff might bring another suit for those oats against the same defendant, 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 inciden- tally, by reason of his 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 the 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 judg- ment may be given in evidence, accompanied with such parol proof as is necessary to show the grounds upon which it proceeded, 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 neces- sarily in question and passed upon by the jury. Jackson v. Wood, 3 Wend. 27; 8s. c. in error, 8 Wend. 9.(a) 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 mat- ter 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 mani- fest by the verdict and judgment that they must have been directly (a) See ante, p. 97. 131 Conn. 417. ° 2 Supra, p. 169. Liss Be SECT. I11.] JUDGMENTS IN PERSONAM. 179 was ejectment for certain land, to which the defendant claimed title under the will of a minor between seventeen and twenty- ) and necessarily in question, and passed upon by the jury; as this must include all matters which came in question 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.’ This is strong reasoning, indeed, but it is not convincing. The de- cision is inconsistent with the doctrine of other cases. Barrs v. Jackson, 1 Phill. (Eng.) 582; Bouchier v. Taylor, 4 Bro. P. C. 585; Thomas »v. Ketteriche, 1 Ves. 333 (Lord Hardwicke); Rail- road Co. v. Schulte, 103 U. S. 118, 143; 144; Faught v. Faught, 98 Ind. 470; Burlen v. Shannon, 99 Mass. 200; Morse v. Elms, 131 Mass. 151; Attorney-Gen. v. Chicago R. Co., 112 Ill. 520, 539; Bissell v. Kellogg, 60 Barb. 617; Wood v. Jackson, 8 Wend. 9. Though it has lately been reaffirmed in New Hampshire. Vaughan v. Morrison, 55 N. H.. 580, 589. See also Ford v. Ford, 68 Ala. 141, 143 (quoting from the Duchess of Kingston’s Case the language ante, pp. 175, 176, note); Williams v. Williams, 63 Wis. 58, 71 (same quotation); Western M. Co. »v. Virginia Coal Co., 10 W. Va. 250; Leutz v. Wallace, 17 Penn. St. 412. But an examination of the rule of res judicata will per- haps show the 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 concerning 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 action, they Perkins v. Walker, 19 Vt.’ would not require, and in all prob- ability did not receive, that search- ing examination and scrutiny that would be given to a matter in issue the decision of which would de- termine the case. But a matter, though in itself alone foreign to the cause of action, may be made the turning-point of the case; it then absorbs the entire case; the ground of action is lost in it for the time; and the whole force of evidence, examination, analysis, and argu- ment is directed to the solution of the issue made by it. The main question in the cause, if it had dis- tinctly arisen alone, could not have received a more thorough investigation; and the matter it- self, 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 instru- ment would be as thoroughly con- sidered 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 reason why the decision in the action of trover should not be conclusive upon the validity of the mortgage in all subsequent actions between the parties. But it should be a test of the conclusiveness of the verdict upon such a matter that it clearly appear that the whole case turned exclu- sively 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 cer- tainty that the decision of the 180 ESTOPPEL BY RECORD. [CHAP. III. 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 having been duly proved was approved and ordered to be recorded.’ It was contended that this decree was conclusive evidence of the competency of the testatrix to dispose of her real estate by will; the law re- quiring 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.! 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 verdict unexplained, involving several di- verse issues. That we may not be misapprehended, let us take for illustration an action in ejectment, and suppose first, that the de- fendant relies solely upon a mort- gage from the plaintiff letting him into possession, and verdict for the plaintiff; secondly, that the defendant relies both upon the mortgage and a deed from the plaintiff’s ancestor, and general verdict for the defendant. In the ease first put the validity of the mortgage must have received as exhaustive an examination as it was capable of; and we can see no good reason why the verdict should not be conclusive in a suit in chancery between the parties’ to have the mortgage cancelled as a cloud upon the plaintiff’s title. But the second case is entirely different. The decision may have been put upon the ground of the validity of either the deed or the mortgage; and in a suit to cancel either or both, this verdict un- explained could not be an estoppel. The certainty upon which an es- toppel must rest would be want- ing. If, however, it is once established beyond doubt by evidence of the pleadings, or other sufficient evi- dence, that the whole case turned upon the validity either of the mort- gage or of the deed exclusively and independently, this should end the controversy forever. See Bissell v. Kellogg, 60 Barb. 617. Of course if the verdict is special, the same conclusion follows. To conclude this note with two or three special cases, an independ- ent cause of action, such as set-off, may be drawn into the issues and conclusively adjudicated (post, pp. 193, 194), and the case under con- sideration is certainly no stronger; indeed, in principle it is the same thing. Again, suppose a will to have been admitted to probate, would not, the judgment be con- elusive, between the heirs or de- visees, of the testator’s mental capacity in ejectment on a deed by the testator, in connection with evidence that his mental condition was the same all the time? Comp. Dickinson v. Hayes, 31 Conn. 417; ante, p. 178; Faught v. Faught, 98 Ind. 470 (converse case); Brig- ham v. Fayerweather, 140 Mass. 411, 415, 416. 1“The general question,’ said Mr. Justice Sanford, in delivering the judgment, ‘before that court was whether the instrument was SECT. 11.] JUDGMENTS IN PERSONAM. 181 A similar question arose in Dunckle v. Wiles.! That was an action of ejectment for seven acres of land, in which the de- fendant gave in evidence the record of a judgment in favor of his grantor against the present plaintiff, 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.” the last will and testament of Frances E. Hubbard, and as such. entitled 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 competent to make a will, and if the instrument in question was executed, published, and at- tested as the law required, it was a valid will, and it was the duty of the Court of Probate to approve, accept, and establish 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 instrument as a will; to wit, the legal capacity and mental competency of the tes- tatrix 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. Stand- ing on them it could not be over- thrown. ... This record says in substance that the Court of Probate found that the testamentary paper in question was the will of Fran- ces E.’ Hubbard, and consequently that she had one degree at least of testamentary capacity; but whether she was found to have had both or not the record does not, with conclusive certainty, disclose. 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. As to the extent of conclusiveness of finding of lu- nacy when collaterally questioned, see Hughes v. Jones, 116 N. Y. 67, 22 N. E. 446, 15 A. 8. R. 386. 15 Denio, 296. 2 Beardsley, C. J. speaking for the court, said that the verdict and judgment would create an es- toppel 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 evi- dence out of the record 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 deter- mined from the record. If a close was to be regarded, he said, like a horse or an ox, as entire and in- divisible, it would follow that judg- ment on the question of title must be conclusive as to all the land 182 ESTOPPEL BY RECORD. [CHAP. III. An instructive case upon this branch of the subject was de- cided in 1850 by the Court of Appeals of New York.! It was an ejectment for a 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 de- fendants claimed. The plaintiffs desired to show that these proceedings were void on the ground that the legislature had of which it was constituted. As- suming this principle as correct, a ' plaintiff in trespass quare clausum fregit, the close having been de- scribed in the declaration and li- berum 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 as- sumed the close was one and in- divisible, so that a trespass upon any part would necessarily be a tres- pass 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 tenementum would be sustained by showing that the defendant had title to the place where the alleged trespass was com- mitted, although such place was but part of the entire close to which the plea had reference. This principle was well settled. King v. Dunn, 21 Wend. 253; Rich ». Rich, 16 Wend. 663; Stevens v. Whistler, 11 East, 51; 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 the present case, might have re- covered without showing an injury coextensive with the whole close described in the declaration, and as the defendant might have main- tained his plea by proving 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 there- fore no bar. The judgment was undoubtedly conclusive of every- thing necessarily involved in the issue, or of that which, falling within its limits, had come directly in question. But the title to the entire lot had not necessarily been drawn in issue, and no ex- trinsic evidence had been offered to show that the title to the seven acres now in question had been directly tried. The injury com- plained of in the former suit might have 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 controversy in the former suit. To the same effect he cited the language of Lord Tenterden, C. J. in Bassett v. Mitchell, 2 Barn. & Ad. 99. 1Embury v. Conner, 3 Comst. 511. SECT. 111.] JUDGMENTS IN PERSONAM. 183 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 commis- sioners; that court having had jurisdiction to adjudicate be- tween 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.! 1Mr. Justice Jewett, who de- livered the judgment of the court, first observed that the Supreme Court, under the street law, ex- ercised its powers as a court and not as commissioners appointed by the legislature; and that its decisions in such matters were judg- ments of the court, and subject to review on appeal; though in this particular it was a court of limited jurisdiction. Striker ». Keller, 7 Hill, 9; s. c. in error, 2 Denio, 323; 2 Cow. & H. notes, 946. He then proceeded to say that to determine the question involved by this point it became necessary to see what matters were referred to the Supreme Court in street cases for adjudica- tion, and what were the issues be- tween the parties; ‘because,’ to quote his language, ‘ 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 proceeding referred to it for determination.’ Under the statutes there was nothing submitted to the court, he said, but the appoint- ment of the commissioners and the confirmation of their report. This involved only the question of the fitness of the persons named as commissioners, the regularity of the proceedings of the corporation and the commissioners, and the justness of the estimate and assess- ment made and reported by the latter. The question whether the statute had the legal effect to transfer to the corporation the legal title of the owner of the lands pro- posed to be taken was not, and could not be, from the nature of the case, determined by the court. And although the statute declared that the report, when confirmed by the court, should be final and conclusive upon all persons, and that the title to the land should be vested in the city government in fee simple, still, this was by force of the statute, and not as an ad- judication upon the question by the Supreme Court. The whole pro- ceeding was but a mode. adopted by the state to exercise its right of eminent domain through a power confided to the corporation of New York, or its officers. The confirmation of the proceeding under the statute could in no sense be deemed an adjudication upon the effect of these proceedings. The order of confirmation merely con- cluded the parties in respect to the regularity of the preliminary pro- ceedings, and did not conclude either party as to their effect. And whether the statute was or was not constitutional had not been, and could not properly have been, determined by the court so as to estop the owners from making the question in the action brought. for the recovery of the premises. Further, see Eastman v. Symonds, 108 Mass. 567; Burlen v. Shannon, 184 ESTOPPEL BY RECORD. [CHAP. III. A former judgment of verdict, on the other hand, is conclusive between the parties ! to contested causes ? (as has already been intimated) of ‘all necessary inferences arising from it as well as of the matters actually in issue.* Thus, in the case of Perkins ». 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 conversion 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 in regard to the title to the cloth and in regard to the defence alleged in justification against 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 eject- ment against the vendor of the plaintiff, begun in 1841, and a judgment followed by a habere facias possessionem executed. The court below held the defence good; but a contrary decision was given on an appeal. Mr. Justice Kennedy said that it had 99 Mass. 200; Watts v. Wilson, 75 Ala. 289; People v. Johnson, 38 N. Y. 63; Crum »v. Boss, 48 Iowa, 433. See also Rogers v. Ratcliff, 3 Jones, 225, in which it was held that a verdict 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 unneces- sary to investigate the matter of the special plea. See Burwell v. Can- naday, 3 Jones, 165. 1See Brigham v. Fayerweather, 140 Mass. 411, 413, in regard to judgments in rem. 2 Williams v. Williams, 63 Wis. 58, where there was a default. 3 Perkins v. Walker, 19 Vt. 144; Pray v. Hegeman, 98 N. Y. 351, 358; Faught v. Faught, 98 Ind. 470 (judgment establishing the dispositions of property under a will establishes the testator’s capac- ity to make the will); Shinn »v. Young, 57 Cal. 525; Brady v. Huff, 75 Ala. 81 (judgment for plaintiff in forcible entry and detainer es- tablishes the plaintiff’s previous possession); Norwood v. Kirby, 70 Ala. 397 (that such judgment establishes the relation of landlord and tenant between the parties); School District v. Stocker, 42 N. J. 115; Tuska v. O’Brien, 68 N. Y. 446. See Hymen »v. Estey, 116 N. Y. 501, 22 N. E. 1087, 15 A. S, R. 421. 4 Man »v. Drexel, 2 Barr, 202. \ SECT. 111.] JUDGMENTS IN PERSONAM. 185 ever been held in actions of trespass. brought for the mesne profits of premises previously recovered of the defendant in ejectment, that the judgment in ejectment was conclusive evi- dence of the plaintifi’s title to the possession and right to re- ceive the mesne profits from the date of the demise in the declaration.! And no defence could be alleged against the ac- tion for mesne profits which would have been a bar to the action of ejectment. In the further examination of the law concerning questions embraced within the scope of the judgment we come to the con- sideration of special and material demands of the plaintiff connected with his former action but not passed upon in the judgment, and of counter-demands of the defendant of which he did not in that action avail himself. We do not speak of the omission of evidence in support of demands (in such cases the judgment works a perfect estoppel against the use of such evi- dence afterwards, though newly discovered,? in support of the same demand °), but of demands themselves not in fact litigated. In answer to an action in the King’s Bench to recover the proceeds of certain bags of clover ‘ the defendant pleaded an award; to which the plaintiff replied that the subject-matter of the present suit was not included in the reference; and issue was joined on the replication. The 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 1Kille v. Ege, 82 Penn. St. 102; possessory action, and is conclu- sive of title. Aslin v. Parkin, 2 Burr. 668; Van Alen v. Rogers, 1 Johns. Cas. 281; Benson v. Matsdorf, 2 Johns. 369; Jackson v. Randall, 11 Johns. 405; Emerson v. Thompson, 2 Pick. 473, 487. This is not true now in England. The judgment is con- clusive of the right to mesne profits only from the date of the writ, a ‘change wrought by the Common Law Procedure Act. Harris ». Mulkern, 1 Ex. D. 31. In some of the states the action of ejectment is considered as more than a mere See Payne v. Payne, 29 Vt. 172. 2In re May, 28 Ch. D. 516. Special circumstances affecting at the time the value of an article in litigation cannot afford ground for impeaching the judgment upon a great change in its value. Rob- erts v. Rice, 71 Ala. 187. 3 Cromwell v. Sac, 94 U. S. 351, 354; Dowell v. Applegate, 152 U. S. 827, 14 Sup. Ct. 611, 38 L. Ed. 463. 4Ravee v. Farmer, 4 T. R. 146. 186 ESTOPPEL BY RECORD. [cHAP. III. 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 difference,’ were conclusive on the parties in relation 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 refused, the court assigning no ground for the decision. In the court below a case was alluded to precisely similar. In that case the defendant pleaded among other things 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 re- leases; 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 sub- mission of matters not in difference; and judgment was given for the plaintiff. In Webster v. Lee? the question arose whether a promissory note not due must have passed under consideration in the case of a submission of ‘all demands between the parties.’ The court allowed the fact to be proved that the note was not laid before the arbitrator. Chief Justice Parsons said that either party might prove what demands then existed. That a prom- issory note was a demand for certain-purposes 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, concerning which debt there was no difference or dispute. If 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 arbitra- tors, and so was not a matter in difference between the parties. Still, as either party might submit to the arbitrators all de- mands, the presumption was that all demands were in fact sub- mitted; but the presumption might be disproved. Without deé- ciding, however, that an agreement to refer ‘all demands’ 1 Golightly v. Jellicoe, 4 T. R. 147, note. 25 Mass, 334. SECT. III.] JUDGMENTS IN PERSONAM. 187 was subject to the same construction as a submission of ‘ all matters in difference ’ the Chief Justice said that it was mani- fest that an agreement to refer might not be executed; and he said that evidence might be received to show the fact. The effect of a judgment in case of a suit upon several dis- tinct demands, some of which were dropped, may be seen in Seddon v. Tutop.1 The action was for goods sold and de- livered, to which there was a plea of former recovery. The plaintiff replied that he was now suing on different 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 on executing a writ of inquiry he gave no evidence on the count for goods sold, taking his damages for the amount of the promissory note only. It was held that the judgment was not a bar to the present suit.2, However, it is held that after judgment against an agent for the price of goods sold for 16 T.R. 607. See Miller v. Boss, 23 N. B. 439. 2Lord Kenyon, C. J. said: ‘There cannot be two opinions respecting the justice of this case. It is admitted that the plaintiff had two demands against the defendant, the one on a promissory note, the other for goods sold; that on executing the writ of inquiry in the former action evi- dence was only given on the first demand; that the plaintiff re covered damages adapted to that demand; and that the other de- mand for the goods still remains unsatisfied. ...The issue was whether the damages demanded in this action have been already satisfied by the recovery in the former action; and most clearly they have not. The case of Mark- ham v. Middleton, 2 Strange, 1259, is extremely different from the present. There the plaintiff had but one demand; and though the jury gave inadequate damages for that demand on account of the plain- tiff’s not being prepared with proof of his whole bill, he would have been barred by that verdict if it had stood. But in this case there were two distinct demands not in the least blended together; and though the plaintiffs might in the first action have proved this demand, owing to inadvertence they did not; and the recovery on the note in that action is no bar to their demand in this, which is for goods. In truth, this is a ques- tion of great delicacy; we must take care not to tempt persons to try experiments in one action, and when they fail suffer them to bring other actions for the same demand. The plaintiff who brings a second action ought not to leave it to nice investigation to see whether the two causes of action be the same; he ought to show beyond all controversy that the second is a different cause of action from the first, in which he failed. In this case it is clearly shown that the demand was not inquired into in the former action.’ [CHAP. ILI. 188 ESTOPPEL BY RECORD. his principal the agent cannot be sued again for wrongfully selling the same goods on credit." 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 with- drew the note in question before judgment, it was held that the action was maintainable; though in fact the court, acting as a jury in the former suit, expressed an opinion in favor of the plaintiff on both notes.? In a recent case it appeared that a bill had been filed against the holder of two mortgages to re- deem the first one of them, which he had foreclosed; that he had not set up the second mortgage in his answer; that the bill was successful; and that a decree had been rendered that the premises should be discharged of the mortgage named in the bill; and it was now contended for the mortgagor that the mort- gagee was estopped to avail himself of the second mortgage by his failure to assert it in the former action. But the court held the contrary.® A like principle is illustrated 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 in a different cause of action. Issue was joined on the replication. It was admitted that the act complained of in the 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 'Caylus v. New York R. Co.,, 76 N. Y. 609. 2 Wood »v. Corl, 4 Met. 203. So the maker of two notes, having a common defence to each, but having failed to plead it in an action upon one of the notes, is not estopped thereby from pleading it when sued upon the other note. Hughes ». Alexander, 5 Duer, 488; Adams »v. Adams, 25 Minn. 72; ante, p. 84. See Treadwell v. Stebbins, 6 Bosw. 538; Clark v. Sammons, 12 Iowa, 368; Freeman v. Bass, 37 Ga. 355; Maghee v. Collins, 24 Ind. 83; Hooker v. Hubbard, 102 Mass. 239. Judgment for interest on a note is no bar to a subsequent action for the principal. Morgan v. Rowlands, L. R. 7 Q. B. 493. 3 Gerrish v. Black, 122 Mass. 76. 48 Pick. 356. SECT. 111.] JUDGMENTS IN PERSONAM. 189 was that the trespasses were distinct and independent. The court said that if the defendants had gone upon the mill lot in ofder to complete their design of destroying the dam, there would have been but one trespass; and the circumstance in such a 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 the court said the object of the defendants seemed to have been to destroy the dam; and this was effected before they recrossed the stream. It is clear from these and other cases that where a party has distinct causes of action against another, distinct in the sense that each would authorize relief by itself, he is not bound to unite them, though the causes of action exist at the same time and might be considered together.1_ But where the supposed second cause of action is what may be termed a mere increment of the first, and not independent of it, the rule is different.? The case of Florence v. Jenings will illustrate the last point. 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 defendant at the same time signing the following mem- orandum 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 plain- 1 Stark v. Starr, 94 U.S. 477, 485, 2 Florence v. Jenings, 2 C. B. nN. 8. Field, J. See also Cromwell ». 454. See also Serrao v. Noel, 15 Sac, ib. 350; Davis v. Brown, ib. Q. B. D. 549, C. A.; Brunsden ». 423; Worman v. Worman, L. R. 43 Humphrey, 14 Q. B. D. 141, re- Ch. D. 296. Injury to person and versing 11 Q. B. D. 712; Mitchell injury to property by same wrongful _—v. Darley Colliery Co., 14 Q. B. D. act give distinct causes of action. 125; s.c.11 App. Cas. 127; Hodsoll Reilly v. Sicilian Pav. Co.,170 N.Y. v. Stallebrasse, 11 Ad. & E. 305; 40, 62 N. E. 772; Doran v. Cohen, Belshaw v. Moses, 49 Ala. 283; 147 Mass. 342, 17 N. E. 647, contra. ante, p. 172. * 190 ESTOPPEL BY RECORD. [CHAP. III. tiff sued the defendant thereon, claiming interest at the rate of £20 per month, according to the above-stated 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 judg- ment for the stipulated interest, he could not bring a second action for such interest. The court allowed the plaintiff in- terest to the date of the judgment, but denied it to him after that time. Chief Justice Cockburn, in pronouncing judgment, said that the interest due under the contract, though constituting a dis- tinct debt, and properly declared for in a count upon the agree- ment, or for interest, was only a substitute for the interest or- dinarily 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 concerning the interest which accrued prior to the judgment, the case, he said, was different. It was clear that the plaintiff had not re- covered the interest now claimed; and looking at the declara- tion which determined the scope of the former action, the plain-- tiff could not have recovered such interest in that action for want of a count upon the agréement, or for interest.! What may be regarded mere ‘increment’ of and therefore necessary to the cause of action is, however, a question of great difficulty, as the authorities sufficiently show. The subject of continuing or recurring damages arising from a tort or a breach of contract presents one phase of the question. With regard to such cases the rule appears to be that all damages of the kind, of a then ascertainable nature at least, are a necessary part (or an ‘increment ’ within the rule) of the recovery.2 Whitney 2. _ _1See Florence v, Drayson, 1 Ad. & E. 301; Darley Colliery C. B.N. 8. 584, Co. v. Mitchell, 11 App. Cas. 127, ? Whitney »v. Clarendon, 18 Vt. overruling Lamb ». Walker, 3 Q. B. 252; Hodsoll v. Stallebrasse, 11 D. 389; Brunsden ». Humpbhrey,, SECT. 111.] JUDGMENTS IN PERSONAM. 19] Clarendon was trespass on the case to recover for loss of serv- ices sustained after Feb. 28, 1840, in consequence of injuries to the plaintiff’s son by the breaking down of a bridge. The de- fence was that the plaintiff had obtained a judgment for’ sim- ilar damages sustained before the date named, by reason of the same injury; and the court held the judgment 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 entire cause of action, though the damage might be continuous. It was for the plaintiff to have shown his prospective damages in one action.!. The same rule was laid down in the later case of Burritt ». Belfy,? where, however, it was said that the plaintiff should wait until all the damage was complete if he would recover for his entire loss. ; In like manner it has recently been laid down by the English Court of Appeal that if judgment be obtained for the restitu- tion alone of goods, when a claim might have been preferred for damages for the wrongful detention down to the time of the judgment of restitution,no subsequent suit for such damages can be maintained.* In the case cited Lord Justice Bowen said that if the plaintifi’s suit had been detinue at common law, the jury could have included damages not only for the original wrongful detention of the property, but also for the detention until it should be re-delivered; damages might have been as- sessed once for all. There were not two causes of action.* Another phase of the same question appears where the cause of action sued upon in the second case required the happening of anew event. Itise. g. well settled, at least in England, that every fresh subsidence of soil, in the case of the withdrawal of the lateral support of a man’s land, gives rise to a fresh cause 14 Q. B. D. 141, 152; Serrao v. Noel, 15 Q. B. D. 549, 557.' See Chicago R. Co. v. Schaffer, 123 Ill. 112, 120. 1Comp. Chicago R. Co. vw. Schaffer, supra. The following eases were distinguished: Hamble- ton v. Veere, 2 Saund. 169; Ward vy. Rich, 1 Ventr. 103; Brasfield v. Lee, 1 Ld. Raym. 329; Roberts v. Read, 16 East, 215. The Chief Justice thought that where pro- spective damages were uncertain they could be recovered only to the commencement of the action, and that another suit could be brought if needed. 247 Conn. 323. 3 Serrao v. Noel, 15 Q. B. D. 549. 4 But Belshaw v. Moses, 49 Ala. 283, appears opposed to this. Ante, p. 172, note. [CHAP. III. 192 ESTOPPEL BY RECORD. of action, though each subsidence is due to the same act. The case of Leland v. Marsh 2 may be noticed in the same connection. To trespass for false imprisonment the defendant pleaded a re- covery before a justice of the peace for the same wrong. The plaintiff replied assigning other trespasses, to which the de- fendant rejoined, not guilty; and issue was taken thereon. In regard to the former récovery, that was for an imprisonment on December 3, the writ being dated December 5; while the im- prisonment newly assigned was from the 6th of the same month to the 10th of the next. It was a continuing imprisonment from December 30; and the defendant insisted that the whole con- stituted but one injury, for which the plaintiff had already re- covered. 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. Of the same nature, it may be added, are repetitions of slanders and libels by the same persons who started them; the whole may be included in one action, but that is not necessary.* And this is perhaps true equally of ordinary cases of recurring damages.+* Still another phase of the subject was presented in Brunsden v. Humphrey, just cited. The plaintiff had obtained judgment against the defendant for damage to his cab by a collision caused by the negligence of the defendant’s servant. He now sued for damage done to his own person by reason of the same negligence, and was held entitled to recover.> The case was decided upon the ground that there were two causes of action resulting from the one act.§ 1 Darley Colliery Co. v. Mitch- ell, 11 App. Cas. 127, overruling Lamb v. Walker, 3 Q. B. D. 389; Brunsden v. Humphrey, 14 Q. B. D. 141, 152. See Bonomi v. Backhouse, El. B. & E. 646; s. c. 9 H. L. Cas. 503. Comp. also as to fresh results of negligence, Chicago R. Co. »v. Schaffer, 123 Ill. 112, 120. 216 Mass. 389. » 3See Odgers, Slander, 271, note, 317, 320, 456 (Am. ed.); Root v. Lowndes, 6 Hill, 518; Frazier v. McCloskey, 60 N. Y. 337; Woods v. Pangburn, 75 N. Y. 495; Rock- well ». Brown, 36 N. Y. 207; Swift v. Dickerman, 31 Conn. 285. 4See Chicago R. Co. v. Schaffer, supra; Byrne v. Minneapolis Ry. Co., 38 Minn. 212; McConnel ». Kibbe, 29 Ill. 483; Smith v. Elliott, 9 Barr, 345; Standish v. Parker, 2 Pick. 20; s.c.3 Pick. 288; Rich- ardson v. Boston, 19 How. 263; Courtland v. Willis, 19 Ohio, 342. All these except the first were cases of nuisance. 5 Lord Coleridge, C. J. dissenting. 6In regard to the right to sue for damages which had not de- \ SECT. I11.] JUDGMENTS IN PERSONAM. 193 We have, then, at least three different phases of the question of the right of a second recovery for the same wrong, in view of other damages: first, where the whole loss was inflicted at once by the defendant, but only part of it was perceived at the time of the first suit; secondly, where the loss complained of in the second action had not happened at the time of the first recovery; and thirdly, where the wrong affected both per- son and property of the plaintiff. In regard to the first of these cases it may still be worthy of inquiry whether a second suit in the nature of a continuation of the first should not be allowed. The doctrine that there ought to be an end of litiga- tion when a judgment has been rendered has many qualifications founded in justice, but it is doubtful if any of them has a better claim to recognition than the case of a plaintiff who, having no ground to expect other damage, has acted as any prudent man might well have acted. If the courts cannot help such a case, the legislature may well do so; though only for the protection of one who could not expect the later loss. The second case is still stronger, and the courts have seen their way clearly. The third case is the most difficult of all, perhaps; and yet if a wrong is capable at all of producing several causes of action, as certainly is the case, it is not clear why the same causes may not be united in one person as well as divided between two or more. Besides, the nature of a right of action for injury to the plaintiff’s property may be different in the particular case from that for the injury to his person. The defendant may have a claim upon the property, — he may be tenant in common e. g. with the plaintiff; so that to establish the claim for damages to the plaintiff’s rights of property might be an entirely different thing from proving a trespass to his person.? While, however, no judgment can of itself bar an independent cause of action,? whether of the plaintiff or of the defendant, it veloped at the time of a former See Railroad v. Brigman, 95 Tenn. action the learned Master of the 624, 32S. W. 762. Rolls thought that the rule of res +Comp. the remarks of Pearson, judicata was not to be commended. J. in Houstoun ». Sligo, 29 Ch. But see the remarks of Bowen, L. OD. 448, 456, 457. J. at p. 148, Brunsden v. Humphrey. 2In Kansas, if alimony is not a 194 ESTOPPEL BY RECORD. [CHAP. III. should be remarked that an independent cause of action may be drawn into the pleadings and issue by the act of the party possessed of it. Thus, the defendant to an action may plead a statutory set-off, and if this be adjudicated against him upon the merits of the claim + (a fortiori if it be adjudicated in his favor), he will be barred thereafter from making it the subject of an action.2 Again, a plaintiff suing for slander or libel may, for the purpose of showing malice, offer in evidence repetitions of the same language, each of which repetitions would con- stitute a. distinct cause of action; but by so doing and ob- taining judgment he bars himself of the right to sue for any such repetition, the verdict having probably included all in one.? While this is clear, there has been conflict of authority upon the question whether a cross-action can be maintained by an employer for the negligent or improper performance of services after an action by and judgment in favor of the person perform- ing, in which the defendant omitted to rely upon such ill per- formance; and the same question arises in the case of the sale of goods which fail to correspond with the warranty, and in other cases.4 Can the purchaser after suit by and judgment in favor of the 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 case of Gates 2. considered in a divorce judgment it can be subsequently considered. Roe v. Roe, 52 Kan. 724, 35 P. 808, 39 A. S. R. 367. See Thurston ». Thurston, 58 Minn. 279, 59 N. W. 1017, contra. ; 1Even though the judge rules that it cannot be sustained and refuses to admit evidence in support of it. Green v. Sanborn, 150 Mass. 454, 23 N. B. 224. ?Hastmure v. Laws, 5 Bing. N. C. 444; Lamb v. Wahlenmaier, 144 Cal. 91, 77 P. 765, 108 A. S. R. 66; Kennedy v. Davisson, 46 W. Va. 433, 33 8. E. 291. 3 Root v, Lowndes, 6 Hill, 518; Frazier v. McCloskey, 60 N. Y. 337. The plaintiff is deemed, in such a case, to make the defamation sued for and the repetition given in evi- dence one cause of action. But for this the repetition ‘could be sued for after judgment in the other case. Odgers, Slander, 271, note, (Am. ed.); Woods v. Pangburn, 75 N. Y. 495; Swift v. Dickerman, 31 Conn, 285. 4 As in the case of a right to have a lease rectified for mistake; the mistake need not be set up in bar of an action of trespass by the lessor, based on the lease. Hous- toun v. Sligo, 29 Ch. D. 448. Mis- representation in contract makes a case for cross action. See Harring- ton v. Stratton, 22 Pick. 510. SECT. 111.] JUDGMENTS IN PERSONAM. 195 Preston.’ The plaintiff in that case sued a surgeon for negligent performance of professional service; and the defendant relied upon a judgment in his own favor in an action for the value of his services, in which case the defendant, now plaintiff, had confessed judgment without trial. The Court of Appeals held 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 admitted; 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 based the doctrine on decisions in White v. Merritt 2 and in Davis ». Tallcot.? In the first of these cases the plaintiff sued the defendants for 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 defendants relied upon a judgment in their favor in an action by them to recover for an advance made in behalf of the very transaction in which the bill was given. In this action the plaintiff, then defendant, had been prevented from making his defence of vio- lation 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 demurrer was overruled and the defence held good.+ 141 N. Y. 113. See Honsinger v. Union Carriage Co., 175 N. Y. 229, 67 N. E. 436. 27 N. Y. 352. 512 N. Y. 184. 4 Mr. Justice Welles, in delivering judgment, said: ‘ By the judgment it is established that it was legal and proper that the plaintiff should pay the defendants the amount of their advance with the interest and commissions, which is utterly in- consistent with the plaintiff’s claim to recover it back.(a) No aver- ment is to be admitted to contradict a judgment or to dispute any legitimate inference deducible there- efrom. ... To sustain this action (a) This, it would seem, was not the object of the present suit; the pur- pose, 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 of his opinion. 196 ESTOPPEL BY RECORD. [CHAP. III. The case of Davis v. Tallcot, above cited,! belongs to the second class mentioned at the beginning of the subject under consideration. It was an action for breach of contract to fur- nish 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.® to recover back the advance would be to open the judgment and in- quire into its propriety and legality. That cannot be done collaterally.’ This doctrine has been reaffirmed in Dunham v. Bower, 77 N. Y. 76; Blair v. Bartlett, 75 N. Y. 150; Bellinger v. Craigue, 31 Barb. 534; Collins v. Bennett, 46 N. Y. 490. See Schwinger v. Raymond, 83 N. Y. 193. In Dunham v. Bower it was held that judgment in favor of a carrier for freight is a bar to an action by the shipper for damages on account of destruction of the goods in transit. In Collins v. Ben- nett it was decided that after re- covery for keeping a horse no ac- tion could be maintained against the keeper for using and converting the horse contrary to the agreement for keeping him. Whether the courts generally will be prepared to go this length remains to be seen. 142 N. Y. 184. 2S8ee Last Chance Min. Co. »v. Tyler Min. Co., 157 U. S. 683, 15 Sup. Ct. 733, 39 L. Ed. 859. 3Gardner, C. J. speaking for the court, observed: ‘It is obvious that, by withdrawing their claim to damages, the then defendants did not waive their right to insist upon their defence. The plaintiffs not- withstanding must have established their title to the price stipulated by proof that the machinery was made within the time and in the manner called for by the agreement; and the vendees were at liberty to meet and combat these proofs by counter evidence on their part. Now, this is precisely what was done; or rather the necessity for introducing evidence to sustain the action was superseded by the admission of the then defendants in open court, “ that they were in- debted to the manufacturers for the causes of action mentioned in their complaint.” As the cause of action and the indebtedness of the defendants were by the com- plaint made dependent on a full performance of the contract by the parties who instituted the suit, the concession of the de- fendants was equivalent to an ad- mission on the record to that effect; and the report of the referee, fol- lowed by the judgment of the court, consequently estops the parties to that suit from ever after question- ing that fact in any controversy arising upon the same agreement.’ The case of Doak v. Wiswell, 33 Maine, 355, may also be noticed in this connection. 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 SECT. III.] JUDGMENTS IN PERSONAM. 197 In Massachusetts a contrary doctrine is held, at least in cases of judgment by default.1_ In Bodurtha v. Phelon an action had been brought before a justice of the peace on a note given for the price of a horse, and the defendant pleaded a breach of warranty and obtained a reduction therefor from the amount of the plaintiff’s demand. The plaintiff thereupon appealed to the Common Pleas, and the defendant was there defaulted. The latter now brought an action for the breach of warranty; and the court held the former judgment no bar to the suit. Indeed, it seems that the same rule would prevail in Massachusetts in cases not of default, provided the particular counter-right of ac- tion was not put in issue.? It was said, however, in Bodurtha v. Phelon that if the judgment given by the justice of the peace had been allowed to stand, the case would have been otherwise; which is very clear.’ The court of New Hampshire has lately followed the above- cited decision in a like case, with the New York authorities before it. The latter were distinguished on the ground that judgment had in them been given by confession after answer; 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 impor- tance. The judgment and posses- sion were a bar to the present suit. 1 Bodurtha v. Phelon, 13 Gray, 413. 2 Hunt v. Brown, 146 Mass. 253, an action by the maker of notes, upon an agreement in relation to compromise of the payee’s claim, - after the payee had sued and re- covered regardless of the agreement; the maker having pleaded a general denial and payment and then hav- ing offered judgment against him- self in full, and the offer being ac- cepted. The judgment was held no bar to the present action. Holmes, J. at p. 255 (after saying that the agreement in regard to compromise had left the notes in full force,'and that the agreement was independent in character): ‘A breach of it was a substantive cause of action, upon which the present plaintiff might bring his own suit in his own way, and he was no more bound to plead it than he would have been bound to plead a set-off, fraud, or a breach of warranty. Smith v. Palmer, 6 Cush. 518, 521; Cobb »v. Curtiss, 8 Johns. 470. See Burnett v. Smith, 4 Gray, 50, 52; Davis »v. Hedges, L. R. 6 Q. B. 687.’ Gil- more v. Williams, 162 Mass. 351, 38 N. E.976. If breach of warranty * was set up in the first suit as a de- fence it is a bar. Berman v. Clark Co., 194 Mass. 248, 80 N. E. 480. 3 Burnett v. Smith, 4 Gray, 50. 4 Bascom v. Manning, 52 N. H. 132. 198 ESTOPPEL BY RECORD. [cHAP. III. 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 before the Superior Court of Cincinnati.? The plaintiff in that case sued the defendant, a physician and surgeon, for ‘ carelessly, negligently, and improperly ’ treating her arm; to which action the defendant pleaded a judgment in his favor be- fore a justice of the peace in an action against the present plain- tiff to recover for his services in attending the plaintiff for her arm. To that action the plaintiff, then defendant, did not ap- pear, though duly served with notice. A demurrer was entered to the plea; and the demurrer was sustained.*? And recent well- 1Quere if judgment by default and the fact that the amount was after plea would not be in effect due. There were no pleadings and the same thing; and quere if no issues. There is nothing in the judgment by confession without record to show that the question plea would even in New York bar of negligence was involved. Now, a cross-action? Ante, pp. 80- it is argued on the authority of 82. Indeed, it is doubtful whether Gates v. Preston, 41 N. Y. 118, judgment by confession is as effect- and of Bellinger v. Craigue, 31 ive as judgment by default. Ante, Barb. 534, Davis v. Tallcot, 12 N. pp. 80 et seq. See Sale v. Eichberg, Y. 184, White v. Merritt, 7 N. Y. 105 Tenn. 333, 59 S. W. 1020. 352 (which is a case exactly like ? Sykes v. Bonner, Cin. Sup. Ct. the present, except that there the Rep. 464. See also, as to counter- defendant, before the magistrate, claims in Ohio, under statutes, consented in writing to a judgment), Witte v. Lockwood, 39 Ohio St. 141. that the judgment recovered for the In North Carolina, counter-claim services before the magistrate is a need not be set up. Shakespeare direct admission on the record by v. Caldwell Land Co.,.144 N. C. the plaintiff in this case of all the 516, 57 S. E. 213. facts which the plaintiff before the 3Mr. Justice Hagans, for the magistrate would have been bound court, said: ‘In looking into the to prove on a denial of the cause of justice’s record it appears that the action alleged there; and that the judgment against the plaintiff for recovery by the plaintiff there was the professional services of the dependent on a full performance of defendant was taken by default, his duties in the treatment of his and on the testimony of the de- patient; and that the plaintiff here fendant himself only. It was cer- is estopped from questioning that tainly not necessary, in order to fact in any controversy on the same entitle the plaintiff in that case agreement for services. We do to recover, that he should prove that ° not see how the plaintiff in the he was not guilty of any negligence case before the magistrate was in his professional treatment. It bound to prove that he was guilty was enough to show simply that he of no negligence in his treatment performed the services at the de- of the arm before he could recover fendant’s request, and their value, for his services therein. It was SECT. III.] JUDGMENTS IN PERSONAM. 199 considered decisions of the courts of Wisconsin and of Indiana have also rejected the doctrine of the New York cases.! The English courts maintain the same rule as that declared in the case just under consideration.2. 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 con- tract, 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 in regard to such damages as he had then 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 con- tract now sued upon to the extent of the abatement 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; enough to prove the services and 474; Spooner v. Davis, 7 Pick. their value. We are inclined to 147. think with Judge Daniels, who 1 Ressequie v. Byers, 52 Wis. 650 dissented in Gates v. Preston, (suit against a physician for dam- that the question of malpractice ages on account of negligence, after 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 evi- dence 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 actually heard and determined.’ Ihmsen v. Ormsby, 32 Penn. St. 198; Mallett v. Foxcroft, 1 Story, judgment by default in his favor for services against the plaintiff in the second suit); Goble v. Dillon, 86 Ind. 327 (same sort of case). Comp. also Green Bay Canal Co. v. Hewitt, 62 Wis. 316, in regard to counter-claims. See Jordahl v. Berry, 72 Minn. 119, 75 N. W. 10, 71 A. 8. R. 469; Lawson v. Con- away, 37 W. Va. 159, 16 S. E. 564, 38 A. S. R. 17. 2 Mondel »v. Steel, 8 Mees. & W. 858; Davis v. Hedges, L. R. 6 Q. B.,687; Houstoun »v. Sligo, 29 Ch. D. 448. See Caird ». Moss, 33 Ch. D. 22, C. A. 200 « ESTOPPEL BY RECORD. [CHAP. III. 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 ac- tion, as in Sykes v. Bonner, supra, the defendant had not alleged the improper performance. The court held the action maintainable on grounds stated in the note. Mr. Justice Lush, 1The court, by Hannen, J. began by quoting the language of Parke, B. in Mondel ». Steel, just cited, which was as follows: ‘ For- merly it was the practice, where an action was brought for an agreed price of a specific chattel sold with a warranty, or of work which was to be performed according to con- tract, to allow the plaintiff to recover the stipulated sum, leav- ing the defendant to a cross-action for the breach of warranty or contract; in which action as well the difference between the price coh- tracted for and the real value of the articles or of the work done as any consequential damage might have been recovered. . . . But after the case of Basten v. Butter, 7 East, 479, a different practice, which had been partially adopted before in the case of King v. Boston, 7 East, 481, n., began to prevail, and being attended with much practical con- venience has been since generally followed; and the defendant is now permitted to show that the chattel, by reason of the non-compliance with the warranty in the case, and the work, in consequence of the non-performance of the contract, in the other, were diminished in value. ...In all these cases of goods sold and delivered with a warranty, and work and labor, as well as the case of goods agreed to be supplied according to a contract, the rule which has been found so convenient is established; and it is competent for the defendant in all of those not to set off, by a proceed- ing 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 contract; and to the extent that he obtains, or is capable of obtaining, an abate- ment of price on that account, he must be considered as having re- ceived satisfaction for the breach of contract, and is precluded from 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,’ con- tinued the learned justice, ‘it leaves undecided the question whether he was bound to obtain the abatement in the action in which he was a defendant, or might recover it in a cross-action. The expression of Parke, B. which was a good deal relied on in the argu- ment, that “to the extent that he obtains, or is capable of obtaining, an abatement of price, he must be considered as having received satis- ° faction for the breach of contract,” has reference 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 article sold with a warranty, or of work to be performed according to con- “tract, the person to whom the arti- . SECT. III.| JUDGMENTS IN PERSONAM. 201 who concurred in all except the dictum (mentioned in the note) in regard to allowing a division of the action, drew the distinc- tion clearly between the case before the court and the cases of Marriott v. Hampton,' Hamlet v. Richardson,? and Brown »v. cle 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 commenced an action for the price? We think that there is none, and that there are some strong reasons why he should not. It appears from the passages above cited from the judgment in Mondel v. Steel that the present practice of allowing the defence or the in- feriority of the thing done to that contracted for to be applied in re- duction of damages was introduced (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 neu- tralize 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 warranted 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 stip- ulation 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 incapable 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- tracting party in the wrong had or had not issued a writ for the price.’ The learned judge proceeds to mention another inconvenience that would result from a different rule from the one declared; to wit, that it would tend to complicate and increase litigation, from the fact that defective performance of work generally involves conse- quential and recurring damages by reason of the necessity of repairing the work. And he cited Mondel v. Steel as an express authority for a separate action in such case. The court came to the conclusion also that the better rule was that the defendant had the option to divide the cause of action and use it in diminution of damages; and that he would then be concluded to the extent to which he obtained, or was capable of obtaining, a re- duction; or he might, as in the present case, claim no reduction at all, and afterwards sue for his entire cause. 17 T. R. 269. 29 Bing. 644, 202 ESTOPPEL BY RECORD. [CHAP. III. McKinally,! — cases in which the defendants had been com- pelled to pay money under judgments which subsequent evi- dence, then inaccessible, showed should never have been re- covered.” ‘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 and to place themselves in statu quo. In the present case the cause of action is the breach of con- tract; that cause of action existed before and was independent of the payment.’ 3 The case of Houstoun ». Sligo 4 further fortifies the position. In that case A was sued for trespass to lands of the plaintiff B, of which A was tenant by written lease. Under the lease as it stood B was entitled to recover, and was allowed by A to do so. But the lease was executed in mistake, certain facts agreed upon having been omitted, which would have prevented A from being treated as a trespasser. It was held that A was not bound to set up the mistake and the actual facts in answer to the ac- tion, though he might in fact and in law have done so, and that he might bring a suit to have the lease rectified after the judg- ment against him for trespass. A was entitled, it was declared, to have the question of mistake decided in a separate action.® The case does not proceed upon any distinction between the rules of law and those of equity. It will be noticed that in Davis ». Hedges, above stated, Mr. Justice Lush, as quoted, says that the present cause of action was the breach of contract, and that that cause of action existed before and was independent of the payment in question. Such a, test appears to be decisive. If an independent cause of action accrues to each party upon a breach of the contract by the other, neither in reason can be compelled to allege his defence of a breach in a suit by the other. Every cause of action car- 12 Esp. 278. 2 See post, p. 212, note, that judg- ment should not have been obtained. 5See Equitable Trust Co. ». Fisher, 106 Ill. 189; Riverside Comp. ». Townshend, 120 Il. 380 in Caird ». Moss, 33 Ch. D. 22, C. A. it was explained that in Davis v. Hedges, supra, the respective claims were distinct causes of action. 429 Ch. D. 448. 9, 18. Comp. Caird v. Moss, 33 Ch. D. 22, C. A.; Thomas ». Joslin, 36 Minn. 1; Green Bay Canal Co. v. Hewitt, 62 Wis. 316; Shankle v. Whitley, 131 N. C. 168, 42 8. E. 574, SECT. III.] JUDGMENTS IN PERSONAM. 203 ries 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 the 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 judgment, carry another independ- ent 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, and in his own way; to plead fraud is a permission, not a requirement. The defendant in the first action may not then be able to prove the facts which he relies upon in the second suit; and he is justified in reason in not raising an issue upon them.? The contrary doctrine would often work manifest in- justice. A man who had by fraud obtained of another a note on demand could bring suit upon it at once, before the maker had had time to ascertain 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 1Statutes permitting the joinder of related causes of action do not require it. Gregory v. Hobbs, 93 N. Car..1, 4, and cases cited. 2 Hunt v. Brown, 146 Mass. 253, 255, Holmes, J. quoted supra, p. 197. 3 Quoted with approval in Resse- quie v. Byers, 52 Wis. 650, 656, and in Goble v. Dillon, 86 Ind. 327. See also Green Bay Canal Co. ». Hewitt, 62 Wis. 316. ‘Barker v. Cleveland, 19 Mich. 230. The case was an action by Cleveland against Barker to re- cover 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 respect to the pur- chase of the cranberries. The court below found that there had been a valid contract of sale, and that the judgment interposed was not a bar. Chief Justice Cooley, in delivering judgment, began by say- ing 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 infer- ence, conclusively settled between the parties to the adjudication. Jennison v. W. Springfield, 13 Gray, 544. ‘When a party,’ con- tinued the learned judge, ‘de- clares upon a contract of warranty contained in a sale of chattels, he necessarily affirms the validity of the contract. The warranty 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 204 ESTOPPEL BY RECORD. [CHAP. III. the vendor of goods is not bound to set off their value in an action by the purchaser for damages by reason of the failure of 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 af- firmed, 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 judg- ment in one case a bar to another action it is not essential 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 defend- ants in the other, therefore their judgment should not conclude them, if the point in controversy were the same in both cases. Nor is it im- portant 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 con- tract being adjudged in the one case, it is settled for the other also. Betts v. Starr, 5 Conn. 550; Doty v. Brown, 4°N. Y. 71; Williams v. Fitzhugh, 44 Barb. 321; Walker v. Chase, 53 Maine, 258; Sawyer v. Woodbury, 7 Gray, 502; Birck- head v. Brown, 5 Sandf. 134; Cas- tle 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 included in the judg- ment. Bellinger v. Craigue, 31 Barb. 537. As we understand counsel they claim that the ques- tion of the payment of the purchase price was necessarily covered by the issue in their suit upon the warranty; that the court was re- quired 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 plaintiffs in error are correct in these positions, then unquestion- ably the judgment in the case be- fore us is erroneous. We have no doubt that had Barker and Be- wick proceeded in that case upon the theory of the total rescission of the contract and recovered a judg- ment, such judgment must have been held conclusive. When a vendee puts an end to the contract. of sale, for the failure of the vendor to perform, and brings suit for the recovery 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 payment con- stitutes usually the first and lead- ing 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, therefore, necessarily covers and the trial adjusts all questions of payment of the pur- chase price; and the vendor is forever precluded from maintain- ing a suit for the same or any un- paid portion thereof. But we do not understand that an inquiry concerning the amount of dam- ages sustained by a breach of SECT. III.] JUDGMENTS IN PERSONAM. 205 the goods to correspond with the warranty; but the vendor, after judgment in such action in favor of the purchaser, 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 purchaser, the first suit being by the vendor, should be required to allege the inferiority of the goods than for requiring the vendor to rely upon the contract price in a suit by the pur- chaser. Indeed, the excuse for omitting the defence by the purchaser is stronger in many cases than any which the vendor can present; for, as was suggested in the English case under consideration, it often happens that the purchaser is not able at the time of the vendor’s suit to ascertain the real degree of inferiority of the goods. The argument appears conclusive against the soundness of the New York cases, unless the dis- tinction taken in New Hampshire between a judgment by con- fession } and one by default or on trial without alleging the warranty necessarily involves the question of the payment of the purchase price. If the contract 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 of payment. He sues to recover the difference between the actual value of the articles re- ceived on the contract and what their value would have been had they answered the warranty; and unless the vendor defends on the ground purchase price the court does not concern itself with that question. The parties in such a case are at liberty to settle their controversies 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, in- stead 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 reduc- of non-payment of the, tion, such damages as he can show he has sustained by a breach of the. promise of warranty. Thorn- ton v. Thompson, 4 Gratt. 121. . . . If, however, the vendee thinks proper to bring an independent suit upon the warranty, the damages of the respective parties are not measured by any different stand- ard. If the vendee recovers in that suit, he is conclusively presumed to recover the full difference be- tween the value of the articles 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 war- ranty, the court will not concern itself with the inquiry how much of the purchase price has been paid. Perrine v. Serrell, 1 Vroom, 458. And the vendee, having recovered his damages in that suit, is supposed to be fully compensated for any deficiency in the articles bought, and to be legally bound afterward to pay any balance of the purchase price without deduction or contro- versy.’ , 1See ante, p. 80. 206 ESTOPPEL BY RECORD. [CHAP. III. defence be thought well of. In the case of White ». Merritt the court confused the case of an action to recover money paid under a judgment, and that of an action for breach of contract and fraudulent representations. The distinction has already been pointed out; 1 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 performance 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 right of action.’ If the counter-right should go further and entitle the defendant himself to,damages, it might be argued with plausibility that this would be inconsistent with any right of action in the plaintiff; but that cannot appear until the de- fendant’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 overbalanced, he cannot say that the second suit is necessarily inconsistent with the first judgment. Even if the facts were known 'in advance there would indeed be no inconsistency. But the argument that to give damages in favor of the counter-right over the main demand would be inconsistent with any right of action upon the latter is aside from the case; for judgment on default is not equivalent either in principle or on authority to judgment upon an issue fought out. Judgment on default is good for the primary purpose of a judgment for a plaintiff; it gives him the right to have the sum adjudged col- lected; but it has not the full effect of a res judicata, because in reality it has been ex parte. There is the best authority for saying that judgment by default does not conclude defences 1 Ante, p. 202; post, p. 207. 2 So of misrepresentation. Har- rington v. Stratton, 22 Pick. 510. 3‘ The action was on the [coun- ter] contract, and if the contract was proved and the breach of it, the recovery was for the breach of the contract, and not to recover back money paid on the judgment, though that might affect the amount of the damages.’ Fletcher, J. in Smith v. Palmer, 6 Cush. 518, 521. SECT. 11.] . JUDGMENTS IN PERSONAM. 207 in confession and avoidance in a different action.!_ And if the view here presented, that the cross-demand is an independent cause of action, is correct, it cannot matter that the former judg- ment was rendered upon an issue contested, if that issue did not embrace the cross-demand. This, it is apprehended, is true of all cases of property cross- rights; 2 that is, all cases of the kind 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 .con- tract is not necessarily inconsistent with the existence of fraud.4 Fraud does not make a contract void, but only voidable; § and a person may elect to treat the contract as binding and sue for the fraud.’ This, clearly, is not inconsistent with holding that fraud may not be a ground of impeaching judgments in.col- lateral proceedings; since in the first case supposed there is no necessary impeachment of the judgment.’ The plea of fraud in respect of a judgment will be considered hereafter.? But if the 1 Howlett v. Tarte, 10 C. B. n. 3. 813; Cromwell v. Sac, 94 U.S. 351, 356; Hanham v. Sherman, 114 Mass. 19; ante, pp. 72, 73. And see especially ante, p. 80, of judg- ment confessed. 2In some states cross-decrees of divorce can be had; divorce granted to husband or wife being no bar to divorce to be granted to the other. Stilphen v. Houdlette, 60 Maine, 447; Stilphen v. Stilphen, 58 Maine, 508. 3See O’Connor v. Varney, 10 Gray, 231, per Shaw, C. J. It is of course admitted in New York that where the counter-demand amounts to an independent cause of action, it is not barred by the judgment first rendered. Brown v. Gallaudet, 80 N. Y. 413. ‘Harrington v. Stratton, 22 Pick. 510 (in effect); Burnett v. Smith, 4 Gray, 50, 52; Hunt ». Brown, 146 Mass. 253, 255, quoted ante, p. 197. But see Patton »v. Loughridge, 49 Iowa, 218. It isheld that if fraud upon a seller of prop- erty was unknown to him at. the time of obtaining judgment for the price, he may, notwithstanding the judgment, rescind the contract and demand return of the property. Kraus v. Thompson, 30 Minn. 64, judgment by default. 5 White v. Garden, 10 Com. B. 927. 6 Burnett v. Smith, supra. 7See Jackson v. Somerville, 13 Penn. St. 359. But see Homer ». Fish, 1 Pick. 435. In Melick ». First National Bank, 52 Iowa, 94, it was held that confession of judg- ment on a promissory note obtained by fraud of which the confessing party was ignorant may be set aside by him. 8Under Collateral Impeach- ment of Judgments, post. [cHAP. III. 208 ESTOPPEL BY RECORD. fraud or unskilful performance be pleaded to the first suit, it cannot afterwards be made ground of an action by the defend- ant, 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 proposi- tion that the purchaser 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; and the view here taken is based solely upon the ground of the absence of any verdict or decision upon the matter of the counter-demand,? but regardless of the question whether the judgment was rendered on default or after appearance and defence.? There may be more doubt in regard to the soundness of the further doctrine of Davis ». Hedges, * that such party may also divide his action, using first the part ascertainable at the time of the plaintiffs action and subsequently suing for any further damages since ascertained. Only one suit can be maintained on one cause of action. One judgment merges all demands passed upon; and it might be argued that the defendant’s cross-demand for the plaintiff’s breach of contract is single, and not continuous or recurring,® and that 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. A careful distinction, however, must be noticed between a case where the plaintiff, suing upon several distinct demands, omits to introduce evidence in support of some of them, and thus saves the right of suing again upon such demands, and the case where he fails, intentionally or not, to produce sufficient evidence to sustain his action. In the latter case he will of course be barred,’ 10Q’Connor v. Varney, 10 Gray, 231; Burnett ». Smith, 4 Gray, 50; Sargent v. Fitzpatrick, 4 Gray, 511; Sawyer v. Woodbury, 7 Gray, 499; Howell v. Goodrich, 69 Ill. 556. 2See Haynes v. Ordway, 58 N. H. 167. 3 See Clement v. Field, 147 U. S. 467, 13 Sup. Ot. 358, 37 L. Ed. 244. 4 Ante, p. 202, note. 5 Ante, pp. 191-193. 6 Judgment for the plaintiff in a suit for non-performance of a contract does not amount to an affirmance of the contract in such a way as to permit the other party to sue for the contract price. But- ler v. Suffolk Glass Co., 126 Mass. 512. 7Clark v. Wiles, 54 Mich. 323; Miller v. Manice, 6 Hill, 114, 121; Cromwell v. Sac, 94 U. 8. 351, 352; SECT. III] JUDGMENTS IN PERSONAM. 209 just as he would be barred by failing to produce evidence in support of any single demand.! With reference to particular issues all relevant necessary facts are conclusively presumed to have been under consideration.? It matters not that the case may not have been fully entered into, if it was not withdrawn.’ But this statement itself must be taken with a distinction. One who brings an action upon one demand or several connected demands and attempts to support his whole case will assuredly be barred by the judgment from suing again for the same de- mand or any one or all of the connected demands; and he will find no escape from the estoppel by offering to show that other evidence existed, now for the first time at hand, which would have produced a different result.* But facts not produced or in Shoemaker v. Atkins, 6 Baxter, 318. See Stark v. Starr, 94 U. 8. 477, 485. In Miller ». Manice Chancellor Walworth said that the question whether a verdict and judgment for the defendant in a former action was a bar to a second suit for the same cause did not depend upon the fact that the proof in the for- mer suit was sufficient to sustain that action. ‘For,’ he continued, ‘when the same matter was in issue and submitted to the jury in the former suit, without sufficient proof, the decision of the jury upon the matter in issue and thus submitted to them, followed by the judgment of the court upon their verdict, will be a bar to another action for the same cause or matter when the same evidence which is necessary to sustain the second suit, if it had been given in the former action, would have authorized a recovery therein. Where a general declara- tion embraces several causes of action, the plaintiff in a second suit may show that he offered no evidence as to one or more of those causes of action, and that the cause went to the jury upon a different part of his claim from that for which the second suit is brought. And then the judgment in the first action will be no bar to the second. But where he attempts to give evidence as to all the causes of ac- tion, and submits the question to the jury without withdrawing any part of his claim, and he fails as to the whole or a part, for want of sufficient proof, the defendant may insist upon the first Judgment as a bar if the same evidence which is sufficient to sustain the sec- ond suit would have authorized a recovery in the first action in case it had been produced upon the trial thereof.’ Stafford v. Clark, 1 Car. & P. 403; s.c. 9 J.B. Moore, 724; Ehle v. Bingham, 7 Barb. 494; Jones ». Weathersbee, 4 Strob. 50. 1See Lockyer v. Ferryman, 2 App. Cas. 519. 2 See e. g. Lockyer v. Ferryman, supra; Newington v. Levy, L. R. 5 C. P. 607; Hall ». Levy, L. R. 10 C. P. 154; Cromwell v. Sac, supra. 3 Dundas v. Waddell, 5 App. Cas. 249. 4Cromwell v. Sac, 94 U. 8. 351; Dowell v. Applegate, 152 U. 8. 327, 14 Sup. Ct. 611, 38 L. Ed. 463. See In re May, 28 Ch. D.’ 516, in regard to newly discovered evidence. [CHAP. III. 210 ESTOPPEL BY RECORD. issue in the first action, whether then at hand or not, may be used in another suit upon a different demand, though that de- mand be of the same nature and grow out of the same trans- action as the one first sued upon. A man may acquire different rights at the same time and by the same transaction, and, if his title is disputed to one of them in one suit, not make use of facts which would establish his title, without being precluded thereby from availing himself of such facts in a subsequent suit of the same sort touching his title to another of those things; though it would be otherwise if the facts were put in issue in the first suit.? Thus, in the recent case of Cromwell 2. Sac, an aetian = an innocent holder for value of municipal bonds (irregularly issued in fact) against the maker, it was held that the fact that the plaintiff had omitted in a former action upon other bonds of the defendant, issued at the same time and under the same circum- stances, to produce evidence that he was an innocent holder for value, whereby judgment went against him, would not pre- clude him in the present action from bringing forward such evi- dence in relation to the bonds now sued upon. The finding in the former case was merely to the effect that the plaintiff was not an innocent holder for value of the bonds then in litigation. That finding could not be extended beyond its necessary mean- ing; ® and this, it is apprehended, is universally true. And on 1Cromwell v. Sac, 94 U. S. 351; Davis: v. Brown, 94 U. 8. 423. See ante, pp. 169-173; Lumber Co. v. Buchtel, 101 U. S. 638; Penny v. Corey, 147 Ala, 617, 41 So. 978; Roberts v. Northern P. R. Co., 158 U.S. 1, 15 Sup. Ct. 756, 39 L. Ed. 83. So of defences to similar claims successively in suit between the same parties. Dennison v. United States, 168 U.S. 241, 18 Sup. Ct. 57, 42 L. Ed. 453. 2 McNutt v. Trogden, 29 W. Va. 469. The rights being different, there may be different causes of action touching them; and ‘ when the second cause of action between the same parties is upon a different cause of action from the first, then the judgment in the former action is conclusive only upon those issues which were actually tried and de- termined,’ not of all those which might have been tried. Foye »v. Patch, 1382 Mass. 105, 110; Crom- well v. Sac, supra; Nesbit v. River- side Indep. Dist. 144 U. S. 610, 12 Sup. Ct. 746, 36 L. Ed. 562; Dennison v. United States, 168 U.S. 241, 18 Sup. Ct. 57, 42 L. Ed. 453. 3See Bissell v. Spring Valley, 124 U. S. 225; and further, as to Cromwell v. Sac, see Wilson v. Deen, 121 U. S. 525. ‘Stewart v. Lansing, 104 U. S. 505, 510. SECT. III.] JUDGMENTS IN PERSONAM. 211 the other hand, for the same reason, the fact that the plaintiff was found to be a holder for value of the bonds or coupons thereof in the first suit will not establish the fact that he is such a holder in the second.? It is laid down that a second action cannot be maintained upon evidence once offered and rejected as inadmissible in the trial of a like action between the parties where the plaintiff has allowed the case to go to a general judgment against him, though the evidence would otherwise be admissible in the second action. In Smith ». Whiting,? the plaintiff having brought an action for money had and received, the defendant pleaded a verdict in favor of the plaintiff in a former action be- tween the same parties for the same demand. The plaintiff re- plied 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 intro- duce 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 was paid at the defendant’s request; which fact was not in evidence. The replication was demurred to, and the demurrer was sus- tained. 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 evi- dence 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. It was true that the cases of Ravee v. Farmer * and Golightly »v. Jellicoe * had es- tablished the principle that where a demand had not been sub- mitted, it should not be barred by an award or report on a rule or submission of all demands. But in those cases no evidence was offered to support the demand made the subject of the sec- ond suit; while in the present case the very evidence now relied 1 Stewart v. Lansing, supra. 347. R. 146. 211 Mass. 445. 4 Tbid. in note. [CHAP. III. 212 ESTOPPEL BY RECORD. upon was offered, and an adjudication had upon it. The plain- tiff should have stricken out the count in question. On the other hand, where evidence of a set-off is excluded in a suit at law and judgment given for the plaintiff, this is not an adjudica- tion of the matter of set-off so as to prevent the party from en- forcing it in chancery, though it would be otherwise if the law court had actually passed upon the merits of the set-off.1 Nor does it affect the case that the existence of certain mate- rial evidence was unknown at the time of the former trial; this is only a matter of the sufficiency of evidence already spoken of.? That an action cannot be, maintained to recover money paid under a judgment, by reason of the subsequent discovery of evidence showing that the judgment should never have been obtained,® was decided as long ago as in the year 1797 in the well-known case of Marriott ». Hampton.‘ Though the contrary doctrine of Moses v. Macferlan, just cited, has been followed in one or two cases,* the rule above stated in Marriott v. Hampton 1 Hobbs »v. Duff, 23 Cal. 598. Comp. ante, p. 64. 2 Supra, p. 209. 3Tt is not necessary now that a judgment should have been ob- tained; money paid under legal process cannot be recovered back. If a man will pay before judgment against him, he is bound, whether he made a mistake or not. Moore v. Fulham, (1895) 1 Q. B. 399, C. A., citing many cases. 47 T. R. 269, overruling Moses v. Macferlan, 2 Burr. 1005. ‘I am afraid,’ said Lord Kenyon, “of such a precedent. If this action could be maintained, I know not what cause of action could ever be at rest. After a re- covery by process of law there must be an end of litigation; otherwise there would be no security for any person. I cannot, therefore, con- sent even to grant a rule to show cause, lest it should seem to imply a doubt. It often happens that new trials are applied for on the ground of evidence supposed to have been discovered after the trial, and they are as often refused; but this goes much further.’ Of course no action can be maintained to recover part of a sum of money adjudged to be paid, on the ground that such part was plainly in excess of what was due. Stempel ». Thomas, 89 Ill. 146. Indeed, it is held that where pending suit money is paid in settlement of a disputed claim, it cannot be recovered back, though the suit result in favor of the party who paid it. Dawson v. Mann, 49 Iowa, 596. 5 Lazell v. Miller, 15 Mass. 207; Smith v. McCluskey, 45 Barb. 610. The plaintiff is not estopped in an action for money had and received from collections made by the de- fendant, by a judgment for the defendant in a former suit upon a special contract to recover the same sum, if the only question submitted in the former action was concerning the special con- s SECT. III.] JUDGMENTS IN PERSONAM. 213 is now considered as well settled. But a distinction has been made in the case of money obtained by extortion under color of 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 recov- ered the money of the plaintiff? Itis. 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.’ In the case of one who is possessed of cumulative securities for debt the holder is entitled to as many judgments as he has distinct securities; though he will not be able to claim more than one satisfaction of his debt. Such a case arose in Butler ». Miller. That was an action of trover for property conveyed. to the plaintiffs by chattel mortgage. The defence was a judg- ment confessed by the mortgagor to the mortgagee for the debt secured by the chattel mortgage. But it appeared in evidence that it had been agreed that the judgment should be taken as collateral 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. On 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 per- sonal 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 by a perform- tract. Gage v. Holmes, 12 Gray, 2 Cadaval v. Collins, 6 Nev. & 428. M. 330; s. c. 2 Harr. & W. 54. 1 Huffer ». Allen, L. R. 2 Ex. 3 Marriott v. Hampton, 7 T. R. 14; Kirklan v. Brown, 4 Humph. 269; Snowdon v. Davis, 1 Taunt. 174; Flint v. Bodge, 10 Allen, 128; 359; Knibbs v. Hall, 1 Esp. 84; In re May, 28 Ch. D. 516. See Brown v. McKinally, ib. 279. Caird v. Moss, 33 Ch. D. 22, C. A. 41 Comst. 496; s.c. 1 Denio,407. 214 ESTOPPEL BY RECORD. [CHAP. III. ance of the condition. If, then, a judgment upon the original debt would not extinguish a collateral security for its payment upon real estate, he could not see how it could divest a title to personal property acquired by purchase. Although it was clear 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 all collateral remedies remained. The rule that a security of a higher nature extin- guished 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, ora judgment taken upon either, the debt in its original or inferior condition was extinguished or swallowed up in the higher se- curity; 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 extinguishment of distinct collateral securities, whether superior or inferior in degree. These were only to be cancelled by satisfaction or vol- untary surrender.’ In Storer v. Storer? 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 de- fendants 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 in regard to which no exe- cution had issued. The court, however, held the action proper; the ground being that the two remedies were merely cumu- lative. 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 * turned upon the same point. 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 1See also Butler v. Miller, 5 (1895) 1 Q. B. 108, follows this Denio, 159. Compare ante, p. 116. case. It disapproves Cambefort v. 26 Mass. 390. Chapman, 19 Q. B. D. 229, and 33 East, 251. Prosser v. Evans, holds that Kendall v. Hamilton, (1894) 2 Q. B. 101, affirmed in 4 A.C. does not apply. ? SECT. I11.] JUDGMENTS IN PERSONAM. 215 note and bill of exchange in part satisfaction of the rent, and that this, not having 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 payment and in satisfaction of the debt, but did not aver that it had been so accepted; nor did it allege that the note had produced a satis- faction in point of fact. The plaintiff demurred to the plea; and the demurrer was sustained.! On the other hand, as follows from what has been stated on previous pages, the law will not permit a party who has re- covered in one action (whether of contract or of tort) a portion of an entire demand, to make the residue of it the subject of another suit.?, And it is immaterial whether the failure to sue 1Lord Ellenborough said: ‘I have always understood the prin- ciple of transit in rem judicatam to relate only to the particular cause of action in which the judg- ment is recovered operating as a change of remedy from its being of a higher nature than before. But a judgment recovered in any form of action is still but a security for the original cause of action until it be made productive in satisfac- tion to the party; and therefore till then it cannot operate to change any other collateral con- current 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 satisfaction of his debt; but it is not stated here that the note and bill were accepted in satisfaction, and in themselves they cannot operate as such until the party has received the fruits of them. And then, although they were not orig- inally given in satisfaction of the higher demand, yet, ultimately pro- ducing satisfaction, it would be a bar to so much of the demand.’ ‘ Le Blane, J. said: ‘ The giving of another security, which in itself would not operate as an extinguish- ment of the original one, cannot operate as such by being pursued to judgment unless it produce the fruit of a judgment.’ Lawrence, J.: ‘The judgment recovered on the bill is in itself no satisfaction until payment be obtained upon it.’ 2 Davies v. New York, 73 N. Y. 250; Bancroft v. Winspear, 44 Barb. 209; Stark »v. Starr, 94 U. S. 477, 485; Baird v. United States, 96 U. S. 480; Berringer v. Payne, 68 Ala. 154; Burritt v. Belfy, 47 Conn. 323; Marlborough »v. Sisson, 31 Conn. 332; Pinney v. Barnes, 17 Conn. 420; Smith v. Jones, 15 Johns. 229; Willard v. Sperry, 16 Johns. 121; Phillips v. Berick, ib. 136; Miller v. Covert, 1 Wend. 487; Nathans v. Hope, 77 N. Y. 420; O’Dougherty v. Remington Paper Co., 81 N. Y. 496; Guernsey v. Carver, 8 Wend. 492; Bendernagle v. Cocks, 19 Wend. 207; Fish v. ‘Folley, 6 Hill, 54; Marble v. Keyes, 9 Gray, 221; Warren v. Comings, 6 Cush. 103; Stein v. Prairie Rose, 17 Ohio St. 471; Erwin v. Lynn, 16 Ohio St. 539; South Alabama’ R. Co. v. Henlein, 56 Ala. 368; Oliver v. Holt, 11 Ala. 574; O’Neal »v. 216 ESTOPPEL BY RECORD. [CHAP. III. for the entire demand was intentional or the result of mistake.! An action was brought in Pennsylvania ? for failing to accept a Brown, 21 Ala. 482; Thisler ». Miller, 53 Kan. 515, 36 P. 1060, 42 A. S. R. 302; Pilcher v. Ligon, 91 Ky. 228, 15 S. W. 513; Chesapeake & O. Ry. Co. v. Kleymeier, 105 Ky. 609, 49 S. W. 484: Pomeroy v. Prescott, 106 Me. 401, 76 A. 898, 138 A. S. R. 347. This is not true ‘in the case of contracts for services where the employer prevents per- formance; the injured party being permitted to sue for his wages as they become due, from time to time, in separate actions. Thomp- son v. Wood, 1 Hilt. 93. See Goodman v. Pocock, 15 Q. B. 576; Planché v. Colburn, 8 Bing. 14; Derby v. Johnson, 21 Vt. 17; Moul- ton v. Trask, 9 Met. 577; Wilhelm v. Caul, 2 Watts & S. 26. So, a party may make a voluntary com- promise or satisfaction of his claim in the course of an action embracing only part of an entire demand, with- out merging the whole. O’Beirne v. Lloyd, 43 N. Y. 248. This subject was considered by Mr. Justice Dewey in delivering the opinion of the court in Goodrich »v. Yale, 8 Allen, 454. ‘In what cases,’ he says, ‘a former judgment 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 diffi- culty 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 subject of inquiry belongs. A suit and judgment thereon for the same cause of action are said to be absolutely conclusive as a bar to a second action. But it 1 Wickersham v. Whedon, 33 Mo. 561. See United States v, Cal- ifornia & O. Land Co., 192 U. 8. is equally true that the mere fact that the plaintiff has in his former 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 for one of the causes set forth in the former. Thus, in Seddon v. Tutop, 6 T. R. 607, where the plaintiff in the former action had in different counts declared on a promissory note and for goods sold, and the defendant being de- faulted the plaintiff, upon executing his writ of inquiry, gave no evi- dence on the count for goods sold and took his damages for the prom- issory note only, it was held that the judgment was no bar to his re- covering in a subsequent action for the goods sold. But in that case there were two distinct de- mands set forth in distinct counts and not in the least blended to- gether. It is also true, as held in the case of White v. Moseley, 8 Pick. 356, that where there are distinct torts, committed consecu- tively, but in different localities, and the plaintiff institutes his — action for one only, such former suit and judgment thereon, although the action might properly have embraced both the torts, yet con- stitutes 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 in a civil suit upon a certain alleged cause of action is conclusive upon the parties in relation to it, and that another suit for the same cause 355, 24 Sup. Ct. 266, 48 L. Ed. 476. 2 Carvill ». Garrigues, 5 Barr, 152. SECT. III] JUDGMENTS IN PERSONAM. 217 residue of certain goods under an entire contract; and the de- fence was that the plaintiff had brought an action for the other cannot be maintained for any pur- pose whatever. In that case the subjects of damages in the different actions were wholly distinct, the one 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 of the house; but the loss of each was caused by the same tortious act, and one recovery for any part of the damages caused by such act was held 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 plain- tiff to subject the defendants to the hazard and expense of another suit to obtain an advantage which he lost either by his own careless- ness and neglect, or by an inten- tional withholding of a part of his proof.” The inquiry is, Under which, if either, of these classes does the present case fall? It certainly differs from the case of Seddon ». 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 damages on one of several distinct counts for acknowledged distinct causes of action; and if he does 80, a judgment for damages upon the other causes of action will not bar a second suit for the causes of action for which no damages were assessed. . . . The case before us differs from White v. Moseley, 8 Pick. 356, in the fact that there the particular tort, the subject of the second action, was not em- braced 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 committed on different local- ities, the one on the premises of the plaintiff, and the other not. That case came before the court under very peculiar circumstances. The plaintiff had in the trial of his former suit insisted upon his right to recover damages for the cause of action set up in the second suit; but the defendant opposing it upon the ground that the alleged trespass quare clausum 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 not ad- mnissible, it being a distinct cause of action. White v. Moseley, 5 Pick. 230. In the trial of the second action the ruling maintaining it was based entirely upon the assump- tion that the acts of the defendants were separate torts, and therefore constituted more than one cause of action. The inquiry, therefore, will be whether the present case, differing as it does from Seddon v. 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 action, comes within the principle there decided. The like inquiry will also arise as to the effect of the difference in the cir- cumstances we have alluded to, in the case of White v. Moseley, in distinguishing 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 Trask v. Hartford and New Haven Rail- road, which is abundantly sus- 218 ESTOPPEL BY RECORD. [CHAP. III. portion of the goods, and recovered judgment and received full satisfaction. This was held a good defence; the ground being tained by other authorities, would be decisive 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 pro- ceedings in the two actions. We turn, therefore, to the declaration in the first action. We find there that the tort complained of was that on divers days the defendant entered upon the real estate of the plaintifis without right and raised the gates of their dam, and caused the water to flow down and waste their reservoir, and at times to flood their mill, and then by shut- ting 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 defendant so treated the same, denying the allegation that he had entered upon the plaintiffs’ real estate without right, and denying all the acts al- leged as wrongs connected with the trespass. Upon the issues thus joined that case, as appeared. by the .copy of the record, was referred to the assessors, ‘“‘to assess the damages occasioned to the plain- tiffs by the raising of the gate in the reservoir dam, and make report thereof to the court.” They did subsequently report that the dam- ages sustained by the plaintiffs in this case amounted to the sum of $125, and judgment was thereupon 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 assess- ors this specific ground of damage, and did not direct them to assess damages for shutting down the plaintiffs’ gate. This is true; but it is equally true that they did not direct the assessors to assess dam- ages for causing the water to flow down and waste their reservoir, and at times flood their mill, all of which were alleged as injuries. The order seems to have first de- clared a reference of the case. Then follows an imperfect description of the alleged causes of damages. There is no apparent reason for naming 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 plaintiffs’ alleged grievances. But if it were to be taken that the assessors only reported upon one of the alleged facts, it is quite clear that it was open to the plain- tiffs to ask for a recommittal for that cause, and under an enlarged rule. But the plaintiffs were con- tent to take these damages as the damages for the entire trespasses that were set forth in their declara- tion. 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 presented by the plaintiffs on the record, is one and the same. The grievance com- plained of was an illegal entry upon the plaintiffs’ land, and by various acts . . . rendering their mill value- less. The particular acts causing the damage to the mill are not set forth, as connected with a sep- arate entry, but as a series of acts all of which are combined as causing the injury to the mill. It is true that the declaration does not re- strict them to the proof of a single entry; but it does connect all these SECT. 111.] JUDGMENTS IN PERSONAM. 219 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.! The case is different, it has been held, where there has been a fraudulent concealment of part of the cause of action by the defendant.” In the case cited the facts were that an insurance company had taken a bond from their agent for the faithful performance of his duties. Judgment having been recovered upon the bond for money unaccounted for, a scire facias was issued, assigning as a further breach that the agent had before the judgment received a further sum for which he failed to account, the receipt of which he had fraudulently concealed. Upon demurrer the court held that this concealment justified the company in not presenting the sum in the original proceed- ing. It would seem that this decision might also rest on the ground that the scire facias was a mere continuance of the original action, and not an independent collateral proceeding.’ Difficulty concerning what is an entire demand often arises; and this is particularly true with regard to cases where there are running accounts for goods sold, money lent or paid, or labor performed at different times; or where there is but one contract with stipulations for payments or acts to be done at different times. With reference to this difficulty it has been laid down that the true distinction between entire and distinct demands is that the one kind arises out of one and the same act or contract, while the other kind arises out of different acts or contracts. Every trespass, conversion, or fraud gives one right acts with each and every entry. It fails to state them as separate causes of action, or to allege them to have occurred at different times.’ 1Smith v. Jones, 15 Johns. 229; Farrington v. Payne, ib. 431. 2 Johnson v. Provincial Ins. Co., 12 Mich. 216. But see McCaffrey v. Carter, 125 Mass. 330. Lord, ' J. at p. 330: ‘The cause of action (and the plaintiff had but one cause of action) was not concealed. The plaintiff knew its existence, brought his action upon it, recovered judg- ment, and that judgment was satis- fied. The fraud was in preventing the plaintiff from proving in that case the full extent of his damages.’ But can such fraud be beyond remedy? 3 Eldred v. Hazlett, 38 Penn. St. 16. ‘The revival of the original judgment [by scire facias] is but a continuation of it.’ Ibid. at p. 32. Post, p. 295. 4 Burritt v. Belfy, 47 Conn. 323. « 220 ESTOPPEL BY RECORD. [CHAP. III. f of action and one only, however numerous the items of damage. So, every agreement express or implied affords one and but one action. Nor is the case of a contract containing several stipu- lations an exception, for each stipulation is in the nature of a distinct agreement.! And a contract to do several things at dif- ferent times is by the better opinion a divisible contract, allow- ing separate judgments.? So it is said that when the part of a contract to be performed by the one party consists of several distinct and separate items, and the price to be paid by the other is set against each item to be performed, or left to be in- ferred by law, the contract will generally be treated as sever- able? But it is not enough that goods bought are bought by weight or measure, a price being fixed to the pound, yard, or bushel, to entitle the vendor to bring more than one action.‘ Remittent or even constant and continuous tort obviously stands upon a different footing; an action may, as we have seen, be maintained for a continuance of the wrong after a former judgment as well as for any other distinct offence not already barred by judgment.® Such is not a case of continuing damage flowing from one and the same tort; it is a new tort. 1Secor v. Sturgis, 16 N. Y. 548; Burritt v. Belfy, 47 Conn. 323. 2 Burritt v. Belfy, supra; Woods v. Russell, 5 Barn. & Ald. 942; Denny v. Williams, 5 Allen, 1, 4; ° Knight ». New England Worsted Co., 2 Cush. 271; Perry v. Harring- ton, 2 Met. 368; Badger »v. Tit- comb, 15 Pick. 409, denying Guern- sey v. Carver, 8 Wend. 492, which holds that a running contract for goods sold at different times if all are unpaid for is an entire demand and not severable. This last de- cision is reaffirmed in Bendernagle v. Cocks, 19 Wend. 207. See also Bancroft v. Winspear, 44 Barb. 209; Andrews v. Durant, 1 Kern. 35; Campbell Printing Co. v. Walker, 114 N. Y. 7. The case of Colvin v. Corwin, 15 Wend. 557, holding that purchase by the defendant of lottery tickets at two different times and places from two different agents of the plaintiff constituted but one entire demand, is overruled by Secor v. Sturgis, 16 N. Y. 548, and Guernsey v. Carver, somewhat modified. See Burritt »v. Belfy, supra. 32 Parsons, Contracts, 517; ci- ting especially Johnson v. Johnson, 3 Bos. & P. 162; Mayfield ». Wadsley, 3 Barn. & C. 357; Robinson ». Green, 3 Met. 159; and generally Mayor »v. Pyne, 3 Bing. 285; Perkins v. Hart, 11 Wheat. 237, 251; Withers v. Reynolds, 2 Bam. & Ald. 882; Sickels ». Patterson, 14 Wend. 257; McKnight v. Dunlop, 4 Barb. 36, 47; Snook v. Fries, 19 Barb. 313; Carleton v. Woods, 28 N. H. 290; Robinson »v. Snyder, 25 Penn. St. 203. 42 Parsons, Contracts, 519; Clark v. Baker, 5 Met. 452. “6 Ante, pp. 189-193; Kilheffer v. Herr, 17 Serg. & R. 319; Smith SECT. 1I.] JUDGMENTS IN PERSONAM. 221 The plaintiff in a judgment by default cannot prevent the de- fendant from bringing suit by volunteering his case and allow- ing him a partial credit for a separate claim.’ In the case cited the plaintiff sued for goods sold and delivered; the defence was that the goods had been credited by the present defendant in an account annexed to a writ sued by him against the present plaintiff before the commencement of this action, in which for- mer suit judgment had been rendered by default. The plaintiff desired to prove in the court below that the amount thus cred- ited 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 judgment reversed. Mr. Justice Wilde, referring to the argument that the evidence offered would tend to impeach the former judgment, said that the maxim ‘ judicium semper pro veritate accipitur’ did not apply. The defendant in the former suit was not bound to avail himself of the plain- tiff’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 contended for would often be 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 demand against A $30. If A sues B, and credits B’s demand of $30 at only $15, how upon the principles advanced by 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. Entries lawfully made of record after judgment, and having relation thereto, have a like conclusive effect with the record of the judgment itself.2 Thus, when a purchaser under judicial v. Elliott, 9 Barr, 345; both cases 1 Minor v. Walter, 17 Mass. 237. being actions for continuance of a 2 But where a creditor garnisheed nuisance, after a judgment indam- debts due his debtor, who was ad- ages for an earlier stage of thesame. judged a bankrupt within four f 222 ESTOPPEL BY RECORD. [CHAP. III. sale obtains an extension of time for payment and has the same duly entered of record, he will be concluded against alleging payment as having been made at the time of such entry.? We have elsewhere remarked that the estoppel is not to be evaded by changing the form of action from that employed in the first suit.2. In Slade’s Case it was resolved by all the jus- tices and barons of England, ‘ after many conferences,’ in the language of Lord Coke, that the plaintiff 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; s0 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 of the same matter for which the action of trover was brought.’ And this shows that the form of ac- tion may in some instances be changed where the cause of ac- tion remains substantially the same, without the fear of a plea in bar. The circumstances under which this may be done would seem to be where it cannot be certainly known that the verdict and judgment in the former 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 the trustee. Hutchinson v. Otis, 190 U. S. 552, 23 Sup. Ct. 778, 47 L. Ed. 1179. months thereafter, and the creditor meanwhile obtained judgment and made entry of record that the judgment was satisfied, he having received payment of the garnishee, upon guaranty against loss to the garnishee, and trustee in bankruptcy demanded payment of the debts from the garnishee, whereupon the creditor paid over the funds, it was held that the action of the trustee undid the satisfaction of record, and it would not bar the creditor from proving his claim against the estate in the hands of # 1 Haralson v. George, 56 Ala. 295. «Ante, p. 96; Slade’s Case, 4 Coke, 92 b, 94 b; Stowell v. Cham- berlain, 60 N. Y. 272; Taylor ». Castle, 42 Cal. 367; Ware ». Percival, 61 Maine, 391; Hatch v. Coddington, 32 Maine, 92; Hardin v. Palmerlee, 28 Minn. 450. § Hitchin v. Campbell, 3 Wils. 240; Buckland v. Johnson, 15 C. B. 145; s. c. 26 Eng. L. & E. 328. SECT. III] JUDGMENTS IN PERSONAM. 223 in the second action, will have no effect, and a plea of the former trial will be an absolute bar to a new suit;+ 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.2 So, where a defendant has pleaded a matter in set-off which has been adjudicated against him, he cannot afterwards, as we have seen, make it the subject of an action.’ Nor will it change the effect of a former judgment that an- other matter has been added to the ground of complaint, if the original ground is presented also; * parol evidence being admissible, if necessary, to show what was decided in the for- mer suit.5 In the case first cited a former suit for judicial separation had been dismissed, in which the ground of com- plaint 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 matri- mony. But the court held the former decree a bar against the charge of cruelty. It is a general principle too that a party or privy cannot re- litigate in a collateral action in chancery a matter adjudicated in a court of law.6 The point has been frequently so decided.” The case first cited was this in brief: The defendant’s testator 1 Routledge v. Hislop, 2 El. & C. E. Green, 417; Baldwin ». E. 549. 2 Jones v. Richardson, 5 Met. 247. 3Eastmure v. Laws, 5 Bing. N. C. 444; ante, p. 194. ‘Finney v. Finney, L. R. 1 P. & D. 483; Wilson v. Deen, 121 U. S. 525. 5 Wilson v. Deen, supra. See ante, p. 97. 6So e converso. Clark v. Wiles, 54 Mich. 323; ante, p. 110. * Hendrickson v. Norcross, 4 McCrea, 38 Ga. 650; Broda ». Greenwald, 66 Ala. 538 (judgment on an account stated between parties, followed by an attempt in equity to surcharge and falsify); Strang v. Moog, 72 Ala. 460; We- tumpka v. Wetumpka Wharf Co., 63 Ala. 611; Alabama Warehouse Co. v. Jones, 62 Ala. 550; Mayor v. Lord, 9 Wall. 409; Tilson ». Davis, 32 Gratt. 92, 104. 224 ESTOPPEL BY RECORD. [CHAP. III. had bought land 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 con- veyed 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 com- pel the executors to convey to him; the ground being that the levy on the land and the sale were unauthorized. The suit was dismissed. The court said it was possible that the plain- tiffs in the suit at law were not entitled to a levy on the land; but the defendant, the complainant’s grantor, was duly served with notice in that action, and having allowed judgment to go against the land, he could not now disturb the sale in this col- lateral way. Judgment at law has, however, no effect in equity in regard to matters relating to the same cause, if cognizable only in a court of equity. Thus, judgment at law against the validity of an instrument as a deed, for want of delivery, will not shut off resort to equity to enforce it as a contract to convey.” So, if there be equitable defences to an action at law which were not available there, such as part performance to an action of ejectment,® or if facts existed of which a party was prevented from availing himself by fraud, or by accident unmixed with negligence on his part, he will be entitled to have any judgment rendered against him at law enjoined; * if, on the other hand, the defence in question could by exercise of reasonable dili- gence have been made at law, no injunction will be granted.® 1Jenkins v. Harrison, 66 Ala. 345; Yarborough v. Avant, ib. 526; Wetumpka v. Wetumpka Wharf Co., 63 Ala. 611; Parker v. Judges, 12 Wheat. 561; Burn v. Carvalho, 4 Mylne & C. 690. 2 Jenkins v. Harrison, 66 Ala. 345. 3 Yarborough v. Avant, 66 Ala. 526. See Pendleton v. Dalton, 92 N. Car. 185 (dismissal of bill for specific performance no bar to re- covery of money paid on contract or purchase); Beere v. Fleming, 13 Ir. C. L. 506; ante, p. 64: 4Embrey v. Palmer, 107 U. S. 8, 11; Hendrickson v. Hinckley, 17 How. 443; Marine Ins. Co. ». Hodgson, 7 Cranch, 332; Pearce v. Olney, 20 Conn. 544; Dobson »v. Pearce, 12 N. Y. 156. But an issue of fraud tried at law is conclusive in equity. Wilkins v. Judge, 14 Ala. 135. See Strang v. Moog, 72 Ala. 460. 5Embrey v. Palmer, supra; Phosphate Sewage Co. v. Malleson, 4 App. Cas. 801, 814; Dundas ». Waddell, 5 App. Cas. 249. SECT. IVv.] JUDGMENTS IN PERSONAM. 225 Finally, judgments do not affect after-acquired rights; the right must have been in existence so as to have been drawn in issue at the time of the suit.1_ But that, of course, is not saying that parties not then in existence may not be bound. § 4. Collateral Impeachment of Judgments. Having completed the consideration of the first three divi- sions of domestic judgments, we come now to the fourth, in which it is intended to show under what circumstances and in what particulars a domestic judgment is liable to impeachment in a collateral action; an action, that is to say, not begun for the purpose of annulling or enjoining the execution of the judgment.? We have already seen that strangers may impeach judgments in collateral actions; we are now to ascertain if parties, or those who might have been parties, ever have the like privilege. The only grounds upon which a judgment can be impeached in a collateral action are, want of jurisdiction and fraud. First, then, of contesting the jurisdiction. In the case of judgments of the superior courts parties who have had an opportunity to be heard (and such only*), and their privies,® are, in general, according to most of the author- ities, held estopped in collateral actions to deny the jurisdic- 1 Wisconsin v. Torinus, 28 Minn. a collateral proceeding. See cases 175, 180; Newington v. Levy, L. R.7C. P. 180; ante, p. 87, in regard to partition. See United States v. California & O. Land Co., 192 U. 8: 355, 24 Sup. Ct. 266, 48 L. Ed. 476; Butter v. Butter, (1893) P. D. 185, (1894) P. D, 25, C. A., was for di- vorce for adultery. There had been previous findings of adultery, cruelty and collusion against the petitioner, but he was allowed to show that the collusion was not in regard to the present petition, and that the circumstances were such as should induce the court to grant relief notwithstanding the adultery and cruelty. 2 A suit to recover back money paid under a judgment is of course ante, pp. 201, 202. 3 They cannot do so in a direct proceeding. In re Burdick, 162 Ill. 48, 44 N. E. 413. 4McCoy v. McCoy, 29 W. Va. 794, 807; Haymond ». Camden, 22 W. Va. 182; Stevens v. Brown, 24 W. Va. 236; Underwood ». MeVeigh, 23 Gratt. 409. 5 Who are meant by parties and privies has been seen ante, pp. 127- 129 (parties), 158-161 (privies). Strangers, not interested legally in the cause at the time of the for- mer trial, cannot impeach the judg- ment, in the absence of fraud upon them. Wilcher v. Robertson, 78 Va. 602, non-resident. See ante, p. 49. 226 ESTOPPEL BY RECORD. [CHAP. III. tion 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 presumption that the steps required of the plaintiff to obtain jurisdiction over residents ? were taken; as, for in- stance, that due service or publication was made, or appearance entered. But there is authority for the position that the pre- sumption is not conclusive, if the plaintiff 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.’ 1Plume v. Howard Inst., 46 N. J. 211; Morse v. Presby, 25 N. H. 299; Carleton v. Washington Ins. Co., 35 N. H. 162; Wingate v. Haywood, 40 N. H. 437; Wandling v. Straw, 25 W. Va. 692; Penobscot R. Co, v. Weeks, 52 Maine, 456; Mercier v. Chace, 9 Allen, 242; Lantz v. Maffett, 102 Ind. 23; Wiley v. Pratt, 23 Ind. 628; Coit v. Haven, 30 Cont. 190, and cases cited; Pardon v. Dwire, 23 Ill. 572; Clark v. Bryan, 16 Md. 171; Callen v. Ellison, 13 Ohio St. 446; Kennedy v. Georgia Bank, 8 How. 586; Crim ». Kessing, 89 Cal. 478, 26 P. 1074, 23 A. S. R. 491; Treat v. Maxwell, 82 Me. 76, 19 A. 98; Riverdale Cotton Mills v. Alabama Mfg. Co., 198 U. S. 188, 25 Sup. Ct. 629, 49 L. Ed. 1808; McCormick v. Sullivant, 10 Wheat. 192, holding the same to be true of the United States courts, as not being courts of inferior jurisdiction. Contra, in New York. Ferguson v. Crawford, 70 N. Y. 253. And in principle this appears to be right. A decision is a judgment if the court had jurisdiction, otherwise not. Hence the jurisdiction ought always to be open to inquiry. This result has been reached with regard to judgments rendered in a sister state. Thompson v. Whitman, 18 Wall. 457. See chapter 6. An attorney of record, who represented the plaintiff by bringing suit and taking judgment for him, cannot urge on his own behalf as a creditor the invalidity of such judgment for want .of process. Kennedy ». Redwine, 59 Ga. 327. See Jones ». Hawkins, 60 Ga. 52, 56; King v. Penn, 43 Ohio St. 57. But that is not estoppel by record. Consent cannot give jurisdiction, but an ad- mission or a statement of facts may; which when acted upon will work an estoppel. Railway Co. v. Ramsey, 22 Wall. 322, 327; Thornton v. Baker, 15 R. I. 553, 555. 2? There is no such presumption in regard. to non-resident defendants. Thompson v. Whitman, 18 Wall. 457. See next chapter. It must be remembered that citizens and residents of the state are bound by its laws in regard to modes of: acquiring jurisdiction. See In re Union R. Co. 112 N. Y. 61; Schibsby v. Westenholz, L. R. 6 Q. B. 155; Rousillon v. Rousillon, 14 Ch. D. 351. ® Griffith v. Clarke, 18 Md. 457; Moore v. Toppan, 3 Gray, 411; Whitney »v. Porter, 23 Hl. 445; SECT. Iv.] JUDGMENTS IN PERSONAM. 227 The presumption of jurisdiction just mentioned prevails, however, only in regard to judgments of the superior courts 4 in proceedings carried on according to the course of the com- mon law. In the case of proceedings not according to the common law, at least in regard to jurisdiction, a different doc- trine is generally held to prevail. It was laid down, however, in a California case,” that if the record of such a court averred nothing indicating a want of jurisdiction, the same presump- tion would arise as in proceedings in accordance with the common law. But that case has been. overruled;? and, in- deed, the weight of authority is clearly the other way,‘ unless there is ground for a distinction based upon the fact that the general powers of the court, and not merely its mode of ac- ' Graham »v. Long, 65 Penn. St. 383. Contra, Hortman v. Osgood, 54 Penn. St. 120; Simmons v. McKay, 5 Bush, 25; Blake v. Douglass, 27 Ind. 416. This point is considered ante, pp. 130-133. 1See Mulligan v. Smith, 59 Cal. 206, 233. 2 Hahn v. Kelly, 34 Cal. 391. 3 Belcher v. Chambers, 53 Cal. 635. 4Galpin v. Page, 18 Wall. 350; Morse v. Presby, 25 N. H. 299; Carleton ». Washington Ins. Co., 35 N. H. 162; Embury »v. Conner, 3 Comst. 511; Huntington »v. Char- lotte, 15 Vt. 46; Clark v. Bryan, 16 Md. 171; Bumstead v. Read, 31 Barb. 661; Arthur v. State, 22 Ala. 61; Harris v. Hardeman, 14 How. 334. But see Tibbs v. Allen, 27 Til. 119. 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 publication. So Falkner v. Guild, 10 Wis. 563, also a case of statutory proceedings, but involved in a collateral action. Paine, J. speak- ing for the court, said: ‘ The general rule in respect to such courts [superior courts] is, at all events where jurisdiction appears, that though the record does not show everything 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 collaterally. 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 general jurisdiction. But without ‘entering into the inextricable laby- rinth of cases on the subject we will only say that we can see upon principle no reason for the distinc- tion. 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 com- mon law. I cannot see that a differ- ence in the source of its authority to act can make any rational dis- tinction as to the presumption in favor of the regularity of its action.’ See also Langworthy »v. Baker, 23 Ill. 484. [cHaP. II. 228 ESTOPPEL BY RECORD. quiring jurisdiction, are limited. But it is very doubtful if any such distinction can be properly made; for the court is still presided over by men skilled in the law, and its pro- ceedings are still had with deliberation and solemnity. In- deed, it has been laid down as well settled that the judgments of courts of superior jurisdiction, while acting within statutory limits, are open to examination where all things necessary to the jurisdiction do not appear on the record; and that everything 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 in the matter of obtaining jurisdiction 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.’ And the English Court of Admiralty is an inferior court in this respect.2 But the federal courts of the United States do not belong to this class. If all the facts necessary to give the court jurisdiction are spread upon the record, these may per- haps be taken to be conclusive in the courts of the same state.* In all cases, on the other hand, where the record taken together shows affirmatively that the court had not jurisdiction of the cause, that is, where the record contains express averments 1Carleton v. Washington Ins. Co., 35 N. H. 162, 167; Morse v. Presby, 25 N. H. 299, 302, and cases cited. Comp. Commonwealth v. Blood, 97 Mass. 538; Croswell, Executors, §§ 13-26. 2 Rowley v. 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 v. Howard, 30 Maine, 422; Lewis vy. Allred, 57 Ala. 628; Todd ». Flournoy, 56 Ala. 99, 112; Jones v. Ritter, ib. 270, 280. It appears to be necessary in Alabama for the record to show that the inferior court had jurisdiction. See the cases just cited. 3 Harris v. Willis, 15 C. B. 709. In this case it was held that a plea of a judgment in admiralty, ‘ after due proceedings had,’ and ‘in due form of law,’ was insufficient to show that the court had jurisdic- tion. 4McCormick v. Sullivant, 10 Wheat. 192; Wandling »v. Straw, 25 W. Va. 692. ; 5 Secombe v. Railroad Co., 23 Wall. 108. But recitals of juris- diction are at best only prima facie evidence in any case in New York. Ferguson v. Crawford, 70 N. Y. 253; Case Threshing Mach. Co. ». Pederson, 6 8. D. 140, 60 N. W. 747. SECT. Iv.] JUDGMENTS IN PERSONAM. 229 respecting jurisdictional facts which show that in law juris- diction was not acquired, the judgment is null and void.! And this is true, though the party impeaching the judgment for want of jurisdiction be the one who instituted the proceedings alleged to be void.2, But when the original proceedings were properly commenced, and jurisdiction obtained by the attach- ment of property in the hands of a trustee (garnishee), a defect in the notice that should subsequently be given to the principal defendant is not such an irregularity as will render the judg- ment 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 perhaps subject to the following qualification: If the inferior court has, on general appearance of the parties, passed upon the jurisdictional facts and found them sufficient, and the record is consistent with the finding, the parties and their privies have by some courts, but not by all, been deemed estopped in collateral actions in the same state * to litigate the matter again.® 1 Penobscot R. Co. v. Weeks, 52 Maine, 456; Parish v. Parish, 32 Ga. 653; Mayo v. Ah Loy, 32 Cal. 477; Mercier v. Chace, 9 Allen, 242; Bruce v. Cloutman, 45 N. H. 37; Gay v. Smith, 38 N. H. 171. 2 Mercier v. Chace, 9 Allen, 242. ’Carleton v. Washington Ins. Co., 35 N. H. 162, explained in Bruce v. Cloutman, 45 N. H. 37. 4 But as to non-residents it is ex- tremely doubtful whether any ad- judication of jurisdiction would be binding upon foreign courts. See Thompson v. Whitman, 18 Wall. 457; Knowles v. Gaslight Co., 19 Wall. 58; Hanley v. Donoghue, 116 U. S. 1, 3; showing that recitals of jurisdiction are not binding in other states. Non-residents, not interested at the time of the judg- ment, cannot impeach it. Wilcher v. Robertson, 78 Va. 602. See Andrews v. Andrews, 188 U. 8. 14, 23 Sup. Ct. 237, 47 L. Ed. 366. And if the parties reside within 5 Sheldon v. Wright, 5 N. Y. 497; Dyckman v. New York, ib. 434; McFeely v. Scott, 128 Mass. 16 (statute as to jurisdiction of Pro- bate Court; but before the statute the rule was different, as appears from this case and from Jochumsen v. Suffolk Bank, 3 Allen, 87); Montgomery v. Wasem, 115 Ind. 343, 347; Muncey »v. Joest, 74 Ind. 409, 412; Porter v. Porter, 29 N. Y. 106; Shawhan v. Loffer, 24 Iowa, 217; Bonsall v. Isett, 14 Iowa, 309; Segee v. Thomas, 3 Blatchf. 11; Hungerford v. Cushing, 8 Wis. 324; Bridgeport Savings Bank v. Eldredge, 28 Conn. 556; Bolton v. Brewster, 32 Barb. 389; Kipp v. Fullerton, 4 Minn. 473; Galena & C. R. Co. v. Pound, 22 Til. 399. But see Goudy »v. Hall, 30 Ill. 109, holding that such ad- judication is prima facie evidence, a case referred to in Secrist »v. Green, 3 Wall. 744, as declaring [cHAP. II. 230 ESTOPPEL BY RECORD. the jurisdiction of the court, it is thought to make no difference whether they were personally served with process or appeared, so long as the steps required by the statute for obtaining juris- diction were taken. This was directly decided by the Court of Appeals of New York in both of the cases cited. In Sheldon v. Wright the question arose in respect of the jurisdiction of a surrogate under publication of an order for persons interested to show cause against the sale of certain property. The surro- gate had decided that the publication was regular; and his judgment appeared on the record of the proceedings.? the law of Illinois. See Croswell, Executors, §§ 18-26. An adjudica- tion of the question who are parties to a suit binds all who were duly served with process. Anderson »v. Wilson, 100 Ind. 402, 407. 1Mr. Justice Foot, in delivering judgment, 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 liti- gated the merits of the question; while in the present case the appel- lant had not appeared. ‘The ques- tion then 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 proceeding, 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? It will be perceived at once that if the right depends on appearance or non-appearance, the fatt that the party claiming it has been served with personal or statutory notice makes no difference. 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, therefore, that the ac- knowledgement or denial of the right of a party to a summary or other judicial proceeding to dis- regard the record of it and litigate collaterally: a jurisdictional fact depends on his appearance or non- appearance.’ He then proceeded to state that the surrogate’s de- cision upon the regularity of the publication conclusively determined the question of jurisdiction. Re- ferring to the language upon the question of jurisdiction used in the cases of Borden v. Fitch, 15 Johns. 121, 141, Mills ». Martin, 19 Johns. 7, 33, and Latham ». Edgerton, 9 Cowen, 227, 229, that ‘the want of jurisdiction is a matter that al- ways may be set up against a judg- ment,’ he said that the judges only intended to say that the want of jurisdiction might always be set up against a judgment when that fact appeared on the record, or was presented in some other un- exceptional manner. The _ prin- ciple in Borden »v. Fitch was op- posed by no case within his knowl- edge, and it was simply this; that when a form or mode of notice of a judicial proceeding is prescribed by statute, and the party resides within the territorial jurisdiction of the state and court, a notice in the mode designated is sufficient to give the court jurisdiction. These SECT. Iv.] JUDGMENTS IN PERSONAM. 231 In the case of Porter ». Purdy,' in which the same point was considered, there had not in point of fact been an adjudication. The proceedings in the case sought to be impeached were had under the statute authorizing the appointment of a certain num- ber of freeholders to assess the expense of a certain improve- ment. One of the persons so appointed was not a freeholder; and it was contended that the proceedings were therefore void by reason of a want of jurisdiction. But the court held other- wise. 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 that entertaining cog- nizance 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 au- thority. The question was recently brought before the Supreme Court of 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 au- were the facts in this case, but he refused to place his opinion on this ground, as that would recognize the right of the party to institute an inquiry respecting the juris- dictional fact. He rested his opinion ‘solely on the conclusiveness of the judgment of the surrogate.’ 129 N. Y. 106. 2See also Van Steenbergh ». ‘Bigelow, 3 Wend. 42. Comp. pro- ceedings on municipal bonds, post. 3 Cox v. Thomas, 9 Gratt. 323; Clary »v.° Hoggland, 6 Cal. 685; Washington Bridge Co. v. Stewart, 3 How. 413. 4 Wiley v. Pratt, 23 Ind. 628. 232 ESTOPPEL BY RECORD. [CHAP. III. thority. But it was laid down that where a judgment is re- covered 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 or that the defendant was not a citizen of the state nor during the pend- ency of the proceedings within the jurisdiction of the court in which the judgment was rendered, and neither had been noti- fied of the pendency of the suit nor had given authority to the attorney to enter an appearance for him.” Our inquiry in regard to fraud involves three questions: (1) whether, apart from statute,’ a judgment may be collaterally im-. peached on the ground that it was obtained by fraud, and if it may be, then (2) what is meant by ‘ fraud ’ within the rule, and (8) under what circumstances the impeachment is allowed.‘ The early case of Meadows v. Duchess of Kingston,* a proceed- ing in equity to avoid the probate of a will, presented the ques- tion of the conclusiveness of a sentence in a suit for jactitation of marriage involving the marriage in question in the more celebrated case of the Duchess of Kingston.’ In the case first re- ferred 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 1To the same effect, Wright v. Andrews, 130 Mass. 149. 2 But see Wandling v. Straw, 25 W. Va. 692, taking a position diffi- cult to understand. The rule has been determined as stated in the text, in regard to judgments of the sister states. Shelton v. Tiffin, 6 How. 163; Sherrard v. Nevius, 2 Ind. 241; Bodurtha v. Goodrich, 3 Gray, 508. See also White v. Jones, 38 Ill. 159; Baker v. Stone- braker, 34 Mo. 172; Finneran »v, Leonard, 7 Allen, 54; Watson »v. Hopkins, 27 Texas, 637; Brown ». Nichols, 42 N. Y. 26. But see Warren v. Lusk, 16 Mo. 102; Hilton v. Jones, 159 U. S. 584, 16 Sup. Ct. 108, 40 L. Ed. 267. 3 Statute sometimes provides for cases of fraud touching judgments, as, e. g. adjudications of bank- truptcy. See U. S. bankruptcy statute of 1867, c. 176, § 34; Burpee v. Sparhawk, 108 Mass. 111. 4The distinction between the right to impeach a judgment col- laterally on the ground of fraud and the right to impeach it directly by a proceeding in equity to enjoin its enforcements, or to annul it appears to lie mainly in the answer to be given to the third of these questions. As to such direct im- peachment see 1 Bigelow, Law of Fraud, 86-94. 5 Amb. 756. 6 20 How. St. Tr. 358, SECT. IVv.] JUDGMENTS IN PERSONAM. 233 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 relation of ‘ wife’ was an essential con- sideration of the gift expressing the cause of the bequest; and it was insisted that the cause and motive, by reason of the im- position, did not exist, and that therefore the bequest could not take effect. An account was prayed, and the defendant sought to be held a trustee for the plaintiff. The plea alleged a suit for jactitation of marriage against Hervey, and stated that upon a . fair trial, with cross-allegations by Hervey insisting that she was his wife, the court declared that she 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 other way.! 1Apsly, Ch. said: ‘By “ con- clusive’”’? I understand that the court will not receive evidence to contradict it. I lay it down as a general rule that wherever a matter comes to be tried in a collateral way, the decree, sentence, or judg- ment shall be received as conclusive evidence of the matter so deter- mined. In Noell ». Wells, Lev. 235, the court would not receive evi- dence to prove that the will was forged, in contradiction to the probate. All the cases cited im- port -the same rule. 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, according to the distinction in Blackham’s Case, 1 Salk. 290. In the case of Robins v. Crutchley, 2 Wils. 122, the sen- tence was not ex directo; here the question 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 Hard- “wicke 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 judgment or sentence can only be examined by the court where the fraud was com- mitted, or another court having con- current jurisdiction in questions of marriage.’ On a subsequent day the chancellor mentioned an- other case (Rex v. Vincent, 1 234 ESTOPPEL BY RECORD. [CHAP. III. It will be observed that the complainant in this case had to face two judgments, one the general probate of the will and the other the specific decree that the lady in question was a spinster when she married the Duke of Kingston. The probate of the will was equally with the specific decree a decision against the alleged fraud. Now, decrees of probate stand in a sense upon special grounds.! By reason of the exclusive jurisdiction of the Court of Probate the probate of a will, and doubtless the refusal of probate, in this country as in England have always been be- yond the reach of the Court of Chancery. That court has no power to set aside or disregard a lawful decree of the Court of Probate, even for fraud.? _In other words, a decree of the Court of Probate in a matter over which it has jurisdiction cannot be impeached either collaterally or (except by the same court) directly. This is now quite generally true of the decrees of that court, whether relating to wills. of personalty or of realty, though the rule was different formerly, and may still be different 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 producing a pro- bate of it, that was held to be con- clusive evidence in support of the will. He also referred to another case, Prudam ». Philips, 2 Strange, 961, note, in which a question of marriage arose. The defendant gave in evidence her marriage 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, unless the defendant might be permitted to show fraud in obtaining it. But Willes, C. J. after much debate took a dis- tinction between the case of a stranger who cannot come in and reverse the judgment, and therefore must of necessity be permitted 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. 1 Though in most cases judgment obtained by fraud can be set aside only as against the person who committed or procured the fraud, this limitation does not apply to an action to set aside a judgment granting probate of a will which judgment was procured by fraud of a@ person interested in the estab- lishment of the will although the executors were innocent, since the will must be good or bad against the whole world. Birch »v. Birch, (1902) P. D. 62, and 130, C. A. See Cole v. Langford, (1898) 2 Q. B. 36; Wyatt v. Palmer, (1899) 2 Q. B. 106; Priestman v. Thomas, (1884) 9P. D. 70, 210; Young v. Holloway, (1895) P. D. 87. 2 Allen ». Macpherson, 1 H. L. Cas. ‘191 (affirming 1 Phill. 133, and reversing 5 Beav. 469); Hind- son v. Weatherill, 5 De G. M. & G. 301; Jones v. Gregory, 2 De G. J. &S. 83. SECT. Iv.| JUDGMENTS IN PERSONAM. 235 in some of the states;+ and independent of statutory modi- fication the powers of a surrogate, or of a judge in an Orphans’ Court, or of an ordinary, or of any other judge sitting in the like capacity, as well as of a judge in a Court of Probate eo nomine, are the same as those of the English ordinary in the Ecclesias- tical Court in regard to the wills and estates of testators and of intestates. Their decrees are to be received as conclusive; under, of course, the same limitations which prevailed in England while the Ecclesiastical Court had jurisdiction of such matters.” The reader must, however, be careful in drawing conclusions from this doctrine. Equity will not, indeed, set aside nor will it restrain for fraud the probate of a will; ® still, if fraud be proved, it will lend no active assistance to the party who prac- tised it. Further, equity may, according to the real intention of the testator, declare a trust upon the will, though the same be not contained in the testament, in at least three cases: first, in the case of a shocking fraud upon a legatee or devisee, as if the draftsman should insert his own name instead of that of the legatee or devisee; secondly, where the words imply a trust for the relatives, as in the case of a specific devise to the executors without a disposition of the residue; thirdly, in the case of a legatee or devisee who had promised the testator to stand as trustee for another of part of the estate. And further, Lord Hardwicke has said that while fraud in obtaining a gift under a 1The issue devisavit vel non in cases of real estate, it need hardly be said, was formerly always sent to a court of law; the English Ecclesiastical Court having no jurisdiction over wills of realty. The same is still true of this issue, * in some of the States. 2See upon this subject Broder- ick’s Will, 21 Wall. 503; Crosland v. Murdock, 4 McCord, 217; Bo- gardus v. Clark, 1 Edw. 266-270; s. c. 4 Paige, 623; Harrison »v. Rowan, 3 Wash. C. C. 580, 582; Den v. Ayres, 1 Green, Ch. 153; Darby v. Mayer, 10 Wheat. 465, 469; Donaldson v. Winter, 1 Miller (La.) 187, 144; Lewis v. Lewis, 5 Miller (La.), 387, 393; Dubois »v. Dubois, 6 Cowen, 494; Clark »v. Fisher, 1 Paige, 176; McDowell v. Peyton, 2 Desaus. 313; Allen v. Macpherson, 1 H. L. Cas. 191; Hindson »v. Weatherill, 5 De G. M. & G. 301; Matter of Goldsticker, 192 N. Y. 35, 84 N. E. 581; 1 Jarman, Wills, 26, note 2, Bigelow’s ed. 3 Broderick’s Case, 21 Wall. 503; Ellis v. Davis, 109 U. 8. 485, 494; Wolcott v. Wolcott, 140 Mass. 194; Trexlor v. Miller, 6 Ired. Eq. 248; Allen ». Macpherson, 1 H. L. Cas. 191; Meluish v. Milton, 3 Ch. D. 27. 4 Marriot v. Marriot, Gilb. 203, 209; Allen v. Macpherson, 1 H. L. Cas. 191; s. c. 1 Phill. 133. [CHAP. III. 236 ESTOPPEL BY RECORD. will can be inquired into only in the Ecclesiastical Court, still, fraud in procuring the probate of a will in that court (as where the consent of the next of kin, wholly or partly disinherited by the will, to the probate thereof has been obtained by fraud,! as distinguished from fraud practised upon the testator) might be made the subject of relief in equity.?_ And this distinction has been adopted by other judges, among them by the chancellor in the case above mentioned of Meadows v. Duchess of Kings- ton. It is said also that where the fraud does not go to the validity of the whole will, but only to that of some particular clause, equity will interpose in favor of the party thereby wronged; * but this may deserve some qualification. It has also been held, it may be added, that a will which has been fraudulently destroyed or suppressed may be established in equity.° But beyond cases of this kind, over which the Court of Probate could afford no adequate relief, the jurisdiction of that court is in proper cases exclusive and its decrees beyond examination. The question of the right of impeaching a judgment on the ground that it was obtained by fraud, to pass on from the special view of judgments of the Court of Probate, was directly before the court in the Duchess of Kingston’s Case. Lord Chief Justice De Grey, in pronouncing the opinion of the court, in language which has long been classic, 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 essoining, 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.’ § 11 Story, Equity, § 440. 2 Barnesley v. Powell, 1 Ves. Sr. 284, 3 Kennell v. Abbott, 4 Ves. 802. See Allen v. Macpherson, supra. * The fraud alluded to by Lord Hard- wicke, it should be observed, is not fraud upon the court in the concoction of a decree. That kind of fraud, he said, could only be examined by the court in which it was committed, 41 Story, Equity, § 440. ’Buchanan v. Matlock, 8 Humph. 390; Tupper v. Phipps, 3 Atk. 360. Contra, Myers v. O’Han- lon, 13 Rich. 196. °‘In criminal proceedings,’ he ' SECT. Iv.] JUDGMENTS IN PERSONAM. 237 There are many cases which support this doctrine; 1 though it is to be remembered that the fraud must be practised against the stranger, he having at the time some legal interest in the cause.2 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 al- leged marriage, who was en ventre sa mére at the time of the sen- tence. The facts in substance were that a marriage which had been solemnized between A and B was declared void by the Ec- clesiastical Court. Some time afterwards a child of A and B, en ventre sa mére 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 in- sufficient to constitute fraud. The opinion, however, was ex- pressed that the complainant was not estopped to prove fraud if he could? Whether parties may set up fraud has been a subject of con- continued, ‘if an offender is con- victed 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 Ecclesiastical Court the same rule holds. In Dyer there is an instance of a second administration, fraud- ulently obtained, to defeat an exe- cution at law against the first; and the fact being admitted by demurrer, the court pronounced against the fraudulent administra- tion. In another instance an ad- ministration had been fraudulently revoked; and the fact being denied, issue was joined upon it; and the collusion being found by a jury, the court gave judgment against it. In the modern cases the ques- tion seems to have been whether the parties should be permitted to prove collusion, and not seeming to doubt but that strangers might. So that collusion, being a matter extrinsic of the cause, may be imputed by a stranger and tried by a jury, and determined by the court of temporal jurisdiction.’ 1 Perry v. Meddowcroft, 10 Beav. 122; Meddowcroft v. Huguenin, 4 Moore, P. C. C. 386; Bandon ». Becher, 3 Clark & F. 479. By a re- cent English statute (23 & 24 Vict. ch. 144, § 7) it is provided that any person may intervene in a divorce case, before the decree is made ab- solute. See Bowen v. Bowen, 3 Swab. & T. 530. 2 Ante, pp. 167, 168. 3 As to ultra vires contract form- ing basis of consent judgment see Great N. W. Cent. Ry. Co. ». Charlebois, (1899) A. C. 114. [CHAP. III. 238 ESTOPPEL BY RECORD. flicting opinion.’ In a recent case ? the complainants in a bill in equity sought to prove collaterally that a certain judgment had been obtained by fraud, and although it did not seem to be doubted that this could be done, no question was raised on the point, and no decision of it made. The court only held the evidence insufficient to constitute fraud.’ It is, however, said in the course of the opinion that ‘ while a judgment is conclu- « sive upon parties and privies and cannot be impeached, still in equity it may be vacated and set aside where it has been pro- cured by collusion.’ But this language refers, of course, to a direct and not to a collateral proceeding. In Great Falls Manufg. Co. v. Worster * the’‘defendants were allowed to impeach a judgment-for costs obtained by the plain- tiffs; but they were sureties, and not, parties to the former action. The court says 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, merely in accord with the English cases above stated.® In Edgell v. Sigerson ® the court plainly states that if the judgment 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 prac- tice, 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 impeachment; the question went by default. In the case of Jackson ». Summerville 7 the judgment was founded on a forged deed; and the question was whether it could be impeached on this ground. The court admitted that ' 1The fraud in any case, even for the purpose of annulling a judg- ment, must be actual positive fraud, — malus animus. Patch v. Ward, L. R. 3 Ch. 203. See Payne v. O’Shea, 84 Mo. 129. 2 Field »v. Flanders, 40 IIL. 470. 3 See People v. Phoenix Bank, 7 Bosw. 20; People v. Townsend, 37 Barb. 520; Fisk v. Miller, 20 Tex. 579; Carr v. Miner, 42 III. 179. 445 N. H. 110. 5 To the same effect’ Mitchell v. Kintzer, 5 Barr, 216; Callahan. »v. Griswold, 9 Mo. 775; Atkinson v. Allen, 12 Vt. 619; De Armond ». Adams, 25 Ind. 455; Corey v. Morrill, 71 Vt. 51, 42 A. 976. 6 20 Mo. 494. 713 Penn. St. 359. SECT. Iv.| JUDGMENTS IN PERSONAM. 239 a judgment rendered by a court of competent jurisdiction, upon the point in issue, could not be overturned in a collateral pro- ceeding; but said there never had been a judgment whether the deed was obtained by fraud. ‘That decree,’ it was said, ‘ was rendered upon the faith of the fact that the Summervilles 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. 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 non judice.’ ? In at least two American cases, however, it has been directly decided that a judgment may be'collaterally attacked because it was obtained by fraud.2. There have been dicta to the same effect in other cases not already cited.* But there have also been decisions to the contrary.*| The point was raised in a re- cent 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 pro- ceeding.’ ® And in a late case in Tennessee the same doctrine was held even in regard to a judgment rendered by a justice of the peace.’ The attempt there was to rectify a judgment ob- 1 See Otterson v. Middleton, 102 Penn. St. 78, 88. : 2 Hall v. Hamlin, 2 Watts, 354; Mize, 3 Sneed, 59; Kirby v. Fitz- gerald, 31 N. Y. 417; Hammond v. Wilder, 25 Vt. 342, 346; Smith v. State v. Little, 1.N. H. 257. See also Hunt v. Blackburn, 128 U. S. 464, where the fraud alleged was not proved. 3 See Smith v. Keen, 26 Maine, 411; Thouvenin v. Rodriques, 24 Texas, 468; Hartman v. Ogborn, 54 Penn. St. 120. 4 Anderson v. Anderson, 8 Ohio, 108; Boston & W. R. Co. v. Spar- hawk, 1 Allen, 448; McRae ». Mattoon, 13 Pick. 53; Christmas v. Russell, 5 Wall. 290; Kelley v. Smith, 22 Iowa, 516; Thompson v. Mott, 32 N. B. 350. But con- cerning judgments rendered in foreign lands, see Cammell ». Sewell, 3 Hurl. & N. 617. And see the chapters on Foreign Judg- ments. 5 Smith v. Smith, supra. 6 Mason v. Messenger, 17 Iowa, 261. 7 Kelley v. Mize, supra. See also Van Doren »v. Horton, 1 Dutch. 205. : 240 ESTOPPEL BY RECORD. (CHAP. III. tained by fraud, by bringing a new action for the same cause; but the court held the former judgment a bar. Nor, where this view prevails, will the attempt to rely upon fraud be more suc- cessful in equity than at law when the judgment is not attacked by a direct proceeding to set aside or to enjoin or otherwise annul it.* It is clear, however, by our authorities as well as by those of England, as we have seen, that the plea of fraud in obtaining the judgment relied upon by the opposite party is good, gener- ally speaking,” in favor of third persons whose rights have been affected by the judgment.? This is certainly true of the case of creditors and others seeking to impeach a judgment for fraud upon themselves.* Between the parties to the former judgment it is not easy, on authority merely, to determine what should be the rule of law. The language of the House of Lords in Bandon v. Becher * appears, perhaps, to suggest the true answer, though the contest there was between third persons. In this case the court says 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 1Boston & W. R. Co. v. Spar- hawk, supra. 2 Upon the limits to this doctrine see ante, pp. 167, 168. 3 See, besides the cases above cited, Gaines v. Relf, 12 How. 472; Hall v. Hamlin, 2 Watts, 354; Dougherty’s Estate, 9 Watts & S. 189; Thompson’s Appeal, 57 Penn. St. 175; ante, pp. 167, 168. 4In Thompson’s Appeal, supra, the court says: ‘ Where a collusive judgment comes into collision with the interests of creditors, they may avoid the effect of it by showing it to be a nullity as to themselves, and in doing so they do not impair its obligation between the original parties upon whom it is undoubtedly binding; a fraudulent judgment, like a fraudulent deed, being good against all but the interests in- tended to be defrauded by it. But they cannot call upon the court to vacate it on the record, which would annul it as to the whole world.’ It follows, of course, that if the judgment creditors cannot vacate the judgment, they cannot collaterally impeach it merely be- cause it was a fraud upon the debtor. To enable them to do so it must have been a fraud upon themselves; and this proposition the learned judge so states in his opinion. See also Lewis v. Rogers, 16 Penn. St. 18: ‘Creditors can attack a judg- ment collaterally only for collusion.’ Gibson, C. J. 53 Clark & F. 479. SECT. IV.] JUDGMENTS IN PERSONAM. 241 collusive suit.’ That appears to mean that such a ‘ judg- ment’ would be absolutely void. This brings us to the second question, the meaning of the term ‘ fraud ’ in the general inquiry. False or perjured evidence clearly does not satisfy it; there may be a real cause, a real issue, a real trial, and therefore a real judgment, notwithstand- ing such evidence.! Indeed, the fact that conspiracy is added, and that the demand itself is a sham, cannot help the matter, according to the better view.?. No decision would be safe if a judgment could be attacked on such grounds, in a collateral proceeding, while the judgment is still in force. The case of Engstrom v. Sherburne was an action by one of several defend- ants, who had appeared and answered to an action resulting in judgment against him (by default) and them; the plaintiff al- leging that the other parties to the former suit had conspired together successfully to obtain the judgment and have his property sold thereunder upon a sham demand. It was held that the action could not be maintained. 1Engstrom v. Sherburne, 137 Mass. 162; Greene v. Greene, 2 Gray, 361 (see Edson v. Edson, 108 Mass. 590, 597, 598); Homer ». Fish, 1 Pick. 435; Graham ». Boston R. Co. 118 U. S. 161; Peck v. Woodbridge, 3 Day, 30; Gilston v. Codwise, 1 Johns. Ch. 195; Flower v. Lloyd, 10 Ch. D. 327, C. A. (a foreign judgment; but see as to such a case Abouloff v. Oppenheimer, 10 Q. B. D. 295, C. A.). False swearing as to juris- dictional facts, such as residence, is a different thing, and, in the absence of statute to the contrary, may ordinarily be shown in a col- lateral action. See McFeely v. Scott, 128 Mass. 18, 20. But as to adjudications upon such matters, see ante, pp. 228, 229. 2Engstrom v. Sherburne, supra; Graham v. Boston R. Co., supra; Castrique v. Behrens, 3 El. & B. 709; post, p. 281, note. Contra, Spencer v. Vigneaux, 20 Cal. 442, it seems. The judgment was by default as to the one innocent de- fendant, against whom the others conspired. Still, the plea was the plainest impeachment of the judg- ment. It did not confess and avoid it, as in Howlett v. Tarte, 10 C. B. N.S. 813, infra. See ante, pp. 82, 83. If a fraud at all, the false swearing and conspiracy are a fraud upon the State; there is no fraud upon any right of the innocent party,— he has no ‘ right,’ ‘ jus,’ in the legal sense, to require truthful evidence from the other side. Fraud, to come within the notice of the law, must be upon a legal right. See 1 Bigelow, Law of Fraud, 13. 3 Newly discovered evidence of that kind might be ground for a new trial or for a proceeding to an- nul the judgment; but clearly it should be more difficult to impeach a judgment in a collateral proceed- [cHAP. III. 242 ESTOPPEL BY RECORD. Indeed, the rule, accurately stated, so far as there is such a rule, appears to be that a judgment obtained by fraud may be impeached, not that a judgment may be impeached for fraud; + and the true question is of the meaning of the term ‘ fraud ’ within that rule. Fraud appears to mean endeavor to alter rights by deception touching motives or by circumvention not touching motives. The first-named wrong in the definition, ‘deception,’ implies some transaction, like an agreement, be- tween the wrongdoer and the party wronged; the second, ‘circumvention,’ some transaction between the wrongdoer and a third person, as in the case of a conveyance by a debtor in fraud of his creditors. Where the wrongdoing consists only in bringing forward false evidence, or where there is only an over- reaching, there is no fraud within the definition or within the authorities. But where there is any agreement at the trial be- tween the parties, tainted with misrepresentation scienter, or other fraud in the way of deception against the rights in law of the party complaining of the judgment,” or where there is any similar transaction at the trial between the other parties to the cause, in the way of ‘ circumvention,’ against such rights, there, it is apprehended, is fraud such as may justify an impeachment of the judgment collaterally even upon the footing that the judgment is only voidable. In this position will be found the case of a judgment ‘concocted’ (to use a common term) in fraud at the trial, a judgment entered against one’s rights through the treachery of one’s counsel known to the other side,? a judgment taken after a valid compromise of the cause, or after payment of the demand, and a collusive judgment. ing, which still leaves it in force, than in a direct proceeding to des- troy it. And that is the meaning of the authorities. 1That is, to repeat the text in another way, the distinction is between a sham demand or cause of action, upon which a judgment has been obtained in the ordinary way, and a demand established by fraud in the very course of the trial. Judgment in the first case is binding until impeached in some direct proceeding to avoid it, otherwise a judgment could be impeached for false evidence. ? As to what is meant here by ‘ rights,’ see note, p. 217. §See Hunt v. Blackburn, 128 U. S. 464, where the alleged mis- conduct of counsel was not proved. ‘Hence the significance of cases relating to decrees of divorce, in which it is said that fraud is not enough to avoid them; collusion must be shown. Meddoweroft v. Huguenin, 4 Moore, P. C. 386. See Perry v. Meddowecroft, 10 Beav. SECT. Iv.] JUDGMENTS IN PERSONAM. 243 In regard to the third question proposed, the circumstances under which impeachment collaterally is to be allowed, it is to be said that so far as the question is an open one, and it may be in some states, it may well be doubted whether judgment, while it may still be made the subject of a proceeding to destroy it, should be collaterally impeachable on grounds of fraud not touching the jurisdiction of the court.1_ If the time for pro- ceeding against it has passed, without fault of the injured party, that, and that only, should make a different case.? So, if a case arise such as that referred to in Bandon »v. Becher, in which the judgment is no judgment at all because of fraud, the fact may doubtlessly be shown in any collateral proceeding at any time. Judgments of inferior courts may no doubt be impeached for fraud of the kind sufficient in cases of judgment of a superior court, at all events in cases where no appeal lies,? and possibly in other cases.* The estoppel in any case, however, precludes only an impeach- ment of the judgment; and there is ground for a distinction between the case of a judgment obtained by perjured evidence and the case of a judgment regularly obtained but based upon a cause of action to which a defence of fraud might have been made. If, for example, judgment by default were obtained upon a contract, it might well be that the defendant could afterwards sue for fraud committed in the contract; for this would not be inconsistent with the judgment, as we have elsewhere sug- gested.> The same would be true of judgment in a contested 122; Duchess of Kingston’s Case, ante, p. 236; post, p. 253, note 5; Thompson’s Appeal, 57 Penn. St. 175; supra, p. 240, note 4. 1Comp. Nougué v. Clapp, 101 U. S. 551; Graham v. Boston R. Co., 118 U. S. 161; Meadows »v. Duchess of Kingston, Amb. 756; ante, p. 233, note. 2 Thid. 3 Gurnsey v. Edwards, 26 N. H. 224; Robbins v. Bridgewater, 6 N. H. 524; Gear v. Smith, 9 N. H. 63; Sanborn v. Fellows, 22 N. H. 473; Harlow v. Pike, 3 Greenl. 438. 4See .McFeely v. Scott, 128 Mass, 16, 18. But that refers to fraud in regard to jurisdiction. See ante, p. 225. 5 Ante, p. 207. And comp. pp. 193-207.- See especially Hunt »v. Brown, 146 Mass. 2538, 255; How- lett v. Tarte, 10 C. B. n. s. 813, 827, 828; Cromwell v. Sac, 94 U.S. 351, 357. Perhaps judgment by default after issue joined, without other contest by the defendant, deserves consideration by the courts in re- gard to the effect of the judgment. See Howlett ». Tarte, 10 C. B. Nn. 8. 813. The language of that case is very striking, and has been quoted with approval by the Su- 244 ESTOPPEL BY RECORD. [CHAP. III. cause, if no question of fraud was actually raised. The judgment affirms the contract indeed; but the party defrauded may also do that, and still sue for the deceit practised upon him.! preme Court of the United States. Wanzer v. De Baun, 1 E. D. Smith, Cromwell v. Sac, 94 U. S. 351, 357. 261; Michigan v. Phoenix Bank, 33 Can there be an estoppel in this N. Y. 9, 25; Cadaval v. Collins, 4 case any further than there is Ad. & E. 858; Whitaker v. Merrill, when there is a default without 28 Barb. 526; Jackson v. Summer- plea? . ville, 13 Penn. St. 359; Homer v. 1See 1 Bigelow, Fraud, 71, 72; Fish, 1 Pick. 435. CHAP. Iv.] JUDGMENTS IN REM. 245 CHAPTER IV. JUDGMENTS IN REM. WE proceed now to the consideration of those judgments which avail against all persons, to wit, judgments in rem; the general distinction between which and the class just under consideration and the grounds, such as appear, upon which the distinction rests, have been pointed out on preceding pages.! 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, 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 exceptions to be noticed hereafter. In this connection we shall, therefore, consider only, the general lines of this class of estoppels; referring the reader to the chapters mentioned for further details. The one established case ? of the full operation of a judg- ment in rem is an adjudication of prize, or an acquittal thereof,’ in the Admiralty; it has often been determined that condem- nations are conclusive upon all persons, not only of the title or change of property, but also of, the findings of necessary facts upon which the condemnation was pronounced.* And this has been held to be true not only for the purposes of the judg- ment itself, but also for collateral purposes, such as questions turning upon a warranty of neutrality of a ship in a contract 1 Ante, pp. 44 et seq. ? Ante, p. 49; post, p. 269. 3 Cushing v. Laird, 107 U. S. 69, 80; The Apollon, 9 Wheat. 362. The decree of acquittal does not decide the title. of any particular person, unless conflicting claims are presented and passed upon. Cushing v. Laird, supra. 4Concha v. Concha, 11 App. Cas. 541; s. c. in the Court of Appeal, nom. De Mora v. Concha, 29 Ch. D. 268; Hughes v. Cornelius, 2 Show. 232; s. c. Ld. Raym. 473; Skin. 59; Carth. 32; Croudson v. Leonard, 4 Cranch, 434; Bradstreet v. Neptune Ins. Co., 3 Sum. 600. 246 ESTOPPEL BY RECORD. [CHAP. Iv. of insurance upon her, where the ship has been seized, con- demned, and sold for breach of such neutrality.!_ Questions of the conclusiveness of sentences of this character have generally arisen in relation to the adjudications 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 have also been thought to afford an illustration of the operation of judgments 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 of the vessel insured was conclusive of the fact; and the insurers were exonerated from indemnifica- tion for the damages which the owners of the vessels insured had been compelled to pay, by reason of their negligence, to the owners of the other vessel. The court said that the only evi- dence there was of the collision, and of its attendant circum- stances, was the transcript of the proceedings of the District Court; but that was sufficient. It showed the judgment of a court of competent jurisdiction proceeding in rem; and such judgment was binding on all persons interested in the thing upon which the process was served. Insurers, as persons hav- ing an interest in the thing arrested and made the subject of 1 Croudson v. Leonard, 4 Cranch, 434. See Cushing v. Laird, 107 U. 8. 69, 80. The effect of Concha v. Concha, supra, especially in the Court of Appeal, is, however, to throw some doubt upon the sound- ness of the rule; and the same doubt is raised by the effect of Brigham v. Fayerweather, 140 Mass. 411. But neither’of those cases was an admiralty case. Croudson v. Leonard appears in reality to be inconsistent with the prior decision of the same court in Fitzsimmons v. Newport Ins. Co., 4 Cranch, 185; but it does not profess to overrule it. The fact upon which the condemnation un- der consideration in Fitzsimmons ». Newport Ins. Co. proceeded (breach of blockade) was held, as matter of law, not to have been made out; the record indicating on its face that the court had reached an erroneous decision. This is the only ground of distinction between that case and Croudson v. Leonard. But that distinction would now be held unsound; it makes no differ- ence that the record shows that the court made an erroneous de- cision in point of law. See Godard v. Gray, L. R. 6 Q. B. 139; post, p. 288. Both Croudson v. Leonard and Fitzsimmons v. Newport Ins. Co. are cases relating to foreign judg- ments. ? Under Foreign Judgments in Rem. 5 Street v. Augusta Ins. Co., 12 Rich. 13. CHAP. IV.] JUDGMENTS IN REM. 247 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 plaintiffs 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. But the doctrine of this case is not consistent with other decisions, and needs further consideration. There has been much discussion of the question, what consti- tutes a judgment in rem by the English law.? The case of Hart v. McNamara * has been thought to show the line of distinction between judgments in rem and in personam, in municipal causes before the late 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 the 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. Chief Justice Gibbs 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. 1New England Ins. Co. ». other case, quere? He could use Dunham, 1 Lowell, 253; s. c. 3 Cliff. 332. And comp. Brigham v. Fayerweather, 140 Mass. 411; Concha v. Concha, 11 App. Cas. 541; s.c. nom. De Mora v. Concha, 29 Ch. D. 268. A judge will, in- deed, be very apt to use his finding in a collision case in another case pending at the same time in regard to the same collision, though the parties are not the same; as was done in Levi v. New Orleans Ins. Assoc., 2 Woods, 63. But whether a judge would do this against ob- jection based upon an offer to pro- duce evidence not before him in the the judgment as a precedent clearly, but not as res judicata. See Stryker v. Goodnow, 123 U. 8. 527, 538, 539; Chapman v. Goodnow, ib. 540; Litchfield ». Goodnow, ib. 549; Ballantyne »v. Mackinnon, (1896) A. C. 455. 2 Ante, p. 46. See also Simpson v. Fogo, 29 L. J. Ch. 657; s. c. 32 L. J. Ch. 249, and 1 Hem. & M. 195; Cammell v. Sewell, 3 Hurl. & N. 617; s. c. 5 Hurl. & N. 728; Castrique v. Imrie, L. R. 4 H. L. 414, 427. 3 Reported in note, 4 Price, 154. [CHAP. IV. 248 ESTOPPEL BY RECORD. But doubt has been thrown upon the authority of this case, so far as relates to the effect of any finding as distinguished from the judgment itself and the title derived from it.’ The distinc- tion between the two classes of judgments has become less im- portant since the late decisions, which have reduced the number of judgments in rem in regard to findings and grounds appar- ently to one.? The test in regard to the question whether a judgment itself operates in rem, that is, whether the right, title, or status is available generally, appears to be, as we have else- where seen,’ whether (1) all persons were properly made parties, or (2) whether the cause was tried between those who had the exclusive right to try it.4 That the record of condemnation of goods in the Exchequer, as a title or as a justification of acts done under it, is conclusive upon all persons was determined as long ago as in the year 1775, in Scott v. Shearman.’ This case was an action of tres- pass against custom-house officers for entering the plaintiff’s house and seizing his goods. The defendants justified under a record of condemnation in the Exchequer. The cause was twice argued, and underwent great 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 and all the other judges decided that the action could not be main- tained.® 1De Mora »v. Concha, 29 Ch. D. 268. See s. c. nom. Concha », Concha, 11 App. Cas. 541. See also Brigham v. Fayerweather, 140 Mass. 411. Hart ». McNamara is sup= ported by Magoun #. New Eng. Ins. Co., 1 Story, 157. But see Carrington v. Merchants’ Ins. Co., 8 Peters, 495. Both were revenue cases. There can be no real dis- tinction between revenue and prize cases; but the latter are now con- sidered, so far as established in regard to findings, as exceptions. 2 Ante, pp. 48, 49; post, p. 269; De Mora v. Concha, 29 Ch. D. 268; Brigham v. Fayerweather, 140 Mass. 411. 8 Ante, p. 48. 4 Candee v. T.ord, 2 Comst. 269; ante, pp. 167, 168. 52 W. Black. 977. ®‘The only possible ground,’ said the learned judge above named, ‘that the plaintiff can rely on in the present case, which is unac- companied with misbehavior or any unwarrantable violence, is that the goods were not in truth liable to be seized by the laws of the cus- CHAP. Iv.] JUDGMENTS IN REM. 249 Mr. Chancellor Kent, in Gelston v. Hoyt,’ referring to this case, says that the law is settled clearly and definitely, that if goods be seized by a custom-house officer, and are libelled, tried, and condemned in the Exchequer, District Court, 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 when sued for the seizure could contest toms; although by the plaintifi’s default they have been condemned in the Exchequer. But I take this condemnation to be conclusive 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 hav- ing 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 presumed to know whatever becomes of his own goods. He knew they were seized by a revenue officer; 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 Exchequer, and could be exam- ined nowhere else. He had notice by the two proclamations, accord- ing to the course of that court. He had notice by the writ of appraise- ment, which must be publicly ex- ecuted on the spot where the goods were detained. And having neg- lected this opportunity of putting in his claim and trying the point of forfeiture, it was his own laches, and he shall be forever 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 recovering direcily 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 irrevo- cably vested in the Crown by the judgment of condemnation (as is clear beyond any dispute, and con- ceded on the part of the plaintiff), it follows, as a necessary conse- quence, that neither trespass nor trover can be maintained 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 liguors that were seized were there- fore at the time of the seizure the goods and chattels of his Majesty, and not of the plaintiff, as in his declaration he has necessarily de- clared 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.’ 113 Johns. 561, 583. (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 s0 liable at the time they were imported. Whitney v. Walsh, + Cush. 29. 250 ESTOPPEL BY RECORD. [cHAP. Iv. 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 United States, and the judgment was there affirmed.? Mr. Justice Story, who delivered the opinion, referring to the passage from Buller, said that though it might be good law in respect to-criminal suits, it had no application to Le] 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? The most obvious dictates of justice will teach every man of common understanding that the rule, to be just, should be equal and impartial in its operation.” He then pro- ceeds to state that the authorities are on the same side (12 Viner, 95, A. b, 22, 1; Cook v. Sholl, 5 T. R. 255), with one exception. Buller N. P. 245. ‘The reason,’ he goes on to say, ‘ assigned in Buller’s N. PB, why an acquittal is not conclu- sive in a collateral action, as well as a condemnation, is that an_ac- quittal ascertains no fact, as a con- viction 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 ac- quitted 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 sup- posing 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 govern- ment, and which is termed a pro- ceeding in rem, the question of forfeiture is the only question that can be made; and a decree of ac- quittal does ascertain the fact that they were not forfeited. In- deed, in the next preceding page in Buller an adjudged case is given which completely overturns his distinction. It is the case of. Lane v. Degberg, Buller N. P. 244, decided in 11 W. 38, prior to the decision before Baron Price. 12 Viner, 95, A. b. 22, 1, supra. It was an action by a soldier against his officer for an assault and battery. The officer justified the act as done in the army for disobedience, and gave in evidence the sentence of a council of war founded on a peti- tion of the plaintiff against him; and the acquittal, being the sen- tence of a court of exclusive juris- diction in a case arising under mar- tial law, was held to be conclusive evidence for the officer in the ac- tion for the assault and battery.’ 23 Wheat. 246, cited and ap- proved in Coffey v. United States, 116 U. S. 486, 444; Williams »v. . Suffolk Ins. Co., 3 Sum. 270, 275. See also Magoun v. New Eng. Ins. Co., 1 Story, 157; Slocum v. May- berry, 2 Wheat. 1. CHAP. Iv.] JUDGMENTS IN REM. 251 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 appeared 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 original owner stood upon his title discharged of any latent claims with which the supposed forfeiture might have previously infected it. A sen- tence of acquittal in rem therefore ascertained a fact asmuch asa sentence of condemnation; it ascertained and fixed the fact that the property was not liable to the asserted claim of forfeiture. A decree establishing a person’s pedigree is, perhaps, in es- tablishing a title or a right, of like conclusive character; so it was decided in the case of Ennis v. Smith.!. The action was brought against the administrator of the estate of General Kosciusko by persons claiming 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 evi- dence against all the world of the matters of pedigree adjudi- cated. However, 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 legiti- macy of other children 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 in regard to 114 How. 400. See Pittapur »v. sort of suit between the same Garu, L. R. 12 Ind. App. 16, where parties. an attempt was unsuccessfully 2 Kearney v, Dean, 15 Wall. 51; made to raise a question of con- Blackburn »v. Crawfords, 3 Wall. sanguinity, decided in a different 175. [CHAP. Iv. 252 ESTOPPEL BY RECORD. the particular child would probably be conclusive against all the world. That decrees or sentences in divorce cases, in distinction from the specific necessary findings therein and grounds thereof, also belong to this class is well settled.2 In Hood v. Hood? the plaintiff brought a writ of dower against the defendant, who claimed under an assignee in bankruptcy of the plaintifi’s late husband. The defendant offered in evidence a decree of divorce obtained by the husband in Illinois, on the ground of desertion, and also a decree in Massachusetts * dismissing a libel by the present plaintiff for divorce, which was found, under evidence held admissible, to have been rendered on the ground that the decree of the Illinois court was valid and binding. The present plaintiff now offered evidence to show that the Illinois decree was obtained by fraud, and this was received in the lower court; but the Supreme Court held that the case was concluded by the decree dismissing the wife’s libel, and reversed the decision below. The court declared, after looking into the ground upon which its own former decree was based, that the effect of the judgment was to determine the status of the present plaintiff, and in that respect, and to that extent, concluded all the world. It is not to be inferred from the fact that the court in Hood v. Hood looked into the ground of its former decree that a finding, as distinguished from the decree, would operate against all persons. The court only desired to know whether its for- mer decree dismissing the wife’s libel was rendered upon the. merits or not. Besides, there had been no finding in Illinois in 1 Bunting v. Lepingwell, 4 Coke, 29, commonly cited as Bunting’s Case. See 2 Wils. 123; Duchess of Kingston’s Case, Everest & Strode, Est. 424. And see the last- cited work, p. 89. 2 Hood v. Hood, 11 Allen, 196; 110 Mass. 463; Burlen v. Shannon, 3 Gray, 387, 389; s. c. 99 Mass. 200; Smith v. Smith, 13 Gray, 209, 210. See Perry v. Meddowcroft, 10 Beav. 122; Meddowcroft »v. Huguenin, 4 Moore, P. C. 386; Bunting v. Lepingwell, 4 Coke, 29; Robins v. Crutchley, 2 Wils. 122, 127. Questions relating to the conclusiveness of decrees in cases of marriage and divorce have more frequently arisen in cases of foreign decrees; and the reader is referred to the chapter on Foreign Judg- ments in Rem for further infor- mation. Conclusiveness not af- fected by undisputed evidence that the decree was erroneous under the law and practice where made. Laing v. Rigney, 160 U. S. 531, 16 Sup. Ct. 366, 40 L. Ed. 525. 3110 Mass. 463. 411 Allen, 196. CHAP. IV.] JUDGMENTS IN REM. 253 regard to fraud; there was no appearance there by the wife. Indeed, the language of the court in Hood v. Hood, as given above, clearly indicates that only the decree operates in rem, as must have been the case without overruling what had already been decided.!' Thus, in Burlen v. Shannon it is laid down that in an action for the board of the defendant’s wife a decree dis- missing for want of proof a libel for divorce by her, alleging extreme cruelty which compelled her to leave him, was not con- clusive that she had left her husband unjustifiably.? So too it is held in Rhode Island that a decree dismissing a husband’s petition for divorce for adultery by the wife did not estop him to show, in defence of an action against him for necessaries . by a third person, that she had committed adultery.2 And even in regard to the decree itself fixing, as it is commonly put, the status of the parties,* it is held that a child en ventre sa mére at the time may show that the decree was obtained by collusion between the parties.» Whether a third person could have the ! Burlen v. Shannon, 3 Gray, 387, 389; Smith v. Smith, 13 Gray, 209, 210. 2 A decree that she is living apart for justifiable cause is conclusive that she has not deserted him. Mil- ler v. Miller, 150 Mass. 111, 22 N. E. 765, but it is not conclusive of adultery. Watts v. Watts, 160 Mass. 464, 36 N. E. 479, 39 A.S. R. 509. See Harrington v. Harring- ton, 189 Mass. 281, 75 N. E. 632; Hyde-v. Leisenring, 107 Mich. 490, 65 N. W. 536. 3 Gill v. Read, 5 R. I. 343. See Needham v. Bremner, L. R. 1 C. P. 583, where, in a similar case, there had been no decree of divorce because both parties had been found guilty of adultery. The finding was held no estoppel. A divorce from husband on ground of cruelty does not estop husband from showing no cruelty when sued for wife’s necessaries. Corry »v. Lackey, 105 Mich. 363, 63 N. W. 418 ‘Indeed, it has been decided upon great consideration that a decree of divorce for desertion is not conclusive, between the wife and a stranger, of the lawful marriage of the parties to the di- vorce cause, in a case not contested. Williams v. Williams, 63 Wis. 58. This was on the ground that the question of marriage would not be much considered in such a case. Besides, by the laws of Wisconsin an ordinary decree of divorce was held not to have the same effect as a decree in an action for affirm- ance or annulment of marriage. Ibid. 5 Meddowcroft ». Huguenin, 4 Moore P. C. 386. See Perry v. Meddowcroft, 10 Beav. 122. Fraud not amounting to collusion was in the first case held to he insuf- ficient ground to impeach the judg- ment. The Duchess of Kingston’s Case, ante, p. 102, Everest & Strode, Estoppel, App. B, so much cited, was an indictment for bigamy, to which the defendant pleaded a sen- tence of the Ecclesiastical Court in 254 ESTOPPEL BY RECORDS. [CHAP. Iv. benefit of one of our statutes against divorces fraudulently obtained does not appear to have been decided. The decrees of the Court of Probate and of like courts upon the testamentary character of instruments, and upon the title derived from a grant of letters of administration and like acts * are also conclusive, when acting within its jurisdiction, upon all persons.? Thus, the decree of probate admitting a will to record her favor, in a suit for jactitation of marriage, i. e. claiming and boasting of a marriage with her, against A H. The House of Lords held that the sentence was not conclusive against the Crown, but in any event that it might be impeached for fraud and collusion. Formerly decrees of, divorce themselves in the Ec- clesiastical Court were not conclu- sive even between the parties. Oughton, Ordo Judic. 28, tit. 14; ib. p. 306, §§ 3, 4; Bracton, 304; Robins v. Crutchley, 2 Wils. 122, 127. And judgments in suits for jactitation do not stand upon the footing of decrees of or against divorce. See Everest & Strode, Estoppel, 84; ante, p. 103, note. The Duchess of Kingston’s Case contains in the arguments and opinion a review of nearly all the early cases, to wit: Jones v. Bow, Carth. 225; Bunting v. Lepingwell, 2 Coke, 355, and 4 Coke, 29; Kenn’s Case, 4 Coke, 136; Blackham’s Case, 1 Salk. 290; Hatfield v. Hat- field, 5 Brown’s Parl. Cas. 100 (cited in Da Costa v. Villa Real, 2 Strange, 960); Clews v. Bathurst, 2 Strange, 960, and Cas. temp. Hardw. 11; Da Costa v. Villa Real, supra; Noel v. Wells, 1 Lev. 235 (cited 1 Ld. Raym. 262); Bransby v. Kerridge, 1 P. Wms. 548; Hughes v, Cornelius, 2 Show. 232; Burrows v. Jemino, 2 Strange, 733; Philips v. Bury, 2 T. R. 346; Biddulph v. Ather, 2 Wils. 23; Rex v. Vincent, 1 Strange, 481; Rex v. Grundon, 1 Cowp. 315; Morris v.° Webber, Moore, 225; Corbet’s Case, cited 4 Coke, 140; Millisent v. Millisent, cited Cas. temp. Hardw. 11; Rex v. Rhodes, 2 Strange, 703; Boyle v. Boyle, 3 Mod. 164; Webb ». Cook, Cro. Jac. 535 and 625; Fursman v. Fursman (no report named); Robins v. Crutchley, 2 Wils. 118; Roach v. Garvan, 1 Ves. 157; Lloid v. Maddox, Moore, 917; Prudham »v. Phillips, 2 Amb. 762, and other cases. ‘1 Not upon orders of distribu- tion. Ruth v. Oberbrunner, 40 Wis. 238; Bresee v. Stiles, 22 Wis. 120. And of course the settlement of accounts in probate by executors or administrators binds those only who are really made parties. But- terfield v. Smith, 101 U. S. 570; Ritchey v. Withers, 72 Mo. 556. Further, of the effect of decrees in probate, see Hatcher v. Dillard, 70 Ala. 343; Davis Machine Co. v. Barnard, 43 Mich. 379; Yeoman v. Younger, 83 Mo. 424; Carver v. Lewis, 104 Ind. 438. 2 Plume v. Howard Inst., 46 N. J. 211; Lawrence v. Englesby, 24 Vt. 42; Farrar v. Olmstead, ib. 123; Steen v. Bennett, ib. 303; Loring v. Steineman, 1 Met. 204. See Vaughan v. Suggs, 82 Ala. 357; Nelson v. Boynton, 54 Ala. 368, 376; Deslonde v. Darrington, 29 Ala. 95; Lancaster’s Appeal, 47 Conn. 248; Connolly v. Connolly, 32 Gratt. 652; and the very important cases of Whicker v. Hume, 7 H. L. Cas. 124, De Mora v. Concha, 29 Ch. D. 268, and Brigham v. Fayer- CHAP. Iv.] JUDGMENTS IN REM. 255 conclusively establishes against all persons the fact that the will was executed according to the law of the country in which the testator was domiciled, though it does not so establish his domicil,' even if the fact was found.? The finding of such fact is Wot necessary to the probate of a will. In establishing the testamentary character of an instrument offered for probate as a will the decree establishes inter partes, but not inter omnes,‘ the capacity of the testator to make it, and inter omnes the genuineness of the instrument.> It merely establishes the fact towards all the world that there is nothing to prevent its being admitted to probate as a will, and that it is a valid will.6 That it does not establish the testator’s mental capacity inter omnes has lately been decided in Brigham ». Fayerweather.’ That was a bill in equity to set aside a mort- gage made by B on the ground that she was of unsound mind when she executed it. To show her sanity the defendants offered in evidence the adjudication of the Probate Court allow- ing a will made by her, and also evidence that her mental capacity was no less when she executed the mortgage than when she executed the will. The defendants had not been parties in interest in the probate proceedings. It was held in a weather, 140 Mass. 411. See also In re Mudgett, 103 Me. 367, 69 A. 575; Davies v. Leete, 111 Ky. 659, 64 S. W. 393; Martin »v. Stovall, 103 Tenn. 1, 52 S. W. 296. 1 Whicker v. Hume, 7 H. L. Cas. 124; De Mora v. Concha, 29 Ch. D. 268; affirmed nom. Concha »v. Concha, 11 App. Cas. 541. Not- withstanding what was said by Lord Westbury in Enobin v. Wylie, 10 H. L. Cas. 1, 13, to the effect that the courts of the domicil have exclusive jurisdiction of the administration of personal estate, it is now held that the courts of other countries as well, when oc- casion arises, have jurisdiction. The law of the domicil governs, but resort may be had to the courts of other countries. Lord Selborne in Ewing v. Orr Ewing, 10 App. Cas. 453, 502; In re Trufort, 36 Ch. D. 600, Stirling J. And see Concha t. Concha, supra. 2 Concha v. Concha, supra. 3 Thid. 4 Brigham v. Fayerweather, 140 Mass. 411. But see Goodman ». Winter, 64 Ala. 410; Williams ». Saunders, 5 Cold. 60, 74, dictum; Archer v. Mosse, 2 Vern. 8, only. a question of jurisdiction, how- ever. 5Newman v. Waterman, 63 Wis. 612, 626, dictum, but clear law. 6 An heir-at-law made defendant in probate action who contested, although not cited, cannot after- wards, it having been probated, dispute the validity of the will in respect of real estate affected by it. Beardsley v. Beardsley, (1899) 1 Q. B. 746. 7140 Mass. 411. | [CHAP. IV. 256 ESTOPPEL BY RECORD. strong opinion of the court by Mr. Justice Holmes that the decree was not even admissible evidence upon the point. Again, the probate of a will does not establish the fact that the dispositions made therein were not beyond the testator’s power.! The result, indeed, as has already been stated, is that it is the judgment of the Probate Court on the will, as distin- guished from specific: findings or facts necessarily involved therein, that is binding upon all persons.? And the judgment is conclusive inasmuch as the executor, who offers the will for probate, is deemed to represent all who claim under the will,’ while they and all who claim against it are warned to appear.* The executor does not, however, represent adverse claimants under the will, in regard to their claims.® The case of Lawrence v. Englesby, above cited, shows the conclusiveness of title derived under a grant of letters of admin- istration. That was a petition for appointment as adminis- trator 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 he was not entitled to the position, and that he was an improper person 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 that it could not in a collateral way review the correctness or propriety of a decree of a Court of Probate acting within its jurisdiction. Whether the defendant was a proper person to be appointed administrator, and whether a request by only a part of the next of kin was sufficient to 1Comp. Concha v. Concha, 11 App. Cas. 541; s. c. in C. A.; De Mora v. Concha, 29 Ch. D. 268. 2 Concha v. Concha, supra; Brig- ham »v. Fayerweather, supra. See Williams ». Williams, 63 Wis. 58. 3 Concha »v. Concha, supra. 4 Ante, p. 44. 5 “Where two litigants both claim under a third person, it seems that such third person can never be a “Jegitimus contradictor’’ on be- half of one of them against the other of them. We conceive it to be plain that if a man appointed an executor, and after his death a question arose between the resid- uary legatee and his next of kin as to whether there was an intestacy (entire or partial), the executor would no more represent the resid- uary legatee than the next of kin, because each of these two litigants would assert that the executor held the property in dispute for his benefit.’ De Mora ». Concha, at p. 305. Fry, L. J. CHAP. Iv.] JUDGMENTS IN REM. 257 warrant the grant of letters, were questions properly arising before the court; and if the petitioner felt aggrieved, he should have appealed.! Tn like manner an adjudication of the domicil, or the confir- mation of an order of removal, of a pauper under the peculiar statutes of England and of some of our states concludes the appellant in favor of all the world.2 In West Buffalo ». Walker, just cited, Chief Justice Gibson says that there are three modes of disposing of an order of removal, each having a different effect in point of conclusiveness. The first is by confirmation, which, as has been stated, is conclusive in favor of strangers; 1In the case of Loring v. Steine- man, just cited, Shaw, C. J. had occasion to say: ‘In many cases courts of peculiar jurisdiction have jurisdiction of the subject-matter absolutely, and persons are con- cerned incidentally only, according to their respective rights and in- terests; as in a question of prize the jurisdiction of the Court of Ad- miralty extends to the question whether prize or not, and by ad- judicating upon that question set- tles it definitely in regard to all persons interested in that question, whether they have notice or not. And we think the distribution of an intestate is analogous. The sub- ject-matter, the property, is within the jurisdiction of the court, and the judgment, by determining who are entitled to distributive shares, and extending to the entire estate, determines that no other persons are entitled, and is necessarily conclusive because nothing further remains to be distributed.’ See also Litchfield v. Cudworth, 15 Pick. 23; Vanderpoel v. Van Valken- burgh, 6 N. Y. 190; Bogardus ». Clark, 4 Paige, 623; Fry v. Tay- lor, 1 Head, 594; Cecil v. Cecil, 19 Md. 72; Brawford v. Wolfe, 103 Mo. 391, 15 S. W. 426. And the same doctrine and reasons apply to proceedings in insolvency. Mer- riam v. Sewall, 8 Gray, 316, 327.(a) Letters of administrations are con- sidered in collateral actions as not even prima facie evidence of death or of next of kin, except between the parties. De Mora v. Concha, 29 Ch. D. 268, 286, 297; Morin »v. St. Paul Ry. Co., 33 Minn. 176; Brigham v. Fayerweather, 140 Mass. 411, 415, distinguishing several cases. 2 Rex v. Cirencester, Burr. Sett. Cas. 18; Rex v. Bentley, ib. 426; West Buffalo v. Walker, 8 Barr, 177. See Cabot v. Washington, 41 Vt. 168. This is not true in Connecti- cut. Bethlehem v. Watertown, 47 Conn. 237. And see Renovo ». Half-Moon, 78 Penn. St. 301. This subject has undergone searching consideration in the decision of a probate case, and serious question made whether findings in orders of removal are binding upon strangers except perhaps in the same class of cases. De Mora v. Concha, 29 Ch. D. 268, affirmed on appeal nom. Concha v. Concha, 11 App. Cas. 541. Comp. also Brigham ». Fayerweather, 140 Mass. 411. (a) But it has been held in England that a winding up order is not a judgment in rem, and if made improperly ,is not binding on strangers. An re Bowling v. Welby, (1895) 1 Ch. 663. 258 ESTOPPEL BY RECORD. [cHaAP. Iv. the second is by discharging the order, in which case the adjudi- cation 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 confirmed 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.1 In like manner also a decree in Louisiana appointing a tutor to a minor, if rendered by a court of competent jurisdiction, can- not be impeached in any collateral action by a debtor of the minor.? ‘So long,’ said Mr. Justice Buchanan, ‘as that judg- ment stands unreversed it constitutes a full warrant for the de- mand 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 the statutes of New Hampshire, also concludes all persons.2 In the case cited Mr. Justice Sawyer said that it was manifest that great mischief would result if the question, when any doubt arose, should be left in such a state 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 that should be final and conclusive upon all the world. But the court further decided that the judgment was equally conclusive upon the question where the boundary had previously been. It was ' said that to determine what the effect of the adjudication since the commencement of the suit was to be, upon the rights of the parties involved in it, it was only necessary to understand the character of the proceeding under the provisions of the statute which declared it final. It was not a proceeding relating to 1See Rex v. Bradenham, Burr. 2Succession of Gorrisson, 15 Sett. Cax. 394, concerning which Ja. An. 27. See also Cailleteau v. Chief Justice Gibson says that the Ingouf, 14 La. An. 623. expression ‘ quashed on the merits’ =? Pitman v. Albany, 34 N. H. was inadvertently used for ‘dis- 577. charged.’ CHAP. IVv.] JUDGMENTS IN REM. 259 private transactions, or a controversy between individuals or particular parties. The adjudication was not directly for the purpose of determining private rights, or of deciding a contro- versy between party and party. It related to a subject of pub- lic nature, beyond the rights of litigants, and was strictly a proceeding in rem. Its object was to declare the state, con- dition, or situation of the subject-matter, the true location of the boundary, in a proceeding instituted under the provisions of the law for that object only. In this adjudication 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 declared also where it always had been, since the proper power was exer- cised in establishing it by the legislative act, or by the grant from the king if established during the colonial history; and also where it always would be until altered by like competent authority. We have already adverted to the fact that proceedings in at- tachment, replevin, and the like, are not properly proceedings 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 liti- gation, and those who claim through them.” A distinction may be noticed between those judgments which incidentally establish reputation, custom, a public ferry, and matters of the kind, and judgments strictly in rem. The latter bind third persons; they are conclusive evidence against all the world. The former may be evidence against strangers, ‘but they are not conclusive? The direct object of the suit in Pim v. Curell, just cited, was to recover tolls; and though it was necessary to the recovery to establish the existence of the ferry, still it was not necessary to establish a ferry in general. In other words, the 1 Ante, pp. 51, 52. 3 Pim v. Curell, 6 Mees. & W. ? Mankin v. Chandler, 2 Brock. 234; Carnarvon v. Villebois, 13 125, Marshall, C. J.; Megee v. Mees. & W. 313; Neill v. Devon- Beirne, 39 Penn. St. 50; Woodruff shire, 8 App. Cas. 135, 147; ante, v. Taylor, 20 Vt. 65; The Bold pp. 36, note 7. Buccleugh, 7 Moore P. C. 267, 282. 260 ESTOPPEL BY RECORD. [cHAP. IV. object 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. Moreover, a judgment in rem could not be determined in an action for tolls, though there were a hundred defendants, for the judgment 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 against them. The point of distinction, then, is that in the cases first mentioned the particular fact has been determined only incidentally and with reference to the rights of certain determinate persons. It has been held under a statutory provision that an unsatis- fied judgment against a vessel is no bar to a suit in personam- against the 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 that a judgment against the 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. Lushington has, however, expressed a con- trary view even in regard to foreign decrees, in a dictum in a recent case.” 1 Toby v. Brown, 6 Eng. 308. 2 The Griefswald, Swabey, 430. CHAP. V.] FOREIGN JUDGMENTS IN REM. 261 CHAPTER V. FOREIGN JUDGMENTS IN REM. WE come now to the consideration of Foreign Judgments; under which general term we include the judgments of foreign countries, of English colonies, and of the sister American states. We now reverse the order adopted in the consideration of the judgments of the domestic courts, and enter first into an examin- ation of the cases relating to foreign judgments in rem, and then of those upon the other and more extensive division, call- ing the reader’s attention at the same time to what has been said in the chapter on Res Judicata in regard to the general nature of judgments in rem, and the reasons, such as have from time to time been advanced, why they are deemed conclusive against all persons.+ 2 ‘ 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 pre- sented in each case first appeared in the conclusive character of an estoppel. It is quite probable that, merely as adjudications, judgments in personam appeared first in both cases; but as con- clusive evidence it was otherwise in the case of foreign judg- ments as will presently be seen. First, then, concerning foreign judgments in rem. Such judg- ments 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 the year 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 ap- 1 Ante, pp. 44 et seq. 262 ESTOPPEL BY RECORD. [CHAP. Vv. peal; ! or, he might perhaps have added, by a direct proceeding instituted for the purpose of setting it aside. Only three years before this the same great commercial lawyer had said that a judgment in personam of a court sitting in an English colony was but prima facie evidence of debt, and hence liable to im- peachment in England in a suit upon the same. The most familiar illustrations of the rule are to be found in the adjudications of foreign courts of admiralty in matters of prize; and Hughes v. Cornelius? is a leading case of the kind. Tt 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 France and Holland, condemned as a Dutch prize in a French Court of Admiralty, and sold to the plaintiff Hughes under the sentence; that on the arrival of the vessel in England the defendant Cornelius and others, the serv- ants 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 judg- ment to be entered for the plaintiff; for, it was said, the sen- tence 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 of 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 merchants would be in a pleasant con- dition. 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 1 Bernardi v. Motteux, 2 Doug. Concha ». Concha, 11 App. Cas. 574. See Bolton v. Gladstone, 5 541. East, 155, 160; Lothian v. Hen- 2 Walker v. Witter, 1 Doug. 1. derson,’ 3 Bos. & P. 499; De 52 Show. 232; s. c. Carth. 32; Mora »v. Concha, 29 Ch. D. 268, Skin. 59; 2 Ld. Raym. 893, 935; 301, affirmed on appeal nom. T. Raym. 473. CHAP. V.] FOREIGN JUDGMENTS IN REM. 263 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 fol- lowing the same, have been actuated by motives of comity. But it has been more satisfactorily declared that the true ground upon which effect is given to a foreign judgment in favor of the plaintiff is that of legal obligation, as in the case of domestic judgments.'| That a similar view might be entertained of all rights acquired by virtue of a foreign judgment, whatever the nature of such rights, is assuredly within reason.? And to such rights would attach, inter partes or inter omnes according to the particular case, all findings necessary to their existence. Indeed, there can be no ground for difference in the treatment, as mat- ter of legal obligation, ef contracts made abroad and judg- ments (whether in rem or in personam) pronounced abroad. When jurisdiction has been properly acquired, the law of the land under which it has been acquired should be deemed the law of all the proceedings in the cause, so as to make the judg- ment and findings everywhere binding. — This conclusive effect accorded the judgments of foreign tribu- nals proceeding in rem has been extended to cases of capture and judicial sale in Algiers. The case cited was of a British ship which had been captured by an Algerine corsair and sold by the 1See Godard v. Gray, L. R. 6 Q. B. 139, 148, where it is said that foreign judgments are enforced in England upon the principle thus stated by Parke, B. in Williams v. Jones, 18 Mees. & W. 628, 633: ‘Where a court of competent juris- diction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained. It is in this way that the judgments of foreign: and colonial courts ,are supported and enforced.’ This passage is quoted with approval again in Rousillon v. Rousillon, 14 Ch. D. 351, 370, and in Schibsby v. Westenholz, L. R. 6 Q. B. 155. See also Russell v. Smyth, 9 Mees. & W. 810, 819; Nouvion ». Freeman, 37 Ch. D. 244, 256, Lind- ley, L. J. It surely cannot be from motives of comity that the courts of England enforce the judgments of French courts, when the latter refuse to do likewise with the judg- ments of English courts. 2 Upon the doctrine of comity in regard to foreign judgments, see the able treatise of Mr. Piggott on Foreign Judgments (London, 1879, 1881). >The Helena, 4 Ch. Rob. 3. 264 ESTOPPEL BY RECORD. [CHAP. V. 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 applied 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 be- half 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§ir William Scott, in delivering judgment, said: ‘ This ship appears to have been taken by the Algerines, and it is argued that the Algerines are to be considered in this act as pirates; and that no legal conver- sion of property can be derived from their piratical seizure. Certain it is that the African states were so considered many years ago; but they have long acquired the character of established . govern- ments, with whom we have regular treaties, acknowledging and con- firming to them the relation of legal states. So long ago as the time of Charles II., Molloy speaks of them in language which, though sufficiently quaint, expresses the true character in which 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 obtain the rights or solem- nities of war as other towns or places; for though they acknowledge the supremacy of the Porte, yet all the powers of it cannot improve on them more than their own wills voluntarily 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 counsel 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 consid- eration of which put fire into the breast of the aged Louis IX. to burn up this nest of wasps, who having equipt out a dect in his way for Palestine, resolved to besiege it; whereupon a council of war being called, the question was whether the same should be sum- moned, and carried it should not; for it was not fit the solemn cere- monies of: war should be lavished away on a company of thieves and pirates. Notwithstanding 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 pirates), yet having acquired the reputation of a government, they cannot properly be esteemed pirates, but enemies.’ Molloy, p. 33, § 4. Sir William then proceeds: ‘ Al- though 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. CHAP. V.] FOREIGN JUDGMENTS IN REM. 265 The condemnations of foreign admiralty courts in prize cases have also been held conclusive not only for their own proper purposes, but for other purposes as well; the findings of fact for which the property was condemned being held conclusive, as an exception to general rules,' in all other causes. The 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 conclu- sive, not merely of the change of property, but also of the breach. It was an action upon a policy of insurance containing a war- ranty that the vessel was neutral property, and therefore bound to conduct not inconsistent with neutrality.’ As to the mode of confiscation which has taken place on this vessel, whether by formal sentence or not, we must presume 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 himself appears to have been the owner of the capturing vessel; at. least he intervenes to guarantee the transfer of the ship in question to the Spanish pur- chaser. There might perhaps. be cause of confiscation 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 peonle have foolishly imagined) that there is no other law of nations but that which is derived from positive ‘compact and convention. Had there been any demand for justice in that country on the part of the owners, and the dey had refused to hear their complaints, there might perhaps have been something more like a reasonable ground to in- duce this court to look into the transaction, but no such applica- tion appears to have been made. Mr. Justice | The dey intervened in the trans- action 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 subsequent in- stance 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 proceedings of which it appeared that there was no suitable al- legation of an offence in the nature of a libel, and that there was no statement of facts ex directo upon which the sentence professed to be founded, it was held that the sentence was not conclusive of the cause of seizure and condemna- tion. Bradstreet v. Neptune Ins. Co., 3 Sum. 600; Sawyer v. Maine Ins. Co., 12 Mass. 291. 1Ballantyne v. Mackinnon, (1896) 2 Q. B. 455, 462, 463; Cas- trique v. Imrie, L. R. 4 H. L. 414, 434. 24 Cranch, 434. 3 See also Bradstreet v. Neptune Ins. Co., 3 Sum. 600; Peters v. Warren Ins. Co., ib. 389; Baxter v. New Eng. Ins. Co., 6 Mass. 277. [CHAP. Vv. 266 ESTOPPEL BY RECORD. 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 at an early period adopted this expression of the rule in Hughes v. Cornelius, with the quali- fication that the record should show clearly the ground of the condemnation.?. And the same doctrine has been held in 1‘ All the world,’ he said, ‘ are parties in-'an admiralty cause. The proceedings are in rem, but any person having an interest in the property may interpose a claim, or may prosecute an appeal from the sentence. The insured is emphatic- ally a party, and in every instance has an opportunity to controvert the alleged grounds of condemnation by proving, if he can, the neutral- ity of the property.’ Remarking on the case of Hughes v. Cornelius, already cited, he said: ‘The au- thority of the case of Hughes ». Cornelius, the earliest we meet with as to the conclusiveness of a for- eign sentence,'is admitted; but its application to a question arising under a warranty of neutrality be- tween the insurer and the insured is denied. It is true that in that case the only point expressly de- cided was that the sentence was conclusive as to the change of property effected by the condemna- tion. But it is obvious that the point decided in that case depended, not upon some new principle pe- culiar to the sentences of foreign 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 foundation as the sentence or decree of an English 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 produced 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 attempting to break a blockade, in consequence of which she lost her neutral char- acter; and the change of property produced by the sentence of con- demnation is a consequence 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 property, . . . and yet be left free to litigate anew, in some other form, the very point decided from which this consequence flowed?’ ? Ballantyne v. Mackinnon, 1896, 2 Q. B. 455, 462 (where this is just an exception on authority of Cas- trique v. Imrie, L. R. 4 H. L. 414, 434); Lothian v. Henderson, 3 Bos. & P. 499; Baring v. Clagett, ib. 201; Fernandez ». Da Costa, Park, Ins. 170; Bernardi »v. Motteux, 2 Doug. 574; Bolton v. Gladstone, 5 East, 155; Hobbs v. Henning, 17 C. B. x. 8.791; Dalgleish v. Hodg- son, 7 Bing. 495. CHAP. V.] FOREIGN JUDGMENTS IN REM. 267 America;+ but the courts of New York hold that, while the sentence of a foreign Court of Admiralty condemning property as good and lawful prize is conclusive indeed to change the property, it is only prima facie evidence of the facts on which the condemnation purports to have been founded; and that these matters may be disproved in a collateral action.2, Some doubt perhaps is left by the recent case of De Mora v. Concha? whether Hughes v. Cornelius would now be followed in Eng- land ‘ in regard to the conclusiveness, inter omnes, of findings and grounds of the judgment in prize cases,° as distinguished from the judgment itself.® It is furthermore immaterial that the sentence of condemna- tion was erroneous, or that it was even made under a decree sub- versive of the law of nations, one, for instance, like the Milan decree, which had been repudiated by the United States govern- ment. An erroneous judgment is binding in collateral actions, according to the better opinion, as we conceive, though the error is apparent from the record.’ Advantage of the error can only 1See Magoun v. New Eng. Ins. Co., 1 Story, 157; Dempsey »v. Ins. Co. of Penn., 1 Binn. 299, note; Baxter v. New England Ins. Co., 6 Mass. 277; Stewart v. Warner, 1 Day, 142. 2 Durant v. Abendroth, 97 N. Y. 132, 141; Ocean Ins. Co. v. Francis, 2 Wend. 64; s. c. 6 Cow. 404; Radcliff v. United States Ins. Co., 9 Johns. 277; Vandenheuvel »v. United Ins. Co., 2 Johns. Cas. 451; Smith v. Williams, 2 Caines’s Cas. 110,/118. See Lonergan v. Baber, 59 Ark. 15, 26 S. W. 18. 329 Ch. D. 268, affirmed on ap- peal by the House of Lords nom. Concha v. Concha, 11 App. Cas. 541, where the case again underwent great examination. 4And in America there is a similar doubt. Brigham v. Fayer- weather, 140 Mass. 411, a case touching decrees in the Court of Probate, but referring (on p. 414) to the present subject. 5 Ballantyne v. Mackinnon, (1896) 2 Q. B. 455, 462; Castrique v. Imrie, L. R. 4 H. L. 414, 434; and cases being exceptional, as expressly stated in these authorities. 6 Ante, pp. 247, 248. Comp. Williams v. Williams, 63 Wis. 58, decree of divorce’ for desertion, not contested, held not conclusive of marriage. 7 Williams v. Armroyd, 7 Cranch, 423; Imrie v. Castrique, 8 C. B. n. 8. 405. Affirmed, L. R. 4 H. L. 414. See Richards v. Barlow, 140 Mass. 218, 221; post, pp. 288-290. Foreign decrees in admiralty have been impeached, in former times, in this country, when the record has shown that the court came to an erroneous decision in point of law. Fitszimmons v. Newport Ins. Co., 4 Cranch, 185. But such cases would not now be followed here, it is apprehended, any more than in England. Godard v. Gray, L. R. 6 Q. B. 139; Imrie v. Cas- trique, infra. See further, post, p. 288. 268 [CHAP. Vv. ESTOPPEL BY RECORD. be taken in an appellate court.!_ The inquiry, it is laid down, should be: first, whether the subject-matter was so situated as to be within the lawful control of the state under the authority of which the court sat; and secondly, whether the sovereign au- thority of that state has conferred on the court jurisdiction to decide upon the disposition of the property, and the court has acted within its jurisdiction. If these conditions are met, the judgment concludes all the world.? But if the judgment was contrary to the ‘natural principles of justice,’ it will be held void, as we shall see.? 1 And there is no general right to a writ of error from United States Supreme Court to a State Court unless based upon some Federal question seasonably raised. Generally speaking, estoppel and res judicata present questions of local and not of Federal law. Beals v. Cone, 188 U. 8. 184, 23 Sup. Ct. 275, 47 L. Ed. 435. 2 Castrique v. Imrie, L. R. 4 H. L. 414, Blackburn, J. 3In the case of Imrie v. Cas- trique, just cited, there had been an adjudication in a French ad- miralty court against an English ship in regard to matters over which the English law should have governed, which law, if properly applied, would have resulted in a different decree. The English law was laid before the French court; and the counsel who sought to im- peach the decree contended that it had been contemptuously thrown aside by the court in France. Upon this point Cockburn, C. J. said: ‘It is alleged that the French courts have shown a contemptuous dis- regard of the law of England, the only law applicable to the case, first, in holding that upon the mere contract of the master for necessa- ries a charge upon the vessel follows by operation of law; secondly, in holding that no transfer of a vessel could take place while the ship was on her voyage, to the prejudice of creditors, or without such trans- fer appearing on the ship’s papers; propositions which, though in ac- cordance with the French law, are wholly incorrect with reference to the law of this country. With re- gard to the first. of these objections it is to be observed that the point was never raised at all before the civil tribunal of Havre under the decree of which court the sale of the vessel took place. The plaintiff Castrique, so far as we can gather from the account of the proceedings contained in the special case, con- ‘fined himself to the production of his bill of sale, conceiving that that alone was sufficient to establish his right to the ship. The dis- tinction between the French law and our own as to the hypothecation of a ship by the act of the master does not appear to have been at all adverted to. It cannot, therefore, be said that the court in this par- ticular intentionally disregarded the law of this country. Upon the other point there was no doubt an ex- press decision, and one inconsistent with English law. But it does not at all appear that the court set aside the law of England as in- applicable; it simply misconceived it. The law of England put for- ward by French advocates was. probably expounded in a very im- CHAP. V.] FOREIGN JUDGMENTS IN REM. 269 Thus far of the one case of a pure judgment in rem, con- cluding all the world not only in regard to the judgment itself, but also in regard to all necessary findings and, in prize cases, the grounds thereof.! Foreign decrees confirming marriage or granting divorce, when pronounced by courts of competent juris- diction, are also, in regard to the judgment itself, but no further,” conclusive against the world. Lord Hardwicke, in speaking of a sentence relating to marriage, which it had been urged was valid by reason of the fact that it had been established by a court in France, is reported to have said: ‘ It is true that if so it is conclusive, whether in a foreign court or not, from the law of nations in such cases, otherwise the rights of mankind would be very precarious and uncertain. perfect manner, and without the production of authority to support a position which to French judges would probably seem untenable. The court, therefore, too hastily concluded that the law of England must be what, according to their view, the law of every mercantile community ought to be. But in deciding that the transfer of prop- erty in the ship could not be made during the absence of the ship on a voyage so as to affect the right of third parties, and that the transfer was invalid because it was not in- ’ dorsed on the certificate of registry, the court professed to be acting on the law of England, not to be set- ting up the law of France as over- riding it. All that can be said, there- fore, is that they have misconceived the English law, and that the judg- ment was erroneous. But the result of the authorities on this subject clearly establishes that a judgment in rem of a foreign tribunal, turn- ing on a question of English law, cannot though erroneous be ques- tioned by a court in this country any more than if, turning on the law of the country to which the tri- bunal belonged, it had been errone- ous with reference to the latter.’ See Cammell v. Sewell, 5 Hurl. & 23 N. 728; Simpson v. Fogo, 1 Hem. & M. 195; s. c. 9 Jur. N. s. 403; Lang v. Holbrook, Crabbe, 179; post, pp. 288-290. 1 Ante, pp. 49, 258. ? Ante, pp. 252, 253. See Laing v. Rigney, 160 U. 8. 531, 16 Sup. Ct. 366, 40 L. Ed. 525. + Roach v. Garvan, 1 Ves. Sr. 158. See case cited in Boucher v. Lawson, Cas. temp. Hardw. 85, 89; Kennedy »v. Cassilis, 2 Swanst. 326, note; Burlen v. Shannon, 99 Mass. 200. But this doctrine, though ‘firmly. held,’ to use the language of Mr. Justice Story (Confl. Laws, § 597), in America and Scotland, has not been fully ac- cepted in the courts of England. In the case of Sinclair v. Sinclair, 1 Hagg. Con. 294, the validity of a sentence of divorce pronounced in a foreign country was alleged in bar of proceedings in the Ecclesiastical Court. Lord Stowell said: ‘Some- thing has been said on the doctrine of law regarding the respect due to foreign judgments; and un- doubtedly a sentence of separation, in a proper court, for adultery would be entitled to credit and attention in this court. But I think the conclusion is carried too far when it is said that a sentence of nullity 270 ESTOPPEL BY RECORD. [CHAP. V. The most serious question in these cases of foreign divorce is generally in respect of the jurisdiction of the court. It needs no citation of authority to show that if the parties were bona fide residents of the state in which the divorce was granted, having their true domicil there, the decree will be respected in of marriage is necessarily and uni- versally binding on other countries. Adultery and its proofs are nearly the same in all countries. The validity of marriage, however, must depend in a great degree on the local regulations of the country where it is celebrated. A sentence of nullity of marriage, therefore, in the country where it was sol- emnized would carry with it great authority in this country. But I am not prepared to say that a judgment’ of a third country on the validity of a marriage not within its territories nor had between sub- jects of that country would be universally binding. For instance, the marriage alleged by the hus- band is a French marriage; a French judgment on that marriage would have been of considerable weight; but it does not follow that the judgment of a court at Brussels on a marriage in France would have the same authority, much less on a marriage celebrated here in Eng- land.’ See also Scrimshire - v. Scrimshire, 2 Hagg. Con. 395; Connelly v. Connelly, 2 Eng. L. & E. 570. ‘The English courts,’ says Mr. Justice Story, ‘seem not to be disposed to admit that any valid sentence of divorce can be pronounced, in any foreign country, which shall amount to the dissolution of a marriage celebrated in England, between English subjects, at least so far as such a divorce is to have any force or operation in England. At the same time, it may be remarked that the doctrine so apparently held has undergone very elaborate discus- sions at a very recent period; and the grounds upon which it rests have been greatly shaken. War- render v. Warrender, 9 Bligh, 89; s.c. 2 Clark & F. 488. Story, Confl. Laws, § 595.’ See also ib. §§ 215- 230, and cases considered; Dolphin v. Robins, 7 H. L. Cas. 390; Shaw v. Gould, L. R. 3 H. L. 55. The position has, however, finally been abandoned that a foreign court cannot dissolve an English mar- riage. Harvey v. Farnie, 6 P. D. 35, 44; s. c. 8 App. Cas. 43; Story, Confl. Laws, p. 312, note, 8th ed. In regard to the requisites to the jurisdiction of the courts of one state to pronounce a decree of divorce between parties married in another state, see Kerr v. Kerr, 41 N. Y. 272, and cases infra. 1Of course the decree can have no binding effect out of the state unless the defendant, if not domi- ciled there, was served with process within the state, or appeared gener- ally for defence. People v. Baker, 76 N. Y. 78; Kinnier v. Kinnier, 45 N. Y. 535; Hunt v. Hunt, 72 N. Y. 217; Van Fossen v. State, 37 Ohio St. 317; Sewall v. Sewall, 122 Mass. 156; People v. Dawell, 25 Mich. 247; Crane v. Maginnis, 1 Gill & J. 463; Laing v. Rigney, 160 U.S. 53, 16 Sup. Ct. 366, 40 L. Ed. 525; Andrews v. Andrews, 188 U.S. 14, 23 Sup. Ct. 237, 47 L. Ed. 366; German Savings Co. v. Dormitzer, 192 U. 8. 125, 22 Sup. Ct. 221, 48 L. Ed. 373; Haddock ». Haddock, 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867; Baxter v. Baxter, (1906) P. D. 209. CHAP. V.] FOREIGN JUDGMENTS IN REM. 271 other states. But in several of the states statutes have been passed providing in effect that where a party removes to another state or country for the-purpose of getting such a residence there as to enable him or her to‘sue for a divorce, no decree granting divorce will be binding; and these statutes have often been enforced.!_ Perhaps the same rule would be held by the courts where there was no such statute, on the ground that jurisdiction cannot be acquired by fraud.? It is also established both in*America and in England that the sentences and decrees of the Probate Courts, within their jurisdiction, upon the admissibility of an instrument to probate, and the title derived from issuance of letters testamentary and of administration, are absolutely unimpeachable in all other courts, whether of law or of equity,’ as we have seen to be the case in regard to determinations of the domestic courts. It can- not, therefore, be collaterally shown that another person was ap- pointed executor, or that the will was a forgery. The judgment establishes also the fact that the will was executed according to the law of the country in which the testator was domiciled; but it is not conclusive of the collateral fact of the testator’s actual domicil,® though there was a finding thereon.’ Nor does it show, except between the actually litigating or fully represented par- 1Van Fossen v. State, 37 Ohio St. 317; Smith v. Smith, 13 Gray, 209; Sewall v. Sewall, 122 Mass. 156; Loud ». Loud, 129 Mass. 14, 18; Cheever v. Wilson, 9 Wall. 108; Burlen v. Shannon, 99 Mass. 200; Andrews v. Andrews, 176 Mass. 92, 57 N. E. 333; Story, Confl. Laws, p. 308, note, 8th ed. 2See Van Fossen v. State, 37 Ohio St. 317; Andrews v. Andrews, 188 U. S. 14, 23 Sup. Ct. 237, 47 L. Ed. 366. § Nelson v. Oldfield, 2 Vern. 76; Williams v. Saunders, 5 Cold. 60; Tompkins v. Tompkins, 1 Story, 547; and comp. Whicker v. Hume, 7H. L. Cas. 124, 143; De Mora v. Concha, 29 Ch. D. 268, 300, C. A. 4Thid. See also Smith v. Fenner, 1 Gall. 171; Spencer v. Spencer, ib. 623; Bogardus v. Clarke, 1 Ed. Ch. 266; Dublin v. Chadbourne, 16 Mass. 433, 441; Laughton v. Atkins, 1 Pick. 535; Crusoe »v. Butler, 36 Miss. 150; Townsend v. Moore, 8 Jones, 147; Clark v. Dew, 1 Russ. & M. 103; Montgomery ». Clark, 2 Atk. 378; Allen v. Dundas, 3 T. R. 125; Ex parte Jolliffe, 8 Beav. 168; Archer v. Mosse, 2 Vern. 8; Nelson v. Oldfield, ib. 76; Plume v. Beale, 1 P. W. 388. , 5 Whicker v. Hume, 7 H. L. Cas. 124; De Mora v. Concha, 29 Ch. D. 268, affirmed on appeal nom. Concha v. Concha, 11 App. Cas. 541, ; ® Concha v. Concha, supra. [CHAP. -v. 272 ESTOPPEL BY RECORD. ties, that the testator was possessed of mental capacity to make the will. Sales of wreck and derelict under municipal regulations fall within the same rule. 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 authori- ties refused to take any steps for the condemnation of the vessel. It was subsequently put in requisition by the French govern- ment, sent to Baracoa in Cuba; and there dismantled and aban- doned. The defendant purchased 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 origi- nal 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 be- came 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 plaintiff’s title was not lost by the piratical proceedings thus far. But the subsequent proceedings were fair and according to law; and whether the property had been previously acquired by piracy or not he did not deem material. 1 Brigham v. Fayerweather, 140 Mass. 411. In regard to the execu- tor’s representing legatees, see De Mora v. Concha, 29 Ch. D. 268; s. c. Concha v. Concha, 11 App. Cas. 541; ante, p. 255. 24 Johns. 34. 3*Goods taken from pirates,’ he continued, ‘and belonging to others, will under the English law be taken and sold by government if, the owner comes not within a reasonable time to vindicate his property. What that reasonable time shall be every government will determine for itself. A sale according to the law of the place where the property is must vest a title in the purchaser which all foreign courts are bound, not only from comity, but on strong grounds of public utility, to recognize. . . . This is not a case of prize, or title founded on capture. Such cases are governed by different rules, and must be tested by the law of nations. The sale in this case was @ proceeding under a municipal regulation, and every government prescribes its own rules relative to wrecks and property left derelict. By the English law vessels cast on shore and abandoned, and not reclaimed within a year, are to be sold by a public officer, and the proceeds placed in the hands of the government. We have a similar statute in this state; and I believe it was never doubted but that the purchaser would obtain a valid CHAP. V.] FOREIGN JUDGMENTS IN REM. 273 These cases are sufficient to show that the sentences or de- crees of foreign courts of competent jurisdiction proceeding in rem are conclusive against all persons of the merits of the ques- tion — the status or title — in issue, so far as they clearly ap- pear to have been tried; and this too though they are plainly erroneous.! On the other hand, it is certain that an adjudication of a foreign (like that of a domestic) court is conclusive only of matters without which the judgment could not have been pronounced.” In the case first cited Shattuck filed a libel on the instance side of the District Court of the United States, alleging that Maley, while in command of a public armed vessel of the United States, took possession of a schooner and cargo, in vio- lation of the law of nations, belonging to the libellant, a Danish subject; that he put on board a prize crew who carried the ves- sel to parts unknown; and that they had not brought the same to adjudication in any Court of Admiralty. The libel then prayed for monition to proceed to adjudication, or, in default thereof, for restitution in value, with damages. Maley admitted the seizure, but justified it on the ground that there was probable cause in that the vessel was violating an act to suspend com- mercial intercourse between the United States and France. He also alleged that after the seizure the vessel and cargo were cap- tured by a British war vessel, carried to Jamaica, and libelled and condemned in the Vice-Admiralty Court there as French or Spanish property. Maley relied on this decree as establishing the fact conclusively that the vessel and cargo were not Danish property. The Supreme Court of the United States held that title, which would be everywhere respected.” See The Tilton, 5 Mason, 465. 1See also Castrique v. Imrie, L. R. 4 H. L. 414 (proceeding in a foreign admiralty court establishing a maritime lien); Story, Confl. Laws, p. 814, note, 8th ed.; Monroe v. Douglas, 4 Sandf. Ch. 126; Deni- son v. Hyde, 6 Conn. 508; Town- send v. Moore, 8 Jones, 147; Calvert v. Bovill, 7 T. R. 523; Christie v. Secretan, 8 T. R. 192. ° 2 Maley v. Shattuck, 3 Cranch, 458; Burlen v. Shannon, 99 Mass. 200; De Mora v. Concha, 29 Ch. D. 268; s. c. Concha v. Concha, 11 App. Cas. 541, one of the most striking and instructive examples to be found; the finding of a domestic court of a foreigner’s domi- cil being held by the Court of Appeal not conclusive upon third persons. The masterly judgment in Brigham v. Fayerweather, 140 Mass. 411, goes still further, it will be seen. (CHAP. V. 274 ESTOPPEL BY RECORD. the sentence of condemnation of a vessel as enemy property was not conclusive of its nationality; it being entirely consistent with such sentence that the vessel was in fact the property of a neutral. The nationality of the vessel was not a matter essen- tial to the adjudication; and there was no estoppel to show the real fact.? We must here carefully observe the distinction between this class of cases and that represented by Croudson v. Leonard, already referred to; in which, it will be remembered, it was held that a sentence of condemnation was conclusive of the fact upon which it proceeded, in that case the breach of block- ade. The class of cases of which Maley »v. Shattuck is a rep- resentative decide, not that the sentence is inconclusive of the fact upon which it proceeded, — not, for example, that the sentence may be falsified about the breach of blockade, or the resistance to search, — but that the sentence shall not work an estoppel upon a matter not essential to the adjudica- tion, as, for example, the nationality of the vessel.2 The matter of the breach of blockade, or of the resistance to search, or, in general, of breach of neutrality, is vital to the sentence of con- demnation; such a sentence could not have been declared with- out proof of such facts. But it is not necessary to the sentence | that the vessel, in point of fact, belonged to the nation with which the captor is at war; it is merely a conclusion or an in- ference of international law that a ship which is seeking to break a blockade, to use the most familiar example, belongs to the enemy. It is, indeed, in one sense enemy property, in this, that it is an act of hostility to attempt to break a blockade, so far as the particular vessel is concerned. That vessel has arrayed itself 1Chief Justice Marshall, in de- livering the opinion, said: ‘It is well known that a vessel libelled as enemy’s property is condemned as prize if she act in such a manner as to forfeit the protection to which she is entitled by her neutral char- ‘acter. If, for example, a search be resisted, or an attempt be made to enter a blockaded port, the laws of war as exercised by belligerents authorize a condemnation as en- emy’s property, however clearly it may be proved that the vessel is in truth the vessel of a friend. Of consequence this sentence, being only conclusive as to its own cor- rectness, leaves the fact of real title open to investigation.’ 2 Concha v. Concha, 11 App. Cas. 541. The contrary doctrine in Bernardi v. Motteux, 2 Doug. 574, —and see Hughes ». Cornelius, 2 Show. 232, note, —is now over- CHAP. V.] FOREIGN JUDGMENTS IN REM. 275 in hostility to the blockading force; in this sense it is properly condemned as enemy property. Further, it need hardly be said that foreign judgments in rem raise no estoppel concerning findings stated obscurely or with ambiguity; ! there is no presumption or anything else to help even a domestic judgment in such a case. In the case just cited the record of proceedings contained no allegation of an offence in the nature of a libel (the judgment having been in admiralty); and for this reason the court held that the sentence was not an estoppel. The case of Christie v. Secretan,? an action upon a policy of insurance on a vessel captured and con- demned as prize, also raised a question of this sort. The defence was that the ship was lost by the negligence of the owner in not having on board the rdle d’équipage, and that she was con- demned on this ground. Mr. Justice Grose said that it was indeed necessary that the ship should have such papers, to hold the insurer liable; and that if the ship had been con- demned for the want of such papers, it would have been con- clusive against the owner. In regard to the sentence of con- demnation he said that they could only look at the ground of it, and not at any of the previous reasons stated. The ex- press ground was that the ship belonged to the enemies of France, and that did not negative any fact or circumstance that the plaintiff was bound to prove in order to maintain his. tuled. See Worman v. Worman, L. R. 43 Ch. D. 296. 1Upon this point Mr. Justice Story remarks (Bradstreet v. Nep- tune Ins. Co., 3 Sum. 600): ‘I do not understand that in construing a foreign sentence which is to be held conclusive in rem as to the facts and grounds of the sen- tence stated therein, this court is bound to make out such facts and grounds by argument and inference and conjecture. The facts and grounds ought to appear ex directo in order to estop the parties in in- terest from denying or questioning them. I agree with the doctrine of Lord Ellenborough, in Fisher v. Ogle, 1 Camp. 418, that courts of justice are not bound to fish out a meaning, when sentences of this sort are produced before them. Whatever points the sentence pro- fesses ex directo to decide they are bound to respect and admit to be conclusive. But if the sen- tence be ambiguous, or indeter- minate, as to the facts on which it proceeds, or as to the direct- ground of condemnation, the sen- tence ought not to be held conclu- sive, or the courts of other countries put to the task of picking out the threads of argument, or of reasoning or recital, in order to weave them together so as to give force or con- sistency or validity to the sentence.’ *8T.R. 192, ~ 276 ESTOPPEL BY RECORD. [CHAP. V. action.!. The concluding portion of the French sentence was to this effect: The tribunal ‘likewise adjudges and declares the validity of the prize of the goods and effects, whereof the lading and cargo of the said ship Mercury consists; and all that for want of the despatches and sea-papers of the said captain being in regular order; on which account she is looked upon as belong- ing to the enemies of the French Republic.’ In Robinson »v. Jones ? the record of the sentence was held ambiguous. It declared that the court ‘ pronounced the said vessel called The Franklin, and her lading, to have been unlaw- fully rescued and retaken by the master from the possession of the prize-master, and others put on board thereof from his Maj- esty’s sloop-of-war . . . whilst proceeding to a British port for adjudication, and as such, or otherwise, subject and liable to con- fiscation.’ The ambiguity lay in the words in italics; and these words destroyed the sentence as an estoppel.* Nor could parol evidence be admitted to show what was in fact decided. Evi- dence is often received to show the real issue upon which a judgment or verdict proceeded in a question of identity between matters in dispute in two actions, but not, perhaps, to prove a 1 See Calvert v. Bovill, 7 T. R. 523. 28 Mass. 536. 3 Mr. Chief Justice Parsons dis- tinguishes this case from that of Baxter v. New England Ins. Co., 6 Mass. 277. He said that the decree in that case, ‘after having ex- pressly and distinctly alleged that the vessel had violated a blockade de facto by egress, proceeds to al- lege that for that, and other sufficient causes, she was condemned. Here was not only a direct assertion that a blockade had been violated, but also that the violation was a cause of the condemnation; and _ this being a sufficient cause by the law of nations, it was immaterial whether any other causes existed or not. But the present decree after alleging a rescue declares that for such cause, or otherwise, the vessel is liable to condemnation. Now we know no rule of construc- tion by which it can be maintained that these words amount to a direct allegation that the rescue was even one of the final causes of the con- demnation. There had been, as appears from the decree, an inquiry relative to the violation of the blockade of the West India Islands, with respect to which perhaps the judge was not fully satisfied. Admit that he was fully satisfied that a rescue had actually taken place; yet he might not hold him- self obliged under all circumstances to condemn expressly for that cause. The natural construction of the phraseology is that as the vessel - had been rescued she was liable to condemnation for that cause, or for some other cause not stated. Now, this is far from being a direct unequivocal assertion that she is condemned because she had been rescued.’ cHap. v.] FOREIGN JUDGMENTS IN REM. e 277 specific verdict from a record ambiguous on its face. In other words, parol evidence cannot be received to explain a patent ambiguity in a judgment. The language itself implies that there was no definitive decision of the particular point. The jurisdiction of the court may be called in question. In. order to give a foreign judgment any force extra territoriam it must be made to appear that the court which pronounced the judgment had lawful jurisdiction over the cause, over the res, and over the parties.” 1 But comp. ante, p. 97. 2Story, Confl. Laws, § 586. See The Mecca, 6 P. D. 106, reversing 5 P. D. 28; The Flad Oyen, 1 Ch. Rob. 135; The Henrick & Maria, 4 Ch. Rob. 43; 1 Parsons, Ship. & Adm. 77 and cases cited. This subject came under consideration | ia an early case in the Supreme Court of the United States. Rose v. Himely, 4 Cranch, 241, 269. In delivering the opinion of the court Marshall, C. J. said: ‘The power under which it [the foreign court] acts must be looked into, and its authority to decide questions which it professes to decide, must be considered. But although the general power by which a court takes jurisdiction of causes must be inspected in order to determine whether it may rightfully do what it professes to do, it is still a ques- tion of serious difficulty whether the situation of the particular thing on which the sentence has passed may be inquired into for the purpose of deciding whether that thing was in a state which subjected it to the jurisdiction of the court passing the sentence. For example, in every case of a foreign sentence condemning a vessel as prize of war the authority of the tribunal to act as a prize court must be examinable. Is the question whether the vessel con- demned was in a situation to sub- ject her to the jurisdiction of that court also examinable? This ques- tion, in the opinion of the court, must be answered in the affirma- tive. Upon principle it would seem that the operation of every judg- ment must depend on the power of the court to render that judgment, or, in other words, on its jurisdic- tion over the subject-matter which it has determined. In some cases that jurisdiction unquestionably depends as well on the state of the thing as on the constitution of the court. If by any means whatever a prize court should be induced to condemn as prize of war a vessel which was never captured, it could not be contended that this con- demnation operated a change of property. Upon principle, then, it would seem that to a certain extent the capacity of the court to act upon the thing condemned, arising from its being within or without their jurisdiction, as well as the constitution of the court, may be considered by that tribunal which is to decide on the effect of the sentence. Passing from prin- ciple to authority we find that in the courts of England, whose de- cisions are particularly mentioned because we are best acquainted with them, and because, as is be-, lieved, they give to foreign sentences as full effect as are given to them in any part of the civilized world, the position that the sentence of a. foreign court is conclusive with 278 ESTOPPEL BY RECORD. [CHAP. Vv. If the record does not show any monition, or any hearing, or that the formalities of law had been gone through, the judgment will not be even prima facie evidence of the jurisdiction of the court.!. And when the record of a foreign judgment in rem is silent in regard to the matters which constitute jurisdiction, jurisdiction will not be presumed.?, In Commonwealth ». Blood this was held to be true of a judgment rendered in another of our American states by a court of record in a divorce case; the record showing that the libellee resided in another state, and not showing any service of process upon her. The court declared that the jurisdiction of the foreign court over the subject-matter was a special authority not recognized by the common law, and that its proceedings therefore stood on the same footing with those of courts of limited and inferior juris- diction.’ Though the jurisdiction, however, may ordinarily be inquired into, it is possible that if there has been a direct adjudication of the matter, on appearance and contest, this may be conclusive; it has been so decided in actions in personam.* This, however, would be true only where the question of jurisdiction (the par- ties being before the court) related to the subject-matter of the suit, or to the validity of the notice to the defendant as a resi- respect to what it professes to de- cide is uniformly qualified with the limitation that it has in the given case jurisdiction of the sub- ject-matter.’ The Flad Oyen, 1 Ch. Rob. 135, and other cases. 1Sawyer v. Maine Ins. Co., 12 Mass. 291; Bradstreet v. Neptune Ins. Co., 3 Sum. 600. 2Commonwealth »v. Blood, 97 Mass. 538; The Griefswald, Swabey, 430. This work does’ not profess to deal with what constitutes juris- diction; if the reader desires to pursue the inquiry, he is referred to the following authorities: Dodd v. Una, 40 N. J. Eq. 672; School Trustees v. Stocker, 13 Vroom, 116; Hudson v. Guestier, 4 Cranch, ae s. c. 6 Cranch, 281; The Mary, 9 Cranch, 126; The Tilton, 5 Mason, 465; Reid v. Darby, 10 East, 143; Hunter v. Prinsep, ib. 378; 1 Par- sons, Ship. & Adm. 75-78, and cases cited. If the foreign court had jurisdiction when the suit was begun, it will be presumed, in the absence of evidence to the con- trary, that it had jurisdiction to the end. Lockhart v. Locke, 42 Ark. 17. 3 See also Burlen v. Shannon, 99 Mass. 200. The same rule was in Barringer v. King, 5 Gray, 9, 11, in- timated to be true of the record of a judgment rendered by the Supreme Court of another state - in an action of contract against a resident of Massachusetts. 4Gunn v. Howell, 35 Ala. 144; Wyatt v. Rambo, 29 Ala. 510; Hud- son v. Guestier, 6 Cranch, 281, 284; Grignon v. Astor, 2 How. 319, 340. See ante, pp. 229, 230. cHap. v.] FOREIGN JUDGMENTS IN REM. 279 dent of the state. An adjudication of jurisdiction over a non- resident who had not been served with notice within the state, and had not appeared, or had appeared only to test the ques- + tion of jurisdiction,! could not be conclusive; and this too though jurisdiction had been acquired over property of the de- fendant. The fact that the defendant’s property may have been sold under orders of the court (e. g. to satisfy a decree for ali- mony), and a good title conveyed, would not make the judgment binding extra territoriam except of the change of title to the property so sold.” 4 The parties are not estopped to show the want of authority in the foreign tribunal to sit as a court;? at least, the party who did not institute the proceedings there is not thus estopped. But the presumption generally is that the tribunal was a legiti- mate one.* In the case of The Flad Oyen, just cited, the English Court of Admiralty held that the authority of a French consul, sitting as a judge in admiralty in Norway, under a French commission, would not be recognized.> And in Snell v. Faussatt the court said that when the constitution of a foreign court was not known, it would be presumed to be a legal one; but when the source of its authority and constitution was stated, the matter ought to be examined; and if it was contrary to the usual manner of constituting courts, the burden of proof was shifted upon the party who would support the decree. Thus, it was not usual for courts to be constituted by a military com- mander; and since it appeared that the court in question had been so established, the presumption of legality did not arise. In the case of The Griefswald, just cited, the vessel of a British subject had been injured in Turkish waters by collision with a Prussian ship; whereupon he applied to the British con- sul to request the Prussian authorities there to detain the offend- 1 Walling v. Beers, 120 Mass. 548. See next chapter. 2 Personal judgment, without service or appearance, against a foreigner will not be enforced asa judgment in rem, though no dis- tinction is made in the foreign country between such judgments. The Mecca, 6 P. D. 106, reversing 5 P. D. 28, 3 Snell v. Faussatt, 1 Wash. C. C. 271; The Griefswald, Swabey, 430; The Henrick & Maria, 4 Ch. Rob. 43; The Flad Oyen, 1 Ch. Rob. 135; 1 Parsons, Ship. & Adm. 77, and cases cited. 4Snell v. Faussatt, supra. 5The Kierlighett, 3 Ch. Rob. 96. See The Christopher, 2 Ch. Rob. 209. [CHAP. v. 280 ESTOPPEL BY RECORD. ing vessel for satisfaction. The master of the Prussian vessel soon after this applied to the Prussian legation to have a mixed court appointed to adjudicate the matter; but the British consul refused to take part in the matter, saying that he was not in a position to recognize the acts and proceedings proposed. The Prussian legation then proceeded to constitute a tribunal for trying the cause without any participation or recognition by the English authorities, so far as it appeared from the transcript of the proceedings, and after the injured party had departed with his vessel. The case was tried without notice or appearance, and the complaint of the British subject was dismissed. In an action by him for the same injury in an English Vice-Admiralty Court it was held that the decree just mentioned, in favor of the Prussian, was no estoppel, in the absence of proof that the court had jurisdiction by treaty, usage, or voluntary submission. A foreign judgment in rem may also be impeached for fraud practised at the trial upon the person against whom the judg- ment is pleaded. Whether this means that a party may show that a fact decided was so decided either by reason of false or perjured testimony, or by reason of suppression of evidence, is not clear; though it is clear that any judgment fraudulently ob- tained in any other way than as a result of a consideration by the court of the very question of fraud would be open to col- lateral impeachment. High authority may be cited, in regard to judgments in personam of foreign countries, to the effect that fraud of the former kind, i. e. the production of false evidence or the suppression of evidence, will not afford ground for im- peaching the judgment; ! but this in turn has also been denied 1 Flower v. Lloyd, 10 Ch. D. 327, 333, by James and Thesiger, L. JJ. in the Court of Appeal; Cas- trique v. Behrens, 30 L. J. Q. B. 163; s.c.2 El. & E. 709; Field and Hoff- man, JJ. in United States v. Flint, 1 Bigelow, Fraud, 88, note. See Magoun v. New Eng. Ins. Co., 1 Story, 157, 167; Hood v. Hood, 11 Allen, 196; 110 Mass. 463; 2 Story’s Equity, pp. 873, 876, 13th ed. In Castrique v. Behrens, supra, Crompton, J. for the Queen’s Bench said: ‘It is averred, and we must on the demurrer assume that it is truly averred, that by the law of France the judgment in rem can only be obtained if the holder of the bill of exchange be a French subject, and bona fide holds for value; and we must take it as ad- mitted on this demurrer that Tro- teaux, the French holder of the bill of exchange, by a fraudulent procurement of the defendants, falsely represented to the French courts that he was holder for value, when he was not. It is not neces- cHaP. v.] FOREIGN JUDGMENTS IN REM. 281 by high authority and the contrary actually decided.!_ We can- not but think that the view first stated is the better.2 It is so settled with regard to judgments of courts of our sister states. sary to say what would be the effect if it were stated that, by the contri- vance of the defendants, the pro- ceedings were such that the plaintiff had no opportunity to appear in the French court and dispute the alle- gations. In the present case it is quite consistent with the averments in the declaration that the plaintiff had notice of the proceedings in France, and purposely allowed judg- ment to go_by default, or even that he appeared in the French court, intervened, and was heard, and that the very question whether Troteaux was a holder for value was then decided against him. We think, on the principle laid down in Bank of Australasia v. Nias, 16 Q. B. 717, that the plaintiff cannot impeach the judgment here on such grounds, and that whilst it stands unreversed this action cannot be maintained.’ This case was not before the court in Abouloff v. Oppenheimer, infra. 1 Abouloff v. Oppenheimer, 10 Q. B. D. 295, C. A.; Hunt ». Hunt, 72 N. Y. 217, 227 (dictum). See Ochsenbein v. Papelier, L. R. 8 Ch. 695; Price v. Dewhurst, 8 Sim. 279, 302; Vadalia v. Lewis, 25 Q. B. D. 310; Regina v. Wright, 17 N. B. 360. In Abouloff v. Oppenheimer a distinction is taken between the court’s being misled and being mistaken (comp. the case of a per- verse disregard by a foreign court of the law of the country which should govern. Simpson v. Fogo, 1 Hem. & M. 195; Liverpool Credit Co. v. Hunter, L. R. 3 Ch. 479, 484; Castrique v. Imrie, L. R. 4 H. L. 414); that distinction being based upon the ground that where the foreign court has been misled by a party, to allow him the benefit of the judgment would be to allow him to take advantage of his own wrong. But that is equally true where the foreign court was only mistaken; for now the mistake is discovered (by the domestic court), and still the party in whose favor it was made is seeking to press his advantage. That cannot be any better than the other case. Comp. Redgrave v. Hurd, 20 Ch. D. 1; Arkwright v. Newbold, 17 Ch. D. 301, 320; 1 Story, Equity, p. 210, note, 13th ed.; cases in regard to innocent misrepresentations sought to be enforced. 2 Christmas v. Russell, 5 Wall. 290; post, Foreign Judgments in Personam. 3 Thid. 282 ESTOPPEL BY RECORD. [CHAP. VI. CHAPTER VI. FOREIGN JUDGMENTS IN PERSONAM. § 1. Historical View of the Subject. WE proceed next to the consideration of foreign judgments in personam. And first, of foreign judgments strictly so called, and judgments rendered in the colonies and provinces of Eng- land. The two classes will be considered together, for the rea- son that the courts have not practically distinguished between them; though grounds for a distinction have been suggested in several cases, as will be seen. We call attention now to the cases in historical order, by which it will appear that for many years there was much fluctu- ation in the decisions concerning the effect to be given the judgments of tribunals of foreign countries: the courts at one time considering them as prima facie evidence only, and liable to be overturned by countervailing proof; then advancing and holding them conclusive of the matters adjudicated, and again receding to the former position; until finally, when the precise point presented itself for earnest consideration, they declared a settled rule in favor of the conclusiveness of these judgments. We shall see also that this step was finally taken in England considerably earlier than in America; and that some of our courts still hesitate to take it.! One of the most familiar cases upon this subject is Walker ». Witter.? That was an action in the King’s Bench in 1778 upon a judgment rendered in the Supreme Court of Jamaica. The defendant, besides nil debet, pleaded nul tiel record; the plain- tiffs having declared ‘ prout patet per recordam.’ Issue of fact 1See Hilton v. Guyot, 159 U.S. country. See Ritchie v. McMullen, 113, 16 Sup. Ct. 139, 40 L. Ed. 95, 159 U.S. 235, 16 Sup. Ct. 171, 40- that the rule depends upon exist- L. Ed. 133. ence of a similar rule in the foreign 21 Doug. 1. * SECT. I.] FOREIGN JUDGMENTS IN PERSONAM. 283 was joined upon the first plea, and a verdict was given for the plaintiffs. To the plea of nul tiel record the plaintiffs replied that there was such a record, which they were ready to verify by production. Counsel for the defendant, apparently on a motion in arrest of judgment on the verdict upon the first plea, contended that an action of debt could not be maintained on a foreign judgment; or if it could, that the consideration of the judgment should be shown. For the plaintiffs it was argued that where indebitatus assumpsit would lie, debt could be main- tained, citing Crawford v. Whittal.!_ Counsel said that it was also determined in that case that the judgment of itself was prima facie evidence of the debt, and that therefore the plain- tiffs were not bound to allege the consideration. The question whether the other plea was good was also argued by both sides. Lord Mansfield said that the plea of nul tiel record was improper; and that though the plaintiffs had called the judg- ment a record, it was clear that they did not mean that sort of record to which implicit faith was given by the courts of West- minster Hall. The question, he said, was brought to a narrow point, for it was admitted on the part of the defendant that indebitatus assumpsit would have lain, and on the part of the plaintiffs that the judgment was only prima facie evidence. This being the case, debt was a proper action. He thus decided the only points in the case; but he then added obiter that though foreign judgments were good grounds of action, still they were examinable on the merits; and among other cases he re- ferred to one in which he said Lord Hardwicke had thought himself entitled to examine into the justice of a decision of the House of Lords because the original decree was rendered in a court in Wales.? The other judges agreed with Lord Mansfield. It will be observed, however, that the question was not raised in the case whether foreign judgments were conclusive; the plain- tiffs only insisting that they were prima facie evidence, as this was sufficient for their case. In Galbraith v. Neville * the question arose (after verdict for the plaintiff) upon a rule to show cause why there should not 1H. 13 Geo. 3, B. R. 21 Eq. Cas. Ab. 83, pl. 3; Isquierdo v. Forbes, H. 24 Geo. 3, B. R. 21 Doug. 5, note. [CHAP. VI. 284 ESTOPPEL BY RECORD. be a new trial. Lord Kenyon there said: ‘I cannot help enter- taining very serious doubts concerning the doctrine of Walker ». Witter that foreign judgments are not binding on the parties here. But when I am told that Lord Hardwicke did not hold himself bound by a decree on the chancery side of the Court of Great Sessions in Wales, affirmed in the House of Lords, I own I am quite lost in a maze.’ Mr. Justice Buller, however, in the same case, approved the doctrine of Lord Mansfield in Walker v. Witter, saying that he had often heard that eminent jurist repeat what was said by Lord Hardwicke in the case alluded to, and that this was the ground of his lordship’s opinion: ‘ When you call for my assistance to carry into effect the decision of some other tribunal, you shall not have it if it appears that you are in the wrong.’ The same view was entertained by Chief Justice Eyre in Phillips ». Hunter.? A case before Lord Chief Justice Best in 1826? has often been cited as sustaining the doctrine that foreign judgments are conclusive; but it is not a direct authority for that position. All that his lordship held was that such judgments were at all events prima facie ground of actions; and he expressly stated that it was not necessary to decide whether the judgment pro- nounced could be impeached on the merits. The next case which entertains the doctrine of Lord Mans- field in Walker ». Witter was decided in the House of Lords in 1834.3 In this case a bill had been filed in Ireland to enforce a decree of the Court of Chancery in England; the bill was dis- missed for want of jurisdiction, and of course the court of Ire- land did not entertain the question of the conclusiveness of the 12H. Black. 403, 411. ‘It is in one way only,’ he said, ‘ that the sen- tence or judgment of the court of a sentences and judgments are obli- gatory; not as conclusive, but as matter in pais, as consideration foreign state is examinable in our courts, and that is when the party who claims the benefit of it applies to our courts to enforce it. When it is thus voluntarily submitted to our jurisdiction we treat it, not as obligatory to the extent to which it would be obligatory, per- haps, in the country in which it was pronounced, nor as obligatory to the extent to which by our law prima facie sufficient to raise a promise. We examine it as we do all-other considerations of promises, and for that purpose we receive evidence of what the law of the foreign state is, and whether the judgment is warranted by that law.’ Comp. the rule ante, pp. 114, 115. ? Arnott v. Redfern, 3 Bing. 353. 4 Houlditch v. Donegal, 8 Bligh, N. 8. 301. SECT. 1.] FOREIGN JUDGMENTS IN PERSONAM. 285 English decree. The only point, therefore, that could be decided on the appeal to the House of Lords was whether the court in Ireland had erred in refusing to entertain the bill. The decree was reversed; the lord chancellor holding, on the authority of Martin v. Nicolls,’ that a foreign decree may well be the ground of a bill in another court. But in the course of his opinion he took occasion to express his views very decidedly in favor of the doctrine that the judgments of the courts of other countries were only prima facie evidence of debt, and might be reopened in a suit to carry them into effect at home; and this, he con- tended, was eminently proper where it appeared that the law of the foreign country was inconsistent with that of England. And he cited Buchanan »v. Rucker ? in illustration of this point, where the court refused to enforce a foreign judgment against a party residing in England who upon the face of the proceedings appeared only to have been summoned ‘by nailing up a copy of the declaration at the court-house door.’ Don »v. Lippman * in the House of Lords is a later case in which the language of Lord Brougham is much to the same effect; but the fact was that the defendant in that case was a subject of Scotland, while the judgment against him was ren- dered in France, and the action was begun and ended in his absence, the only citation being by ‘ the affixing of notice in a public office,’ in accordance with a form known in the French courts. Lord Brougham said the case was ‘ stronger than that of the defendant in Buchanan v. Rucker, and he must have the same principle applied to it.’ The language of the court in Douglas v. Forrest,4 quoted by Lord Brougham, which was an action in an English court on a Scotch judgment of horning against a Scotchman born, is to the same effect. But these cases do not decide that the merits of a valid foreign judgment may be inquired into; they merely hold that the judgment will not be enforced if it appear that the foreign court had not acquired jurisdiction of the case. Of this more at length in a subsequent part of this chapter. These are all the English cases of importance which favor the rule that the judg- ments of courts of other countries are inconclusive; and it will 13 Sim. 458. $5 Clark & F. 1. 21 Camp. 63; s. c. 9 East, 192. 44 Bing. 686. 286 ESTOPPEL BY RECORD. , [CHAP. VI. be observed that in none of them is there an express and au- thoritative adjudication of the point. On the other side, among the early cases affirming the conclu- siveness of foreign judgments, we have the language of Lord Kenyon, above quoted, in Galbraith v. Neville; of Lord Ellen- borough, in Tarleton v. Tarleton;1 of Lord Hardwicke, in Boucher v. Lawson; ? and of Lord Chancellor King, in Burroughs v. Jamineau. Gold v. Canham ‘* also proceeds upon this view; and the later case of Martin v. Nicolls ® is a direct authority that the judgments of colonial courts cannot be questioned. Coming down to a still later period, we find Lord Denman in two cases, one in the year 1839,° the other in the year 1844,’. supporting the same side of the question. In the second case he very clearly intimated that a plea to an action upon a colo- nial judgment ought to steer clear of an inquiry into the merits. “For,’ he added, ‘ whatever constituted a defence in that court ought to have been pleaded there.’ But the doctrine of Lord Mansfield in Walker v. Witter was directly impugned in the re- cent case of Bank of Australasia v. Nias,’ and the rule adjudged that a plea to the merits in a suit upon a colonial judgment otherwise valid was bad; and this case has settled the law of England.°® The action in that case was upon a colonial judgment; and whether the same conclusiveness should be accorded to judg- ments rendered in foreign countries, from which no appeal lies to any English court, was not and could not have been decided. Lord Campbell expressly refrained from giving an opinion upon the point. There had never been an authoritative decision of the question prior to the year 1862, though many dicta are to be found among the cases to the effect that they are only prima facie ground of suit. Several of the cases have been already 14 Maule & S. 20. 7 Henderson v. Henderson, 6 Q. 2 Cas. temp. Hardw. 85, 89. B. 288. 3 Mosely, 1. 516 Q. B. 717. 41 Cas. in Ch. 311; also re- * De Cosse Brissac ». Rathbone, ported in note to Kennedy ». 6 Hurl. & N. 301; Scott v, Pilking- Cassillis, 2 Swanst. '313, 325. ton, 2 Best & S. 11; Vanquelin v. 53 Sim. 458. Bouard, 15 C. B. n. s. 341. 6 Ferguson v. Mahon, 11 Ad. & E 179. SECT. I.] FOREIGN JUDGMENTS IN PERSONAM. 287 referred to. In that year the important case of Scott v. Pilking- ton ! was tried in the Court of Queen’s Bench, — an action upon a judgment rendered in New York. The distinction, however, which Lord Campbell suggested between the conclusiveness of colonial and foreign judgments (that in the former case an appeal lies to the Privy Council) does not seem to have been presented to the court; at any rate, it was unnoticed. The court, by its Chief Justice, said: ‘It was not denied that since the decision in the case of The Bank of Australasia v. Nias we were bound to hold that a judgment of a foreign court having jurisdiction over the subject-matter could not be questioned on the ground that the foreign court had mistaken their own law, or had come on the evidence to an erroneous conclusion as to the facts.’ So that it appears that counsel failed to call the attention of the court to the supposed distinction; and the court without hesitation gave an effect to the decision of Lord Camp- bell which he himself declined to give to it. The question, how- ever, must be regarded as settled in the English courts by this case. The rule in the case referred to went, indeed, a step fur- ther, and declared that though as in that case an appeal be actually pending upon the judgment of the foreign court, this should be no bar to the action in England; although it was said that it might afford ground for the equitable interposition of the English court to prevent the possible abuse of its process, and on proper terms to stay execution.’ The result, then, finally reached in the courts of England-is that foreign judgments, strictly so called, and colonial judgments stand in the same category and on a perfect equality so far as the matter of conclusiveness is concerned; in either case any plea which goes to the merits of the action upon which the judgment was rendered, whether impeaching the ruling upon the law or the decision upon the facts,? is bad, — provided the judgment was not otherwise subject to impeachment.‘ But of 12 Best & S. 11. 4See also Crawley v. Isaacs, 16 2 See Taylor v. Shew, 39 Cal. 5386. Law T. nw. s. 529; Doglioni v. Cris- 3It matters not that all the pin, L. R. 1 H. L. 301; Barber ». facts were not before the court. Lamb, 8 C. B. Nn. s. 95; Robertson De Cosse Brissac v. Rathbone, 6 »v. Struth, 5 Q. B. 941; Hamilton Hurl. & N. 301; In re Trufort, 36 »v. Dutch East India Co., 8 Bro. Ch. D. 600, Stirling, J. P. C. 264; Becquet v. MacCarthy, 288 ESTOPPEL BY RECORD. [CHAP. VI. course a foreign judgment could not have greater effect than it would have where rendered; and therefore it is always proper to inquire into the effect of the judgment in the foreign country. If it would not there constitute a res judicata, it cannot else- where.? The subject has again come under review by the Court of Queen’s Bench, but in a somewhat different form.” The ques: tion raised in Godard v. Gray was whether a judgment rendered in France upon an English contract, the record of which showed on its face that the law of England had been mistaken and so misapplied, was conclusive when sued upon in an English court. The court decided the question in the affirmative; taking occa- sion to reaffirm also the doctrine of the late cases above pre- sented.3 2 Barn. & Ad. 951; Burrows »v. Jemino, 2 Strange, 733; Ferguson v. Mahon, 11 Ad. & E. 179; Ricardo v. Garcino, 12 Clark & F. 368; Bank of Australasia v. Hardin, 9 C. B. 661; Cammell v. Sewell, 3 Hurl. & N. 617; s.c. in error, 5 Hurl. & N. 728; Kersall v. Marshall, 1 C. B. Nn. s. 241; General Nav. Co. »v. Guillou, 11 Mees. & W. 877; Frayes v. Worms, 10 C. B. n. s. 149; Simp- son v. Fogo, 1 Hem. ‘& M. 195; Obicini v. Bligh, 8 Bing. 335, Ad- mission of evidence not admissible here not ground for impeachment of foreign judgment. Hilton v. Guyot, 159 U. S. 113, 16 Sup. Ct. 139, 40 L. Ed. 95. It may be impeached for fraud. Regina v. Guyot, 17 N. B. 254, 363. Text quoted in Banister »v. Campbell, 138 Cal. 455, 71 P. 504. 1Nouvion v. Freeman, 37 Ch. D. 244, C. A. reversing 35 Ch. D. 704, on the effect of the judgment in the foreign country. 2 Godard v. Gray, L. R. 6 Q. B. 139. See ante, p. 267; Imrie »v. Castrique, 8 C. B. n. s. 405, 417; Castrique v. Imrie, L. R. 4 H. L. ‘it would not be conclusive. And this is considered to have settled the law. 414, 437; Simpson v. Fogo, 29 L. J. Ch. 657; s. c. 32 L. J. Ch. 249, and 1 Hem. & M. 195; Dent »v. Smith, L. R. 4 Q. B. 414. So in re- gard to judgments rendered in courts of our sister states. Richards v. Barlow, 140 Mass. 218, 221. 3Mr. Justice Blackburn, who spoke for the majority, said: ‘It is broadly laid down by the very learned author of Smith’s Leading Cases, in the original note to Doe v. Oliver, Smith L. C. 2d ed., at p. 448, that it is clear that if the judgment appear on the face of the proceedings to be founded on a mistaken notion of the English law, For this he cites Novelli v. Rossi, 2 Barn. & Ad. 757, which does not decide that point, and no other authority; but the great learning and general accuracy of the writer makes his unsupported opinion an authority of weight, and accordingly it has been treated with respect. In Scott v. Pilkington, 2 Best & 8. 11, 42, the court expressly declined to give any opinion on the point not then raised before them. But 4 Nouvion v. Freeman, 37 Ch. D. 244, C. A.; In re Trufort, 36 Ch. D. 600. SECT. I.] FOREIGN JUDGMENTS IN PERSONAM. 289 What the effect might have been of a perverse disregard of the governing law, whether the law of England ! or of another country,” was not considered; though there are indications that that would be a different case if it should ever arise. Indeed, the view taken in Godard ». Gray in regard to error apparent on the very record of the proceedings was not readily accepted; 4 we cannot find that it has been acted upon; and it is worthy of note that the present very learned editors of Smith’s Leading Cases have very materially qualified his position, and state it thus: ‘If the judgment be founded on an incorrect view of the English law, knowingly or perversely acted on.” The doctrine thus qualified does not apply to the present case; and there is therefore no need to inquire how far it is accurate. doctrine as laid down by Mr. Smith does apply here, and we must ex- press an opinion on it; and we think it cannot be supported, and that the . defendant can no more set up, as an excuse relieving him from the duty of paying the amount awarded by the judgment of a foreign tri- bunal having jurisdiction over him and the cause, that the judgment proceeded on a mistake as to English law, than he could set up as an ex- cuse that there had been a mistake as to the law of some third coun- try incidentally involved, or as to any other question of fact. It can make no difference that the mistake appears on the face of the proceed- ings. That, no doubt, greatly facilitates the proof of the mistake; but if the principle be to inquire whether the defendant is relieved from a prima facie duty to obey the judgment, he must be equally telieved whether the mistake appears on the face of the proceedings or is to be proved by extraneous evi- dence. Nor can there be any dif- ference between a mistake made by the foreign tribunal as to English But the law, and any other mistake. No ‘ doubt the English court can without arrogance say that, where there is a difference of opinion as to English law, the opinion of the English tribunal is probably right; but how would it be if the question had arisen as to the law of some of the numerous portions of the British dominions where the law is not that of England? The French tribunal, if incidentally inquiring into the law of Mauritius, where French law prevails, would be more likely to be right than the English court; if inquiring into the law of Scotland, it would seem that there was about an equal chance as to which took the right view. If it was sought to enforce the foreign judgment in Scotland, the chance as to which court was right would be altered. Yet it surely cannot be said that a judgment shown to have proceeded on a mistaken view of Scotch law could be enforced in England and not in Scotland, and that one proceeding on a mistaken view of English law could be en- forced in Scotland and not in England.’ 1 As in Godard v. Gray, in regard to mistake. 2 Asin Meyer ». Ralli, 1 C. P. D. 358, also as to mistake. 3 Smith’s L. C. 448, 2d Eng. ed., quoted by Blackburn, J. supra; Simpson v. Fogo, 1 Hem. & M. 195; Liverpool Credit Co. ». Hunter, L. R. 3 Ch. 479, 484. See Castrique v. Imrie, L. R. 4 H. L. 414, 445. 4 On the contrary, see Reimers v. Druce, 23 Beav. 145; Messina »v. (CHAP. VI. 290 ESTOPPEL BY RECORD. though that case appears to have adopted the true rule. To permit error apparent, whether of fact or of law, if not perverse, to furnish ground for impeaching the judgment is much like abandoning the firm ground of the modern authorities; for it is hard to see any real distinction between error apparent, if not merely clerical or arithmetical, and error proved ab extra. The difficulty in the case under consideration arises, of course, from the fact that the foreign court ought to have applied the govern- ing law; but the test of conclusiveness should arise upon the question whether it attempted to do so or contemptuously re- fused,! not whether there was a mistake apparent on the record in contrast with mistake to be shown by evidence aliunde. The early English dicta above referred to were for a long time quite generally if not universally accepted by the courts of this country; the judgments of foreign countries, and judgments rendered in the sister colonies and states before the adoption of the Constitution and for a short time afterwards in many in- stances, were treated as only prima facie evidence of debt, liable to be disproved, like other evidence of that kind.? It will be seen that several of the cases cited as holding foreign judg- ments inconclusive are recent decisions. Only two of them, however, are direct adjudications to that effect, namely, Burn- ham v. Webster and Rankin v. Godard. The other recent cases (Middlesex Bank ». Butman and Taylor ». Barron) support the Petrococchino, L. R. 4 P. C. 144; Meyer »v. Ralli, 1 C. P. D. 358, 370. See also Simpson v. Fogo, supra, Wood, V. C.; Becquetv. MacCarthy, 2 Barn. & Ad. 951, 957. 1See Castrique v. Imrie, L. R. 4H. L. 414, 445. a Hitchcock v. Aicken, 1 Caines, 460; Taylor v. Bryden, 8 Johns. 173; Pawling v. Bird, 13 Johns. 192; Bartlett v. Knight, 1 Mass, 400; Buttrick v. Allen, 8 Mass. 278; Bissell v. Briggs, 9 Mass. 462; Winchester v. Evans, Cooke, 420; Glasgow v. Lowther, ib. 464; Tay- lor v. Phelps, 1 Har. & G. 492; Barney v. Patterson, 6 Har. & J. 182; Benton v. Burgot, 10 Serg. & R. 240; Williams v. Preston, 3 J. J. Marsh. 600; Aldrich v. Kinney, 4 Conn. 380; Garland ». Tucker, 1 Bibb, 361; Pritchet v. Clark, 3 Har. (Del.) 717; Clark v. Parsons, Rice, 16; Bimeler v. Dawson, 4 Scam. 536; Burnham v. Webster, 1 Woodb. & M. 172; Middlesex Bank v. Butman, 29 Maine, 19; Taylor v. Barron, 30 N. H. 78; Rankin v. Godard, 54 Maine, 28; Tourigny v. Houle, 88 Me. 406, 34 A. 158. Foreign judgments are prima facie evidence merely of the right and matter they purport to decide — ‘ this opens to inquiry the validity of the Quebec judg- ment.’ Tremblay v. Aetna Life Ins. Co., 97 Me. 547, 55 A. 509, 94 AS. R. 521. SECT. I.] FOREIGN JUDGMENTS IN PERSONAM. 291 position only by dicta; and all of the cases cited are founded on the early English dicta now overruled. In two of the cases just cited (Barney v. Patterson and Taylor »v. Phelps) it is said that when foreign judgments are only incidentally involved, they have the same conclusiveness as domestic judgments; and in Cummings v. Banks ! it is said that all the American authori- ties agree in this proposition. The books contain few American cases in which the question of the conclusiveness of foreign judgments has been directly in- volved and decided. In the last case cited, and in Monroe ». _ Douglas,? it was clearly intimated that they could not be im- peached on the merits. The point arose, however, in the recent case of Lazier v. Westcott? in the Court of Appeals of New York. In a well-considered opinion Mr. Justice Davies, in pro- nouncing the judgment, adopted the late English view, holding a judgment between the same parties, in favor of the same plaintiff, to be conclusive.* The learned judge puts the opinion 12 Barb. 602. 24 Sand. Ch. 126. 326 N. Y. 146. 4In the concluding portion of his opinion he said: ‘ We think the rule adopted in England... should be adopted and adhered to here in respect to such foreign judgments, and that the same prin- ciples and decisions which we have made as to judgments from the courts of other states of the Union should be applied to foreign judg- ments.’ The court relies much on the reasoning of Mr. Justice Story (Confl. Laws, § 607). ‘It is indeed very difficult to perceive,’ that authority says, ‘what could be done if a different doctrine were maintainable to the full extent of opening all the evidence and merits of the cause anew on a suit upon the foreign judgment. Some of the witnesses may be since dead; some of the vouchers may be lost or destroyed. The merits of the cause as formerly before the court upon the whole evidence may have been decidedly in favor of the judgment; upon a partial possession of the original evidence they may now appear otherwise. Suppose a case purely sounding in damages, such as an action for an assault, for slander, for conversion of property, for a malicious prosecution, or for a criminal conversation; is the de- fendant to be at liberty. to retry the whole merits, and to make out, if he can, a new case upon new evidence? Or is the court to re- view the former decision, like a court of appeal, upon the whole evidence? In a case of covenant, or of debt, or of a breach of contract, are all the circumstances to be examined anew? If they are, by what laws and rules of evidence and principles of justice is the validity of the original judgment to he tried? Is the court to open the judgment and to proceed ex #quo et bono? Or is it to administer strict law, and stand to the doc- trines of the local administration of justice? Is it to act upon the 292 ESTOPPEL BY RECORD. [CHAP. VI. of the court upon the practical difficulties in the way of per- mitting the parties to open the judgment; and language is used much to the same effect as that of the Court of Queen’s Bench in a case already cited.1_ We have elsewhere borrowed the sug- gestion of Mr. Baron Parke in Williams ». Jones ? to the effect that a foreign judgment for a plaintiff raises a binding obligation to pay the same; and we have added that whatever the nature of the judgment, if the court had properly acquired jurisdiction, judgment and findings should follow in their conclusive charac- ter the law of the forum in which the proceedings were had, not as mere matter of comity, but because the proper authorities have fixed their effect. The foreign law ought to apply to a judgment pronounced according to it as well at least as to a contract made under it. § 2. Constitutional Provision: Judgments of Sister States. We proceed now to consider the second and more important branch of our subject, judgments in personam of the sister states of the American Union. Prior to the adoption of the Articles of Confederation the American colonies or (as they became by the Declaration of In- dependence) states were considered as foreign to each other by tules of- evidence acknowledged in its gwn jurisprudence, or upon those of the foreign jurisprudence? These and many more questions might be put to show the intrinsic difficulties of the subject. Indeed, the rule that the judgment is to be prima facie evidence for the plaintiff would be a mere delusion if the defendant might still question it by opening all or any of the original merits on his side; for under such circumstances it would be equivalent to granting a new trial.’ See Hilton ». Guyot, 159 U.S. 118, 16 Sup. Ct. 139, 40 L. Ed. 95; if the tribunals of the foreign jurisdiction reciprocate. Ritchie v. McMullen, 159 U.S. 235, 16 Sup. Ct. 171, 40 L. Ed. 183; MacDonald v. Grand Trunk R..Co., 71 N. H. 448, 52 A. 982, 93 A. S. R. 550; Banister v. Campbell, 138 Cal. 455, 71 P. 504. 1 Bank of Australasia v. Nias, 16 Q. B. 717. See Ferguson »v. Mahon, 11 Ad. & E. 179. 213 Mees. & W. 628, 633, quoted with approval in Godard »v. Gray, L. R. 6 Q. B. 189, 148; ante, p. 263. As to the circumstances under which a duty to obey the foreign judgment arises, see Rousillon v. Rousillon, 14 Ch. D. 351, 370. See also Copin v. Adamson, L. R. 9 Ex. 345. 5 See Hilton v. Guyot, 159 U. S. 113, 16 Sup. Ct. 139, 40 L. Ed. 95. SECT. II.] FOREIGN JUDGMENTS IN PERSONAM. 293 their courts in respect of the conclusiveness of their judgments; and the English doctrine as it was then understood prevailed, to wit, that such judgments were only prima facie evidence of debt. But the inconvenience of the rule was felt even at this early day, when intercourse and traffic between the colonies were comparatively limited. Accordingly, in at least one of the colo- nies, that of Massachusetts Bay, an act was passed! in the year 1773, which provided that the judgments of courts of the neighboring colonies should be conclusive when sought to be enforced in Massachusetts, provided the courts which rendered them had jurisdiction.? The fact that the act extended only to the judgments of the neighboring colonies indicates that it was passed more from con- siderations of utility than from motives of comity; for if the latter idea had prompted the legislation, it would have included at least all of the English-speaking provinces. But the fact was there was but little intercourse between the distant colonies and those of New England, and there was no occasion to make the act general. «Subsequent events, however, increased the inter- course; and it became necessary to make some general law suited to the new state of things. To this end a provision was made in the Confederation in these words: ‘ Full faith and credit shall be given in each of these states to the records, acts, and judicial proceedings of the courts and magistrates of every other state.’ Though the object of this clause seems now obvious, its language was not thought sufficiently full and clear; and it was therefore slightly changed in the final draft of the Constitution, and made to read as fol- lows: ‘ Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.’ 3 In pursuance of the power thus granted, Congress passed the act of May 26, 1790, which after providing the manner of au- thentication declared that ‘the said records and judicial pro- ceedings, authenticated as aforesaid, shall have such faith and 1 Provincial Act of 14 Geo. 3 2 Bissell v. Briggs, 9 Mass. 462. ¢e. 2. 8 Const. U.S. art. 4, § 1. 294 ESTOPPEL BY RECORD. [cCHAP. VI. 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 first section of the supplementary act of March 27,.1804, contained a further provision relating to the attestation of rec- ords from the sister states, followed by a clause identical with the one just quoted; and the second section of the act extended these provisions over the ‘ territories of the United States and the countries subject to the jurisdiction of the United States.’ As has been already observed, there was at an early day in the history of the United States some confusion concerning the construction of this provision of the Confederation and Consti- tution, and of the acts passed in pursuance. Before the decision in the ‘celebrated case of Mills ». Duryee 1 had been made and become known the general current of construction was that the act of Congress had not changed the rule so generally received before that time, to wit, that the judgments of the sister colo- nies and states were only prima facie evidence,” though this was by no means universal.? But the case referred to, and the contemporaneous case of Bissell v. Briggs, cited in the note, changed the current even in the states which had adopted the doctrine just mentioned. As the matter was one depending upon a proper construction of the Federal Constitution and of an act of Congress, deference was justly and readily yielded by the state courts to the judgment of the Supreme Court of the United States.* Mills ». Duryee was an action of debt upon a judgment of the Supreme Court of New York, in the Circuit Court for the District of Columbia. The defendant pleaded nil debet, which upon general demurrer was held bad. On appeal to the Su- 17 Cranch, 481. 657; Turner v. Waddington, 3 ? Hitchcock v. Aicken, 1 Caines, 460; Pawling v. Bird, 13 Johns. 192; Winchester v. Evans, Cooke, 420; and other cases cited ante, p. 290. 3 Noble v. Gold, 1 Mass. 410, note; Bissell v. Briggs, 9 Mass. 462; Armstrong v. Carson, 2 ‘Dall. 302; Curtis v. Gibbs, 1 Penn. (N. J.) 399; Green v. Sarmiento, Peters C. C. 74; Blount v. Darrach, 4 Wash. C. C. Wash. C. C. 126. ‘See cases cited below passim; and see Insurance Co. v. Harris, 97 U.S. 331. Judgments of the courts of record of the District of Colum- bia, at least judgments of the Su- preme Court of the district, stand upon the footing of judgments of a state court. Embrey v. Palmer, 107 U.S. 3, 10. \ SECT. 11.] FOREIGN JUDGMENTS IN PERSONAM. 295 preme 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 records 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 inspect- -ing 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. Counsel on the other side admitted that the record was to have effect only as evidence; but it was evidence of the highest nature, namely, record evidence, to which nil debet was a bad plea. In answer to the argument that a copy was not of the same dignity with the original, the act of Con- gress was referred to as making the authenticated exemplifica- tion 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. 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. The court adopted the view of the plain- tiff’s counsel that the effect of the Constitution and acts of Congress was to give the authenticated exemplification the con- clusiveness of the highest or record evidence; to which the proper plea was nul tiel record.? 1‘ Congress,’ he said, ‘have de- clared the effect of the record by de- claring what faith and credit shall be given to it.’ In regard to the defendant's second point he said that the record might ‘be proved in the manner prescribed by the act, and such proof is of as high a nature as an inspection by the court of its own record, or as an {CHAP. VI. 296 ESTOPPEL BY RECORD. It will be observed that the court based the decision of the conclusiveness of the judgment rendered in New York upon the doctrine that under the Constitution and act of Congress it was record evidence; and that nil debet by the common-law system of pleading was an 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 a plea at common law would put in issue only the existence of the record, no inquiry could be made under any circumstances 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 con- clusive 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 inquiry into the jurisdiction. The learned judge was not alone in thus construing the opinion of the ma- jority of the court. Other courts at first supposed that the Supreme Court of the United States had pronounced the same rule. If this was the intention, the rule has been modified, issue execution.’ In conclusion the learned judge says: ‘Were the exemplification would be in any other court of the same state. Had this judgment been sued in any other court of New York, there is no doubt that nil debet would have been an inadmissible plea. Yet the same objection might be urged, that the record could not be in- spected. The law, however, is undoubted that an exemplification would in such case be decisive. ‘The original need not be produced.’ To the argument that execution could not issue directly on the judg- ment of a sister state he replied: ‘This objection, if it were valid, would equally apply to every other court of the same state where the judgment was rendered. But it has no foundation. The right of a court to issue execution depends upon its own powers and organiza- tion. Its judgments may be com- plete and perfect, and have full effect, independent of the right to construction contended for by the plaintiff in error to prevail, that judgments of the state courts ought to be considered prima facie evi- dence only, this clause in the Con- stitution would be utterly unim- portant and illusory. The common law would give such judgments pre- cisely the same effect. It is mani- fest, however, that the Constitu- tion contemplated a power in Congress to give a conclusive effect to such judgments. And we can perceive no rational interpretation of the act of Congress unless it de- clares a judgment conclusive when a court of the particular state where it is rendered would pronounce the same decision.’ 1Commonwealth v. Green, 17 Mass. 515, 546; Hall v. Williams, 6 Pick. 232, 248. See Carleton ». Bickford, 13 Gray, 591. SECT. I1.] FOREIGN JUDGMENTS IN PERSONAM. 297 as we shall see, by. later decisions of the same court, which hold that there is no estoppel in ordinary cases to deny the jurisdic- tion of the court which rendered the judgment sued upon.! But 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 not mean to preclude parties from pleading special pleas to the jurisdiction.2, Whatever the court really meant to declare upon that point, it was agreed that the merits of the judgment sued upon were not open to inquiry; and this is all that we care to notice at present. 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 nil debet was entered and overruled in the court below, and the decision of ‘that court sustained by the Supreme Court of the United States; Chief Justice Marshall 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.* The provision of the Constitution, as expounded in Mills ». Duryee, has undergone minute examination; this we shall now see. 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 Caro- lina. It was the opinion of the court that the provisions upon the subject were intended only to preclude inquiry into the subject-matter of the judgment; and that therefore the Statute 1D’Arcy v. Ketchum, 11 How. 165; Christmas v. Russell, 5 Wall. 290; Cheever v. Wilson, 9 Wall. 108; Grover Machine Co. v. Rad- cliff, 1837 U. S. 287, 11 Sup. Ct. 92, 34 L. Ed. 670; Simmons ». Saul, 138 U.S. 489, 11 Sup. Ct. 369, 34 L. Ed. 1054; Brown v. Fletcher, 210 U.S. 82, 28 Sup. Ct. 702, 52 L. Ed. 966. Thompson v. Whitman, 18 Wall. 457; post, p. 324. See Longue- ville ». May, 115 Iowa, 709, 87 N. W. 482. 2? Shumway v. Stillman, 4 Cow. 292; s.c. 6 Wend. 447. 33 Wheat. 234. 4See Griffin v. Eaton, 27 IIl. 379, holding that if technicalities have been abolished in the sister state, they must not be used to de- feat, the judgment elsewhere. But judgment rendered in a sister state can of course have no greater effect than it would have where ren- dered. 298 ESTOPPEL BY RECORD. [CHAP. VI. 4 of Limitations, not being a plea to the merits, was an admissible plea.? 1 McElImoyle v. Cohen, 13 Peters, 312. See Jones v. Drewry, 72 Ala. 311 (non-claim); Matoon »v. Clapp, 8 Ohio, 248. The learned judge who delivered the opinion in McElmoyle v. Cohen, Mr. Justice Wayne, said: ‘ Though a judgment obtained in the court of a state is not to be regarded in the courts of her sister states as a foreign judgment, or as merely prima facie evidence of a debt to sustain an action upon the judgment, it is to be considered only distinguish- able from a foreign judgment in this, that by the first section of the fourth article of the Constitution, and by the act of May 26, 1790, § 1 (1 Stat. at Large, 122), the judg- ment is a record, conclusive upon the merits, to which full faith and credit shall be given, when authen- ticated as the act of Congress has prescribed. It must be obvious, when the Constitution declares that full faith and credit shall be given in each state to the public acts, records, and judicial pro- ceedings of every other state, and provides that Congress may by general laws prescribe the manner in which such acts, records, and pro- ceedings shall be proved, and the effect thereof, that the latter clause, as it relates to judgments, was in- tended 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, de- pend upon the law made in pur- suance of the Constitution; the faith and credit due to it as the ju- dicial proceeding of a state is given by the Constitution independently of all legislation. By the law of But ‘full faith and credit ’ must be given to the judg- 26th of May, 1790, the judgment is made a debt of record not ex- aminable upon its merits; but it does not carry with it into another state the efficacy of a judgment upon property or persons to be enforced by execution. To give it the 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 per- mit. It must be conceded that the judgment of a state court can- not be enforced out of the state by an execution issued within it. This concession admits the con- clusion that ... judgments out of the state in which they are rendered are only evidence in a sister state that the subject-matter of the 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 the framers of the Constitution intended to accomplish by that section, if we reflect how unsettled the doctrine was upon the effect of foreign judg- ments, or the effect rei judicate throughout Europe, in England, and in these states, when our first Confederation was formed. On the Continent it was then and con- tinues to be a vexed question, de- termined by each nation according to its estimate of the weight of authority to which different civil- ians and writers upon the law of nations are entitled. . . . In these states when colonies the same un- certainty existed. When our Revo- lution began and independence was declared, and the Confederation was being formed, it was seen by the wise men of that day that the powers necessary to be given to the confederacy, and the rights to be given to the citizens of each state SECT. II.] FOREIGN JUDGMENTS IN PERSONAM. 299 ment; and if binding where it was rendered, it cannot be made of no effect in another state by any Statute of Limitation there enacted touching the original cause of action, even towards the citizens only of that state.! On the other hand, it has been considered that if a judgment were barred by limitation in the state in which it was rendered, it cannot be sued upon in another state.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 Massachu- setts; whereupon the plaintiff offered evidence to show that that judgment had been rendered upon a plea of the Statute of Limitations. The court held the evidence inadmissible, saying 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 subject of the effect of judg- ments 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 contested only in such way as judgments of fecord 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 Constitu- tion: “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 judgment as to the merits of the claim or subject-matter of' the suit.’ See also Green v. Sarmiento, Peters C. C. 74; and see especially the ground taken in Jones v. Drewry, 72 Ala. 311, where a local statute of non-claim was success- fully pleaded to an administration decree obtained in Virginia. 1Christmas v. Russell, 5 Wall. 290, holding a statute of Mississippi of the kind unconstitutional. See Lamberton v. Grant, 94 Me. 508, 48 A. 127, 80 A. S. R. 415. See post, p. 309. 2 David v. Porter, 51 Iowa, 254. The judgment in question in this case (rendered in Nebraska) was, however, deemed to be merely ‘dormant’ in Nebraska, and an ac- tion upon it was allowed. See Weeks v. Harriman, 65 N. H. 91, 18 A. 87, 23 A. S. R. 21; Brand v. Brand, 116 Ky. 785, 76 8. W. 868. [CHAP. VI. 300 ESTOPPEL BY RECORD. that it was immaterial whether the verdict was given upon that ground or upon the plea of payment. The judgment was con- clusive 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.? The Constitution does not require courts to give effect to dis- qualifications entailed in a sister state upon conviction of crime.” A contrary view has been maintained in North Carolina, where it is held that a witness incompetent by conviction for a crime in a sister state is incompetent to testify in the courts of North Carolina. Nor under the Constitution does a judgment ren- dered in a sister state rank as a domestic judgment in marshall- ing 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 an- other state, where the defendant 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 tam 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 maintain an action thereon though such regu- lations could not be enforced 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.” Again, 1Sweet v. Brackley, 53 Maine, 346. ?Commonwealth ». Green, 17 Mass. 514. 3 State v. Candler, 3 Hawks, 393. *McElmoyle v. Cohen, 13 Pe ters, 312; Cameron v. Wurtz, 4 ‘McCord, 278; Brengle v. McClellan, 7 Gill & J. 434; Harness v. Green, 20 Mo. 316; Needles v. Frost, 2 Okl. 19, 35 P. 574. 5 Engel v. Scheuerman, 40 Ga. 206. So Pearce v. Olney, 20 Conn. 544. 6 Post, pp. 331-334. 7Indiana v. Helmer, 21 Iowa, 370; Healy v. Root, 11 Pick. 389; Schuler v. Schuler, 209 Til. 522, 71 N. E. 16. In the case first cited for this proposition the action was. based upon a judgment rendered in another state in accordance with a statute of that state pre- scribing 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 another state, the court replied: ‘There is much truth in the legal proposition ‘upon ‘SECT. 111.] FOREIGN JUDGMENTS IN PERSONAM. 301 it is held that the Constitution has no reference to matters sub- sequent 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. § 3. Application of Rule of Res Judicata. We turn now to the consideration of these judgments of sister states in their more specific relation to the rule of res judicata. In the first place it may be insisted that the judg- ment shall have no more than its proper effect of res judicata.” The case first cited was an action upon a joint judgment of a sister state, from the record of which it appeared that a de- fendant therein, not sued in the present action, had not been served with process in the first suit. In most of the cases which have occurred upon this subject the defendant who was not served has raised the objection, but in this case the defendant who was properly before the court was alone sued in the second instance, and raised the objection, and the court sustained it. Mr. Justice Caton said: ‘ While he may not deny that it is a 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 pro- ceedings to compel the defendant, its father, to support it and to give bond therefor and otherwise comply with the requirements of the stat- utes of Indiana, the answer of the defendant, that the subject-matter of such action was one of merely local police regulation of Indiana 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 en- forceable alone by the sovereignty making the regulation and providing 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 judg- ment for such penalty, such judg- ment is entitled to “ full faith and credit’ in every other state... . And the courts of such other state will not inquire into the facts upon which it was based, nor whether the cause of action would have been enforced by them.’ 1 Carter v. Bennett, 6 Fla. 214. 2Smith v. Smith, 17 Ill. 482; Candee v. Clark, 2 Mich. 255; Knapp ». Abell, 10 Allen, 485; Hall v. Williams, 6 Pick. 232; Rangely v. Webster, 11 N. H. 299; Jones v. Gerock, 6 Jones Eq. 190. (CHAP. ‘VI. 302 ESTOPPEL BY RECORD. judgment against him, he may deny that it is a judgment against him and Hall.’ ! In the case of Jones v. Gerock, above cited, the complainant filed a bill in chancery in North Carolina for dower and a dis- tributive share. The defendants objected that she had filed a bill for the same purpose in Alabama, and had obtained a decree granting to her both objects; that her claim for a distributive share had been fully satisfied; and that in the case of the dower she had had lands of her husband laid off to her, in conformity , to the decree. They therefore contended that she was estopped to maintain her present suit. But the objections were overruled. The court said that it did not understand the decree rendered in Alabama as embracing any property not in that state.? As for the personal property, it would be necessary that it should be administered under the orders and authority of the courts of North Carolina, and that the courts of Alabama could exercise no control over it. And in respect of the decree for dower the court considered it as having reference to lands in Alabama only, so that those set off could not amount to a full satisfaction of the widow’s claim. On the other hand, in attributing to judgments rendered in a sister state the full force of res judicata the courts are bound, by the very language of the act of Congress, — though it has required the highest court to enforce the fact, — to treat such judgments, supposing no question of jurisdiction to arise, as they would be treated, in point of conclusiveness, in the state in which they were rendered.? Thus, judgment rendered in 1 See also Suydam v. Barber, 18 N. Y. 468; Reed v. Girty, 6 Bosw. 567. In Brown v. Birdsall, 29 Barb. 549, Mr. Justice Roosevelt says: ‘Where joint debtors reside in different states, they may be sued separately in the respective states having jurisdiction of their respect- ive persons or property, and a judg- ment in such case against one in one state is no bar to a recovery against the others in another state.’ 2See Carpenter v. Strange, 141 U.S. 87, 11 Sup. Ct. 960, 35 L. Ed. 640. 3 Renaud v. Abbot, 116 U. S. 277, reversing Wilbur v. Abbot, 60 N. H. 40; Hanley v. Donoghue, 116 U. 8. 1, 3, citing Maxwell ». Stewart, 22 Wall. 77; Insurance Co. ». Harris, 97 U.S. 331; Green v. Van Buskirk, 7 Wall. 139; Cooper v. Reynolds, 10 Wall. 308. Corey v. Indep. Ice Co., 106 Me. 485, 76 A. 930; Miller Brew. Co. v. Capital Ins. Co., 111 Iowa, 590, 92 N. W. 1023, 82 A. S. R. 529; Arrington ». Arrington, 127 N. C. 190, 37 S. E. 212, 80 A. §. R. 791. See also Richards v. Barlow, 140 Mass. 218, SECT. 111.] FOREIGN JUDGMENTS IN PERSONAM. 303 Louisiana, valid by the laws of that state, against one of several joint debtors, the others not being served or within the juris- diction of the court, is valid in New Hampshire, when suit is brought upon it, though such a judgment would be void by the laws of the latter state.!. In like manner, the record of a judg- ment in a sister state in favor of the plaintiff establishes con- clusively, not only the right of action, but also the right of the plaintiff to sue in the capacity in which he brought the original suit.2_ 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.’ Again, 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 ren- dered in the case.* So too it is said that where it appears that the plaintiff might have insisted upon his right to recover upon all grounds relied upon in a new suit by him in another state, the former judgment against him will be conclusive.®> He can- not withhold his evidence and then sue again upon the same demand.® to the same effect. These deci- sions explode the specious notion that a foreign judgment can be no better than a domestic judgment in the same case. 1Renaud »v. Abbot, 116 U. S. 277; Hanley v. Donoghue, ib. 1. Such laws are valid. Ibid.. Cuy- kendall v. Doe, 129 Iowa, 453, 105 N. W. 698, 113 A. 8. R. 472. 2 Also the meaning of the con- tract and the proper form of remedy. McMahon »v. Eagle Life Ass’n., 169 Mass. 539, 48 N. E. 339, 61 A.S. R. 306. And the judicial con- struction of an Act. Converse v. Ayre, 197 Mass, 443, 84 N. E. 98. 3 Cook »v. Thornhill, 13 Tex. 293; Wayland »v. Porterfield, 1 Met. (Ky.) 638. So, a judgment for a party, rendered in another state, is conclusive evidence of the exist- ence of that party at the time of the rendition of the judgment. Cook v. Steuben Bank, 1 G. Greene (lowa), 447. ‘Goodrich v. Jenkins, Wright, 348; s. c. 6 Ohio, 44. Comp. ante, p. 86. 5 Baker v. Rand, 13 Barb. 152. 6Ibid. Likewise defences which were admissible in the former suit can not be subsequently presented. Freeman, Appeal of, 74 Conn. 247, 50 A. 748. 304 ESTOPPEL BY RECORD. [CHAP. VI. A judgment rendered in a sister state, however, can no more than a domestic judgment ! bar an independent demand, though springing from the same ground as the former suit.” Thus, 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 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 dis- missed 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, brought by the wife in another state, based upon the decree for alimony.’ In the case cited for this proposition a husband had sued in Kentucky for divorce. The wife appeared and defended, but the court decreed in favor of the husband. 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 competent jurisdiction; but that, inasmuch as the Kentucky court had made no provision out of the estate of the husband for the support and maintenance of the wife, and as the propriety of so doing had not been adjudi- cated upon in that case, the husband should pay the wife the sum of $3,000 alimony. The money not having been collected in Ohio, 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, rendered at his own suit in Kentucky, and insisted that the Ohio court had no jurisdiction over the subject-matter, and that its decree was ! Ante, pp. 193 et seq. tion of the rule to cross-demands 2See ante, pp. 193-207, in re- is there considered. gard to this rule as applied to do- 3 Rogers v. Rogers, 15 B. Mon. mestic judgments. The applica- 364. See McCall v. Carpenter, 18 How. 297. SECT. I11.] FOREIGN JUDGMENTS IN PERSONAM. 305 therefore void. In regard to this question it was held, in ac- cordance 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; + and the wife prevailed. _ It was also contended that the Ohio decree had been pronounced in utter disregard of the previous decree in Kentucky between the parties. Upon this point the court, speaking by Mr. Justice Simpson, said: ‘If the decree which had been pronounced in the suit between these parties in the Kenton Circuit Court, in this state, was thus com- prehensive, and had the legal effect attributed to it in this argument, then it would seem to follow that, so far as the court in Ohio under- took to modify or change it, its action was revisory; it was exer- cising an appellate jurisdiction which did not belong to it; and consequently its decrees was void for want of jurisdiction. We sup- pose the position will not be con- troverted that so far as the courts of any of the states might attempt to change or alter the judgments or decrees of another state upon the ground that the decision of the case was erroneous, they would be assuming the exercise of a juris- diction that does not belong to them, and their action in the premises would be wholly invalid.(a) Tn 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 judgment rendered be- tween the parties on the matters involved in the issue, and that after- wards one of the parties had at- tempted to relitigate the same mat- ters, between the same parties, in one of the courts of a sister state, having jurisdiction in similar cases, and 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 judgment be 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 matters which had been previously decided, a revisory ju- risdiction over the judgment of a court of another state? The power to relitigate the same matters might not be expressly put upon this ground; but a court that under- takes to do it does in effect assume an authority which can only be legitimately exercised by a court having some jurisdiction over the judgment first rendered. As no such jurisdiction is vested in the courts of any of the states over the 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 applica- bility in the present case is the point to be determined. . . . Noth- ing 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 (a) See Laing v. Rigney, 160 U.S. 531, 16 Sup. Ct. 366, 40 L, Ed. 525. Expert opinion, though undisputed, that the court erred as to law and practice can not control the judgment. [CHAP. VI. 306 ESTOPPEL BY RECORD. Two or three other special points touching the application of the rule of res judicata in relation to these judgments of courts of the sister states may be noticed. It is not a good plea to an action against executors founded on a judgment rendered in a sister state that there never were 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 thereafter 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 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 rendered granting a divorce to the husband had the legal effect at- tributed to it of absolving the husband and his estate from all liability to contribute anything 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 pre- cluded from asserting it in a sub- sequent action against the husband, it is unnecessary to determine. It is sufficient for the purposes of the present inquiry that the matter was not res judicata, and conse- quently that the court in Ohio, in the decree which it rendered, did not undertake to retry an issue which had been previously decided by a court of competent jurisdic- tion in this state. If it were con- ceded that the wife, by her failure to present her claim to a portion of the estate of the husband in the suit in which the divorce was granted, ought to be thereby pre- cluded from asserting it in another action, it would not follow that the decree rendered by the court in Ohio would for that reason be in- valid, or be void for want of juris- diction. The most that could be urged against it on that ground would be that it was erroneous; until reversed, however, or if it be irreversible, it is entitled to the same consideration 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 con- cerning the first position, that the court in Ohio had rightly enter- tained the prayer for alimony, it cannot be doubted that, having passed upon the question, it must have been considered as conclusive in all other courts of the Union, in accordance with the provisions of the Constitution and act of Congress. 1 Davisv. Connelly, 4 B. Mon. 136. SECT. I11.] FOREIGN JUDGMENTS IN PERSONAM. 307 principal offered evidence received on a former trial between the parties, to the effect that the hotel property had become un- tenantable, 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 prop- erty in question. To rebut the testimony offered by the com- plainant, that he had incurred 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 com- plainant 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 upon his lability, that the settlement between the surety and lessor was therefore proper, and denied the in- junction to restrain the surety from selling the property in question.? A similar case is reported from the Supreme Court of New York.? In that case the owner of a vessel in New York became indebted to another, who seized his vessel in Ohio under a stat- ute 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 pres- ent suit by the latter against his principal for reimbursement the record of the judgment in Ohio was held conclusive of the valid- ity of the claim, and of the seizure and proceedings. Nor can error of fact in the enrolment be set up collaterally against the judgment. In the case of Hassell ». Hamilton ® the plaintiff suing to recover a slave, and deriving title through a decree of the Supreme Court of Tennessee, endeavored to show that that court had made a mistake in decreeing to him title to another slave of the same name as the one he was now suing 1 Destrehan v. Scudder, 11 Mo. 484. 2Stedman v. Patchin, 34 Barb. 218. 333 Ala. 280. 308 ESTOPPEL BY RECORD. [cHAP. VI. for; and that the mistake and real intention of the court ap- peared clearly both from the whole record and the matter ad- duced in evidence at the present trial. But the court replied that the alleged mistake could not be noticed in the courts of an- other state; nor could such courts reform a decree of a sister state so as to make it speak the unexpressed intention of an- other court. In a case in the Supreme Court of Iowa ! the defendant to an action upon a judgment rendered in a sister state endeavored to show that the judgment was void because rendered upon a con- tract made while he was a minor, and not for necessaries, and that he did not appear by guardian, but by attorney. But the court said that the defendant’s remedy was by a writ of error coram nobis, or some similar process, in the court of the sister state. If there was error in fact, it was an irregularity merely, and could no more affect the validity of the judgment than if it had been an error of law. In neither event would the error render the judgment void; it would render it only erroneous, and until set aside in the state where rendered it was not liable to impeachment elsewhere.’ : In an action upon a judgment for costs, rendered in another state, the defendant attempted to impeach the judgment by showing that the counsel who brought the suit in his name, and conducted 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, 1 Milne v. Van Buskirk, 9 Iowa, 3 Clarke (la.), 586; Milne ». 558. 2 See ante, p. 130; also Weyr v. Zane, 3 Ohio, 306; Goodrich ». Jenkins, Wright, 348; Riley ». Murray, 8 Ind. 354; Mclendon »v. Dodge, 32 Ala. 491; Gunn v. How- ell, 35 Ala. 144; Hassell v. Hamil- ton, 33 Ala. 280; Taylor v. Kilgore, ib. 214; Hart v. Cummins, 1 Clarke (Ia.), 564; Struble v. Malone, Van Buskirk, 9 Iowa, 558; Indi- ana v. Helmer, 21 Iowa, 370; Bar- ringer v. Boyd, 27 Miss. 473; Con- way v. Ellison, 14 Ark. 360; Buford v, Kirkpatrick, 8 Eng. 33. 5 Rogers v. Burns, 27 Penn. St. 525; Cyphert v. McClune, 22 Penn. St. 195; Coxe v. Nicholls, 2 Yeates, 546; Denton v. Noyes, 6 Johns. 296; Compher v. Anawalt, 2 Watts, 490. SECT. II.] | FOREIGN JUDGMENTS. IN PERSONAM. 309 was offered in evidence between the same parties in a suit in regard to the same matter in Louisiana, and its admission stren- uously 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 Loui- slana, suit was again instituted in Virginia, when the defendants again attempted to impeach the first decree. But the court, relying upon the judgment pronounced in Louisiana, refused to consider the attack upon it. Judgment of a sister state court having recognized jurisdic- tion is valid and conclusive elsewhere, and cannot be brought in question even in a state in which it is declared by statute that a judgment of the kind shall not be binding upon the citizens of that state; such statute being deemed in contravention of the Constitution of the United States. Thus, in a case before 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 subsequently 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 with- out 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 the United States declared the same unconstitutional and void. ‘ Beyond all doubt,’ the court observed, ‘ the judgment was valid in Ken- tucky, 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.’ ? 1De Ende v. Wilkinson, 2 Pat. 2 Christmas v. Russell, 5 Wall. & H. 663; Rogers v. Rogers, 15 290. B. Mon. 364. 310 ESTOPPEL BY RECORD. [CHAP. VI. A question of a similar kind came before the Superior Court of New York City ! a few years ago. The case was an action upon a judgment rendered in Wisconsin. The defendant an- swered that the judgment was recovered upon a transaction which happened in the state of New York, upon which by the laws of that state no cause of action accrued; that the plaintiffs owed the defendant $350.70, for merchandise and liquors; and ‘that the plaintifis owed him $110 upon a judgment recovered in Wisconsin. From the testimony it appeared that the plaintiffs had bought the merchandise and liquors on four months’ time, and that having paid all but about $100 of the amount due for the same, the present defendant sued the present plaintiffs for the balance due, and recovered the judgment above men- tioned. It further appeared 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 ’ on which the plaintiffs relied, and then averred that the quality of the goods had been mis- represented, that they were poor, worthless, and of no use to the plaintiffs, whereupon the judgment in question was rendered. The 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 obtained 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.? 1 Phillips v. Godfrey, 7 Bosw. 150. 2In regard to the second ob- jection, it was held that the judg- ment obtained by the defendant for the balance due for the goods concluded the plaintiffs on nothing except that they owed the price of the goods; and that this was perfectly consistent with the liabil- ity 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. SECT. I1.] FOREIGN JUDGMENTS IN PERSONAM. 311 The effect of a judgment of a sister state in insolvency, under a law of that state, arose in Vermont in the case of Hall v. Winchell.t_ The case was an action of debt upon a judgment of the Common Pleas of Massachusetts, rendered in the year 1858. The defendant pleaded inter alia his discharge in insol- vency in Massachusetts; and that the debt sued upon was con- tracted prior to the institution of the proceedings in insolvency in the year 1863. The plaintiff admitted that the parties were both residents of Massachusetts at the time of the judginent; but he alleged that the cause of action arose, and the promises for the breach of which the plaintiff recovered the judgment sued upon were made and to be performed, in Vermont. He further alleged that prior to the proceedings in insolvency he had brought suit against the defendant and attached his prop- erty in Vermont. The defendant demurred; and the demurrer was sustained.” It is hardly needful to say that it is equally true of a judg- ment rendered in a sister state, as of one rendered in a domestic 138 Vt. 588. 2 The court by Wilson, J. said: ‘It appears to be well settled in this state that a judgment ren- dered in one state, by a court having jurisdiction of the suit, will operate as a merger of the cause of action, and be a bar to the further prose- cution of a suit in another state between the same parties and upon the same claim. But whether such is the effect of the plaintiff's judg- ment upon his original claim it is not necessary to decide; for whether it was the judgment, or the claim on which the judgment was founded, that was due to the plaintiff at the time of the institution of the pro- ceedings in insolvency, is of no im- portance. Either of them was a debt due to the plaintiff, within the meaning of the-statute. The plaintiff’s counsel insists that the attachment in this state, prior to the commencement of the proceed- ings in insolvency which resulted in the defendant’s discharge, should except his debt from the operation of the discharge; but we think the language of the statute does not justify such conclusion. The stat- ute makes no such exception. It is a law of discharge; it does not merely take away the remedy in that state, but it fully and abso- lutely discharges the debt every- where. Courts here should give the same operation and effect that was intended by the legislature of that state.’ A discharge in bankruptcy is a bar to a judgment entered after the commencement of the bank- ruptey proceedings and upon a claim provable in such proceedings. Boynton v. Ball, 121 U. 8S. 457, 7 Sup. Ct. 981, 30 L. Ed. 985. This case overrules previous Massachu- setts decisions. Huntington v. Saun- ders, 166 Mass. 92, 43 N. E. 1035. 312 ESTOPPEL BY RECORD. [CHAP. VI. court, that to give conclusive effect in respect of a cause of ac- tion there must have been a trial on the merits of the case; and if the judgment has gone off upon any preliminary matter, be- fore a hearing upon the main issues of the case, as, for instance, for want of appearance or prosecution, the judgment is not an estoppel in regard to the cause of action,’ because there has been no adjudication upon this point. The judgment might, . perhaps, be conclusive upon the particular matter upon which the case went off,? but not of anything else. Where suit was brought upon a note, and the defendant pleaded in bar a judg- ment rendered in a foreign court the record of which showed that suit had there been brought between the same parties, upon the same and other notes, and judgment had been given in favor of the plaintiff on the other notes, but in regard to the one now in question the defendant had gone without day or had been dis- charged, the court allowed evidence to be received to show that the plaintiff had withdrawn-the note, and that it had not been passed upon, and that therefore there was no estoppel.’ The rule in such cases is thus stated by Mr. Justice Nelson: 4 The judgment of a court of concurrent jurisdiction, or one in the same court directly on the point, is as a plea a bar, and as evidence conclusive between the same parties upon the same matter directly in question in another court or suit; but is no evidence of a matter which comes collaterally in question merely, nor of matter incidentally cognizable or to be inferred by argument or construction from the judgment.® Secondly, if it does not appear from the record that the verdict and judg- ment in the former suit were directly upon the point of matter sought to be put again in litigation in the second action, the fact may be shown aliunde, provided the pleadings in the first 1 Sarchet v. Sloop Davis, Crabbe, 185, and cases cited; McElmoyle v. Cohen, 13 Peters, 312; Matoon »v. Clapp, 8 Ohio, 248. So of a counter- claim presented against a suit in a sister state, but dismissed for want of prosecution. Rankin »v. Barnes, 5 Bush, 20. 2 But see Denny v. Bennett, 128 U. S. 489, Miller, J. quoting with approval the language of Bennett. v. Denny, 33 Minn. 530, in regard to rulings upon motions and sum- mary proceedings. 3 Burnham v. Webster, 1 Woodb. & M. 172; Baker v. Rand, 13 Barb. 152, 160, 161, and cases cited. 4 Lawrence v. Hunt, 10 Wend. 80, 83. 5 Duchess of Kingston’s Case, ante, p. 102; Jackson v. Wood, 8 Wend. 9; s. c. 3 Wend. 27. SECT. III.] FOREIGN JUDGMENTS -IN PERSONAM. 313 suit were such as to justify the evidence of those matters, and that it also appeared that when proved the verdict or judg- ment must necessarily have involved their consideration and determination by the jury.! The cases we have been considering also show that the judg- ment must have been final and conclusive in the state in which it was rendered in order to give it conclusive effect; otherwise the judgments of sister states would be accorded greater effect than where they were pronounced.? And this is of course the doctrine in England in regard to foreign judgments. The rule of conclusiveness also holds in collateral actions in the Court of Chancery; and this court will not, subject to the limits pertaining to domestic judgments,‘ permit one who has had his claims investigated in another state to raise the same questions for reinvestigation on the same facts. Therefore an answer to a bill filed in Vermont that a decree was pro- nounced in Massachusetts, dismissing a bill in chancery for the same cause, between the same parties, the court having juris- diction, is a good estoppel. Judgment by confession in the clerk’s office during vacation is also conclusive;’ and the same is true of judgment confessed by an attorney by virtue of a warrant empowering ‘ any attorney of any court of record in the United States to confess judgment.’ ® Nor is it necessary to the conclusiveness of the record that it state in detail all the pro- ceedings in the case. It will be sufficient if it shows the sub- 1See Bailey »v. O’Connor, 19 N. H. 202. This subject has been considered at length in the chapter on Domestic Judgments in Per- sonam. See also Reynolds v. Stock- ton, 140 U. S. 254, 11 Sup. Ct. 773, 35 L. Ed. 464. 2Comp. Nouvion v. Freeman, 87 Ch. D. 244, C.’ A, 15 A. C. 1. “Remote” judgment in Spanish court is not final and conclusive of existence of debt and is not res judicata. See Union Bank ». Memphis, 189 U. S. 71, 23 Sup. Ct. 604, 47 L. Ed. 712. ’Nouvion v. Freeman, supra; Frayes v. Worms, 10 C. B. N. s. 149; Plummer v. Woodburne, 4 Barn. & C. 625; Douglas ». or rest, 4 Bing. 686. 4 Ante, pp. 223, 224. 5 Brown v. Lexington & D. R. Co., 2 Beasl. 191; Low v. Mussey, 41 Vt. 393; Munson ». Munson, 20 Conn. 425. See Pennington v. Gib- son, 16 How. 65; Nations v. John- son, 24 How. 195, 203. 6 Low v. Mussey, supra. 7Harness v. Green, 19 Mo. 3238. 8Randolph v. Keiler, 21 Mo. 557, 314 [CHAP. VI. ESTOPPEL BY RECORD. ject-matter of the suit, jurisdiction over the parties, and the final judgment.! The question was raised in Maryland in the year 1824 whether the federal courts were foreign to the state courts so as to make their judgments liable to impeachment upon the merits, as at that time was supposed to be the law of foreign judgments.? The case referred to was an action of ejectment, in which the appellee claimed title to certain real estate in Baltimore levied upon in attachment in the federal court of Maryland by the United States, and sold by the marshal to him. The suit in the federal court was upon a bill of exchange. Upon the present trial it was contended that there was no proof of the handwriting of the drawer of the bill referred to, in the suit in the United States court, or of that of the indorsers of the same; that there was no evidence that the bill had been pre- sented for payment, and none that the debt was due. The judg- ment was a foreign one, and it made no difference whether it came before the court incidentally or directly; in either case it was subject to impeachment. The court said that though the rule was that foreign judg- ments were not conclusive of the merits where the parties claiming the benefit of them apply to our courts to enforce them, still, when such judgments came incidentally under con- sideration, they had the same force and effect as domestic judg- ments.* But the federal courts were-not foreign to the state courts. The Constitution and laws of the United States were 1 Knapp v. Abell, 10 Allen, 485, per Gray, J. See Grignon v. Astor, 2 How. 340; Hockaday v. Skeggs, 18 La. An. 681. 2 Barney v. Patterson, 6 Har. & J. 182. 3 Taylor v. Phelps, 1 Har. & G. 492; ante, p. 284. But where the judgment through which title is claimed is void, as for want of juris- diction, the fact may be shown and the chain of title thus destroyed. Rider v. Alexander, D. Chip. 267; McCall v. Carpenter, 18 How. 297. 4Construction of highest court of the state upon state statute for paving streets and distributing as- sessments is conclusive upon United States Supreme Court. Question of estoppel upon city to collect benefits is purely state and not Federal. Schaefer v. Werling, 188 U. 8. 516, 23 Sup. Ct. 449, 47 L. Ed. 570. No general right to writ of error from United States Supreme Court except on some Federal question. Estoppel and res judicata present generally ques- tions of local and not of Federal law. Beals v. Cone, 188 U. 8. 184, 238 SECT. 11.]| FOREIGN JUDGMENTS IN PERSONAM. 315 ; the supreme law of Maryland; the laws of Maryland furnish rules of decision for the United States court,' and causes com- menced in the state courts might be removed for trial to the Circuit Court. The citizens of Maryland were returned as jurors in that court, and were amenable to its process; and their property was liable to seizure and sale by the marshal of the district under executions from that court: these and other attributes of a domestic court placed it upon a ground very different from that of a foreign court. The point is well settled.” As the result of the cases, the construction placed upon the Constitution and acts of Congress relating to the judgments of courts of record of the sister American states, of the District of Columbia,* and of the federal courts, may be thus stated: — 1. Such judgments are to be regarded as record evidence throughout the Union. 2. Such judgments, if final and conclusive where rendered, are to be regarded as conclusive throughout the Union upon all issues that were tried in the sister state even though the proceedings were irregular and erroneous, and it may be added though an appeal or proceeding to vacate the same be pending unless the effect of the appeal be to abrogate or suspend the judgment.* But it must be observed that the rule is otherwise: in case it be made to appear (by the record or otherwise) that the judgment was void either by the general principles of jus- tice as understood in civilized countries, or by the law of the state in which it was rendered.°® Sup. Ct. 275, 47 L. Ed. 436. See Union Bank v. Memphis, 189 U. 8. 71, 23 Sup. Ct. 604, 47 L. Ed. 712. 1See Union Bank v. Memphis, 189 U.S. 71, 23 Sup. Ct. 604, 47 L. Ed. 712. 2Chicago R. Co. ». Wiggins Ferry Co., 108 U. 8. 18; Embrey v. Palmer, 107 U.S. 3, 10; Thompson v. Lee Co., 22 Iowa, 206; Womack v. Dearman, 7 Port. (Ala.) 513; Dowell v. Applegate, 152 U. 8. 327, 14 Sup. Ct. 611, 38 L. Ed. 463. 3 Embrey v. Palmer, 107 U. S. 38, 10. : 4Merchants’ Ins. Co. ». De Wolf, 33 Penn. St. 45; American Mut. Life Ins. Co. v. Mason, 159 Ind. 15, 64 N. E. 525, citing many cases. And the same is true of the judgments of foreign countries. Scott v. Pilkington, 2 Best & S. 11. 5 Embrey v. Palmer, 107 U. S. 3; McElmoyle v. Cohen, 13 Peters, 312, 326. | [cHAP. VI. 316 ESTOPPEL BY RECORD. § 4. Jurisdiction. Let us now turn again to the judgments of foreign countries and of colonies, and consider the course of authority concerning inquiry into the jurisdiction of the court which pronounced the judgment in question. In a case of high authority decided near the beginning of the present century in the King’s Bench ! the plaintiff declared in assumpsit upon a foreign judgment ren- dered in the island of Tobago, ‘and at the trial before Lord Ellenborough produced a copy of the proceedings and judgment, certified under the handwriting of the Chief Justice of the court pronouncing the judgment; which, after containing an entry of the original declaration, set out a summons to the defendant, therein described as formerly of Dunkirk and now of London, which summons was returned, ‘served, etc., by nailing up a copy of the declaration at the court-house door.’ Judgment was afterwards given by default. It was alleged, and there was parol proof, that this mode of summoning absentees was war- ranted by the laws of the island, and commonly practised there. But the judgment was held not binding.? A similar case was decided at a later day in the House of 1 Buchanan v. Rucker, 9 East, 192; s.c. 1 Camp. 72. 2 In delivering the opinion of the court Lord Ellenborough said: ‘There is no foundation for this motion even upon the terms of the law disclosed in the affidavit. By persons absent from the island must necessarily be understood persons who have been present and within the jurisdiction so as to have been subject to the process of the court; but it can never be applied to a per- son who for aught appears never was present within or subject to the jurisdiction. Supposing, however, that the act had said in terms that though a person sued in the island had never been present within the jurisdiction, yet that it should bind him upon proof of nailing up the summons at the court door, how could that be obligatory upon the subjects of other countries? Can the island of Tobago pass a law to bind the rights of the whole world? Would the world submit to such an assumed jurisdiction? The law itself, however fairly con- strued, does not warrant such an inference; for ‘absent from the island”? must be taken only to apply to persons who had been present there and were subject to the jurisdiction of the court out of which the process issued; and as nothing of that sort was in proof here to show that the defendant was subject to the jurisdiction at the time of commencing the suit, there is no foundation for raising an assumpsit in law upon the judg- ment so obtained.’ SECT. Iv.] FOREIGN JUDGMENTS IN PERSONAM. 317 Lords.’ The defendant in the case referred to was a subject of Scotland, while the judgment against him was pronounced in France, and the action was there begun and ended without his presence; the only summons being by affixing notice in a public place, in accordance, indeed, with the law of France. In his opinion Lord Brougham said that the same principle must be applied as that declared in the preceding case. The language of the court in Douglas v. Forrest ? was referred to in this connec- tion; which was the case of a testator whose domicil had been in Scotland where and when the suit in question was brought; but it appeared that he was absent from the country at the time of the action and had no personal notice of the proceedings, which terminated in a judgment against him. It was proved that by the law of Scotland the court might pronounce judg- ment against a Scotchman for a debt there contracted, though he had no notice of the proceedings and was absent from the country at the time. After holding that such a judgment was not contrary to natural justice, and that therefore it could be enforced in England, the court proceeded to say: ‘ We confine our judgment to a case where the party owed allegiance to the country in which the judgment was so given against him, from being born in it, and by the laws of which country his property was, at the time those judgments were given, protected.’ ® By the laws of Scotland, as stated by the court in this case, such a judgment would not be conclusive upon the merits if the defendant should choose to impeach it within forty years, but after that time, if not overturned, it would: work an estoppel between the parties; and of course its conclusiveness abroad would depend upon the state of facts, in accordance with a tule already stated. These cases are sufficient to show that the parties to a foreign judgment are not estopped ordinarily to deny the jurisdiction of the foreign court. We say ‘ ordinarily,’ for it is possible that if upon appearance between citizens * an issue had been joined 1 Don v. Lippman, 5 Clark & F.1. See also Copin v. Adamson, L. R. 24 Bing. 686. 9 Ex. 345. 3See Schibsby v. Westenholz, 4Perhaps residents not being L: R. 6 Q. B. 155, reaffirming the citizens would be bound in the doctrine of the above-cited cases. same way; being under the protec- 318 ESTOPPEL BY RECORD. [CHAP. VI. between the parties upon this point, and this issue had been decided in favor of the jurisdiction, the decision in this par- ticular would bar a retrial of the question. And this too though it should be conceded that the defendant’s appearance, being merely entered to test the question of jurisdiction, had not per se given the court complete jurisdiction to try the merits of the case.! There are also many English cases which show that foreign judgments are not considered as record evidence in England, but only as evidence of simple contract debt.2, It would seem to follow from this that the jurisdiction of the foreign or colonial court could be called in question, even though facts were stated in the transcript which would show jurisdiction, such as appear- ance or a return of personal service upon the defendant by the officer, on the summons or citation. The American doctrine concerning inquiry into the jurisdic- tion of courts of the sister states has until recently been in con- siderable confusion, as we shall see. It has already been noticed that it was at one time supposed by some of the courts that the rule in the case of Mills v. Duryee* had gone to the extent of tion of the local law, they would be bound. by it. See Rousillon ». Rousillon, 14 Ch. D. 351; Schibsby v. Westenholz, L. R. 6 Q. B. 155; post, p. 326. Alleged irregularity in service of process in undefended divorce case in Florida, both parties being domiciled and resident there, no ground for questioning the valid- ity of decree against wife when she afterwards sued as widow of English subject on claim to jointure. Pem- berton v. Hughes, (1899) 1 Ch. 787. 18uch appearance would not, ipso facto, give the court jurisdic- tion over the defendant for all pur- poses. Walling v. Beers, 120 Mass. 548. See Wright v. Andrews, 130 Mass. 149; Bissell v. Briggs, 9 Mass. 462, 468, 469; Wright v. Boynton, 37 N. H. 9; Lincoln ». Tower, 2 McLean, 482; Cunning- ham »v. Goelet, 4 Denio, 71; Gen- eral Nav. Co. v. Guillon, 11 Mees. & W. 877, 894; Schibsby v. Westen- holz, L. R. 6 Q. B. 155, 162; Chi- chester v. Chichester, 10 P. D. 186. General appearance is a waiver of defective notice. Frew v. Taylor, 106 Ill. 159, 162; People »v. Sher- man, 83 Ill. 165; Hale v. People, 87 Ill. 72; Harbaugh v. Albertson, 102 Ind. 69, 75. See King v. Penn, 43 Ohio St. 57. In regard to ad- judication respecting the juris- diction, see Segee v. Thomas, 3. Blatchf. 11; Bonsall v. Isett, 14 Towa, 309; Shawhan v. Loffer, 24 Towa, 217; Hungerford v. Cushing, 8 Wis. 324. ? Hawksford v. Giffard, 12 App.. Cas. 122, Lord Herschell; Hall v. Odber, 11 East, 124; Plummer ». Woodburne, 4 Barn. & C. 625; Smith v. Nicolls, 7 Scott, 147; 8. c. 5 Bing. N. C. 208; Bank of Aus- tralasia v. Harding, 9 C. B. 661. 33 Cranch, 381. SECT. Iv.] FOREIGN JUDGMENTS IN PERSONAM. 319 declaring that the judgments of each state were so conclusive in every other that even the jurisdiction of the court of a sister state was not open to inquiry.1. But however general the lan- guage of the court in that case may appear, it is certain that it is not an authority for such a doctrine. The fact has often been pointed out that the record of the judgment there sued on showed explicitly that the court of the sister state had acquired jurisdiction of the person of the defendant, and no question was raised upon this point. The court having had jurisdiction, the judgment pronounced was of course absolutely unimpeach- able. The decision must be considered with reference to the facts in the case. We purpose now to consider first those cases in which the record of the judgment rendered in the sister state is either silent upon matters relating to jurisdiction, or does not contain a direct statement of facts which constitute jurisdiction. In an early case in Massachusetts ? an action was brought upon a judgment rendered in Georgia, the record of which showed a return of personal service by the officer upon one of the defend- ants, and ‘ not to be found in the county ’ concerning the other. The record stated an appearance of the party served, by his attorney; but in a subsequent part of the record it was recited that the defendants (naming them) appeared by their attorney; whereupon judgment was rendered against them jointly. The defendant not served pleaded that he was never a resident of Georgia, had not been served with process in the case, and had not appeared therein. The plaintiff replied the record as an estoppel; but the court overruled the replication on demurrer.? 1Commonwealth v. Green, 17 Mass. 544; Gleason v. Dodd, 4 Met. 333. 2? Hall v. Williams, 6 Pick. 232. 3 Parker, C. J. said: ‘If it ap- peared by the record that the de- fendants had notice of the suit, or that they appeared in defence, we are inclined to think that it could hot be gainsaid; for as we are bound to give full faith and credit to the record, the facts stated in it must be taken to be true judicially; and if they should be untrue by reason of mistake or otherwise, the aggrieved party must resort to the authorities where the judgment was rendered for redress; for he could not be allowed to contradict the record by a plea and by an issue . to the country thereon. But if the record does not show any service of process, or any appearance in the suit,(@) we think he may be al- (a) See Rothrock v. Dwelling House Ins. Co., 161 Mass. 423, 37 N. E. 206, 42 A. S. R. 418. [CHAP. VI. 320 ESTOPPEL BY RECORD. In a case in Alabama similar to Hall v. Williams, just re- ferred to, in which two defendants were sued on a judgment against them rendered in a sister state, it appeared that only one of them was personally served and had pleaded, but the record recited that the parties came by their attorneys. The court held that it would be intended that he only came who had made up the issue for trial.'' It is worthy of note in both the cases cited that the recital in the record was that the parties came by attorney, without naming the defendants. It is con- sistent with this recital that the plaintiff and one defendant came by attorney; and it was not, in strictness, disputing the record to show that one defendant did not appear. Indeed, in the case of a non-resident defendant at least it would be proper to show that the appearance by attorney was authorized for a limited purpose only and not for the whole purpose of the trial, so that the estoppel would not extend beyond the facts within such special purpose, even though the party may have appeared in person as a witness in the cause.” In an action in Connecticut * upon a judgment rendered in Rhode Island the record showed an appearance of the defendant by attorney; whereupon he offered to show that he had not authorized any one to appear for him, to which evidence the . plaintiff objected on the ground that the record was conclusive of the matter. The court, however, ruled that the evidence was proper, because its admission involved no contradiction of the lowed to avoid the effect of the judgment here by showing that he was not within the jurisdiction of the court which rendered it; for it is manifestly against first prin- ciples that a man should be con- demned . . . without, an oppor- tunity to be heard in his defence.’ In regard to the recital of the ap- pearance of the defendants by their attorney it was said: ‘As this is a mere recital founded upon the prior proceedings, this cannot be taken to be an assertion of record that Fiske appeared by attorney, for it appears by the same record that the attorney appeared for Williams only, and there is no plea filed but for Williams. There is nothing, therefore, in the record which is contradicted by the second and third pleas, and the replication by estoppel is therefore bad and the plea good, which settles the case in favor of the defendants.’ 1Puckett v. Pope, 3 Ala. 552; Catlin v. Gilders, ib. 536. 2 Wright v. Andrews, 130 Mass. 149, 3 Aldrick v, Kinney, 4 Conn. 380. If service is on state auditor he may show it was not authorized. Roth- rock v. Dwelling-House Ins. Co., 161 Mass. 423, 837 N. E. 206, 42 A. 8. R. 418. SECT. Iv.] FOREIGN JUDGMENTS IN PERSONAM. 321 record; quoting the language of Lord Mansfield in a case in which he permitted the defendant to show a similar fact. His lordship said: ‘The record of the Common Pleas amounts to no more than this, that the attorney prosecuted the suit in the plaintifi’s name.’ ! This precise question has never arisen in the Supreme Court of the United States, which has revisory jurisdiction over the state courts in matters involving the construction of the federal Constitution and acts of Congress; but the opinion of the court may perhaps be inferred from what was said in a well-known case.2_ And though the case referred to related to the question of jurisdiction in the federal courts in suits between citizens of different states, the point now referred to would seem to have depended upon the same principles as if it had been a case under the act of Congress. ~In this case the defendant, L. P. Perry, had not been personally served with notice, nor had he personally appeared in the suit in question; but the record showed an appearance by counsel, and a defence to the action. Concerning the right of Perry to prove that the attorney had no authority to appear for him, Mr. Justice McLean said that the evidence did not contradict the record but explained it; the appearance was the act of the counsel, and not the act of the court. The defendant was not bound by the proceedings. The cases above mentioned have been almost uniformly fol- lowed in America; and there is no rule more fully settled than that where the record merely recites an appearance by attorney, there is no estoppel to show that such attorney had no authority to appear,’ or had but a limited authority. The doctrine can- not be considered as at variance with the act of Congress; for the jurisdiction in such cases, it seems, would not be conclusively 1 Robson v. Eaton, 1 T. R. 62. 2 Shelton v. Tiffin, 6 How. 163. 3 Watson v. New England Bank, 4 Met. 343; Bodurtha v. Goodrich, 3 Gray, 508; Denison v. Hyde, 6 Conn. 508; Welch v. Sykes, 3 Gilm. 197; Shumway »v. Stillman, 6 Wend. 447; Kerr v. Kerr, 41 N. Y. 272; Westcott ‘v. Brown, 13 Ind. 83; Baltzell v. Nosler, 1 Clarke (Ia.), 588; Lawrence v. Jarvis, 32 Il. 304; Chicago Title & Tr. Co. ». Smith, 185 Mass. 363, 70 N. E. 426, 102 A. S. R. 341; Harshey v. Blackmarr, 20 Iowa, 161. The last-named case contains a very exhaustive discussion of the doc- trine by Dillon, J. But see Warren v. Lusk, 16 Mo. 102. 4 Wright v. Andrews, 130 Mass. 149. Butsee Hilton v. Jones, 159 U. 8. 584, 16 Sup. Ct. 108, 40 L. Ed. 267. 322 ESTOPPEL BY RECORD. [CHAP. VI. presumed in the domestic courts.!_ But as we shall presently 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 more than doubtful now, in the silence of the record in regard to the facts constituting jurisdiction, whether in a case of non-residents there would be even a prima facie presumption of the court’s jurisdiction,” though the court were one of record proceeding according to the course of the common law.’ Probably the courts would not re- quire the plaintiff in the judgment to prove the jurisdiction (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 the 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. Thecourt 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 ac- cording to the law of the state would warrant a judgment in rem. There are some apparent exceptions to this rule, as in the case of scire facias against bail. In suits upon judgments ren- dered 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 origi- nal suit, as he had come into court and there undertaken his peculiar liability. But there have been contrary decisions on this point.® 1 Ante, pp. 231, 232. 2In suit on foreign judgment Ferry v. Miltimore Wheel Co., 71 Vt. 458, 45 A. 1035, held on de- murrer that foreign court was pre- sumed to have had jurisdiction. 5 Downer v. Shaw, 22 N. H. 277; Barringer v. King, 5 Gray, 9, 11; Commonwealth v. Blood, 97 Mass. 538; Rand v. Hanson, 154 Mass. 87, 28 N. E. 6; 26 A.S. R. 210. ‘Delano v. Jopling, 1 Litt. 117; ib. 417; Adams v. Rowe, 2 Fairf. 89; Poorman ’v. Crane, Wright, 347. 5 Robinson v. Ward, 8 Johns. 86; Holt v. Alloway, 2 Blackf. 108. SECT. Iv.] FOREIGN JUDGMENTS IN PERSONAM. 323 In the case of Adams v. Rowe, cited in the note, it appeared that the plaintiff in a suit upon a judgment of another state had obtained the same against one Benson, and against the present defendant as his trustee. Personal service had been returned in regard to both. Execution was issued and returned unsatis- fied. 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 judg- ment 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 ac- quired 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. Where, however, pending suit a party dies and an adminis- trator is appointed, this fact alone does not constitute the latter a party to the suit. He must appear and make himself a party, if plaintiff; if defendant he must appear or be served with notice. The court, though having had personal jurisdic- tion over his intestate, will not acquire it overhim. And thereby the facts may be shown in a suit in another state upon the judgment, though the record contain a recital that he came in.? 1 Gleason v. Dodd, 4 Met. 333. In the case just cited, a suit upon a judgment for costs rendered against a plaintiff in another state, the record recited that the plaintiff’s administrator, defendant in the suit for costs, ‘ came in,’ upon a sug- gestion of the death of his intestate. In the present suit upon the judg- ment he denied any appearance either personally or by attorney; and the question was whether he were concluded by the allegation in the record. Mr. Chief Justice Shaw said: ‘ By the laws of Maine, as well as those of Massachusetts, when a plaintiff dies his administra- tor, being appointed under the laws of the same state, without commencing a new suit may come in and prosecute the existing suit in the same manner as if he had commenced a new one. We under- stand the record to state that in pursuance of these provisions of law Dodd, claiming to be adminis- trator with a right and power as administrator to prosecute that suit, appeared and made himself a party to it in order to prosecute the same to judgment. If this were so in fact, the court clearly 324 ESTOPPEL BY RECORD. [CHAP. VI. Parties and privies, then, will not be precluded from in- quiring 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 further been ad- judged by the Supreme Court of the United States that the same rule prevails even though the record of the judgment sets out facts sufficient if true to show that the court which pro- nounced it had jurisdiction. The recital, however specific, af- fords at most but prima facie evidence of jurisdiction; and the had jurisdiction of the same and of the person of the administrator as such plaintiff, with power to render judgment against him on failure to prosecute according to his undertaking. Nor could he defend himself by showing that he has never been appointed ad- ministrator in Maine. ... Is the record conclusive-of that fact [of appearance] ? The answer to this question we think depends on this, whether such appearance or coming in by himself personally, or by his authorized attorney, is necessary to give the court jurisdiction;. and we think that it is. The adminis- trator is a distinct party from the original plaintiff. He is not de facto a party on the fact of the death of the testator or intestate being suggested, and cannot be made such unless by his own voluntary act, or when he is com- pellable to appear on summons, and has in fact been summoned. By the death of the original plain- tiff 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 has no jurisdiction of the person of such administrator. We think, then, it is clear that as to this fact, thus necessary to give the court juris- diction, the Judgment is not con- clusive.’ In commenting upon the concluding remark of the court ina ease already referred to (Hall ». Williams, 6 Pick. 232), that ‘the full faith and credit required to be given in each state to the judicial proceedings of other states will prevent the admission of any evi- dence to contradict the facts which show a jurisdiction, if such ap- pear on the record,’ the learned judge said: ‘ This last remark we consider, taken in connection with the subject-matter, as applying to all such facts as tend to show jurisdiction of the court over the person; such as that he was ar- rested and gave bail, or was per- sonally summoned; indicating his actual presence in the state at the time of the commencement of the action, and of course subject to its jurisdiction, or other facts of the like nature. ... It therefore follows that the conclusiveness of judgments as to matters tending to show that the court had juris- diction does not extend to such recitals, but only to specific aver- ments of fact, such as an arrest, personal service, or personal ap- pearance.’ SECT. Iv.] FOREIGN JUDGMENTS IN PERSONAM. 825 defendant is now permitted to overturn it.! This is, of course, final authority.? It is a universal rule of law that a judgment of one state or country can have no effect upon the citizens of another, beyond property of theirs seized and disposed of, unless they were per- sonally notified by service ‘of process within the state of the forum,? or afterwards appeared generally in defence of the ac- tion; and this, too, regardless of any statute making publica- tion or other notiee not personal a substitute for the service of process.4 And under the decisions of the Supreme Court of the United States above referred to the fact of non-residence, to- gether with non-citizenship > and want of personal notice by service within the state in which the judgment was rendered, 1Thompson v. Whitman, 18 Wall. 457; Knowles v. Gaslight Co., 19 Wall. 58; Pennoyer v. Neff, 95 U. 8. 714; Hanley v. Donoghue, * 116 U.S. 1, 3; Kingsbury v. Ynies- tra, 59 Ala. 320; Napton v. Leaton, 71 Mo. 358; Wright »v. Andrews, 130 Mass. 149. See Kerr v. Kerr, 41 N. Y. 272; Starbuck v. Murray, 5 Wend. 148; Carleton v. Bickford, 13 Gray, 591; Bodurtha v. Goodrich, 3 Gray, 508; Rape v. Heaton, 9 Wis. 328. This overrules Wilcox v. Kassick, 2 Mich. 165; Lincoln v. Tower, 2 McLean, 473; Wilson v. Jackson, 10 Mo. 330; Bradstreet v. Neptune Ins. Co., 3 Sum. 600; Westcott v. Brown, 13 Ind. 83; Lawrence v. Jarvis, 32 Ill. 304; Lapham »v. Briggs, 27 Vt. 26; Hall v. Williams, 6 Pick. 232; and dicta in Shelton v. Tiffin, 6 How. 163; Old Wayne Life Ass’n v. McDonough, 204 U. S. 8, 27 Sup. Ct. 236, 51 L. Ed. 345; In re James’ Estate, 99 Cal. 374, 33 P. 1122, 37 A. S. R. 60; In re Hancock’s Estate, 156 Cal. 804, 106 P. 58, 134 A. S. R. 177; Andrews v. Andrews, 176 Mass. 92, 57 N. E. 333; Crumlisk v. Central Imp. Co., 38'W. Va. 390 18S. E. 456, 45 A. 8. R. 872. 2See German Savings Co. ». Dormitzer, 192 U. S. 125, 24 Sup. Ct. 221, 48 L. Ed. 373; Andrews v. Andrews, 188 U. 8. 14, 23 Sup. Ct. 237, 47 L. Ed. 366; Brown »v. Fletcher, 210 U. 8. 82, 28 Sup. Ct. 702, 52 L. Ed. 966. >The fact that defendant is a foreign transient and is about to take his departure for home is im- material. Fisher v. Fielding, 67 Conn. 91, 34 A. 714, 52 A. S. R. 270. ‘Galpin v. Page, 18 Wall. 350; Durant v. Abendroth, 97 N. Y. 132; ante, p. 226. Nor can a judgment against a non-resident not served and not appearing be sued upon in the state in which it was rendered, or be made available against other property than that attached. Ibid.; Boswell v. Otis, 9 How. 348; Cooper v. Reynolds, 10 Wall. 308; Durant v. Abendroth, 97 N. Y. 182, 141; Schwinger v. Hickok, 53 N. Y. 280; Davis v. Wakelee, 156 U. S. 680, 15 Sup. Ct. 555, 39 L. Ed. 578; Blane v. Paymaster Min. Co., 95 Cal. 524, 30 P. 765, 29 A. S. R. 149; Brown v. Campbell, 100 Cal. 635, 35 P. 433, 38 A.S. R. 314. 5A citizen of a state may be a non-resident there; but as a citizen he would probably be bound by the laws of his state in regard to modes of acquiring jurisdiction. 326 ESTOPPEL BY RECORD. [CHAP. VI. may now be shown, whatever may be the averments of the record. So too where part of the defendants are residents and part non-residents not notified, the latter (at least if not citizens) are not bound.! Indeed, it is laid down that judgment ren- dered against several non-residents jointly is in other states invalid against all if jurisdiction over any one of them by ser- vice or appearance was not obtained, though it was so obtained over others; unless there be evidence to show that by the law of the state of the forum a joint judgment may operate severally against the defendants.” The statutes of a state, however, are binding upon its own citizens; and whatever provision is made for bringing suits against them will be held obligatory in other states. And it is well held that judgments bind residents in the same manner as citizens.* But a law which should make citizens or residents of the state bound, without sérvice of process or general appearance, by a judgment, beyond property attached and disposed of, would be extraordinary, unless the judgment was of the class which are conclusive inter omnes.® We give some illustrations of these rules. In an action in Missouri upon a replevin bond made in Indi- ana it appeared that a statute was in force in the latter state 1 Board of Public Works v. Co- lumbia College, 17 Wall. 521. It has sometimes been supposed to be necessary to show something more than non-residence and non- appearance, on the ground that the non-resident may be represented e. g. by a tenant. Board of Com- missioners v. Welch, 40 Kans. 769. 2 Wright v. Andrews, 130 Mass. 149. 5 Galpin v. Page, 18 Wall. 350; Hood v. Hood, 11 Allen, 196; Don v. Lippman, 5 Clark & F. 1; Schibsby v. Westenholz, L. R. 6 Q. B. 155; Douglas v. Forrest, 4 Bing. 686; ante, p. 317; Pemberton ». Hughes, (1899) 1 Ch. 781. See Bur- len v. Shannon, 99 Mass. 200, 207. The domicil of a wife is that of her husband; hence the laws of the state in which he is domiciled will bind her as well as him in regard to the mode of acquiring jurisdic- . tion, though she in fact reside else- where. Hood v. Hood, 11 Allen, 196. See also Dolphin v. Robins, 7 H. L. Cas. 390; Story, Confl. Laws, § 46. A judgment of Indiana court is entitled to full faith and credit in another state when the validity is dependent on summons served on. Ohio River below high water mark but opposite to shore of Indiana, this state having con- current jurisdiction with Kentucky by virtue of ‘ Virginia Compact’ (1787) and Act of Congress (Feb. 4, 1791). Wedding v. Meyler, 192 U. 8. 573, 24 Sup. Ct. 322, 48 L. Ed. 570. 4 Rousillon v, Rousillon, 14 Ch. D. 351; Schibsby v. Westenholz, L. R. 6 Q. B. 155. 5 That includes judgments of divorce. Ante, p. 252. SECT. Iv.] FOREIGN JUDGMENTS IN PERSONAM. 327 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 Con- stitution 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 de- fendants was served or appeared. The other defendant pleaded that he was not notified; but a statute of New York was shown by which it was provided that in actions against two or more persons 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 the plaintiff; and in such case the judgment, if rendered in favor of the plaintiff, should be against all the defendants, in the same manner as if all had been served with process. In another sec- tion of the same statute it was provided that such judgment should be conclusive evidence of the liability of the defendant personally served or appearing; but against every other defend- ant 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. concluded nothing against the per- 1 Foote v. Newell, 29 Mo. 400. son not served. For the provision 2 Menlove v. Oakes, 2 McMull. 162. : 3 The court by O’Neall, J. said: ‘Reading 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 judg- ment was anything more than one in form, and that in substance it against every other defendant that it shall be evidence only of the ex- tent of the plaintiff’s demand, after the liability of such defendant shall have been established by other evi- dence, plainly shows that it was intended only as a final judgment against the defendant served, and that everything was left open [CHAP. VI. 328 ESTOPPEL BY RECORD. 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 ren- dered in New York that by the laws of that state a similar suit might there be brought upon the judgment against all the de- fendants 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 evi- dence of liability, but on grounds of local policy, as a convenient mode of 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 the same. A case already re- ferred 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- against the other. If this was not so, why was it provided that it should not even be evidence of the extent of the plaintiff’s demand until after his liability was established by evi- dence? This was putting the plaintiff to prove his case from the beginning. When this is so, there can be noth- ing like a judgment in its appro- priate 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 judg- ment on such proof establishes only the amount of the plaintiff’s de- mand, not its justice; this may be disputed in an action upon the judg- ment. After referring to the de- cisions of the courts of New York (Carman v. Townsend, 6 Cow. 695; s. c. 6 Wend. 206; Halliday ». Mc- Dougall, 22 Wend. 270) in support of the above-stated view, Mr. Jus- tice 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 partner- ship effects in New York are made liable to the joint debt. In this respect it is analogous to judgments in attachment, or decrees pro con-. fesso against absent defendants in equity.’ See Buckner v. Archer, 1 McMull. 85; Lesterjette ». Ford, ib. 86, note, cited by court. 1 Wood v. Watkinson, 17 Conn. 500. 2 Mervin v. Kumbel, 23 Wend. 293. 3 Downer v. Shaw, 22 N. H. 277. SECT. Iv.] FOREIGN JUDGMENTS IN PERSONAM. 329 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. . It was 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 con- clusive, but no further. We have already noticed the fact that the statement is some- times made in the books that actions upon foreign attachment are proceedings in rem so far as the property attached is con- cerned; and we have shown that the statement is misleading.” 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 controversy in this suit as the property of Smith, and that the property was duly sold, and its avails paid into court by the sheriff’s bailiff; that one Johnson then ap- peared and also claimed to be a creditor of Smith, and demanded an apportionment of the avails of the property, and that the court thereupon ordered an apportionment; that there was a law of Canada that when the proceeds of property sold on ex- ecution were thus paid into court, any pérson having any claim to the property might enter an appearance in court, and that if he neglected to do so and judgment of distribution was rendered, as had. been done in this case, such judgment was conclusive both upon the title of the property and the amount of damages and costs, and was a bar against all persons to any and all ac- tions founded upon any title, claim, or possession in or to the property. The plaintiff replied that the property in question belonged 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 upon demurrer held that 1 Hall v. Williams, 6 Pick. 232, 2 Ante, pp. 51, 52. 241, cited by the court. . 320 Vt. 65. 330 ESTOPPEL BY RECORD. [CHAP. VI. the proceedings in Canada could not be considered: as in rem, and that the replication was a good answer to the plea. It is conceivable that an act of the legislature might declare such proceedings conclusive against all the citizens of the state; but statute could no further go. Unless the proceedings partake of the real character of proceedings in rem, as by being adjudi- cations of prize or upon the status of a person, 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 in the case. The books contain a multitude of cases of this class; but they are not distinguishable in prin- ciple from the foregoing. All agree that such judgments, while conclusive between the parties in respect of the property at- tached, are void as judgments in personam unless founded upon personal service or appearance.! The principle upon which these cases proceed is one of uni- versal application both in regard to judgments of the sister states of the Union and to those of foreign countries. It may be thus stated: The legislature cannot give extra-territorial ef- fect to any: matters or proceedings 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 facts necessary to the validity of every judgment in personam when under consideration in the courts of any other state or country.’ Indeed, judgments of the kind under consid- 1Galpin v. Page, 18 Wall. 350; Wright v. Andrews, 130 Mass. 149; Lincoln v. Tower, 2 McLean, 473; Westerwelt v. Lewis, ib. 511; Steel v. Smith, 7 Watts & 8. 447; Miller v. Miller, 1 Bail. 242; Chamber- lain v. Faris, 1 Mo. 517; Wilson v. Niles, 2 Hall, 358; Watkins ». Holman, 16 Peters, 25; Barrow v. West, 23 Pick. 270; Whiting v. Johnson, 5 Dana, 390; Schibsby v. Westenholz, L. R. 6 Q. B. 155. The last case criticises Douglas v. Forrest, 4 Bing. 703, on this point. See also London Ry. Co. v. Lindsay, 3 Macq. 99; The Mecca, 6 P. D. 106, reversing 5 P. D. 28; Rousillon v. Rousillon, 14 Ch. D. 351; French v. White, 78 Vt. 89, 62 A. 35. . Carpenter v. Strange, 141 U. 8. 87, 11 Sup. Ct. 960, 35 L. Ed. 640; Owens v. Henry, 161 U. 8. 642, 16 Sup. Ct. 693, 40 L. Ed. 837. 3 Buchanan v. Rucker, 9 East, 192; s. c. 1 Camp. 65; Smith ». Nicolls, 7 Scott, 147; s.c. 5 Bing. N. C. 208; Becquet ». MacCarthy, 2 Barn. & Ad. 951; Vanquelin v. Bouard, 15 C. B. n. s. 341; Meeus v. Thellusson, 8 Ex. 638. See Eman- uel ». Symon, (1908) 1 K. B. 302, reversing the judgment of the same case in (1907) 1 K. B. 235. See also the authorities cited in the notes to the preceding pages. SECT. v.] FOREIGN JUDGMENTS IN PERSONAM. 331 eration cannot be sued upon even in the court in which they were rendered,! unless there be clear statutory authority for such a proceeding. § 5. Fraud. Whether the judgments of one state may be attacked on grounds of fraud, in the courts of another state, has been a subject of conflicting opinion.? The books contain many cases giving affirmative answers to the question.2 Among the cases to the contrary a decision of the Supreme Court of Ohio may be mentioned.‘ The facts as they appear in the report of the case 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 and third pleas; and the demurrer was sustained.® 1Cooper v. Reynolds, 10 Wall. 308; Galpin v. Page, 18 Wall. 350. See also ante, p. 330, note 1. Such judgments become exhausted with the disposition of the property attached. Cooper v. Reynolds, supra. 2 Where Congress has exclusive jurisdiction, it may prescribe the forum in which alone a judgment may be impeached for fraud, as e. g. in regard to fraudulent proceed- ings in bankruptcy. Burpee v. Sparhawk, 108 Mass. 111; Way v. Howe, ib. 502; Corey v. Ripley, 57 Maine, 69; Ocean Bank ». Olcott, 46 N. Y. 12. 3 Holt v. Alloway, 2 Blackf. 108; Borden ». Fitch, 15 Johns. 121; Andrews v. Montgomery, 19 Johns. 162; Shumway ». Stillman, 4 Cow. 292; Hunt v. Hunt, 72 N. Y. 217. See Lucas v. Bank of Darien, 2 Stewt. 280. 4 Anderson v. Anderson, 8 Ohio, 108; Gray v. Richmond Bicycle Co., 167 N. Y. 348, 60 N. E. 663, 82 A.S, R. 720. 5‘Tt is remarkable,’ said the court, ‘that this question has never received a precise determina- tion. The books abound so fully in the general doctrine that fraud avoids all judicial acts, and the proposition is so often asserted in terms which import that a judg- ment may for that cause be im- peached collaterally, that one would expect to meet with several cases in which the question has been’ directly adjudged. In Borden »v. Fitch, 15 Johns. 121, the defence was placed on the ground of want of jurisdiction in the Supreme Court of Vermont to decree a di- vorce; the defendant to the peti- tion residing in another state, and having no notice of the proceed- - ings. It is, however, said by the court that as the decree was ob- 332 ESTOPPEL BY RECORD. [CHAP. VI. In a case in the Court of Chancery of New York ! the com- plainant sought to restrain the defendants from prosecuting a suit in the Supreme Court upon a judgment recovered 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 al- leged judgment had been entered some three years after the time stated in the declaration through the mistake or collusion tained by false and fraudulent representations, it was void; and Fermor’s Case, 3 Coke, 77, is relied upon as the only authority. ... But it is important to ex- amine Fermor’s Case. It was a bill in chancery to annul a fine; that is, it was a proceeding directly in- stituted to get rid of a judgment at law. Richard Fermor, the plain- tiff, demised land to the defendant, Thomas Smith, for twenty-one years. Afterwards Smith fraudu- lently levied a fine to bar the plain- tiff of the inheritance. And it ap- ‘ pears 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 Eng- land and the barons of the Ex- chequer, when it was finally de- termined in his favor. So that Fermor’s Case, so far from being an authority in support of the posi- tion that a judgment may be im- peached collaterally, is an authority the other way... . With regard even to foreign judgments there appears now to be the strongest inclination to depart from the doc- trine that they are only prima facie evidence.’ After referring to cases already considered, holding to the conclusiveness of foreign judgments (Tarleton »v. Tarleton, 4 Maule & S. 20; Boucher ». Law- son, Cas. temp. Hardw. 89; Martin v. Nicolls, 3 Simons, 458), the court proceeds: ‘If such is the view which is now taken of the efficacy of foreign judgments, what shall we say of the attempt to impeach collaterally a judgment of a sister state, which has all the force and validity of a domestic judgment? That it cannot be vindicated either upon principle or authority, and that although loose dicta in abun- dance may be found to countenance it, yet that it has no root either in English or American jurisprudence.’ The learned judge was mistaken in the statement that there had been no prior determination of the ques- tion at the time of the decision of this case. The point had been raised several years earlier in Massachusetts, and the same rule had been declared. McRae »v. Mattoon, 13 Pick. 58. See Homer v. Fish. 1 Pick. 485. The court in the case cited said that if this were not the law there would be no end of litigation. If the first judgment. were to be impeached for fraud, the second was liable to the same attack, and the third also, and so on. The law would become a game of frauds, in which the greatest rogue would become the most suc- cessful player. The doctrine of this case was recently held by the Supreme Court of Connecticut. Sanford v. Sanford, 28 Conn. 6, 28. 1 Bicknell v. Field, 8 Paige, 440. SECT. V.] FOREIGN JUDGMENTS IN PERSONAM. 333 of the clerk and by the fraud and procurement of the defendants in the present suit, or their agents, without lawful warrant or authority. The bill was demurred to, and the demurrer sus- tained on appeal. Chancellor Walworth said that if the judgment had — fraudulently entered, the proper remedy was an application to the court in Massachusetts to set it aside and 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 ob- tained 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 de- clared a different rule; ? and the Supreme Court of Iowa also have rendered a decision not in harmony with the New York case.’ The Iowa case referred to was a suit upon a judgment ren- dered in Kentucky in an action of slander. The court below, acting as a jury, found that the defendant, a resident of Ken- tucky 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 defendant, 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, 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 1 See Nougué v. Clapp, 101 U.S. —_jured party has had an opportunity 551; Graham v. Boston R. Co., 118 to apply to the state court to have U. 8. 161; holding that a federal the judgment set aside. court cannot reverse or set aside 2 Pearce v. Olney, 20 Conn. 544; a final judgment rendered by a Engel v. Scheuerman, 40 Ga. 206. state court having jurisdiction, on See Dobson v. Pearce, 12 N. Y. 156. the ground that the judgment was 3 Rogers v. Gwinn, 21 Iowa, 58. obtained by fraud, where the in- 4In Luckenbach v. Anderson, 334 ESTOPPEL BY RECORD. [CHAP. VI. opinion in the case, after stating that the circuitous practice of a bill in chancery to enjoin the action at law was no longer nec- essary 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 suc- cessful 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 require 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 judg- ment. So that if we shouldhold 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 similar to those in the case just under consideration the Supreme Court of Con- necticut 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; 47 Penn. St. 123, a suit upon a judg- ment rendered in New York, the defendant, a resident of Pennsyl- vania, offered to prove that he had been deceived and decoyed into New York for the purpose of pro- curing service on him, and that service was thus, and not otherwise, effected. The court held that it was not sufficient to show that service had been obtained by fraud, but that the justice of the claim should have been denied; White v. Crow, 110 U.'S. 183; and that even both of these allegations might not have been sufficient unless the judgment itself had been obtained by fraud. See also Crawford ». White, 17 Iowa, 560; Potter ». Parsons, 14 Iowa, 286. 1 He cited Harshey v. Blackmarr, 20 Iowa, 161; 5 Am. Law Reg. Nn. 8. 389; 2 Story Eq. §§ 194, 195; Pearce v. Olney, 20 Conn. 544; Dobson v. Pearce, 12 N. Y. 156; Milne v. Van Buskirk, 9 Iowa, 558. ? As to that see ante, p. 302, note “a Pearce v. Olney, 20 Conn. 544. See Dobson v. Pearce, 12 N. Y. 156. SECT. v.] FOREIGN JUDGMENTS IN PERSONAM. 335 but it considered the equities between the parties and acted upon the person, restraining him from instituting or prosecuting the action. The question in its legal aspect at least 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 Constitution and acts of Congress.!_ The court said that unless the merits were open to exception and trial between the parties, it was difficult 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. It is probable that such an action could be re- strained, or that fraud could be pleaded to the action, if it were made to appear that the fraud by which the judgment in the sister state had been obtained had not become known to the party wronged until the judgment was sued upon. Apart from cases such as that last mentioned, it may now probably be considered as the established doctrine that judg- ments of one state cannot be avoided at law in another for fraud, while in full force where rendered, 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 domestic court the fact may be pleaded, or perhaps a similar proceeding may be maintained, in any other state when it is sought to enforce the judgment.* 1 Christmas v. Russell, 5 Wall. 290; Hanley v. Donoghue, 116 U. S. 1, 4. See also Granger v. Clark, 22 Maine, 130; Boston & W. R. Co. v. Sparhawk, 1 Allen, 448; Atkinson v. Allen, 12 Vt. 624; Hammond v. Wilder, 25 Vt. 342; Embury v. Connor, 3 Comst. 522. 2 Christmas v. Russell, supra, was based on the doctrine that fraud is no ground for the impeach- ment of a domestic judgment; and it would seem to follow from the doctrine of Hampton v. McConnell, 3 Wheat. 234, that if the law of any state is otherwise, and a plea of fraud good as to a home judgment, it would be good when pleaded to a judgment of such state in any other part of the Union. See Hanley »v. Donoghue, 116 U. 8. 1, 4. Comp. Ferguson v. Crawford, 70 N. Y. 253, where the rule that recitals of jurisdiction in records of sister state judgments are not conclusive is based upon the ground that such recitals would not be conclusive (in New ,York) in the case of a domestic judgment. 31t has been held that equity (CHAP. VI. 336 ESTOPPEL BY RECORD. As has already been intimated, it is probable that a differ- ent rule may prevail concerning judgments rendered in foreign countries; for the rule in the American states, as we have seen, is founded upon the fundamental law of the land, which ex- pressly applies only to the judgments of the sister states. Something could no doubt be said against permitting a party to impeach for fraud a judgment rendered in a foreign country, and still in force, if the party had had opportunity to attack the judgment there, and had not improved it; still, fraud will at all times be a most persuasive objection to a judgment rendered by a court sitting in a foreign land. ~ ‘ Indeed, there is no doubt that it may be shown against a for- ,eign judgment in personam that it was obtained by some fraud not involved in the examination of the merits of the case, such as preventing the complaining party from presenting the merits of his case,? or imposing upon the jurisdiction of the court,’ or corruption of the court, or collusion between counsel, or the like. But it would seem to be a sound view of the law that this should be the limit, as appears to be the case in regard to questions of fraud relating to domestic judgments. ‘ Where is litigation to end,’ it has been asked by high authority, ‘if a judgment obtained in an action fought out adversely between two litigants sui juris and at arm’s length could be set aside by a fresh [collateral] action on the ground that perjury had been committed in the first action, or that false answers had been given to interrogatories, or a misleading production of doc- will restrain a party from proceed- ing at law upon a judgment of a sister state before he has made any attempt to enforce it; and this too though the attack was directly upon the merits of the case. Win- chester v. Jackson, 3 Hayw. 305; s. c. Cooke, 420. For what con- stitutes the fraud which may be availed of, see ante, pp. 241-242; and see Cammell v. Sewell, 3 Hurl. & N. 617; Patch ». Ward, L. R. 3 Ch. 203. A demurrer to a bill in equity that a decree was obtained by fraud, misrepresentation, gross and wanton negligence is not good. Mooney »v. Hinds, 160 Mass. 469, 36 N. E. 484. 1See Cammell v. Sewell, 3 Hurl. & N. 617; Vadalia v. Lawes, L. R. 25 Q. B. D. 310; Hilton v. Guyot, 159 U. S. 113, 16 Sup. Ct. 139, 40 L. Ed. 95. ?Ochsenbein v. Papelier, L. R. 8 Ch. 695. 3 Dunlap v. Cody, 31 Iowa, 260; Pfiffner v. Krapfel, 28 Iowa, 27; Wanzer v. Bright, 52 Ill. 85; Luck- enbach v. Anderson, 47 Penn. St. 123; ante, p. 333, note 4. ‘United States v. Flint, U. S. Cire. Ct. Cal. 1876; 1 Bigelow, Fraud, 88, note. SECT. VI.] FOREIGN JUDGMENTS IN PERSONAM. 337 uments, or of a machine, or of a process had been given?’ ! But this view, though elsewhere strongly supported,” has been denied, and the contrary decided in set terms; the English Court of Appeal declaring that though the question of fraud was raised in the foreign court, and a decision reached that fraud had not been perpetrated, the complaining party would be heard again in England upon the subject.? This view cannot be sus- tained in the United States in regard to judgments of the sister states, at all events. § 6. Merger. Suppose, however, the plaintiff, instead of suing upon the for- eign 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 judgments of colonies and foreign countries, and secondly, those of the sister American states. ; This question was directly raised in the English Court of Common Pleas in the year 1839 in the well-known case of Smith v. Nicolls.5 This was an action on the case for an un- founded 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 had 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. Judgment 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 plain- 1 Flower v. Lloyd, 10 Ch. D. 327, 72 N. Y. 217; ante, p. 280, 333, C. A. note. 2 Castrique v. Behrens, 3 El. & 4 Christmas v. Russell, 5 Wall. E. 709; s. c. 3 L. J. Q. B. 163; 290; Hood v. Hood, 11 Allen, 196; United States v. Flint, supra; 2 110 Mass. 463. As to judgments Story, Equity, pp. 873, 876, 13th of courts of foreign countries see ed.; Hood v. Hood, 11 Allen, 196; Hilton v. Guyot, 159 U. 8. 113, 16 110 Mass. 468. Sup. Ct. 139, 40 L. Ed. 95. 3 Abouloff v. Oppenheimer, 10 57 Scott, 147; s.c. 5 Bing. N.C. Q. B. D. 295, C. A.; Hunt ». Hunt, 208. 338 ESTOPPEL BY RECORD. [CHAP. VI. tiff of the right of suing in England upon his original cause of action, or whether it amounted to more than an agreement upon 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 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 un- necessary delay and expense, if he might commence de: novo and bring a second suit for the same debt or ground of com- plaint. It had therefore always been held that where a plain- tiff 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 in the higher claim. 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 colonial 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. ‘If the judgment,’ the learned Chief Justice now observed, ‘ 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 original ground of action, or bringing an action of assumpsit upon the foreign judgment.’ This was the line of argument ad- vanced by the other members of the court; and the case has been uniformly followed in England.! ' Bank of Australasia ». Harding, earlier cases of Hall v. Odber, 14 9 C. B. 661; Robertson v. Struth, 5 East, 118; Plummer v. Woodburne, Q. B. 941; Godard ». Gray, L. R. 4 Barn. & C. 625; s. c. 7 Dowl. & 6. Q. B. 189; Nouvion ». Freeman, _R. 25; Obicini v. Bligh, 8 Bing. 335. 37 Ch. D. 244, C. A. See also the If the plaintiff, instead of suing upon SECT. VI.] FOREIGN JUDGMENTS IN PERSONAM. 839 The same doctrine was held in Texas prior to the admission of that state into the Union.!. And the court of Massachusetts has held 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. The case of Bank of the United States ». Merchants’ Bank of Balti- more® is a leading authority. 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, impleaded 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 afterwards, to wit, on the 23d day of April, 1842, the plaintiff by the consideration and judgment of the said court recovered on the said plea against the said defendants $159,676.20, for its damages which it had sustained on the occasion of the not performing the same iden- tical 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.* the original cause of action, elects to sue upon the judgment which he has obtained, ‘he must show that the matter has been adjudi- cated upon by a competent court, and that the adjudication is final and conclusive.’ Nouvion v. Free- ‘man, supra, Cotton, L. J. 1 Wilson v. Tunstall, 6 Tex. 221; Frazier v. Moore, 11 Tex. 755. 2 Wood v. Gamble, 11 Cush. 8. 37 Gill, 415. 4 After considering and over- ruling several objections to the form of a plea, as that it should have been pleaded puis darrein continu- ance, and should have alleged that the foreign court had jurisdiction, the court said: ‘ And if it be true that the judgment possessed in the state where it was rendered the attribute of conclusiveness; that it had there the rank and dignity of a debt of record; that it was not re-examinable and could not be controverted with respect to the (CHAP. VI. 340 ESTOPPEL BY RECORD. 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. Coun- sel 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, or an imperfect judgment, which could not estop the parties. But the court by its Chief Justicesaid that the effectof the appeal depended upon the char- acter of the jurisdiction 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 merits of the original demand; that the parties were precluded from going behind the judgment into an investigation of the original cause of action; and that by the act of Congress of the 26th of May, 1790, the same effect is to be at- tributed to the judgment by the courts of Maryland, when it is introduced into the tribunals of that state as evidence, or relied upon in pleading, to which it would be entitled in the state where it was pronounced; and that it has all the operation and force in Mary- land that could be claimed for it in Pennsylvania as conclusive in re- lation to the merits of the claim and the subject-matter of the suit, — it follows as an irresistible con- clusion, upon the undoubted prin- ciples of the common law, that it must operate here as an extinguish- ment of the original demand. We think it therefore to be clear, upon the true exposition of the first section of the fourth article of the Constitution of the United States and the act of Congress passed in execution of the power granted by the Constitution, and .the doctrine of extinguishment as established by the common law, that the appellee could not have maintained an action of assumpsit upon the cause of action exhibited in the record if the judgment set forth in the plea had been obtained in Pennsylvania prior to the com- mencement of the suit.’ The court added that, though the judgment in question was obtained after the present suit was instituted, the defendants were authorized in spe- cially pleading the matter. In McGilvray v. Avery, 30 Vt. 538, the defendant was sued simultane- ously upon the same cause of ac- tion in New Hampshire and Ver- mont. Judgment having first been rendered in the former state, it was held that this was a bar to the further prosecution of the action in Vermont, though the mere pendency of the suit was not even ground for an abatement. Green v. Starr, 52 Vt. 426; Walsh v. Durkin, 12 Johns. 100; Hatch v. Spofford, 22 Conn. 485, cited by the court. See also Weeks v. Pearson, 5 N. H. 324; Embree v. Hanna, 3 Johns. 101. . SECT. VI.] FOREIGN JUDGMENTS IN PERSONAM. 341 controversy by a judgment of its own and to enforce the same by its own process, the appeal, like an appeal under the Con- “necticut 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 judg- ment; and the removal of the case to a higher court would no more bar an action upon the judgment than the 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-mentioned cases the defendant was served with process or appeared in defence. What effect an opposite state of facts would produce should be noticed. 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 hold- ing 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 in respect of the last-men- tioned party.* . 1Case v. Case, Kirby, 284; Sloan’s Appeal, 1 Root, 151; Curtiss v. Beardsley, 15 Conn. 523. 2 See Scott v. Pilkington, 2 Best & §. 11. 3 Rangely v. Webster, 11 N. H. 299. . 4The court said: ‘If the judg- ment is to be regarded as a mere nullity, when an attempt is made to enforce it by an action here, the question arises, Must it not be con- sidered equally a nullity when the defendants set it up as & bar or answer to an action upon the origi- nal note upon which that judgment was rendered? Can it be treated by one party as valid, while as it respects the other party, in refer- ence to the same subject-matter, it is held to be void? Can it be said when the action is brought here upon the judgment that the original demand does not rest in judgment for the reason that the judgment is void, while at the same time, if the action were brought upon the original demand, it may be legally 342 ESTOPPEL BY RECORD. [CHAP. VI. The rule, then, in regard to judgments for the plaintiff, ren- dered in the courts of the sister states of America, is that they work 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 in the case of judgments rendered in foreign countries, or in colonies or dependencies, there is no estoppel to a fresh suit for the same demand, where the same plaintiff recovered in the prior action.” § 7. Judgment for Defendant. There is another rule laid down by the better cases, as we have seen, that if the judgment in question was given for the asserted by the same party that 21 Wend. 339. But the doctrine the demand has passed into judg- of extinguishment, which results ment, and that the action cannot be , from the Constitution and act of maintained for that cause? ... Congress, must be taken with some To maintain the position that in qualification. A judgment in one the case of an action upon the state cannot, it should seem, ex- judgment the judgment is void tinguish a judgment in another and may be so treated, but that state. Weeks v. Pearson, 5 N. H. when the action is upon the origi- 324. In this case the plaintiff had nal demand the same judgment is first brought his action in New valid, is to maintain that the form Hampshire. He then sued in New and manner of the action adopted York on the judgment there ren- determine the character of the dered. Not having satisfied the former judgment, its validity or same, he sued again in New Hamp- invalidity, instead of the facts and shire, on the first judgment. The circumstances attending its re- defendant pleaded in bar the judg- covery.’ The question had been ment rendered in New York; but determined the same way a few the court held the plea bad. Some years earlier. Whittier v. Wendell, courts, however, hold that a judg- 7 N. H. 257. To the same effect ment. upon,a judgment rendered is Kane v. Cook, 8 Cal. 449. See in a sister state not only merges Swedish-Am. Nat. Bank v. Dickin- the earlier judgment, but with it all son, 6 N. D. 222, 69 N. W. 455. rights, such as liens on land, cre- 1 Baxley v. Linah, 16 Penn. St. ated by it. Gould ». Hayden, 63 241; Barnes v. Gibbs, 2 Vroom, 317; Ind. 448, citing many cases, most Brown v. Lexington & D. R. Co.,2 of which, however, are cases in Beasl. 191; Rogers v. Odell, 39 N.H. which the first judgment was ren- 457; Child v. Eureka Powder Works, dered in the same state as the 45 N. H. 547; North Bankv. Brown, second. See Story, Conflict of Laws, 50 Maine, 214; Cincinnati R. Co. p. 823, note, 8th ed. v. Wynne, 14 Ind. 385; Lapham »v. But it is held in Louisiana, Briggs, 27 Vt. 26; Nichol», Mason, under the Code, that a judgment of SECT. VII.] FOREIGN JUDGMENTS IN PERSONAM. « 843 defendant 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.1_ It is perfectly clear that this should be true in the case of judgments of our sister states, by reason of the constitutional provision and the act of Congress; but in regard to the other classes it may be asked, Why should judgment for the plaintiff cause no estoppel to a fresh suit, while the opposite rule prevails where it is in favor of the defend- ant? The distinction (bearing in mind the fact that the doc- trine of merger has no application) we conceive to be this: Any party may waive an advantage in his own favor provided he does not thereby interfere with -another’s rights. 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.? The.reason why he could prove no more than the 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. It is quite clear, then, that while the plaintiff waives his rights, he does not endanger those of the defendant. § 8. Garnishment or Trustee Process. We have already mentioned several matters in regard to which the rules of law are common to all the classes of foreign judgments, such as these: that in the case of proceedings in rem the judgments of courts of competent jurisdiction are conclusive of the change of property; and that in the case of 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 : | a foreign country extinguishes the 1 Frayes v. Worms, 10C.By.8. original cause of action, so that suit 149; Plummerv. Woodburne, 4 Barn. must be brought upon the judg- &C. 625; 8s. c. 7 Dowl. & R. 25. ment. Jones v. Jamison, 15 La. An. 2 Smith v. Nicolls, 7 Scott, 147, 35. 166, Tindal, C. J. 344 ESTOPPEL BY RECORD. [CHAP. VI. the three classes of foreign judgments. We proceed to notice some of the rules which apply to proceedings by garnishment or trustee process. It is generally declared that where a debt or demand has been recovered by garnishment in a foreign court the recovery is a protection to the garnishee or trustee against his original creditor. A case before Lord Mansfield may be stated in illustration of this principle.2 Le Chevelier was assignee in bankruptcy of one Dormer. A creditor of Dormer, to whom he (Dormer) was indebted before the bankruptcy, attached a sum 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 bankrupt. 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 prop- osition 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 according 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 bona 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 1 Taylor v. Phelps, 1 Har. & G. 367; Wilkinson ». Hall, 6 Gray, 568; 492, 502; Le Chevelier v. Lynch, 1 Barney v. Douglas, 19 Vt. 98; Kim- Doug. 170; Phillips ». Hunter, 2 ball v. Gay, 16 Vt. 181; Chase »v. H. Black. 402; Holmes v. Remsen, Haughton, ib. 594. 4 Johns. Ch. 460; s. c. 20 Johns. 2 Le Chevelier v. Lynch, 1 Doug. 229; Embree v. Hanna, 5 Johns. 170. 101; McDaniel v. Hughes, 3 East, 313 Mass. 153. SECT. VIII.] FOREIGN JUDGMENTS IN PERSONAM. 345 favor of the garnishee against the plaintiff or his indorsee. The indorsement had been regularly made to the present plaintiff before 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 interest had been passed away, so that there was noth- ing for the process to operate upon; and that the courts of Georgia could not construe their statutes in such a way as to in- jure the citizens of other states. The statute of Georgia does not seem to have been before the Massachusetts court. Chief Justice Parker said that if by the laws of Georgia, in force when the note was made, payment to the payee after indorsement would discharge the same, and such payment were actually made, proof of these facts would protect the defendant from a second suit, though brought by an innocent indorsee 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 performance. And the plea was allowed. In a subsequent case in the same state * involving the same 1“The question, then,’ he con- In this case a true disclosure ap- tinued, ‘in the present case would seem to be whether such was the law of Georgia with respect to a negotiable promissory note at the time this contract was made. That it was the evidence resulting from the judgment of the court of that state which had the jurisdiction of the subject-matter is, perhaps, conclusive. At least it ought to be so considered in favor of a party who has been there concluded by it, and has no means of avoiding the execution of it; unless it should be made to appear that he aided in the procurement of such a judgment by withholding facts essential to the right determination of the court. pears to have been made; and al- though the law of this state would not authorize a similar judgment upon similar facts, the law of Georgia may be different, and must be presumed to be so; because a judicial court of that state of com- petent jurisdiction has so declared it.’ (a) He then ruled that it was unnecessary for the defendant to have taken the opinion of the court of last resort in Georgia, and that a judgment fairly rendered would protect him as well as if actually satisfied. 2 Meriam v. Rundlett, 13 Pick. 511. (a) The foreign judgment itself is the highest evidence of the law; and it is not permissible to give other evidence of what the law is. Davidson v. Sharpe, 6 Ired. 14. 346 ESTOPPEL BY RECORD. [CHAP. VI. general question it appeared that no execution had issued against the garnishee in the sister state; and an examination of the statute 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 charge- able should prove insufficient to pay the debt, it was held that the defendants’ plea of the judgment against themselves as garnishees was no bar. Chief Justice Shaw said that 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 forever though he might have good right to insist that proceedings should be stayed while his hands were tied. In a case in the Supreme Court of New York,! a suit against the maker of an unnegotiable promissory note, the defendant pleaded a 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 prose- cuted. 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 assignees would have been recognized and protected had the assignment been known at the trial in Ver- mont. The proceedings were therefore inter alios; and it was not drawing them into question to hold that the assignees were not concluded. § 9. Privity. In respect of the doctrine of privity the question has fre- quently arisen whether the relation exists between adminis- trators of different countries of the same person’s estate, so as 1 Prescott v. Hull, 17 Johns. 284. SECT. Ix.] FOREIGN JUDGMENTS IN PERSONAM. 347 to make a judgment in 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 ex- ecutor in one country may be a ground of action and therefore conclusive on the merits against another in another country. The case of Stacy ». Thrasher ! was a demurrer to an action in Louisiana upon a judgment rendered in Mississippi against an administrator appointed under the 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 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.? 1 6 How. 44. 2 After showing that the action could not be maintained in the case of a judgment rendered in a foreign country, the learned judge pro- ceeded to consider the particular case before him of a judgment of a sister state. He said: ‘The parties to these judgments are not the same. Neither are they privies. (1 Greenl. Ev. § 523.) . . . 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 ap- plies to persons falling under these denominations, applies to them under one and the same principle; namely, that* a party claiming through another is estopped by that which estopped that other 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 admin- istrator suing or sued as such would be bound by a verdict against his testator or intestate, to whom he is privy inlaw. . . . Anadministra- \ tor under grant of administration 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 other in law or in estate. They re- ceive their authority from differ- ent sovereignties, and over different property. Each is accountable to the ordinary from whom he re- ceives 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 adminis- trator 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 ». McMurdo, 5 Rand. 51; ante, p. 165.) ... 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 another [CHAP. VI. 348 ESTOPPEL BY RECORD. The doctrine of this case is well settled! And the dictum expressed by the court that an executor in one state and an administrator 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 ground of action in favor of the latter has been fol- lowed in several cases.?, But such cases, as we have elsewhere seen, are of doubtful authority.? As for executors 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 quali- fied in different states.°> The court in Hill v. Tucker, cited in the note, readopts the language quoted from Stacy v. Thrasher, and says that for the same reasons it holds that a judgment against an executor appointed in one state would not be conclu- sive against another qualified in another state. And the same is true of trustees 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.® § 10. 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 coun- tries; the judgments of courts of the sister states of limited juris- state, by virtue of the faith and credit given to it by the Constitu- tion and act of Congress. The laws and courts of a state can only affect persons within their jurisdiction. Consequently, both as to the ad- ministrator and the property con- fided to him, a judgment in another stage is res inter alios acta. It can- not 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 estoppel.’ 1See 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, 18 How. 466; McLean ». Meek, 18 How. 16; Rosenthal v. Renick, 44 Ill. 202; Latine ». Clem- ents, 3 Kelly, 426; Brown »v. Fletcher, 210 U. S. 82, 28 mae Ct. 702, 52 L. Ed. 966. 2 Latine v. Clements, supra; aM v. Tucker, supra. 3 Ante, p. 165. 4 Hill v. Tucker, supra. 5 See also Jackson v. Tiernan, 15 La. 485; Carpenter v. Strange, 141 U. 8.87, 11 Sup. Ct. 960, 35 L. Ed. 640. 6 Low v. Bartlett, 8 Allen, 259; Rosenthal v. Renick, 44 Ill. 202. ‘ SECT. x.] FOREIGN JUDGMENTS IN PERSONAM. 349 diction, particularly those of justices of the peace, remain to bexexamined. Are these within the Constitution and act of Congress in regard to conclusiveness? The question has been answered both in the affirmative and in the negative. The question arose in 1824 in the Supreme Court of Massa- chusetts.!_ The case cited was an action of debt upon a judg- ment rendered before a justice of the peace in Connecticut. The question 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 said that it was perfectly clear that the Constitution settled only this, that the acts, records, and judicial proceedings authenticated as Congress should prescribe were to be recgived as conclusive evidence of the doings of the tribunals; and it was equally clear that the effect of such acts was to be determined by Congress. The act of 1790 prescribed the mode of authentication, and in the opinion of the court had not deter- mined the effect of judgments of the sister states; but upon this point the court yielded rather ‘ to the authority than to the rea- sons ’ of the court at Washington.” 1 Warren v. Flagg, 2 Pick. 448. 2¢Certainly we think,’ con- authority; (a) for it is required that the copy of the record shall be tinued Chief Justice Parker, ‘ the judicial proceedings referred to in the Constitution were supposed by the Congress which passed the act providing the manner of au- thenticating records to have related to the proceedings of courts of general jurisdiction, and not those which are ‘merely of municipal certified by the clerk of the court, and that there shall be also a, certif- icate of the judge, Chief Justice, or presiding magistrate, that the at- testation of the clerk is in due form. This is founded upon the supposi- tion that the court whose proceed- ings are to be thus authenticated is so constituted as to admit of such (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 admitted 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, authenticated as aforesaid, shall have such 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), ex- tended these provisions to ‘ all records and exemplifications of office books . . . not pertaining to a court.’ 350 ESTOPPEL BY RECORD. [CHAP. VI. A few years later the Supreme Court of New Hampshire adopted the same rule upon a similar issue.1_ The court by its Chief Justice said: ‘We suppose it to be clear that until the record is duly authenticated in the manner Congress has pre- scribed, 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 authenti- cation of records that in our opinion the record of a justice of the peace cannot be so authenticated, and 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 commis- sioners in Vermont appointed by a Court of Probate of compe- tent jurisdiction, and by them rejected; and that by the laws of Vermont the decision was a final and conclusive judgment forever 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 that there must be a clerk and a judge, Chief 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 that 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. officers; and the act has wisely left the records of magistrates who . may be vested with limited judicial authority, varying in its objects and extent in every state, to be governed by the laws of the state into which they may be introduced for the purpose of being carried into effect. Being left unprovided for by the Constitution or laws of the United States, they stand upon no better footing than foreign judgments, being not more than prima facie evidence of debt.’ 1 Robinson v. Prescott, 4 N. H. 450. The doctrine is reaffirmed in Mahurin v. Bickford, 6 N. H. 567; Taylor v. Barron, 30 N. H. 78. SECT. X.] FOREIGN JUDGMENTS IN PERSONAM. 351 And when the act provided that the records and judicial pro- ceedings, authenticated as aforesaid, shall have faith, etc., it evi- dently designed to omit and leave unprovided for the proceed- ings 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 express- ing an opinion 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 that 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 Hamp- shire.? The court of South Carolina has also declared that judgments of justices of the peace of sister states are prima facie evidence. The question, however, in the case referred to was not in regard 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.2 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 juris- diction are conclusive.‘ In Starkweather v. Loomis the court says: ‘ 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 1Jt had been held in an earlier case in the same state that where a party, a citizen of New Hampshire, presented a claim to the commis- sioner of an insolvent estate in Vermont where the intestate re- sided, and the administrator having appealed from the commissioner’s decree allowing the same, the case had been tried on its merits, and judgment finally rendered in the Supreme Court of Vermont in favor of the administrator, that judgment constituted a good defence to the same claim by the same party; and that an ancillary administrator in New Hampshire might plead such judgment in bar of the allow- ance. Goodall v. Marshall, 14 N. H. 161. 2Clark ». Parsons, Rice, 16; Lawrence v. Gaultney, Cheves, 7. See also Snyder v. Wise, 10 Barr, 157. 8D. Chip. 59. 4 Starkweather v. Loomis, 2 Vt. 573; Blodget v. Jordan, 6 Vt. 580; Carpenter v. Pier, 30 Vt. 81. « 852 ESTOPPEL BY RECORD. [CHAP. VI. no seal, he may use a common seal, or may certify that he has “no 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 2. Robinson,! in which a question of the proper way of showing the jurisdiction arose, the court remarked that 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 they were organized and pro- ceeded. But this language was evidently used in reference io the question of jurisdiction.” A decision to the same effect concerning the conclusiveness of justices’ judgments of other states, that this must depend upon the law creating the courts, was recently given in Texas.’ The meaning of this 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 has in a dictum maintained the doctrine that such judg- ments are not subject to examination in the courts of other states.* In a subsequent case * this question was raised by a demurrer: What is the character of a debt evidenced by a tran- script 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 ». Harding, just referred to, as authority for the doc- trine that a justice’s judgment was a judicial 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 that Congress must have in- tended the judgments of inferior courts not of record by the expression ‘ judicial proceedings,’ in connection with the con- 18 Wend. 267. 4 Silver Lake Bank v. Harding, 5 2See also Cole v. Stone, Hill & Ohio, 545. D. 360. 5 Stockwell v. Coleman, 10 Ohio 5 Beal v. Smith, 14 Tex. 305. St. 33. SECT. xX.] FOREIGN JUDGMENTS IN PERSONAM. 853 text. 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,’ etc. The word ‘ records’ then can only mean the memo- rials of the superior courts or courts of record. The words ‘judicial proceedings ’ follow in the conjunctive, and not in the disjunctive; so that they must mean something additional to the idea conveyed by the word ‘ records.’ The only other class of courts being those usually denominated ‘ inferior,’ it follows that they must have been intended. The position is fortified by the presence of the words above italicized, ‘ if there be a seal,’ which all courts of record have.? ; Now the second part of the act declares that ‘ the said records and judicial proceedings’ shall have the same force and effect as in the state from whence they are taken. It is plain that if as ‘ judicial proceedings ’ the judgments of inferior courts are em- braced by the language concerning authentication in the first half of the act, they alsg fall within the meaning of the last half of the act concerning the effect to be given the judgments of the sister states. But if the position taken by some of the courts be correct that judgments of justices of the peace cannot be authenticated in the manner prescribed in the act of Congress, and that there- fore they cannot be embraced in either part of it, it appears to be a good answer that by the Constitution ‘ the acts, records, and judicial proceedings’ of each state are entitled to ‘full force and effect ’ everywhere else in the Union. Judgments of inferior courts must be embraced in this broad language; * and 1 May 26, 1790 (1 Stat. at L. 122). 3 The clause in the Confedera- 2It seems to us that there is no good ground for the objec- tion that judgments of justices of the peace cannot be authenti- cated in the manner prescribed. A seal is not required; the justice may act as his own clerk, as was sug- gested in Starkweather v. Loomis, 2 Vt. 573; and thére can be no impropriety in denominating him ‘judge.’ tion, from which the one in the Constitution was taken, contained, after ‘judicial proceedings,’ the words, ‘of the courts and magis- trates of every other state;’ and these words were probably stricken out as redundant. It is plain from the fact that the word .‘ courts’ was stricken out as well as ‘ magis- trates;’ that no distinction was in- tended to be drawn between the 354 ESTOPPEL BY RECORD. [CHAP. VI. ‘ full force and effect ’ can mean nothing less than the force and effect which would be given in the domestic courts. It is quite certain, however, that the judgments of all courts, whether of record or not, which possess the necessary machinery for carry- ing out the act of Congress in regard to authentication are con- clusive of the merits, when properly authenticated. Under this head of judgments of courts of inferior jurisdic- tion may also be classed the judgments of foreign consuls. In Forbes v. Scannell } it appeared that after an execution of an assignment in Canton, China, before a United States consul, a controversy arose before the consul between the assignees and a citizen of the United States residing in Canton, in which was involved the question of the validity of the assignment. The consul delivered an opinion holding the assignment valid. At the time of the assignment certain goods belonging to the in- solvents were at sea; and upon their arrival-in port they were seized on execution by third parties, who were aware of the claim of the assignees. These third parties in a suit to recover damages for the seizure of the goods now maintained that the assignment was void. The assignees, however, contended that this question had been conclusively settled by the decision of the consul. But the court held the contrary.” The case is different where the statute has given such courts the necessary authority to try certain causes; and in such case a judgment for the defendant, if final and conclusive where judgments of the superior and miissioner.(2) And we are not those of the inferior courts, by the framers of the Constitution, in omitting the phrase referred to in the Confederation. 113 Cal. 242. 2 Baldwin, J. said: ‘It is urged that the decision of this court is as conclusive of the questions of local law decided as would be that of any other court as to the law of its jurisdiction; but it seems that an appeal lies from the consul to the United States com- aware that the rule which accords the force of definitive exposition of the local law to the decision and judgment of the courts of the local jurisdiction has ever extended so far as to give that sanction to the judgment of a subordinate tribunal of the municipality or territory. The decision of the consul is doubt- less entitled to some weight; but we are not prepared to hold it as conclusive of the general question adjudicated by him.’ (a) A similar fact in Bank of Australasia v. Nias, 16 Q. B. 717, is men- tioned as having force in favor of the conclusiveness of the judgment. SECT. X.] FOREIGN JUDGMENTS IN PERSONAM. 355 rendered, or for the plaintiff with satisfaction, will bar all fur- ther litigation for the same cause of action in the domestic courts tf the consular court acted within its jurisdiction.” The jurisdiction of inferior courts of the sister states may in all cases be examined,® subject perhaps to limitations of the kind mentioned heretofore in considering the judgments of the superior courts. And it should be observed that in matters concerning which the jurisdiction of courts of record is special and limited the proceedings stand upon the footing of the pro- ceedings of inferior courts.® 1So0 it would seem from analogy’ to the judgments of colonial courts. See Plummer v. Woodburne, 4 Barn. & C. 625. 2 Barber v. Lamb, 8 C. B. N. 8. 95. 3 Wheeler v. Raymond, 8 Cow. 311; Denning v. Corwin, 11 Wend. 647; Smith v. Fowle, 12 Wend. 9; Thomas v. Robinson, 3 Wend. 267; Cleveland v. Rogers, 6 Wend. 438; Sheldon v. Hopkins, 7 Wend. 435; Pelton v. Platner, 13 Ohio, 209; Foster v. Glazener, 27 Ala. 391; Gunn v. Howell, ib. 663; Shivers v. Wilson, 5 Har. & J. 180; Thatcher v. Powell, 6 Wheat. 119; Shufeldt >». Buckley, 45 Ill. 223; Draggoo v. Graham, 9 Ind. 212; Cone ». Cotton, 2 Blackf. 85, note; Martin v. Kennard, 3 Blackf. 480; Grant ». Bledsoe, 20 Tex. 456; Beal v. Smith, 14 Tex. 305. 4 Ante, pp. 229, 230. 5 Commonwealth »v. Blood, 97 Mass. 538; ante, pp. 227, 228. PART II. ESTOPPEL BY DEED. PART IL ESTOPPEL BY DEED. CHAPTER VII. PRELIMINARY VIEW: THE SEAL. WE now enter upon the consideration of a class of rights arising from estoppel very different from that under considera- tion in the preceding pages, — so different that as soon as we descend from the general idea of an ‘ indisputable. admission,’ sometimes (but with doubtful propriety +) said to pervade all estoppels, into the details of the subject, we shall seldom be able to trace the resemblance of the two classes by more than remote analogies. And even in respect of the general connect- 1The objection to calling an estoppel an admission arises from the fact that an admission is evi- dence in favor of a stranger; while in most cases the fact admitted under an estoppel, like the estoppel itself, is res inter alios towards a stranger, and hence inadmissible even as evidence. A true judgment in rem, may avail a stranger, as we have seen; so an estoppel in pais by concealment or denial of one’s title to or rights in property could be used against one by a stranger, —e. g. a creditor of the purchaser, —as a mere admission, possibly as more. And there may be other cases in which the admission in the estoppel may avail a stranger; but the term should only be applied to an estoppel with caution in any case. In many cases it is obviously - inapt, as in regard to a judgment. The danger of calling a judgment an admission is seen in Rogers »v. Grannis, 20 Ala. 247, where an intelligent court was led to say that because an admission by an administrator was not evidence against his successor in the admin- istration, a judgment, being also an admission, was not evidence. An admission is a mere piece of evi- dence. An estoppel .is a necessary conclusion by law. Pond ». Pond, 79 Vt. 352, 65 A. 97, é [CHAP. VII. 360 ESTOPPEL BY DEED. ing link between them, that is, that certain facts are to be taken as true specifically and not in the alternative,! in other words, that we are still dealing with incontestable rights, there is a wide difference as regards the operation by which the estoppel is effected. In the case of a judgment or verdict estoppel the question in dispute is submitted to others to decide; ? in the case of estoppels by deed the parties transact the whole business themselves, and agree upon the facts that shall be unquestioned. The one case arises from the judg- ment of the law, the other from the contract of the parties. Estoppel by deed, it need hardly be said, though sometimes called in the older books estoppel by matter in writing,® origi- nated by virtue of that which constituted the writing a deed, to wit, the seal.* Seals, which came into regular use in England with the Norman Conquest,*® though they were not unknown in the Anglo-Saxon time, were at first used only by the king and the great men of church and state. We are told upon trust- worthy authority that in the time of Henry the Second ® it was considered improper for a knightling (‘ militulus ’) to have a seal; Richard de Luci, the king’s justiciar and predecessor of the famous Glanvill, in a trial of title to land turning scorn- fully upon such a person who professed to have a seal, and affirm- ing that the time was when only the king and his great men had seals.? And with this he overruled the objection to certain written gifts of lands, that they were without seals. Now, it is to the fact that the seal was once the mark of authority and greatness, rather than to the fact that it was a seal, or that its use was a solemn act, that we are probably to trace the origin 1 Ante, p. 4. 2In the case of a judgment against the defendant the whole proceedings of course, as well as the result, is nolens volens as to him. 3 See Coke, Litt. 352 a; Comyn’s Digest, Estoppel (A. 2); Stratton v. Rastall, 2 T. R. 366; Lampon v. Corke, 5 Barn. & Ad. 606, 611. That a mere writing releasing rights of action concerning land though valid does not affect the land in the hands of a grantee of the releasing party, see Cobb ». Fisher, 121 Mass. 169. But a writing was conclusive evidence in early times. ‘On the history of the use of seals in England see a valuable essay in the Archacological Journal, Vol. 5, p. 1. (1848). : 5 A.D. 1066. 6A. D. 1154-1189. 7 Placita Anglo-Normannica, 175, 177; History of Procedure in England, 717. CHAP. VII.] PRELIMINARY VIEW: THE SEAL. 361 of the effect of the instrument as matter of evidence. In the Dialogue of the Exchequer, a work of the year 1176,! it is di- rectly affirmed that the acts and records of the Exchequer de- rived their conclusive effect from the image of the king stamped upon the seal there kept and used.? By the close, however, of the twelfth century seals had come into general use by landholders and by traders, and especially by the money-lending Jews; the idea having now gained as- cendency that the seal itself, besides affording authentication, somehow imported verity, and gave to the instrument to which it was appended its peculiar efficacy. From that time until the present day the use of a seal has been attended with the gravest consequences even in cases in which the fact of its use would at first have brought upon its owner nothing but ridicule and con- tempt. This view of a seal as importing of itself absolute verity reached a height of absurdity when, from the majestic seal of the king, of an archbishop, or of an abbot of 4 monastery, affixed and suspended to a parchment with a dignity befitting the owner, it came to pass that the scrawl of a scrivener’s pen would answer the same high purpose. And when it came to this, perhaps before it had quite come to this, the revulsion of intelligent men had become such as to cause the legislatures of some of our states (as of Tennessee) to abolish the distinction in favor of seals, and to declare that the special efficacy of an ordinary instrument should no longer depend upon the addi- tion of wax, wafer, or scrawl. In such states the question of estoppel by statements and recitals in written instruments must depend upon intention, to be determined (from the writing itself) by the consideration whether the statement or recital was intended to furnish a basis of action by the parties; in other words, whether they intended to bind themselves by con- tract that the facts should be as stated.? 1 Ante, p. 37, note. 2Stubb’s Select Charters, 176, 2d ed. So in the book of Esther viii, 8, it is ordered, ‘ The writing which is written in the king’s name and sealed with the king’s ring may no man reverse.’ That the estoppel prevails in Tennessee, though the seal has lost its force there, see Rankin v. Warner, 2 Lea, 302; Buchanan »v. Keines, 2 Baxter, 275. Perhaps, however, the estoppel would there arise only upon proof that the recital had been acted upon by the party alleging it. In this particu- [CHAP. VII. 362 ESTOPPEL BY DEED. Other cases .of estoppel by deed which stand or may well stand upon grounds independent of the seal, such as the effect of a warranty of title by a grantor of land conveying in fee before he has acquired the title, remain the same, no doubt, so far as not affected by legislation, as before; the estoppel still arises.! It is only history and association that require the con- sideration of -such cases under the head of Estoppel by Deed. It should perhaps be added that the reader must not be misled into supposing that the author means to suggest that, in this letting down of the physical properties of the seal any more than in the loss of the idea from which it originally derived its efficacy, there has been any relaxation of the doctrine of estoppel by deed where that has not been effected by act of the legisla- ture.? Besides, as we have intimated in the note, the doctrine has still sufficient reason for existence when based (not on the seal, but) on contract; and it may be doubted if there is now much difference concerning recitals and statements between the law of those states in which the seal still retains its old efficacy and of those in which it has been made useless.’ An estoppel by deed‘ is a preclusion against the competent parties to a valid sealed contract,® and their privies, to deny its force and effect by any evidence of inferior solemnity.’ Such 2See e. g. Cobb v. Fisher, 121 Mass. 169; Snow v. Moses, 53 Maine, 546. lar the estoppel would resemble an estoppel in pais. Indeed, the courts in recent times appear in- clined to treat the estoppel by deed as resting on contract, a perfectly intelligible basis, —a basis upon which a large class of estoppels is arising. Carpenter v. Buller, 8 Mees. & W. 209, 212, where Parke, B. says that a recital in an instru- ment not under seal may be such as to be conclusive. See Delaney ». Dutcher, 23 Minn. 373; Stewart v. Metcalf, 68 Ill. 109. But it should be clear that the recital in a simple contract is of the essence of the contract; otherwise there will ‘be no estoppel to dispute it. Ferguson v. Milliken, 42 Mich. 441; Snowden v. Grice, 62 Ga. 615. See Newton v. Marshall, 62 Wis. 8. 1 Jones v. Morris, 61 Ala. 518. 3 Indeed, one who derives title under a will is bound thereby as much as he would be under a deed. Taking under the will one is not permitted to dispute its provisions. Hill v. Den, 54 Cal. 6; Noe v. Spli- valo, ib. 207; Hyde v. Baldwin, 17 Pick. 303; post, chapter 20. 4 Attested, if of land, in a con- test against a purchaser from the grantor. Chamberlain v. Spargur, 86 N. Y. 603. But an unattested deed would be good against the grantor, to raise an estoppel upon its covenants of warranty. Ib. p. 608; Wood v. Chapin, 3 Kern. 509. 5 This includes deeds of record. Kepley v. People, 123 Ill. 367. 6 A definition approved in Rawle, PRELIMINARY VIEW: THE SEAL. 363 ~ cannot allege any title or right in derogation of the deed. Thus, a grantor by deed with general warranty cannot set up any encumbrance against the grantee, not excepted in the deed,! such as a right of way.” Taking the definition and rule as the premise, we purpose in considering the subject before us to make two short general divisions, and to show, — 1. To whom the doctrine applies; 2. To what it applies. It is obvious that under the first division we must present | the doctrine in its relation, first, to parties; secondly, to privies. Under the second division we purpose to show, first, the lim- itations of the doctrine; secondly, the force of the doctrine in regard to recitals; thirdly, its force concerning after-acquired estates under conveyances of land; and fourthly, its force in relation to the release of dower. The estoppel arising from the relation of landlord and tenant and the like, not being dependent upon the existence of a deed, will be considered under Part III., Estoppel in Pais. The sub- ject will, however, be incidentally presented as occasion may require in the present Part IT., and particularly under Title by Estoppel. First, then, concerning the doctrine of estoppels by deed in relation to parties and privies. CHAP. vIt.] Covenants for Title, § 241, 5th ed. See also Fields v. Willingham, 49 Ga. 344, 351. An estoppel in pais may be set up in bar of an estoppel by deed. Platt v. Squire, 12 Met. 494. But comp. Philbrick v. Shaw, 63 N. H. 81, 88. : 1 Fisher v. Mining Co., 97 N. Car. 95; s. c. 94 N. Car. 397. Nor deny that deed or bond was for other than one named as grantee in it, there being no fraud or mis- take. Andrus v. Colman, 82 Ill. 26, 25 Am. Rep. 289. See 16 Cyc. 686, n. 11. 2De Rochemont v. B. & M. R., 64 N. H. 500. Indeed, it has been held that a grantor cannot allege, in a suit for breach of warranty by his grantee, that a prior con- veyance by the same grantor of the same premises was invalid. Hodges v. Latham, 98 N. Car. 239. But why not? 364 [cHAP. VIII. ESTOPPEL BY DEED. . CHAPTER VIII. PRELIMINARY VIEW: PARTIES AND PRIVIES. Tue general rule upon this subject is the same as in the case of estoppels by record, namely, that only the parties to a deed ! and those in privity with them can be bound by or take advan- tage of the estoppel created by the instrument. The estoppel must be mutual.” We proceed now to consider the meaning and operation of this rule. §1. Parties, The rule is illustrated by a case which recently came before the Supreme Court of Pennsylvania.’ The action was eject- ment by Struthers against one Clark and his tenants. It ap- peared that Clark, being owner of the land in question, con- veyed it by deed to certain persons some of whom subsequently joined in a mortgage with him to a stranger, which mortgage 1 A distinction has been made in regard to recitals of boundaries upon streets, making the estoppel available for some purposes in favor of the town in which the land lies. Tobey v. Taunton, 119 Mass. 404. But the distinction is not sound. See post, p. 403, note 8. The rule that one who receives a conveyance of land subject to a mortgage, which he thereby as- sumes, conclusively admits the bind- ing force of the mortgage in favor of the mortgagee (Freeman v. Auld, 44 N. Y. 50; Johnson v. Thompson, 129 Mass. 398; Smith ». Graham, 34 Mich. 302; Hill ». Minor, 79 Ind. 48, 55; Price v. Pollock, 47 Ind. 362; post, chapter 10) is commonly based on the ground of implied covenant with the mort- gagee. But even on grounds of estoppel the rule is sustainable, since the admission or representa- tion is intended for the mortgagee. But exception of prior mortgage from covenants of later mort- gage will not estop later mortgagee, who does not assume the earlier one from contesting the validity of the excepted mortgage. Living- stone v. Murphy, 187 Mass. 315, 72 N. E. 1012, 105 A. S. R. 400. 2 Millard v. McMullin, 68 N. Y. 346; Glasgow v. Baker, 72 Mo. 441. See Tompkins v. Holt, 91 Ala. 204, 8 So. 794; Landing ». Montgomery, 2 Johns. 382; Lawrence v. Camp- bell, 32 N. Y. 455; Capen v. Shel- don, 78 Vt. 39, 61 A. 864; Sidney Coal Co. ». Sword, 21 Can. 152, 158. 3 Sunderlin v. Struthers, 47 Penn. St. 411. SECT. 1.] PRELIMINARY VIEW: PARTIES AND PRIVIES. 365 contained a recital that he (Clark) was the owner of eleven twenty-fourths of the land. Before this mortgage was re- corded, but after its execution, the property was attached and sold on execution to the plaintiff. The tenants now alleged that Clark had no title when the attachment was served; to which the plaintiff replied the recital in the mortgage as an estoppel. But the court held the defence of the tenants good.1 This doctrine is also illustrated by a case in Ohio.? An ac- 1 Mr. Justice Agnew, in deliver- ing the opinion of the court, said: ‘There was an interval of time be- tween the date of the last deed and the date of the mortgage dur- ing which the tenancy was wholly gone. How was the tenancy re- vived? Only by the simple dec- laration of Clark that he owned eleven twenty-fourths, and the declaration or certificate of his co- mortgagors to the same fact. Thus, the mere written certificate, as it were, of persons who were neither parties nor privies in estate, or in the suit brought to recover the estate, is made evidence to re- invest Clark with title to these eleven parts; and even more, it was laid upon the jury with a bind- ing instruction, on the ground that it operated as an estoppel upon persons who, after Clark had parted with his title, stood in no relation or privity to him... . On what principle of evidence or law his naked declarations or those of a stranger could be used, first to re- new or restore the tenancy, and then to estop, it is difficult to per- ceive. The effect of it is to let into possession one who has shown no title whatever, contrary to the first principle of the law of eject- ment, and thus to oust persons holding no fiduciary relation, and thereby to affect the title of Clark’s vendees, who, after their deeds, became the landlords.’ Mr. Justice Strong, in a concur- ring opinion, forcibly replied to the argument of the plaintiff that it was a case of estoppel in pais. ‘ Nor was the recital,’ he said, ‘ an admission or declaration made to the plaintiff at the time of the sale, or at any previous time. He was not a party to the mortgage. It was altogether res inter alios acta. If he saw it and did not know it was a mistake or a falsehood, still he was not warranted in relying upon it. I agree that if the plain- tiff had been induced to purchase by anything said by these mort- gagors at the sale, or by representa- tions made by them to him pre- viously, they would have been bound by their declarations, and precluded from averring the con- trary to the prejudice of his title. But it is an unprecedented exten- sion of the doctrine of equitable estoppel to hold that-a man is bound to the world to make’ good what he has said to any one if others choose to rely upon it. If every man may be held liable not only to parties and privies to his deed, but to all mankind, to make good every introductory re- cital which the deed contains, it behooves him to avoid all recitals, and be careful what scrivener he employs. Such is not the law, and there are no authorities which assert it.’ 2 Kitzmiller v. Ohio St. 63. Rensselaer, 10 366 ESTOPPEL BY DEED. [CHAP. VIII. tion had been brought for the assignment of dower in land which the defendant held under a sheriff’s deed made by vir- tue of an execution against the plaintiff’s late husband. The defendant sought to protect himself under a deed from the de- ceased and release of dower, made before the sheriff’s sale but after the judgment, to third persons. The court refused to allow the alleged defence to be made. The defendant, the court observed, had never possessed himself of the title which he re- lied upon; he did not claim under it, but by a title adverse to -it and paramount. He could not make the release available as a grant, for he was not a party to it; nor could the release operate in his favor by way of estoppel, for a stranger could not be bound by or take advantage of an estoppel. Persons acting under the authority of a grantee by deed are not regarded as strangers.' In the case cited one Osgood had executed a deed of land to a corporation styled the ‘ Proprietors of the South Chapel in Fryeburg.’ In this deed it was stipu- lated that a church should be erected on the land ‘ for the use of the Methodist Episcopal Society so long as they shall furnish preachers acceptable to a majority of the proprietors.’ The church was built, and after having been occupied for a number of years was abandoned and suffered to fall out of repair. After a considerable interval the church was repaired by the defend- ants under the direction of persons acting as the superintending committee of the proprietors, and reoccupied; whereupon the heirs of Osgood brought the present action of trespass for the entering and repairing the church. The defendants alleged the deed as an estoppel; while the plaintiffs contended that they were strangers, and not entitled to take advantage of it. The court decided in favor of the defendants, saying that it could not be maintained that they, acting under persons who were at all events de facto the superintending committee of the proprietors, a majority of whom were among the original as- sociates and proprietors, were such strangers and wrongdoers as to deprive them of the right to assert the estoppel. On the other hand, a person is not to be regarded as a party to a deed executed in his favor, if he does not accept or claim 1 Osgood v. Abbott, 58 Maine, 73. SECT. I.] | PRELIMINARY VIEW: PARTIES AND PRIVIES. 367 under it.1 The plaintiff in the first case referred to brought an action for dower, claiming under a mortgage deed by her late husband to one Ware, which by assignment to K and sundry mesne conveyances was traced to the defendant. Counsel on her behalf contended that the defendant was estopped by this mort- gage to deny the plaintiff’s right to dower in the land. But the court said that such could not be its legal effect. There was no evidence in the case that K ever claimed title under this mortgage, or in fact that he had any knowledge that it had ever been assigned to him. It was not recorded until March 10, 1858, nearly forty years after its date. From whence the de- mandant obtained this instrument did not appear, nor did it ap- pear that the tenant had any knowledge of its existence before it was produced on trial. Under this state of facts he was not affected thereby. A deed further, like a judgment, estops the parties only in the character in which they execute it.2. The plaintiff as admin- istratrix of the estate of her husband executed a deed of real estate containing a covenant of warranty against the demands of all persons claiming under herself. She now brought an action for dower in the land, and the court held that she was entitled to recover. Mr. Justice Cooley, who delivered the judgment, said that there was no ground for putting a construction upon the deed that would estop the plaintiff from claiming dower. "The deed had been given by her in her representative character as administratrix and signed by her as such. The covenant against her own acts referred to herself in such representative character, and it was not to be presumed that she had precluded herself from asserting her individual rights. Though it was true the covenant was not essential to the validity of the deed, still it- was not meaningless, and might under some circumstances, if the sale had proved defective, have given the grantee a right of action.’ 1 Kidder v. Blaisdell, 45 Maine, 461; St. Louis R. Co. v Belleville, 122 Ill. 376. 2 Wright v. De Groff, 14 Mich. 164; Doe d. Homby »v. Glenn, 1 Ad. & E. 49; Smith ». Penny, 44 Cal. 162; Hall »v. Matthews, 68 Ga. 490; Gouldsmith ». Coleman, 57 Ga. 425; Trentman v. Eldridge, 98 Ind. 525, 531. 8 Wright v. De Groff, supra. See also Carithers v. Stuart, 87 Ind. 427, where it is held that a wife may buy and enforce a note, and 368 ESTOPPEL BY DEED. [cCHAP. VIII. The same principle appears in the case of Metters v. Brown.? That was an ejectment to recover possession of a piece of land, in which the plaintiff sued as administrator of his mother. He sought to recover the premises by reason of a term of which it was said his mother died possessed, the same devolving upon him as administrator. The defence was that the defendant had been in possession under a mortgage by the plaintiff in his mother’s lifetime. The defendant contended that the plain- tiff was estopped from claiming the term by reason of his mort- gage. But the court held that there was no estoppel.” Again, in Trentman »v. Eldridge,’? where a wife had joined her husband in a mortgage with warranty upon his property to se- cure a debt of his, it was held that she was not estopped to claim the land in another capacity. The effect of the deed upon the wife, it was observed, did not extend beyond her interest in the specific property described therein; rights vesting in her in some other character than that of wife were not affected by what she had done as wife. If, however, a guardian sell land of his ward, with a covenant that he was duly authorized to sell the premises, he cannot after- wards set up a claim to the land in his own right. The court observed in the authority cited that: the case came within the well-established rule that a party was not allowed to plead or prove any matter inconsistent with the terms of his deed.® foreclose a mortgage securing it, land inconsistent with the lease. though she had joined her husband in executing the mortgage. Trent- man v. Eldridge, 98 Ind. 525, 531. 11 Hurl. & C. 686. 2¢ Tn our opinion,’ said Channel, B. speaking for the court, ‘the plaintiff, who sues as administrator of his mother, must be considered in the position of a stranger; and therefore the rule as to estoppel does not apply. For whenever a person sues, not in his own right, but in right of another, he must for the purpose of estoppel be deemed a stranger.’ But it is held that a lease executed by one a3 agent of the lessor estops him from setting up any claim to the Blanchard v. Tyler, 12 Mich. 339. 398 Ind. 525. 4Heard v. Hall, 16 Pick. 457; Brock v. Rogers, 184 Mass. 545, 69 N. E. 334. Comp. the case of one suing as next friend, for an infant. Lee v. Turner, 71 Texas, 264. The guardian’s settlement, of course, is not conclusive upon the ward. Henley v. Robb, 86 Tenn. 474, 483. 5°On this principle,’ said Mr. Justice Wilde, ‘the case of Poor v. Robinson, 10 Mass. 131, was de- cided, a case in most respects pre- cisely similar to the present. In that case the demandants claimed as children and heirs of Thomas Poor, their father; and the tenant SECT. I.] PRELIMINARY VIEW: PARTIES AND PRIVIES. 369 Further, in order to work an estoppel upon the parties to a deed they must be sui juris. Hence, at common law a mar- ried woman, according to the weight of authority, is not es- topped at law or in equity by her covenants of warranty,! or by her recitals,” except in regard to her equitable separate produced a deed of release from two of the demandants, by which they released and quitclaimed unto him all the right of which the tes- tator, their father, died seised in and to sundry lots of land including the demanded premises. It ap- peared that the testator was dis- seised at the time of death, and so the deed was inoperative to pass the right of the testator; but it was held to be good by way of estoppel to extinguish the right descending from the testator to his two chil- dren, the executors, and thus far the title to the tenant was con- firmed, the court holding that they were not entitled to recover against their own bargain and contract with the tenant. That case and this, excepting in two particulars, are similar, and depend on the same principle. In Poor v. Robin- son the executors sold in their capacity as executors; in this case the petitioner sold in his capacity as guardian. But in two particulars the cases differ. In Poor v. Robin- son the executors’ deed purports to convey the right only of which the testator died seised. But in the present case the petitioner’s deed purports to be an unqualified grant of the land to the grantee in fee-simple. It purports to pass the whole estate, and it is utterly inconsistent with the plainer im- port of the grant to allow the peti- tioner now to show that only a part of the estate passed by that conveyance. The other particular in which the cases differ is of more importance. In Poor v. Robinson there do not appear to have been any express covenants. But in this case the petitioner expressly covenants that he is lawfully author- ized and empowered to make sale of the granted premises; that is, of the whole estate. Most certainly he was not so authorized; and this covenant operates to avoid circuity of action by way of rebutter, and estops the petitioner from setting up his title from Pitts Hall.’ 1Goodenough »v. Fellows, 53 Vt. 102 (equity); Trentman v. Eld- ridge, 98 Ind. 525, 531; Carithers v. Stuart, 87 Ind. 427 (a striking case) ; Jackson v. Vanderheyden, 17 Johns. 167; Sparrow v. Kingman, 1 Comst. 242; Wallace v. Miner, 6 Ohio, 367; Wight v. Shaw, 5 Cush. 56; Lowell v. Daniels, 2 Gray, 161, over- ruling Fowler v. Shearer, 7 Mass. 21; Barker v. Circle, 60 Mo. 258; Bank of America v. Banks, 101 U. S. 240; Wood »v. Terry, 30 Ark. 385; Har- den v. Darwin, 77 Ala. 472; Gon- zales v. Hukil, 49 Ala. 260; Patter- son v. Lawrence, 90 Ill. 612; Mc- Laren v. Jones, 89 Tex. 131, 33 S. W. 849; Strawn v. Strawn, 50 II. 33. The last-named case holds that though the wife release dower and join in the warranty, she will not be estopped to claim an in- terest distinct from that of dower; and the deed not being an estoppel upon the wife, is not an estoppel upon the husband’s heirs against the widow. McLeery v. McLeery, 65 Maine, 172. 2 Bank of America v. Banks, 101 U.S. 240. See Cockrill ». Hutchin- son, 1385 Mo. 67, 36 S. W. 375; Vincent v. Walker, 93 Ala. 165, 9 So. 382; Stacey ». Walter, 125 [CHAP. VIII. 370 ESTOPPEL BY DEED. estate.1 The case first cited was an ejectment; the plaintiff giving in evidence a deed from the defendant and her husband by which they conveyed the premises in fee to the plaintiff, with warranty. The defendant offered to prove an outstand- ing title, but it was objected that she was estopped by the covenants in her deed. The objection was overruled. Chief Justice Spencer said that it was a settled principle of the com- mon law that coverture disqualified a woman from entering into a contract or covenant personally binding upon her. She might at common law pass her real property by fine; and under the New York statute she might, in conjunction with her husband, on due examination do the same. But the deed could not operate as an estoppel to her subsequently acquired interest. A contrary doctrine prevails in some states; * and in Indiana it is said (upon a supposed but mistaken analogy to the case of releasing dower at common law) * that estoppel may arise against a married woman irrespective of covenants of warranty.* Under recent statutes a married woman may now bar herself in Massachusetts by a warranty deed from claim- Ala. 291, 28 So. 89, 82 A. S. R. 235. 1 Jones v. Reese, 65 Ala. 134; Howell v. Hale, 5 Lea, 405; Powell’s Appeal, 98 Penn. St. 403, 413. So by estoppel in pais by conduct. Saratoga Bank v. Pruyn, 90 N. Y. 250, 255. See, however, Tolman v. Smith, 74 Cal. 345. The dis- tinction (apart from statutes) be- tween the wife’s separate estate of courts of equity and other general estate of her own must he noticed. In regard to the former the wife is practically, sui juris, but not in regard to the latter. See 2 Story’s Equity, §§ 1378-1401. As to stat- utory separate estates, see Kelly v. Turner, 74 Ala. 513; Harden »., Darwin, 77 Ala. 472. Text quoted in Johnson v. Mutual Life Ins. Co., 113 Ky. 871, 69 S. W. 751. 2 Dukes v. Spangler, 35 Ohio St. 119, 127; Hill v. West, 8 Ohio, 222; Massie v. Sebastian, 4 Bibb, 433, See Strong v. Waddell, 56 Ala. 471; Cowles v. Marks, 53 Ala. 499; also cases cited infra, p. 383. In Strong ». Waddell it was held that a married woman purchasing land and execu- ting with her husband a note and mortgage to secure payment will be estopped to set up coverture against a bill for foreclosure. If the deed of a married woman be invalid, she will not be estopped to claim in opposition to it, even in equity and against an innocent pur- chaser from her vendee. Merriam v. Boston R. Co., 117 Mass. 241. 5 No doubt, however, a married woman under ‘the statutes might be barred by recitals as well as by warranty. 4 King ». Tea, 56 Ind. 1, 19, ex- plaining Nicholson v. Caress, 45 Ind. 479, and denying Jackson v. Vanderheyden, 17 Johns. 167. See also Reeves v. Howes, 104 Ind. 435. SECT. I.] PRELIMINARY VIEW: PARTIES AND PRIVIHS. 371 ing under an after-acquired title;! and this would probably be true in many other states. And at common law a wife joining with her husband fully in conveying her own land will be barred by the deed, though not liable on the covenants.? An infant also, not being sui juris, will not be estopped by his deed during his infancy, nor afterwards unless he has expressly or impliedly ratified it.2 Thus, an apprentice bound to service until twenty-one years of age will not be estopped by a recital of his age in the indenture.‘ The question whether an estoppel of this kind 5 is available against the state arose in Commonwealth v. André. . It appeared that a committee of the legislature, duly authorized, granted by deed to Pierre Mathieu André, his heirs and assigns, with war- ranty, a certain tract of land. André at the time was an alien subject of France. The purchase was made for the benefit of one Billon, also a subject of France. Upon the death of these persons intestate the attorney-general, pursuant to an act of the legislature, filed an information to recover the land, alleging that it ought to escheat to the commonwealth for defect of title in any person who could by law hold it. But the court held the commonwealth estopped by its deed. ‘The deed of the commonwealth,’ said the Chief Justice, ‘ to the very persons now defénding as heirs to André, to whom and to whose heirs the grant was made, is, we think, an estoppel against setting up the alienage of those persons as the ground of recovery.’ And 1 Knight v. Thayer, 125 Mass. estopped by judgment. Cunning- 25. 2 Doane v. Willcutt, 5 Gray, 328, 332; Bruce v. Wood, 1 Met. 542; Raymond v. Holden, 2 Cush. 264; Lufkin v. Curtis, 13 Mass. 223; Lithgow v. Kavenagh, 9 Mass. 161; Powell v. Monson & M. Co., 3 Mason, 347; post, chapter 12. 3 Cook v. Toumbs, 36 Miss. 685. 4 Houston v. Turk, 7 Yerg. 13. But both infants and married women may sometimes be bound by an estoppel in pais, according to many authorities. See post, Part III. 5The state may of course be ham v. Shanklin, 60 Cal. 118; New- port Bridge Co. v. Douglass, 12 Bush, 673; Taylor v. Wallace, 31 Ohio St. 151. See Boyd v. Ala- bama, 94 U.S. 645. So also against inconsistent acts in pais. Chope v. Detroit Plankroad Co., 37 Mich. 195; Vardier v. Railroad Co., 15 S. Car. 477, 483. See Reid v. State, 74 Ind. 252. But the United States cannot be estopped by proceedings against its tenants or agents, though they notify the government to de- fend. Carr v. United States, 98 U.S. 483. 63 Pick. 224. 372 [cHAP. VIII. ESTOPPEL BY DEED. this is perhaps the better opinion.!. But in North Carolina and in some other states a different doctrine prevails; it is there held that an estoppel does not operate against the state, or its assignee.? Clearly the state cannot be estopped by unauthor- ized acts of its officers.’ § 2. Privity. The doctrine that the estoppel upon the parties to a deed operates also upon their privies is illustrated by the leading case of Taylor ». Needham.* The question raised on demurrer was whether the plea of non demisit was good when pleaded by an assignee who had had the estate of the lessee conveyed to him, which estate had been created by indenture. It was held that it was not.® 1Carver v. Astor, 4 Peters, 1, 87; Branson v. Wirth, 17 Wall. 32, 42; Folger v. Palmer, 35 La. An. 743; State v. Ober, 34 La. An. 359; State v. Taylor, 28 La. An. 462; Penrose v. Griffith, 4 Binn. 231; Nieto v. Carpenter, 7 Cal. 527; Magee v. Hallett, 22 Ala. 699; State v. Brewer, 64 Ala. 287; Opin. in resp. to Governor, 49 Mo. 216; St. Paul R. Co. v. First Div. St. Paul & P. R. Co., 26 Minn. 31 (against the United States). See Bates v. Illinois Cent. R. Co., 1 Black, 204; Lindsey ». Hawes, 2 Black, 554; Railroad Co. v. Schur- meir, 7, Wall. 272; Land Co. »v. Saunders, 103 U. 8. 316; note 5, p. 871; Smyth v. Kennedy, 60 Neb. 300, 838 N. W. 87; Chicago R. R. Co. v. Douglas Co., 134 Wis. 197, 114.N. W. 511. 2 State v. Williams, 94 N. Car. 891; State v. Bevers, 86 N. Car. 588; Den d. Candler v. Lunsford, 4 Dev. & B. 407; Wallace v. Maxwell, 10 Ired. 110; Doe d. Taylor v. Shuf- ford, 4 Hawks, 116; State ». Graham, 23 La.'An. 402; People v. Brown, 67 Ill. 435; Alexander »v. State, 56 Ga. 478. See Crane v. Reeder, 25 Mich. 303; Farish v. Coon, 40 Cal. 33. 3 Pulaski v. State, 42 Ark. 118; Attorney-Gen. v. Marr, 55 Mich. 445; State v. Brewer, 64 Ala. 287, citing United States v. Kilpatrick, 9 Wheat. 735. In State v. Brewer it is declared that those who deal with officers of the state are bound to know the extent of their author- ity. 42 Taunt. 279. 5 Mansfield, C. J. said: ‘There is nothing more clear than that where a lessee takes an estate by indenture, he is not at liberty to plead nil habuit in tenementis, nor in any way to dispute the title of his lessor. Now, this plea puts in issue amongst other matters the title of the lessor. It is truly stated for the defendant that in cases of a grant or feoffment a stranger may plead “ did not grant, or did not enfeoff,’(a) and that plea denies not only the existence but the efficacy of the supposed (a) Tadman v. Henman, (1893) 2 Q. B. 168. 373 SECT. 11.] PRELIMINARY VIEW: PARTIES AND PRIVIES. An illustration of the doctrine of privity is also found in the case of Bates v. Norcross,! which was a writ of entry. The de- fendant relied upon a deed from one Packard, to whom the premises had been conveyed by Ebenezer Davison with general covenants of seisin and warranty. He then proved that after Davison died the plaintiff married his only daughter and heir at law, and that she received assets by descent from her father of a greater value than the land in controversy. The plaintiff relied upon a title paramount to that of Davison. The defendant now contended that the plaintiff was rebutted by the covenants in the deed of Davison; and of this opinion was the court.” grant or feoffment. It brings in issue, therefore, the title of the grantor as well as the operation of the deed, and that plea would be a proper plea to bring in issue the execution, construction, and effi- cacy of any deed or demise. Then the question comes whether the assignee of the lease may be allowed to controvert the title of the lessor when the lessee under whom he de- rives could not controvert the title of the lessor; so that the assignee should have a better right than he from whom he derives it. Exclu- sive of all the dicta it would be a very odd thing in the law of any country if A could take, by any form of conveyance, a greater or better right than he had who con- veys it to him; it would be contrary to all principle. But it does not rest merely on the general principle; for if you look into all the books upon estoppel you find it laid down that parties and privies are estopped, and he who takes an estate under a deed is privy in estate, and therefore never can be in a better situation than he from whom he takes it. I cannot dis- tinguish Parker v. Manning, 7 T. R. 537, from this case, though it is the converse. In a late case in this court Williams, Sergeant, by an able argument for a devisee endeavored to convince us that a recovery was void because there was no tenant to the precipe; but it was answered for the heir that the devisor was tenant on the record and therefore estopped from disputing the re- covery, and the devisee conse- quently was estopped. In the case of Trevivan v. Lawrence, 1 Salk. 276 . . . a judgment in scire facias against terre-tenants, which recited the original judgment as of the wrong term, was held to be an estoppel. For these reasons the defendant is as much estopped from pleading this plea as if he had been the original lessee.’ 117 Pick. 14. 2*We do not consider the doc- trine of collateral warranty,’ said Mr. Justice Putnam in delivering judgment, ‘as applicable to the case. If Davison were living and demanding the land, he would be estopped by his deed. So, if his sole heir were suing for it, she would be estopped, being privy both in blood and estate. The warranty of her ancestor has descended upon her, and, as the case finds, with assets of greater value than the land. This is a case of lineal war- ranty with assets, so far as the daughter, sole heir and wife of the demandant, is concerned. She at the time of her marriage was ( 374 ESTOPPEL BY DEED. [CHAP. VIII. No privity exists between creditor and debtor; there is neither devolution nor subordination of rights in the relation.! In the case cited Waters conveyed to Spencer all his right, title, and interest in certain land with general warranty, acknowl- edging receipt of payment, and took judgment for a portion of the purchase-money, which became a lien on the land. Subse- quently other creditors obtained judgments against Spencer, which were levied on this land, and the proceeds of sale paid into court. These creditors now sought to take advantage of Waters’s deed to Spencer, and to exclude the former from any participation in the distribution. But the court held that there was no estoppel.” undoubtedly liable, and her liability devolved upon the husband and wife. If he were to be considered a purchaser, for the valuable con- sideration of marriage, of all that came to the wife, it was cum onere. He and his wife became and were seised of the real estate in her right; and he took the personal estate ab- solutely, but subject to all the liability to respond to the warranty of her ancestor. If the demandant were to recover, the tenant would have an action against the demand- ant and his wife to recover back the value; and the judgment and execution would be against the husband and wife, and might be levied upon the body or estate of the husband.’ On the other hand, ‘if a father disseise his son, and levy a fine, this fine will not bind the son as heir and privy, for he does not claim from his father; or if a father be tenant for life, remainder to his son in fee, and levy a fine, this will not bind the son as privy, for his reversion; or if the father levy a fine of the lands of the mother, the son is not bound.’ Edwards »v. Rogers, W. Jones, 460; Doe d. Marchant »v. Errington, 6 Bing. N.C. 79. 1 Quoted in Equitable Loan Co. v. Lewman, 124 Ga. 190, 52 S. E. 599. See Kimball v. Blaisdell, 5 N. H. 533, 22 A. 8. R. 476; Wa- ters’s Appeal, 35 Penn. St. 523. 2? Woodward, J. said: ‘ Estop- pels may be by deed, but estoppels by deed avail only in favor of parties and privies. Now, the judgment creditors who seek to postpone Waters are not privies of Spencer either in blood, in law, or by estate. Not in blood, for no relationship is alleged; nor in law, for the legal relation between debtor and -creditor is one of an- tagonism rather than of confidence or of mutual dependence; nor by estate, for they have none in the debtor’s land. What proves that they have no interest in the land is that a judgment against one of these judgment creditors would not be even a lien on this land. The truth is the relation of judgment creditors to their debtor’s real estate is anomalous. They have a lien upon it by virtue of statute law, but they have no interest in it such as makes them privies in estate with the debtor. The covenants, then, express or im- plied, of Waters’s deed cannot oper- ate in favor of Spencer’s creditors as an estoppel by deed; and we do not understand any such effect to SECT. I1.] PRELIMINARY VIEW: PARTIES AND PRIVIES. 375 There has been some question among the authorities in regard to the effect of an acceptance of a conveyance of real estate in which there was no relinquishment of the right of dower. It was formerly held in New York, in Maine, and elsewhere that the mere acceptance of such a grant would preclude the grantee from disputing the claim of the grantor’s widow to dower.! In several of these cases, as in Wedge v. Moore, the grantee set up no other claim to the land than that under the convey- ance by the husband of the demandant; and the widow’s title was therefore made out. These were not properly cases of es- toppel. The office of an estoppel is to supply the want of other evidence of a fact. But so far as any of these cases hold that the grantee cannot set up the title of a third person as para- mount to that of the demandant’s husband, which title the tenant has acquired, they have been overruled.” Tf, however, the deed be a conveyance in fee simple, and the grantee assert against the widow no paramount title, she will be entitled to dower;* not, indeed, because of any estoppel, but because these facts show that she is entitled to it. In such a case the grantee cannot allege, for instance, that the conveyance was made in fraud of the grantor’s creditors. That is a matter for them; and until they assert their rights over it, the grantee must yield to the widow’s claim. Nor in such cases can the grantee show a defect in the grantor’s title. So too the gran- tee may possibly be estopped in a litigation for dower to deny the widow’s right if there be a specific recital that she is entitled to dower in the land, or that which is tantamount to such a recital, since in respect of her dower interest she is privy in law have been intended by what was said of the deed in Altman ». Klingensmith.’ 6 Watts, 445. 1 Bancroft v. White, 1 Caines, 185; Bowne v. Potter, 17 Wend. 164; Sherwood »v. “ Vandenburgh, 2 Hill, 303; Kimball v. Kimball, 2 Green]. 226; Nason »v. Allen, 6 Greenl. 243; Hains ». Gardner, 10 Maine, 383; Gayle v. Price, 5 Rich. 525; Dashiel v. Collier, 4 J. J. Marsh. 602. See also Hitchcock v. Harrington, 6 Johns. 290; Wedge v. Moore, 6 Cush. 8; Lewis »v. Meserve, 61 Maine, 374. 2 Sparrow v. Kingman, 1 Comst. 242; Foster v. Dwinel, 49 Maine, 44; Campbell v. Knights, 24 Maine, 332; Gammon »,. Freeman, 31 Maine, 243. 3 Kimball v. Kimball, 2 Greenl. 226; Wedge v. Moore, 6 Cush. 8; Gayle v. Price, 5 Rich. 525; Dashiel v. Collier, 4 J. J. Marsh. 601. 4 Kimball ». Kimball, supra, secus. 5 Gayle v. Price, supra. 376 ESTOPPEL BY DEED. [CHAP. VIII. with the grantor.! It should be observed, however, that such a recital is collateral to the purposes of the deed; and if the widow was not a party to it, and perhaps even if she were a party, it is worthy a query if the grantee could not show that the admission was made under a mistake, and that he has sub- sequently acquired a paramount title.? It does not in modern times constitute a case of privity for the purposes of estoppel to show that one man holds a convey- ance of land from another.? The modern grantee, unlike a feoffee, acquires the property for himself, and his faith is not pledged to maintain the title of the grantor.‘ A relation of privity is a relation of dependence, not of independence or of superiority.° Between the grantor and grantee the recitals of the deed will doubtless be conclusive evidence in a proper case; but the instrument will not for all purposes ® prevent the grantee from asserting a paramount title which he has acquired from a third person.’ And this being the case between grantor and 14 Coke, Litt. 352 a; Campbell v. Knights, 24 Maine, 332 (the recital did not go so far); Wiece v. Marbut, 55 Ga. 613. 2 Carpenter v. Buller, 8 Mees. & W. 209. ’ This is strikingly illustrated by Fairchild v. McArthur, 15 Gray, 526, and by Foster ». Wightman, 123 Mass. 100; in which cases it is held that the grantee of a mort- gagor, whose mortgage was ob- tained by the mortgagee through fraud, cannot avail himself of the fraud practised upon his grantor, in a proceeding to enforce the mortgage. A grantee is not estopped from asserting the invalidity of a cove- nant into which he has inadvert- ently entered in connection with the taking of such conveyance. Bybee v. Oregon & Cal. R. R. Co., 139 U. S. 663, 11 Sup. Ct. 641, 35 L. Ed. 305. ‘Blight v. Rochester, 7 Wheat. 535; Robertson v. Pickrell, 109 U. S. 608, 615; Cummings ». Powell, 97 Mo. 524, 536; Cooper v. Watson, 73 Ala. 252. The old estoppel (Coke, Litt. 352 a) rested on tenure and dependence. 5 A claims land under a tax title; B claims the same land under a later tax title. In trespass by A against B, the defendant may show that the plaintiff’s title is not good. Wadleigh v. Marathon Bank, 58 Wis. 546. See Keokuk v. Scotland County, 152 U. 8. 318, 14 Sup. Ct. 608, 38 L. Ed. 457. § See post, pp. 387, 388. 7 Blight v. Rochester, 7 Wheat. 535; Robertson v. Pickrell, 109 U. 8S. 608, 615; Grosholz v. Newman, 21 Wall. 481; Osterhout v. Shoemaker, 3 Hill, 513; Sands v. Davis, 40 Mich. 14; Crumb »v. Wright, 97 Mo. 13, 18, 19; Averill v. Wilson, 4 Barb. 180; Watkins ». Holman, 16 Peters, 25, 54; Society for Prop. of Gospel v. Pawlet, 4 Peters, 480, 506; Riddle ». Murphy, 7 Serg. & R. 235; Huntington v. Pritchard, 11 ‘Smedes & M. 327; Gwinn v. Smith, 55 Ga. 145; Kansas Pacifie Ry. SECT. II.] PRELIMINARY VIEW: PARTIES AND PRIVIES. 377 ‘grantee, it follows that the grantee may assert a title which he has acquired paramount to that of such grantor in a contest with one who claims under the same grantor; and it is not broadly true to say, as is sometimes said,' that when two persons trace title to the same grantor, each is estopped against. the other.” But if the grantee assert no other right or title than that from the common grantor, he will be precluded from deny- ing that his grantor had title when he conveyed.? This, how- Co. v. Dunmeyer, 24 Kan. 725; Voorhies v. White, 2 Marsh. 27; Winlock v. Hardy, 4 Litt. 272; Weil v. Uzzell, 92 N. Car. 515; Gay- lord v. Respass, ib. 553; Wilcoxon v. Osborn, 77 Mo. 621, 629; Den d. Johnson v. Watts, 1 Jones, 228; Doe d. Worsley v. Johnson, 5. Jones, 72; Kerbourgh v. Vance, 6 Baxter, 110. Text quoted in Davis v. Denham, 145 Ala. 247, 40 So. 277. Contra, dictum in McClure v. Englehardt, 17 Ill. 47 (and some early cases there cited), overruled in Owen v. Robbins, 19 Ill. 545. See Campau v. Campau, 37 Mich. 245. So, in case the parties trace title to the same instrument alone, and one of them establishes its identity at the trial, the other can- not then dispute its genuineness. Williams v. Conger, 125 U. 8S. 397. 1See e. g. Long v. Wilkinson, 57 Ala. 259; Wisconsin Central R. Co. v. Wisconsin Land Co., 71 Wis. 94, 105; Schwallback v. Chicago R. Co., 69 Wis. 292, 299. Also Cooper v. Watson, 73 Ala. 252, showing the true rule. 2To speak of a person being estopped to deny, against subse- quent creditors influenced by his conduct, that he is a stockholder in a corporation by privity (Fisher v. Seligman, 75 Mo. 13, 23) is mis- leading. Supra, p. 374, note 4. ? Cummings v. Powell, 97 Mo. 524, 536; Brazee v. Schofield, 124 U.S. 495, 503; Pendley v. Madison, ° 83 Ala. 484; Bickett v. Nash, 101 N. Car. 579, 583; Fisher v. Mining Co., 94 N. Car. 397; Curlee ». Smith, 91 N. Car. 172; Ives »v. Sawyer, 4 Dev. & B. 51; Den d. Love v. Gates, ib. 363; Den d. Gilliam v. Bird, 8 Ired. 280; Kins- man v. Loomis, 11 Ohio, 475; Robertson v. Pickrell, 109 U. 8S. 608, 615; Bolling v. Teel, 76 Va. 487; Wilcoxon v. Osborn, 77 Mo. 621, 629; Brown v. Brown, 45 Mo. 412; Keith v. Keith, 104 Ill. 397; Woburn v. Henshaw, 101 Mass. 193; Grand Tower Mining Co. v. Gill, 111 Ill. 541; Riddle v. Murphy, 7 Serg. & R. 235; Huntington »v. Pritchard, 11 Smedes & M. 327; Brock v. Young, 5 Ala. 584; Pollard v. Cocke, 19 Ala. 188; Long ». Wilkinson, 57 Ala. 259; Hasselman »v. United States Mortg. Co., 97 Ind. 365; Ketchum v. Schicketanz, 73 Ind. 187; Bond v. Carroll, 71 Wis. 347; Doyle v. Wade, 23 Fla. 90, 98. See also Board v. Board, L. R. 9 Q. B. 48; Staton v. Mullis, 92 N. Car. 623, 628; Armstrong v. Wheeler, 52 Conn. 428; Dalton »v. Fitzgerald, (1897) 2 ch. 86, C. A. Foster v. Winchester, 92 Ala. 407, 9 So. 83, 25 A. S. R. 65; Bernheim ». Horton, 103 Ala. 380, 15 So. 822. The authorities merely declare that a plaintifi’s case is made out prima facie when it appears that the defendant claims under the same common grantor; and the question is one of the state of proof only. They distinctly show that the defendant may overturn the plain- a 378 ESTOPPEL BY DEED. [CHAP. VIII. ever, though sometimes called a case of privity, rests on another ground. If A can show by his deed that certain rights in lands claimed by C had before been granted to him (A) by B, under whom alone C claims, C must yield to A. This is not because C is in privity with B, but because A shows the better right. It is much the same thing to say that one who enters and holds under the title alone of his grantor will be estopped to deny the - efficacy of the title conveyed when sued in ejectment for breach of a valid condition in the deed.! Nor is it a case of privity where a second mortgagee of land with notice of an earlier mort- gage is postponed to that mortgage unless he can show that it was fraudulent, though such has sometimes been spoken of as a case of privity.” If the second mortgagee get nothing, it is simply because the claim of the first has exhausted the estate? Privity in this as in other branches of the law of estoppel, it should be observed, has a narrower signification than privity in contract. In the law of estoppel privity signifies (1) merely -tiff’s case by showing a para- mount title under which he (the defendant) claims against that of the common grantor. A question- able distinction taken in California may in this connection be noticed. While it is there agreed that no ‘estoppel arises from the sole fact of a common title under which both plaintiff and defendant claim, it is held that for the purpose of enabling an ousted co-tenant to obtain pos- session there is an estoppel upon his associate to set up an outstand- ing title. But after the co-tenant has thus regained. possession, either may proceed against the other under a paramount title. Olney v. Sawyer, 54 Cal. 379; Bornheimer v. Baldwin, 42 Cal. 27. This dis- tinction appears to have been fixed upon to save the case of Lawrence v. Webster, 44 Cal. 385, which had justly denied the existence of any estoppel. 1 Cowell v. Springs Co., 100 U. 8. 55, citing Gill ». Fauntleroy, 8 ‘17 Johns. 161. B. Mon. 185; Miller v. Shacklefor, 4 Dana, 287, 288; Fitch ». Baldwin, We shall have occasion to recur to this subject in other connections hereafter. 2? Cook v. Parham, 63 Ala. 456. In that case the first. mortgagee had fortified his claim by judgment for the debt, but that made no differ- ence; there was no privity. The recitals or covenants of the earlier mortgage could not fall upon the later mortgagee as they would fall upon an heir. See Livingstone »v. Murphy, 187 Mass. 315, 72 N. E. 1012, 105 A. S. R. 400. 3So a purchaser from a mort- gagor is not in privity with the mortgagor so as to be precluded from contesting the mortgage. Scates v. King, 110 Ill. 456. And a second assignee of property is not in privity with the first, so as to be bound by an estoppel ex- isting against the first. Weyh v. Boylan, 85 N. Y. 394. SECT. I1.] PRELIMINARY VIEW: PARTIES AND PRIVIES. 379 succession of rights, that is, the devolution, in whole or in part, of the rights and duties of one person upon another, as in the case of the succession of an assignee in bankruptcy to the estate of the bankrupt on the one hand, and to the rights of the credi- tors on the other,! or (2) the derivation of rights by one person from and holding in subordination to those of another, as in the case of a tenant.? No one can be bound by or take advantage of the estoppel of another who does not succeed or hold sub- ordinately to his position.’ 1This case embraces both the Mercantile Co. v. River Plate Co., privies in blood and the privies (1894) 1 Ch. 578; Keokuk R. R. in law of Coke. See Coke, Litt. 352 Co. ». Missouri, 152 U. 8. 301, 14 a, 352 b. Privity in estate as ap- Sup. Ct. 592, 38 L. Ed. 450; Keokuk plied to the law of estoppel is well R.R. Co. v. Scotland County, ib. explained in 20 Am. Law Rev. 407 318, 14 Sup. Ct. 605, 38 L. Ed. 457; et seq. Tompkins v. Holt, 91 Ala. 204, 8 2 The well-known definition of So. 794. Text quoted in Alfred v. Greenleaf may come to the same Smith, 135 N. C. 443, 478. E. 597. thing. ‘Privity,’ he says, ‘de- Marrying the widow of a mortgagor, notes mutual or successive rela- ' the widow being in _ possession, tionship to the same rights of prop- creates no estoppel, such as bound erty.’ Ev. §535. See Litchfield v. the mortgagor, to dispute the Goodnow, 123 U.S. 549. Perhaps validity of the mortgage. Gorton ‘mutual’ here is intended to sig- ». Roach, 46 Mich: 294. On the nify ‘ subordinate;’ if not, the defi- other hand, tenant in dower and nition in this particular must be tenant by the curtesy are privies understood to refer to the wider or in law with the decedent, and so far different notion of ‘ privity of con- as they hold in that title are bound tract.’ by the. estoppels that bound the 3Shay v. McNamara, 54 Cal. decedent. Coke, Litt. 352 b; 159; Campbell v. Hall, 16 N. Y. Doe v. Skirrow, 2 Nev. & P. 123. 575; Doe v. Derby, 1 Ad. & E. 783; 380 ESTOPPEL BY DEED, [CHAP. IX. CHAPTER IX. PRELIMINARY VIEW: LIMITATIONS OF THE DOCTRINE. Havine now considered the first division of our subject and determined the question to whom estoppels by deed apply, and the general force of the rule upon the subject, we come-to the second and more extensive division, in which we purpose to show to what the definition and rule given in the opening of the subject apply. And first, of the limitations of the same. §1. The Deed must be valid. It is essential to the estoppel by deed that the deed itself (which of course must be delivered 1) should be a valid instru- ment; a void instrument,:though under seal, does not work an estoppel at law or in equity.? For example, if officers of a cor- poration make a mortgage for it which the corporation itself has no power to make, the corporation may deny all authority to execute the deed.? In the first case cited the trustees of a turn- 1 Nourse v. Nourse, 116 Mass. 101; Drake v. Howell, 183 N. C. 162, 45 S. E. 539. 2 Moses v. McClain, 82 Ala. 370; MclIntosh v. Parker, ib. 238; Shor- man v. Eakin, 47 Ark. 351, 354 (con- tracts contrary to public policy, in regard to which see also Klenk v. Knobel, 37 Ark. 307; Webb »v. Davis, ib. 555); Caffrey v. Dudgeon, 38 Ind. 512; Merriam v. Boston R. Co., 117 Mass. 247; Conant »v. Newton, 126 Mass. 105; Pells »v. Webquish, 129 Mass. 469; Mason v. Mason, 140 Mass. 63 (that a con- veyance by a wife—though sui juris — in the lifetime of her hus- band of her dower interest is void, and creates no estoppel against her after her husband’s death); James v. Wilder, 25 Minn. 305; Sherlen v. Whelen, 41 Wis. 88. See Flers- heim v. Cary, 39 Kans. 178; Gib- son v. Clark, 132 Ala. 370, 31 So. 472; Chase v. Cartright, 53 Ark. 358, 14 8. W. 90, 22 A. S. R. 207; Bailey v. Rockafellow, 57 Ark. 216, 218. W. 227; Smith v. Ingram, 130 N. C. 100, 40 S. E. 984. But see Wilson v. Western Land Co., 77 N. Car. 445, holding that a deed executed in violation of an in- junction may still estop the grantor. 5 Fairtitle v. Gilbert, 2 T. R..169; In re Companies Acts, 21 Q. B. D. 301. Chitty, J.: ‘It is well es- tablished that a corporate body cannot be estopped by deed or sEcT. 1.] IMITATIONS OF THE DOCTRINE. 381 pike, having authority to erect toll-houses and to mortgage the tolls, but having no power, as the court held, to mortgage the toll-houses or gates, in order to raise funds executed to the ‘lessors of the plaintiff mortgages of the tolls, and also of the toll- houses and toll-gates. The mortgagees now brought an action of ejectment to recover possession of the toll-houses and gates. The trustees objected that the act did not warrant them in mortgaging this property, and judgment of nonsuit was given in the court below against the plaintiff. On a motion to set aside the nonsuit it was contended that as some of the defendants had joined in executing the conveyance, they were estopped from taking that objection; but the court ruled otherwise. Mr. Justice Ashhurst, in delivering judgment, said that in general the party granting is estopped by his deed to say he had no in- terest; but that general principle did not apply to this case, where the trustees were not acting for their own benefit, but for the benefit of the public. It would be hard that other creditors who were not parties to the deed should lose the benefit which the act had given them. Besides, there was-a still further rea- son why the trustees should not be estopped; this was a public act of Parliament, and the court were bound to take notice that the trustees under this act had no power to mortgage the toll- houses. This deed, therefore, could not operate in direct op- position to an act of Parliament, which negatived the estoppel.? This last position taken by the learned judge has been quali- fied and explained in a later case.?- The case cited was an eject- ment by a mortgagee of tolls of a certain bridge. The plaintiff was not the first mortgagee, and was not empowered to recover as a trustee for all. But the ordinary principle was relied on, that a grantor cannot dispute against his grantee his own title to what he has assumed to convey. The application of the principle was, however, denied on account of the public char- acter of the defendant; counsel relying on the above-cited dic- otherwise from showing that it had no power to do that which it purports to have done.’ See post, chapter 16. So a principal may deny the power of an agent of limited authority to make a par- ticular representation, in ordinary cases. Cox v Bruce, 18 Q. B. D. 147, C. A.; Barnett v. South Lon- don Tramways Co., ib. 815, C. A. 1See Doe d. Baggaley v. Hares, 4 Barn. & Ad. 4388. 2 Doe d. Levy v. Horne, 3 Q. B. 757, 766. (CHAP. Ix. 382 ESTOPPEL BY DEED. tum of Mr. Justice Ashhurst. Lord Denman, after quoting the statement, said that that observation proceeded on the pre- sumption that the contents of the act were known to both the contracting parties, and qualified any contract into which they might enter in execution of its powers. No such presumption could be made concerning any party’s knowledge of the fact that a previous mortgage had been made; and there was no authority for holding that trustees for a public purpose were in any particular state of protection on such a point.!_ Estoppels of this kind will be resumed in the chapter on Corporations. In like manner, if a deed has been executed in contravention of statute, the law of estoppel does not apply.” In the case first cited an ejectment was brought for certain lands charged with an annuity, by the grantee against the grantor. No regis- tration of the deed had been made, and the plaintiff contended that none was necessary under the statute by reason of the fact that the defendant had covenanted that the premises were of more than sufficient value to pay the annuity. The defendant offered to prove the contrary, and thus to show that the deed should have been registered. The plaintiff contended that he was estopped by the deed; but the court ruled otherwise.’ 1Jt would seem from the con- cluding remark of the Chief Justice that he altogether: doubted the soundness of the dictum. He said: ‘The dictum of Ashhurst, J. is not adopted by either of the two judges sitting with him, whose concurrence in the general result might be wholly independent of this doc- trine.’ But the other judges did not express any dissent from the doctrine. 2 Doe d. Chandler v. Ford, 3 Ad. & E. 649; Doe d. Preece v. Howells, 2 Barn. & Ad. 744; Merriam ». Boston R. Co., 117 Mass. 241. See Parsons v. Rolfe, 66 N. H. 620, 27 A. 172. 3 Mr. Justice Patteson said: ‘I do not say whether in a different - case this covenant would have been an estoppel or not. But the ques- tion here arises on a statute which says that an annuity deed, if no memorial is enrolled, shall be void unless it falls under certain pro- visions contained in the tenth sec- tion. To enforce the deed where there is no memorial, the parties must show that it comes within one of these provisions; in the present case, that the lands are of equal annual value with the annuity, or greater. To establish that here, the defendant refers to a covenant. by which, as he says, it is stated that the lands are of such value. But that is not sufficient for the purpose. If it were held so, an instrument which the parties might choose to prepare would defeat the statute from beginning to end. They insert a covenant that the land is of the requisite value; they might equally well put in a state- ment that the annuity was given SECT. I1.] LIMITATIONS OF THE DOCTRINE. 383 _If, however, the deed is void only against one of two grantors and not against the other, as in the case of a deed of the wife’s land by husband and wife with defective privy examination, the deed will be effectual as an estoppel on the grantor towards whom it was valid, though not in regard to the other.’ In like manner, a deed executed by an agent in excess of his authority in which the covenants embrace him as well as his principal will in respect of such covenants bind the agent by estoppel.? Indeed, the rule under consideration has no relation to convey- ances of land by a grantor before he has acquired a title; a sub- ject to be considered later. If a deed be void in part only, and the rest be severable, estoppels may arise from the part which is good.? Of course a deed procured by fraud works no estoppel.‘ The effect of the estoppel further is § 2. Limited to Questions ~directly concerning the Deed. The purpose for which a statement in the deed was made must always be considered, and its effect limited accordingly, however broad its language. Recitals are generally made for the purpose of indicating or of carrying into effect the general object of the deed, and not for collateral purposes; > and hence the rule is that a recital is conclusive of the facts stated, only in an action of which the deed itself is the foundation or defence.® by marriage settlement, or with- out regard to pecuniary considera- tion, and then contend that the grantor was estopped.’ See also to the proposition that there is no estoppel if the deed be void, Doe d. Stevens v. Hays, 1 Ind. 247; Hou- satonic Bank v. Martin, 1 Met. 294, 307; Germond v. People, 1 Hill, 343; Jackson v. Brinckerhoff, 3 Johns. Cas. 101 (conveyance of land in adverse possession. But see Stockton v. Williams, 1 Doug. (Mich.) 546, holding that such deed works an estoppel). 1Wellborn v. Finley, 7 Jones, 228; Chapman »v. Abrahams, 61 Ala. 108. See Albany Ins. Co. v. Bay, 4 Comst. 9. 2 North v. Henneberry, 44 Wis. 306. 3 United States v. Hodson, 10 Wall. 395; Daniels v. Tearney, 102 U.S. 415, 420. ‘Hazard v. Irwin, 18 Pick. 95; Partridge v. Messer, 14 Gray, 180; Goodwin v. Fall, 102 Me. 353, 66 A. 727. 5See Weed Sewing Machine Co. v. Emerson, 115 Mass. 554. § Linney v. Wood, 66 Texas, 22, 28. And of course the estoppel is , confined to the subject-matter of the conveyance. Fisher » Mining Co., 97 N. Car. 95; s. c. 94 N. Car. 397. Text quoted in Bingham >. Walla Walla, 3 Wash. T. 68, 13 P. 408. , 384 ESTOPPEL BY DEED. (CHAP. IX. That this limitation prevails, preventing the estoppel from having a collateral effect, appears from many cases; ! and its ef- fect appears to be to put the estoppel on grounds of contract, a point already referred to.2_ In Carpenter »v. Buller the plaintiff sued for a trespass alleged to have been committed on his close. The defendant pleaded title in himself, and introduced in evi- dence a deed made between the parties for a purpose collateral to the question of title, in which it was recited that the title to the property was in himself. Counsel for the plaintiff contended that the recital, though admissible in evidence, was not conclu- sive; and he proposed to show that the admission was made under a misapprehension. On the other hand, it was contended that the plaintiff was estopped by his admission in the recital, and that the evidence was therefore inadmissible. But the court ruled that the evidence was proper.’ The same principle prevailed in the case of Norris v. Norton. This was an action of trespass de bonis asportatis in which it appeared that under an execution against a third person the plaintiff’s property was levied on. The plaintiff claimed it, and proposed to try the right of property, but subsequently executed to the sheriff a delivery bond with the understanding that he should not be precluded thereby from asserting his title. The property was delivered and sold under protest by virtue of the 1Carpenter v. Buller, 8 Mees. are contained. By his contract & W. 209; Fraser v. Pendlebury, 31 L. J.C. P. 1; s. c. 10 Weekly R. 104; Southeastern Ry. Co. v. Warton, 6 Hurl. & N. 520; Carter v. Carter, 8 Kay & J. 617, 645; Young ». Raincock, 7 C. B. 310; Stroughill v. Buck, 14 Q. B. 781; Bank of America v. Banks, 101 U. S. 240, 247; Hadley v. Bordo, 62 Vt. 285, 19 A. 476. 2 Ante, p. 361, note. 3 In delivering judgment, Parke, B. said: ‘All the instances given in Comyns’s Digest, Estoppel (A. 2), under the head of ‘“ Estoppel by Matter of Writing,’ except one which relates to a release, are cases of estoppel in actions on the instrument in which the admissions in the instrument itself a party is assuredly bound, and must fulfil it. But there is no authority to show that a party to the instrument would be estopped in an action by the other party not founded on the deed, and wholly collateral to it, to dispute the facts so admitted, though the recitals would certainly be evidence. So in Fraser v. Pendlebury, 31 L. J. C. P. 1, Will- iams, J. said: ‘It is clear from Car- penter v. Buller that these es- toppels are only in form where the matter of the deed itself is in dispute, and not where the dispute is about matters entirely collateral to it.’ 41 Ark, 319, SECT. 11.] LIMITATIONS OF THE DOCTRINE. 385 execution, whereupon the plaintiff brought this action against the purchasers. The defendants now contended that the plain- tiff was estopped by the recitals in the bond from maintaining the action. But the court ruled otherwise, declaring that the estoppel could not arise in a proceeding not founded upon the delivery bond or in vindication of any right based upon or growing out of it.! When, however, the proceeding, though not upon the deed, grows out of it, it is not, as the court intimate in the case just referred to, collateral to the deed. The point is illustrated by Wiles ». Woodward.? The case was trover for a quantity of paper, to which the defendant pleaded not guilty and not pos- sessed. It appeared that the plaintiff and the defendant had been in partnership together as paper-makers and iron-mer- chants, and that the partnership had been dissolved by deed, in which it was recited that an agreement had been made that the defendant should have all the stock in trade of the business in paper, but that the plaintiff should receive paper of a certain yalue out of the stock, to remain in the paper-mill for a year. On the other hand, the plaintiff was to have all the stock in trade in the iron branch of the business. The deed then recited that in pursuance of that arrangement paper of that value had been actually delivered to the plaintiff, and that it was then in the paper-mill. An assignment followed in the deed by the defendant to the plaintiff of all the stock in trade in the iron branch of the business, and by the plaintiff to the defendant of 1‘No plausible reason has been is not the case here. The condi- offered,’ said Mr. Justice Scott in delivering judgment, ‘ to sustain the idea that the appellee ought to be estopped by the recitals in the de- livery bond under the circumstances of this case, and we can conceive of none; and certainly none of the authorities cited to the point come up to the facts of this case. If this proceeding was upon the delivery bond, or was to vindicate or defend some right predicated upon or growing out of it, then most of them would be in support of the objection urged. But this tion of the defendants has been in no way superinduced or in any way affected by the matter that they seek to set up as an_ estoppel against the appellee. The very instrument itself in which the matter was contained has performed its office, and in legal contempla- tion does not exist at all unless as the root of something that has grown up from it.’ See Syme »v. Montague, 4 Hen. & M. 180; Jemi- son v. Cozens, 3 Ala. 636. 25 Bx. 557. , 386 ESTOPPEL BY DEED. [CHAP. Ix. all the stock in the paper branch except that delivered to the plaintiff; and the partnership was dissolved. It appeared in fact that no paper had been delivered to the plaintiff; and it was contended that the plaintiff could not maintain an action of trover, as no certain definite quantity of paper belonged to him; that as all the paper was assigned to the defendant except that delivered to the plaintiff, the whole was the defendant’s; and if not that it was still the joint property of both, and therefore no action of trover could be maintained by the plaintiff, being one joint tenant, against the defendant, who was another. The reply was that both parties were estopped by the deed to say that no such delivery had taken place; and this too not merely in an action on the deed, but in the present proceeding to enforce the rights arising out of it, a proceeding which, it was urged, was not collateral to the deed. And of this opinion was the court. It is held, however, that a party to a joint deed cannot limit the effect of his deed by alleging that it only covers land held jointly by the grantors, and does not embrace land owned in severalty within the general limits mentioned in the deed.1 The precise question in the case cited was whether, under a joint license by deed to make a canal through the land of the licens- ors, the licensees could be restricted to land held jointly by the parties, and whether one of the parties was barred from main- taining an action in respect of an injury to land owned in sev- eralty. The license was in these words: ‘ We, the said Israel, Ebenezer, and David, do hereby give to said corporation full and entire permission, authority, and power to make, finish, and complete said crossdam, road, dike, and canals, and to keep up and maintain said dam, road, and dike, and to keep open and maintain said canals forever.’ The court held that the action could not be maintained. The deed, it was said,-did not de- scribe the grantors as tenants in common. The license made no reference to any particular land, but authorized the works generally. This necessarily precluded each party to the deed from claiming any damages consequent upon the act which they had authorized; and it was to be taken to be their several as well as joint license. It would be absurd that a man who had 1 Francis v. Boston & R. Mill Corp., 4 Pick. 365. SECT. ut] LIMITATIONS OF THE DOCTRINE. 387 joined with others in allowing an act to be done which might injure his own land as well as that which he owned in common should be allowed to say, ‘It is true I permitted you to do the act, but I did not intend you should do injury by the act to my land, but only to that which I owned with others.’ ! § 3. Grantee in Deed-Poll: In Indenture: Mutuality. In case the instrument be a deed-poll, that is, the deed of the grantor only, the doctrine that the parties to a sealed instru- ment cannot dispute its force and effect is subject to the further qualification that the estoppel applies in general only to the grantor, and does not reach the grantee.? The acceptance of a deed-poll, however, sometimes works an estoppel upon the grantee in the case of admissions and covenants intended for 1‘Suppose the case,’ the court observed, ‘of three men owning a mill privilege in common, and one of them owning another privilege below on the same stream, and the three joined in a license or grant to stop the water above the first privilege, or to divert it so as to destroy both the privileges; can the one of the three who had joined in the deed complain because the privilege which he held in severalty, is destroyed? Certainly not. The grant in such cases must be taken distributively, so that each grantor should be estopped from claiming any damages occasioned by the act which he had permitted.’ 2 Cooper v. Watson, 73 Ala. 252; Gardner v. Greene, 5 R. I. 104; Sparrow v. Kingman, 1 Comst. 242; Great Falls Co. v. Worster, 15 N. H. 414, 450; Winlock v. Hardy, 4 Litt. 272; Langley v. Kesler, 57 Or. 281, 110 P. 401; Bybee v. Oregon & Cal. R. R. Co., 139 U.S. 663, 11 Sup. Ct. 641, 35 L. Ed. 305. In Winlock v. Hardy, just cited, Boyle, C. J. speaking for the court in regard to a deed of this kind, said: ‘It is not the deed of the defendant, but of Isham only, by whom alone it is executed; and not being the deed of the defendant it cannot as a deed operate to estop him from denying that the grantor had title. Nor can the deed create any rela- tion between the parties to it whereby the defendant would be estopped. We know that a tenant cannot deny the title of his land- Jord, nor can a person who enters upon Jand in virtue of an executory contract of purchase deny the right of him under whom he enters, for he is quasi a tenant holding in virtue of his vendor’s title and by his permission. But the deed in question is an executed grant to the defendant in fee simple, and he holds, not as tenant of the grantor, but in his own right and for his own benefit, and his possession is adverse to his grantor, as well as to the rest of the world. He cannot, therefore, be under any greater obligation not to dispute his grantor’s title than he is not to dispute the title of any other person.’ ! [cHAP. Ix. 388 ESTOPPEL BY DEED. him.!' Nor does this qualification to the rule extend at the present day to leases by deed-poll, as we shall see in Part III. A tenant is now estopped to deny his landlord’s title in such cases as perfectly as in leases by indenture; though it was other- wise in the time of Coke.” A more important limitation of the rule concerning estoppels by deed is now to be presented and illustrated. No statement in the books is more common than the rule of Sir Edward Coke, that one who accepts an estate from another is estopped to deny the latter’s title;? and the contrary statement occurs almost as frequently. Leaving out of the question the relation (to which the rule properly applies) of subordinate tenure, such as that of landlord and tenant, and all similar relations, in- cluding cases of covenants or stipulations from a grantee to restore or surrender possession on the termination of a life estate, and recitals declaring a reversion to be in a grantor,* we proceed to inquire of the true doctrine respecting the power of a grantee holding free from all claims of the grantor to deny the title of the latter.® It is certain that a grantee cannot, while holding possession under his grantor, dispute his grantor’s title for the purpose of escaping entirely the payment of the purchase price of the property.® It is a well-established rule of equity that if a pur- chaser buys in a better title than that of his vendor, the latter being guilty of no fraud, he (the vendor) can be compelled to refund to the buyer only the sum paid for the better title.” Nor can a grantee question ‘the validity of his grantor’s title at the time of his conveyance in a contest with another who claims under the same grantor, unless he claims under a paramount 1 Atlantic Dock Co. v. Leavitt, 54 N. Y. 35; infra, pp. 388, 389. 2 Coke, Litt. 47 b; Doe d. Kerr v. Wetmore, 8 N. B. 140. See Part III. 3 Coke, Litt. 352 a. 4 Robertson v. Pickrell, 109 U. 8. 608, 615; Atlantic Dock Co. ». Leavitt, 54 N. Y. 35. These rela- tions are treated of in Part III. 5 See ante, pp. 376-378. 6 Robertson v. Pickrell, 109 U.S. 608, 615; Peters v. Bowman, 98 U. 8. 56; McConihe »v. Fales, 107 N. Y. 404, 408; York v. Allen, 30 N. Y. 104; Abbott v. Allen, 2 Johns. Ch. 520; Crumb v. Wright, 97 Mo. 13, 19; Munford v. Pearce, 70 Ala. 452; Small v. Reeves, 14 Ind. 163; Marsh v. Thompson, 102 Ind. 272, 275; Sebrell v. Hughes, 72 Ind. 186. 7 Bush v. Marshall, 6 How. 284; Seavey v. Kirkpatrick, Cooke, 211; Mitchel v. Barry, 4 Hayw. 136. SECT, 111.] LIMITATIONS OF THE DOCTRINE. 389 title which he has himself acquired or connected himself with. He cannot assert the existence of such paramount title, or allege any defect in his grantor’s title, nor can he say that the convey- ance which he has accepted was made in fraud of his grantor’s creditors, so long as he claims‘under that title alone. Nor will a person be permitted to accept a deed with covenants of seisin and then turn round upon his grantor and allege that his cove- nants are broken by reason of the fact that he himself at the time he accepted the deed was seised of the premises.” Nor perhaps will the grantee in a deed-poll, having accepted the deed and estate, be permitted to deny his covenants, or that the seal attached is his, in an action on the covenants.’ With these exceptions a grantee is not estopped to deny the title of his grantor. Thus, a grantee of land conveyed by an 1 Ante, p. 376; Ives v. Sawyer, 50 Mo. 551; Grosholz ». Newman, 4 Dev. & B. 51; Den d. Worsley ». 21 Wall. 481; Merryman v. Bourne, Johnson, 5 Jones, 72; Ray v. 9 Wall. 592, 600; Blight v. Roches- Gardner, 82 N. Car. 146; Caldwell ter, 7 Wheat. 535; Osterhout »v. v. Neely, 81 N. Car. 114; Ketchum Shoemaker, 3 Hill, 513; Averill v. v. Schicketanz, 73 Ind. 137; Rochell Wilson, 4 Barb. 180; Collins ». v. Benson, Meigs, 3; Wilkinsv. May, Bartlett, 45 Cal. 371; Donahue 3 Head, 173; Woburn v. Henshaw, vv. Klassner, 22 Mich. 252; Sands 101 Mass. 193; Mattis v. Hosmer, v. Davis, 40 Mich. 14. See Campau 37 Or. 523, 62 P. 17; Sowlers v. v. Campau, 37 Mich. 245; Nashville Minot, 82 Vt. 344, 73 A. 1025, 187 Ry. v. Proctor, 160 Ala. 450, 49 So. A. S. R. 1010. 377; Robinson v. Thornton, 102 2 Fitch v. Baldwin, 17 Johns. 161, Cal. 675, 34 P. 120; Tully v. Tully, 166; Beebe v. Swartwout, 3 Gil- 137 Cal. 60, 69 P. 700; Jones ». man, 162, 179; Furness v. Williams, Madison, 72 Miss. 777, 18 So. 87. 11 Ill. 229; Harris v. Amoskeag, The subject was considered by the 101 Ga. 641, 298. E. 302. Supreme Court of New York in 3 Atlantic Dock Co. v. Leavitt, | Averill v. Wilson, 4 Barb. 180. ‘It 54 N. Y. 35; Bybee v. Oregon & is very evident,’ said Mr. Justice Cal. R. R. Co., 189 U. S. 663, 11 , Paige for the court, ‘that no re- Sup. Ct. 641, 37 L. Ed. 305. Text lation of landlord and tenant, not cited in Langley v. Kesler, 57 Or. feven in a qualified form, exists be- 281, 110 P. 401. But though the {tween a grantor and grantee. If grantee’s deed is made in terms sub- {the vendor has actually executed a ject to all liens of mortgages, the | conveyance, his title is extinguished grantee is not estopped to deny the |in law as well as in equity. The validity of a mortgage. Purdy v. |vendee acquires the property for Coar, 109 N. Y. 448; Livingstone |himself; and he is under no obliga- v. Murphy, 187 Mass. 315,72 N.E. 'tion to maintain the title of the 1012, 105 A. S. R. 400. vendor. He holds adversely to his 4Cummings v. Powell, 97 Mo. | grantor, and may treat him as a 524, 536; Mattison v. Aussmuss, | stranger to the title. The property 390 ESTOPPEL BY DEED. [cHAP. IX. intestate with intent to defraud creditors is not estopped by taking under the deed and acting upon it to object, as one of having become the property of the vendee by the sale, he has a right to fortify his title by the purchase of any outstanding title which may protect him in the quiet enjoyment of the premises.(a) Chief Justice Marshall, in Blight’s Lessee ». Rochester, 7 Wheat. 535, says that “no principle of morality restrains him from doing this; nor is either the letter or spirit of the contract violated by it.”” In Osterhout v. Shoemaker, 3 Hill, 518, Bronson, J. says: “ Although a tenant can- not question the right of his land- lord, a grantee in fee may hold ad- versely 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 does not receive the possession under any contract express or implied that he will ever give it up. He takes the land to hold for himself, and to dispose of it at pleasure. He owes no faith or allegiance to the grantor, and he does him no wrong when he treats him as an utter stranger to the title.” [See also Watkins v. Holman, 16 Peters, 25, 54; Society for Propagation of Gospel v. Pawlet, 4 Peters, 480, 506; Voorhies v. White, 2 Marsh. 27; Win- lock v. Hardy, 4 Litt. 272; ante, pp. 388, 389.] . . . Where a grantor who has no title conveys with warranty, any estate subsequently acquired by: him will inure to the benefit of the grantee upon the principle of avoiding circuity of action. The grantor cannot be said technically to be estopped by his deed from averring he had -no title when he conveyed; but the warranty inter- poses and rebuts and bars him and his heirs of a future right which was not in him at the time of the conveyance. .. . The grantor with warranty is not estopped by any recitals or allegations in his deeds, upon the strict principles of a tech- nical estoppel, from asserting his title subsequently acquired. But it is his warranty which rebuts and bars him of this newly acquired title and passes it to his grantce, or causes it to inure to his benefit. In fact, in the usual form of a covenant of warranty there is no precise and direct assertion of a present title in the grantor nor a representation that he is the owner which could operate upon the grantee as an inducement to purchase and part with his money. But the grantee takes the warranty, and relies upon that as his indem- nity against any defects in the title. . . . In this view of the effect and operation of a deed with warranty upon the rights of the grantor there is nothing inconsist- ent in the principle that a grantee in a warranty deed is not estopped from controverting the title of his grantor. If as is shown by the cases before cited no relation of landlord and tenant exists between a vendor and a vendee after a conveyance from the former to the latter; if the title of the vendee, although derived from, is adverse to the vendor; if the vendee owes no faith or allegiance to the vendor; if by the sale the title of the vendor is extinguished, and the property (a) This had been done in the present case. ’ SECT. II.], LIMITATIONS OF THE DOCTRINE. 391 the creditors of the estate, that the deed was fraudulent.! And a grantee of land conveyed with warranty, who reconveys in mortgage with warranty to secure the purchase-money may show an outstanding title and an eviction thereunder. It has been so held by the Supreme Courts of Connecticut, Massa- chusetts, and other states in actions by the grantee and mort- gagor against the grantor and mortgagee on the latter’s cove- nants of seisin and against encumbrances.?_ The defendant can- not plead in bar or rebutter of the action the plaintiff’s cove- nant in the mortgage deed. becomes’ the property of the vendee, and he takes the land to hold for himself and to dispose of it at his pleasure, — the vendee does the vendor no wrong by treating him as a stranger to the title, by either controverting his title, or by buying in an outstanding title, although the conveyance from the vendor to the vendee may have been with warranty.’ 1 Norton v. Norton, 5 Cush. 524; Green Bay Canal Co. v. Hewitt, 62 Wis. 316, 327. #3 2? Hubbard v. Norton, 10 Conn. 422; Sumner v. Barnard, 12 Met. 459; Randall v. Lower, 98 Ind. 255, 259; Connor v. Eddy, 25 Mo. 72; Lot v. Thomas, 2 N. J. 407; Haynes v. Stevens, 11 N. H. 28; Hardy v. Nelson, 27 Maine, 525; Brown v. Staples, 28 Maine, 497. Sce Gilman v. Haven, 11 Cush. 330. This is not estoppel against estop- pel, however; the grantee and mortgagor might set up against the vendor an after-acquired title. Randall v. Lower, supra; ante, p. 376. ‘And it is now claimed, said Williams, C. J. speaking for the court in Hubbard v. Norton, ‘that the last covenants preclude or estop the plaintiff from a right of action on the others, because, it is said, they are simultaneous. Unless all principles of common sense are discarded, we must sup- pose that the deed of the defend- ants conveying the land in fact preceded that of the plaintiff, which was given to secure the con- sideration money for the land so conveyed. There must, then, have been a seisin in the plaintiff under and by virtue of the defendant’s deed tohim. . . . If, then, we must consider the plaintiff's deed as subsequent to that of the defend- ants, it can be no estoppel, because a warranty of title by the plaintiff in a subsequent deed will not prove that the defendants had title when they conveyed to the plaintiff; for the plaintiff might at that time or immediately after have pur- chased in another title, or removed the encumbrance. The contrary is not so clearly implied as to become one of those presumptions of law which cannot be rebutted. To create that legal certainty re- quisite to constitute an estoppel the defendants must show that the plaintiff could have no other title than that acquired by deed of the defendants. It may be im- probable, but surely is not impos- sible. The fact that the plaintiff had a title when he reconveyed it to the defendants is consistent with the fact that the defendants had not a perfect title when they conveyed to the plaintiff. Again, it is said, these facts form a good defence because the law abhors a circuity of action; and if the plain- 392 ESTOPPEL BY DEED. [CHAP. IX. In like manner, it is held that a recital. of a prior conveyance in a deed under which a party holds will*not estop him from claiming under a paramount title; 1 and on the other hand, that one who accepts a conveyance reciting a prior lease or mortgage cannot impeach the title of the lessor or mortgagor on any ground that would have been open to his grantor, unless he can show that he has acquired a better title.? § 4. Estoppel against Estoppel commonly sets the matter at large;* which is another limita- tion of the doctrine under consideration. And such a case occurs where the deed is encountered by another instrument of tiff can recover of the defendants, they can also recover of the plaintiff. This objection presupposes what is not admitted, that the plaintiff had not procured a title when his deed was given or since that time. If the plaintiff had proved such a deed when he gave his, then the defendants could not recover any- thing upon their covenants in the mortgage deed. If they have since gained such title and removed such encumbrance, then only nom- inal damages can be recovered; and unless the court can see that the same damages must be re- covered by the one party as by the other, the suit will not be barred for fear it will produce another.’ 1 Baldwin v. Thompson, 15 Iowa, 504; Jackson v. Carver, 4 Peters, 1, 83; Crane v. Morris, 6 Peters, 598, 611. 2 Addison v. Crow, 5 Dana, 271; Coakley v. Perry, 3 Ohio St. 344; Ward v. McIntosh, 12 Ohio St. 233. ‘And this would seem to be all that is meant by the broad dec- laration . . . that a man who ac- cepts or acts under a deed cannot dispute the facts which it recites.’ 2 Smith’s L. C. 712, 6th Am. ed., citing Chautauqua Co. Bank ». Risley, 4 Denio, 480; Denn v. Cor- nell, 3 Johns. Cas. 174; Springstein v. Schermerhorn, 12 Johns. 357; Funk v. Newcomer, 10 Md. 301, 316; Ward v. McIntosh, 12 Ohio St. 231. See also upon this subject Chiles v. Boothe, 3 Dana, 567; Cutter v. Waddingham, 33 Mo. 269; Lorain v. Hall, 33 Penn. St. 270; Walthall v. Rives, 34 Ala. 91; Woburn ». Henshaw, 101 Mass. 193, holding that one in possession of a mill, located on a canal, and claiming title by a deed made by order of court binding him to keep the canal in repair, cannot escape from this liability on the ground that the order of court was defect- ive, and that no title was passed by the deed. 3 Coke, Litt. 352 b; 12 Hen. 7, p. 4; 6 Hen. 4, p. 7; Hoboken ». Pennsylvania R. Co., 124 U. S. 656, 693; Branson v. Wirth, 17 Wall. 32, 42; Tibbets v. Shapleigh, 60 N. H. 487, 491; Tappan »v. Huntington, 97 Minn. 31, 106 N. W. 98; Pederson v. Chiefstofferson, 97 Minn. 491, 106 N. W. 958; Schmidt v. Olympia Light Co., 46 Wash. 360, 90 P. 212; Coran ». Wheten, 9 N. B. 293; Page ». Smith, 13 Oreg. 410, 413. The rule was applied to estoppel in pais in the last case. See ante, p. 362, note 6. SECT. v.] LIMITATIONS OF THE DOCTRINE. 893 equally high rank, inconsistent with the same, and made be- tween the same parties.! ‘ In this case,’ said the court in Brown ». Staples, ‘ Winthrop Allen could maintain no action upon the covenants of the deed made to him by the demandant for a breach occasioned by his being deprived of the land by virtue of the mortgage made by Elliot Staples to John Welles, for he had by an obligation of as high a nature obliged himself to discharge that mortgage, and had thereby annulled the operation for such purpose of those covenants. It has been decided that a cove- nant of warranty would not include an encumbrance which the grantee had engaged to discharge.’ ? So too the assertion of an estoppel by deed may be prevented by the existence of an estoppel in pais against the-use of the deed.* But the fact that there exists between the parties another deed the terms of which are inconsistent with those of the one in suit, if that other deed be collateral to it and not in discharge or modification of it, will not suffice to remove the estoppel and -open the matter to evidence.* Thus, in Lainson v. Tremere, just cited, an action was brought on a bond conditioned for the payment of £170 yearly for the rent of certain premises; and the defendant attempted to show that the rent actually agreed upon was £140, and for this purpose offered in evidence the lease itself of the premises, which so recited the annual rental. But the court held the averment of the bond conclusive. Had the proceeding, however, been brought upon the lease for possession on the ground of non-payment of rent, the terms of the same would have been conclusive of the sum due; and the recital of the bond would not have been admissible to set the matter at large. The estoppel of a deed becomes but prima facie evidence in collateral proceedings.*® §5. No Estoppel if Truth appears. Another qualification is that if the truth plainly appears on the face of the deed, there is, generally speaking, no estop- 1Brown v. Staples, 28 Maine, 4Lainson v. Tremere, 1 Ad. & 497. See also Hoboken v. Pennsyl- E. 792. See Carpenter v. Buller, 8 vania R. Co., 124 U. S. 656, 693. Mees. & W. 209. 2 Watts v. Welman, 2 N. H. 458. 5Carpenter v. Buller, supra; 8 Platt v. Squire, 12 Met. 494. ante, pp. 383, 384. ESTOPPEL BY DEED. [CHAP. Ix. 394 pel.! And this simply means that all parts of the deed are to be construed together; and that if an allegation in the deed which alone would work an estoppel upon the partiesi-is ex- plained in another part of the deed, or perhaps in another deed to which reference is made for the purpose, there is ordinarily no estoppel.” In Montgomery’s Case * it appeared that King Edward VL., being patron of a church held by an incumbent, by his letters- patent granted the advowson to the Bishop of L and his suc- cessors; and further by the said letters-patent granted that after the avoidance of the church by death, resignation, or otherwise, the said bishop and his successors should hold the church to their own use. Afterwards the bishop made a lease of the parsonage for sixty years to commence at such time as the parsonage should come to the hands of the bishop or his succes- sors by the death, resignation, or other act of the incumbent; which lease was confirmed by the dean and chapter. The bishop died; the incumbent then died; and the bishop’s successor: entered and made a lease for twenty-one years to Montgomery, thus ignoring the previous demise. It was resolved by all the judges that the first lease was void because the lessor had noth- ing in the parsonage during the life of the incumbent who sur- vived the bishop. And the nature of the bishop’s interest ap- pearing on the face of the lease, neither he nor his successor could be estopped by it.# In Pargeter v. Harris,® an action for breach of covenant in a lease, the declaration stated purposely so much of the lease, . said the Lord Chief Justice, as showed that the plaintiffs -had only the equity of redemption in the premises, and that the defendant knew that circumstance from the recitals in the lease. The recital was thus of itself sufficient to prevent either 1Coke, Litt. 352 b; Pargeter v. ?Hannon vw. Christopher, 34 Harris, 7 Q. B. 708; Cuthbertson N. J. Eq. 459. Text quoted in v. Irving, 4 Hurl. & N. 742; s. c. 6 Hurl. & N. 135; Morton v. Woods, L. R.3Q. B. 658; 8. c.4Q. B. 293; Wheelock v. Henshaw, 19 Pick. 341; Pelletreau v. Jackson, 11 Wend. 110, 118; Jackson ». Sin- clair, 8 Cowen, 543, 586; Hannon ». Christopher, 34 N. J. Eq. 459,465. , Franklin County ». German Bank, 142 U. S. 93, 12 Sup. Ct. 147, 35 L. Ed. 948; and in Langley »v. Kesler, 57 Or. 281, 110 P. 401. 3 Dyer, 244 a. 4See Coke, Litt. 352 b. 57 Q. B. 708. SECT. v.] LIMITATIONS OF THE DOCTRINE. 895 party being estopped from denying that the plaintiffs had a legal reversion; in truth, it estopped them from asserting it. So too it is held that if an ejectment be brought upon a lease which shows upon its face that the lessor has no legal reversion, there will be no estoppel on the tenant.!_ The ground of the cases is suggested to be that the covenant must be enforceable as an obligation at law, and ejectment_also_ requires a legal.estate in he plaintiff.2- The lease negatives the existence of this in the lessor.3 In the case of an action to try the validity of a distress, where this technical ground does not exist, the estoppel upon the tenant is not obviated by the lease showing the want of a legal title in the lessor. For the recovery of rent in such cases it would seem necessary to sue for use and occupation instead of in covenant (if that does require a legal estate), or to file a bill in equity. The distinction if real is a nice one, and cases like Pargeter v. Harris and Saunders v. Merryweather now stand on narrow ground.’ If, however, the fact that the lessor’s estate is only equitable does not appear in the lease but in an- other deed, as in an assignment of the lessor’s interest, the fact cannot in any case be taken advantage of by the lessee, even in an action of covenant by the assignee.” 1Saunders v. Merryweather, 3 Hurl. & C. 902. 2 Morton v. Woods, L. R. 4 Q. B. 293, 303, in Ex. Ch. 3 Of course if the deed. did not show the want of a reversion, the lessee would be estopped to allege the fact as well in ejectment as in an action for rent or for trying the validity of a distress. 4 Morton v. Woods, supra; Jolly v. Arbuthnot, 4 De G. & J. 224; Tilyou v. Reynolds, 108 N. Y. 558, 563. 5 Jolly v. Arbuthnot, 4 De G. & J. 224; s. c. 28 L. J. Ch. 547; Mor- ton v. Woods, supra. . 5‘ But even if any of the de- cisions or dicta were to lead to the conclusion that when the truth ap- pears [in such cases] there can be no estoppel, that doctrine must be taken to be overruled by the case of Jolly v. Arbuthnot.’ Kelly, C. B. in Morton v. Woods. See also Hannon v. Christopher, 34 N. J. Eq: 459, 466." It is there said that ‘whether the appearance of the truth on the face of the instrument will defeat an estoppel or not must altogether depend upon the fact whether it is so expressed that it can be readily seen and understood by the person who ought to be in- fluenced by it, or in manner so technical or obscure that although it must be admitted it appears in the instrument, yet it is certain it was not seen or understood by the person who should have been influenced by it, but that he dealt with the party sought to be estopped as though ‘the words on which the estoppel is founded expressed the whole truth.’ 7Gouldsworth v. Knights, 11 Mees. & W. 337, 343, explaining 396 Whitton v. Peacock, 2 Scott, 630; s. c. 2 Bing. N. C. 411; Cuthbert- son v. Irving, 4 Hurl. & N. 742; s. Cc. in error, 6 Hurl. & N. 135. In delivering judgment in the Ex- chequer Chamber in the _last- named case, Wightman, J. said: ‘The lessor in this case, being a mortgagor in possession at the time of the granting of the lease, had no legal title to the premises, but only an equity of redemption. His title, therefore, as between him and his lessee is only by estoppel, and if the lessor assign, as he can only assign that which he had, his assignee will either have a title by estoppel as against the lessee, or no title at all. In this case if the plaintiff had declared in the old ESTOPPEL BY DEED. [CHAP. IX. form, he would have stated the lessor to have been seised in fee, which according to the cases might have been traversed; and if it had and it had appeared upon the evidence that the lessor had no legal estate or interest whatever in the premises, but only an equity of redemption, the question ig how ought the issue upon the trav- erse to be found? The answer is for the plaintiff, because the lessee is estopped from denying that the plaintiff had such a legal estate as would warrant the lease; and as no other legal estate or interest is shown to have been in the lessor it must be taken as against the lessee by estoppel that the lessor had an estate in fee.’ CHAP. X.] RECITALS. 397 CHAPTER X. RECITALS. A RECITAL in a sealed instrument is defined to be the prelimi- nary statement of such deeds, agreements, or matters of fact as are necessary to explain the reasons upon which the transac- tion is founded.t A formal recital is generally contained in the premises of the deed, and usually begins with the word ‘ whereas,’ which, when there are several recitals in connection, is repeated accordingly, — ‘and whereas.’ 2 However, we shall see that recitals are also introduced in other ways, and that the term is extended to other parts of the deed than the preliminary statement of the inducement and purpose; indeed, that the term, or at least the rule applicable to the term, is applied to all dis- tinct, material statements of fact within the instrument. There are two kinds of recital, particular and general. The former are conclusive evidence of the matters stated, if the deed is valid,? in actions concerning the direct purpose of the deed.* If the deed is collateral to the purposes of the action, 12 Black. Com. 298. 2 Burrill, Law Dict. ‘ Recital.’ 3 Not if it is void. Conant v. Newton, 126 Mass. 105. Recital cannot estop one to allege non est factum. Manuf. Co. v. Elizabeth, 42 N. J. 249; Hudson v. Winslow, 6 Vroom, 437. 4 Baltimore R. Co. v. Vander- warker, 19 W. Va. 265; Usina v. Wilder, 58 Ga. 178; Lucas v. Beebe, 88 Ill. 427; Pinckard v. Milmine, 76 Ill. 453; Mix v. People, 86 III. 329; George v. Bischoff, 68 IIl. 236; Insurance Co. v. Bruce, 105 U.S. 328; School District v. Stone, 106 U. S. 183; In re Romford Canal Co., 24 Ch. D. 85; Webb v. Herne Bay Com., L. R. 5 Q. B. 642;. Green’s Appeal, 97 Penn. St. 342; Redwood v. Tower, 28 Minn. 45; Despair v. Wagner, 163 Ill. 598, 45 N. E. 129; Roderick v. Mc- Meekin, 204 Ill. 625, 68 N. E. 473; Stanford v. Broadway Loan Ass’n., 122 Ind. 424, 24 N. E. 154; Van Husen v. Omaha Ry. Co., 118 Iowa, 366, 92 N. W. 47; Jefferson »v. McCarthy, 44 Minn. 26, 46 N. W. 140; Eaton v. Driscoll, 18 R. I. 318, 27 A. 445; Stone v. Fitts, 38 8. C. 398, 17 S. E. 136; Greer ». Mitchell, 42 W. Va. 494, 26 S. E. 3802. It is held that a grantee is not estopped by a recital in his deed which declares the premises subject to an encumbrance from showing that the encumbrance had (CHAP. xX. 398 ESTOPPEL BY DEED. the recital, however specific, is but prima facie evidence, as we have seen; though it would perhaps be conclusive if the statement appears to have been maade for the purpose of fortify- ing or establishing the title or claim in question in the liti- gation. With the intention accomplished, the recital loses force.? General recitals, on the other hand, do not operate to estop the parties from adducing contrary evidence, for certainty is of the essence of an estoppel.* . The effect of a recital by deed in the law of estoppel has in the past been considered to be due to the fact that it was made in a deed; and it is not clear that the same words in a sealed instrument would work an estoppel in those states in which the effect of a seal has been taken away by statute. It seems more likely that in such states the recited facts would not bind by way of estoppel unless the parties appear to have contracted for their truth or to have made the validity of the contract in which they are contained dependent upon the same. : We propose now to consider as at common law each of the classes of recital above mentioned. §1. Particular Recitals. Particular recitals appear to be declarations such as would be evidence by way of admission * or otherwise of some fact in 79; School District v. Stone, 106 U. S. 183; Lainson v. Tremere, 1 no existence in fact. Goodman »v. Randall, 44 Conn. 321. Nor is one estopped by recitals of a person under whom one does not claim. Graves v. Colwell, 80 Ill. 612. An erroneous recital in a deed does not estop one who is a transferror of interest from showing against a stranger who knew of such transfer, what interest really passed by the grant. Trinidad Asphalt Co. »v. Coryat, (1896) A. C. 587. 1Carpenter v. Buller, 8 Mees. & W. 209; McCullough v. Dashiell, 78 Va. 634, 648; ante, p. 384. 2McCullough v. Dashiell, 78 Va. 634, 648. - 3 Jackson v. Allen, 120 Mass. 64, Ad. & E. 792; Strowd v. Willis, Croke, Eliz. 762; Shelley v. Wright, Willes, 9; Salter v. Kidley, 1 Show. 59; Right v. Bucknell, 2 Barn. & Ad. 278; Kepp v. Wiggett, 10 C. B. 35; 2 Smith’s L. C. 752, 6th Eng. ed. ‘Sutton v. Casselleggi, 5 Mo. App. 111. See Carrigan v. Boze- man, 13S. Car. 376. The date of a sealed instrument, though com- monly but prima facie evidence, may become conclusive when it is of the essence of the instrument, and that has been accepted and acted on as valid and binding; as SECT. 1.] RECITALS. 399 dispute. At any rate, to work an estoppel a recital should clearly and beyond doubt affirm or deny some present or past fact or admit some liability definitely stated.1_ Such a recital was before the Queen’s Bench in Lainson v. Tremere.? The ac- tion was upon a bond the condition of which declared by way of recital that by indenture of lease between the plaintifi’s testator and the defendant the testator demised premises to the defend- ant at the yearly rent of £170. The defendant pleaded that the lease in the condition mentioned was a lease the reddendum of which was £140 only, and that that sum had always been paid. The whole lease was set out, by which it appeared that the rent was at £140 per year. But the court held the defendant to be estopped.’ where a deed executed upon a proper occasion is dated back to give it effect. See Kelley v. State, 25 Ohio St. 567. So of a bond exe- cuted in fact on Sunday but dated otherwise, and then falling for value into the hands of an innocent party. 1 Calkins v. Copley, 29 Minn. 471; School District v. Stone, 106 U. 8. 183; Onward Bldg. Soc. »v. Smithson, (1893) 1 Ch. 1; Sutton v. Dameron, 100 Mo. 141, 13 S. W. 497; Nashville Ry. v. Proctor, 160 Ala. 450, 49 So. 377. Zimmler v. San Louis Water Co., 57 Cal. 221 (that the recital should be ‘so cer- tain as to admit of no other con- struction than that set up’). If founded on mistake no estoppel will arise, at. least in equity. Brooke v. Haymes, L. R. 6 Eq. 25; Blaney v. Rogers, 174 Mass. 277, 54 N. E. 561. 21 Ad. & E. 792. 3 Lord Denman, who delivered the judgment, said that the au- therities were clear that if there was a condition to perform the cove- nants of an indenture, the obligor was estopped to deny the existence of the indenture; or in general, when the condition of a bond has reference to any particular thing, the obligor is estopped to say that there is no such thing. 1 Rolle’s Abridgment, 872 b. He proceeded thus: ‘The whole lease being set out, the defendant contends that the actual lease is to be taken as a further description of the lease recited in the condition of the bond, according to what is said by Holt, C. J. in Evans v. Powel, Comb. 377; and that the bond and lease are to be taken as together forming one instrument. And as it appears by the lease that the rent is £140 a year, the defendant says, as it is the lease which contains the real contract of the parties, and the rent being to be paid for the occupation of the land, that if he has paid the rent stipulated, he has performed the contract specified in the lease, and it is therefore an answer to the action; that the bond does not show the contract as to the rent, but is merely given as a collateral security for the performance of the terms of the lease; and if he has performed the terms of the lease, the bond cannot be enforced against him. But notwithstanding the argument, we think, as far as the bond goes in a court of law, the obligor is estopped from saying that the rent was not £170 a year, 400 [cHAP. X. ESTOPPEL BY DEED. In a subsequent case ! a declaration in covenant stated that by indenture, after reciting that the plaintiff had invented cer- tain improvements in the construction of looms, and had ob- tained letters-patent for the sole use of the invention, and that he had agreed with the defendants to permit them to use the invention, the plaintiff covenanted to permit the defendants to use it; in consideration of which the defendants agreed to pay a certain sum. The declaration then alleged a breach of per- formance by the defendants. The latter pleaded that the in- vention was not a new one, and that the plaintiff was not the first or true inventor of the improvements. It was contended on the part of the plaintiff that the defendants were estopped from pleading the pleas mentioned; while counsel for the de- fendant contended that the pleas were consistent with the deed. The court decided that the pleas were bad, directly affirming the doctrine of Lainson v. Tremere, above presented.” because his showing the lease at a rent of £140 is in effect the same thing as saying that there is no such lease as is stated in the bond. In 1 Rolle’s Abridgment, 873 b, Estoppel, (P), pl. 10, 11, there is a case of Fletcher v. Farrar, as fol- lows: “If the condition of an obligation be to do certain things for which the obligor is bound in a certain recognizance showing the certainty of it, then the obligor shall be estopped to plead that he was not bound in any recognizance inasmuch as the condition has reference to a particular. So the obligor in the case aforesaid shall be estopped to plead a special plea by which he owns that he ac- knowledged a thing in the nature of a recognizance, but upon the special matter it appears to the court it was not any recognizance in law; for this amounts but to this, that he was not bound in any recognizance.” Upon what appears on the record there is no doubt but if an action of covenant had been brought on the lease, only £140 could be recovered; and there certainly is an apparent incongruity in saying that different sums are to be recovered according as the pro- ceeding is on the bond or the lease. This, however, is occasioned by the defendant having executed two apparently inconsistent in- struments.’ 1 Bowman v. Taylor, 2 Ad. & E. 278. 2 Taunton, J. said: ‘ The law of estoppel is not so unjust or absurd as it has been too much the cus- tom to represent. The principle is that where a man has entered into a solemn engagement by deed under his hand and seal as to certain facts, he shall not be permitted to deny any matter which he has so asserted. The question here is whether there is a matter so asserted by the de- fendant under his hand and seal that he shall not be permitted to deny it in pleading. It is said that the allegation in the deed is made by way of recital; but I do not see that a statement such as this is the less positive because it is in- SECT. 1.] RECITALS. 401 Where a recital is intended to be an agreement of both parties to admit a fact, it estops both parties; 1 but it may be a ques- troduced by a ‘‘ whereas.” Then the defendant has pleaded that the supposed invention in the declaration and letters-patent men- tioned was not nor is a new inven- tion. These words, “ was not nor is a new invention,” must be under- stood in the same sense as the words ‘had invented,” in the re- cital of the deed set out in the dec- laration, and must refer to the time of granting the patent; and if the invention could not then be termed a new invention, it could not, I think, have been truly said in the deed that the plaintiff “ had invented ” the improvements, in the sense in which the deed uses the words.’ Then the plea directly neg- atives the deed, and comes within the rule that a party shall not deny what he has asserted by his solemn instrument under hand and seal.’ The same judge thus distinguished the case from Hayne v. Maltby, 3 . T. R. 488: ‘Here there is an ex- press averment in the deed that the plaintiff is the inventor of the improvements; there the articles of agreement averred nothing as to the originality of the invention, but merely stated that the plain- tiffs were the assignees of the patent, which they might have been though the assignor was not the original inventor.’ Mr. Justice Patteson said: ‘The only authority cited for the proposition that no estoppel can be by recital is that from Co. Litt. 352 b. It is not denied, how- ever, that there have been many cases in which matter of record has been held to estop; but then it is said that tHe recital in those cases has been inseparably mixed with the operative parts of the deed. But if that be a test, the case is so here. The deed recites that the plaintiff has invented improvements and obtained a-patent for the in- vention; and then it proceeds to a demise of the very subject-mat- ter for which the patent is granted. I cannot separate these things; and I therefore think the recital here comes within the description which Mr. Wightman has given of the law laid down by the old cases. The passage in Lord Coke must be taken with some little qualification; and Lainson- v. Tre- mere, 1 Ad. & E. 792 [supra], is a direct authority to show that there may be an estoppel by way of re- cital.’ The doctrine of these cases has been held in several other English decisions. Horton v. West- minster Commissioners, 7 Ex. 780; Hill v. Manchester & S. W. W. Co., 2 Barn. & Ad. 544; Shelley »v. Wright, Willes, 9. In Horton »v. Westminster Commissioners Mar- tin, B. said: ‘ This is an action upon an instrument under seal whereby the defendants have contracted to do certain acts; and in order to excuse themselves from per- forming them they ought to make out a clear legal defence. Now, the instrument itself states [by recital] that the defendants were author- ized to borrow money for the purposes of the acts; and that in pursuance of the acts they had borrowed the money for which this bond was given. The first of these pleas in effect states that the money was not borrowed for the purposes of the acts; but I think that the de- fendants are estopped from setting up any such defence. It has been argued that the doctrine of estoppel 1¥Fort v. Allen, 110 N. C. 183 14 8. E. 685. [cHaP. X. 402 ESTOPPEL BY DEED. tion whether the recital is so intended. If a proper construction of the recital, or other lawful evidence, shows that but one of the parties agreed to admit the fact, the other party will not be estopped by it.! Stroughill ». Buck, just cited, was such a case. It was an action on a deed of indenture between the plaintiff and the defendant, which recited that the defendant had advanced money to one Ogle on the security of certain deeds, and that the defendant was interested in those deeds to that extent; that it had been agreed that the plaintiff should make further advances to Ogle; and that the defendant should assign the deeds and his interest therein to the plaintiff as security. The defendant assigned them to the plaintiff, and covenanted that the money so advanced by him (the defendant) was due to him and unsatisfied. The action was for a breach of this covenant, the plaintiff alleging that the money was not due when the covenant was made. The question finally arose upon demurrer whether the plaintiff was estopped by the recital to allege that the money was not due. The court by Mr. Justice Patteson held that he was not. The plaintiff might deny that the defendant had made advances; for as this fact was material for the validity to the plaintiff of the securities on which he had advanced the money, and as he had taken the covenant to secure to him the truth of this fact, the true construction of the recital was that it was intended to be the statement of the defendant only. If the parties to a deed bound the land conveyed upona street, they are in an action concerning the boundary of the does not apply here; but the case of Hill v. The Proprietors of the Man- chester Water Works, 2 Barn. & Ad. 544, satisfies me that it does. The meaning of estoppel is this, that the parties agree for the purpose of a particular transaction to state cer- tain facts as true, and that so far as regards that transaction there shall be no question about them. But the whole matter is opened when the statement is made for the purpose of concealing an illegal con- tract; for persons cannot be allowed to escape from the law by making a false statement. That is totally different from this case; for here the contract itself is perfectly legal, and though the plea is not the same, yet the case is substantially the same as that of Hill ». The Proprietors of the Manchester Water Works, which in my judg- ment is good sense and good law.’ 1 Stroughill ». Buck, 14 Q. B. 781; Young v. Raincock, 7 C. B. 310; Bower v. McCormick, 23 Gratt. 310; Blackhall ». Gibson, 2L. R. Ir. 49. SECT. I.] RECITALS. 403 land estopped to deny the existence of the street.1_ In the case first cited a question arose upon the construction of a deed from R to T, in which the former conveyed to the latter a piece of land in New Bedford, bounding it southwardly and westwardly on a way or street. Chief Justice Parker said that by this description the grantor and his heirs were estopped from deny- ing that there was a street or way to the extent of the land on those two sides. This was not merely a description, but an implied covenant that there were such streets. It probably entered much into the consideration of the purchase that the lot fronted upon two ways which would always be kept open, _and, indeed, could never be shut without a right to damages in the grantee or his assigns.2. And recently it has been decided by the same court, but certainly upon a questionable view of the law of estoppel, that this estoppel is available as well by the municipality in which the street is located as by the parties to the deed.* But a description of land bounded on a street named does not amount to a covenant of the existence of a street of the width of the one named if it has sinee been closed, but only that there shall be a way of reasonable width.+ 1 Parker v. Smith, 17 Mass. 413; Donohoo v. Murray, 62 Wis. 100, 103; Bartlett v. Bangor, 67 Maine, 460; Bell v. Todd, 51 Mich. 21, 26; White v. Smith, 37 Mich. 291; Smith v. Lock, 18 Mich. 56. So too where the land is bounded on a private way not defined in the deed, but shown on a plan referred ‘to therein and recorded in the registry of deeds. Fox v. Union Sugar Refinery, 109 Mass. 292; Morgan v. Moore, 3 Gray, 319; Lunt v. Holland, 14 Mass. 149; Davis v. Rainsford, 17 Mass. 207; Parker v. Bennett, 11 Allen, 388; Murdock v. Chapman, 9 Gray, 156; Sheen v. Stothert, 29 La. An. 630; Petitpierre v. Maguire, 155 Cal. 242, 100 P. 690; Dorman v. Bates Mfg. Co., 82 Me. 488, 19 A. 915; Young v. Braman, 105 Me. 494, 75 A. 120; McKenzie v. Gleason, 184 Mass. 452, 69 N. E. 1076, 100 A. S. R. 566. 2See O’Linda v. Lothrop, 21 Pick. 292; Tufts v. Charlestown, 2 Gray, 271; Loring v. Otis, 7 Gray, 563; New Eng. Structural Co. ». Everett Co., 189 Mass. 145; 75 N. E. 85. 3 Tobey v. Taunton, 119 Mass. 404. The evidence taken altogether, including monuments as well as the admission in the recital, made in this case a very strong chain, such as a jury would not be apt to break; but we would venture to doubt if either upon the dis- tinction taken by the court or upon any other the recital or the whole evidence amounted to an estoppel in favor of a stranger. 4 Walker v. Wortester, 6 Gray, 548. In the case cited the plain- tiff claimed to be entitled by the terms of a deed to a street on his westerly boundary, sixty feet wide. The ‘ words of the deed, ‘‘ westerly [cHAP. X. 404. ESTOPPEL BY DEED. The recent case of Freeman v. Auld ! involved the same prin- ciple. 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 $4,000, 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 conveyance 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.’ In Cutler v. Bower,‘ again, an action was brought upon a covenant to pay the sum of £2,200 by instalments in an in- denture. The deed recited the grant of letters-patent to the on Park Street,” ’ said the court, ‘would seem to imply that there was a street there of that name. . .. If it had been once opened as a street by a former proprietor, but afterwards a large tract of land, including the street, had been sold as one parcel and the street closed up before any house-lots were sold (as on the evidence re- ported the jury must find), then the deed amounted to an implied covenant, and a grant, if the grantor owned it, that the grantee should have a right to a convenient street and passage-way. There would be nothing in that case to designate or limit the dimensions of the way thus granted by implication; but it must be presumed that some way was intended for the purposes of passing, indicated by the use of the word “‘ street.’’’ 144.N. Y. 50. 2 Lawrence v. Fox, 20 N. Y. 268; Ricard v. Sanderson, 41 N. Y. 179. But as to this distinction see Birke v. Abbot, 1 Northeastern Rep. 485; 2 Story’s Equity, p. 341, note, 13th ed. 3 Parkinson v. Sherman, 74 N. Y. 88; Green v. Kemp, 13 Mass. 515; Housatonic Bank v. Martin, 1 Met. 294, 307; Johnson »v. Thomp- son, 129 Mass. 398; Tuite ». Stevens, 98 Mass. 305; Howard v. Chase, 104 Mass. 249; Smith ». Graham, 34 Mich. 302; Com- stock v. Smith, 26 Mich. 306; Ken- nedy v. Brown, 61 Ala. 296; Bunk- ley v. Lynde, 47 Ala. 211; Jack- son v. Thompson, 6 Cow. 178; Lee v. Clark, 1 Hill, 56; Pratt v. Nixon, 91 Ala. 192, 8 So. 751; Hadley v. Clark, 8 Idaho, 497, 69 P. 319; Singer Piano Co. v. Walker, 113 Iowa, 664, 83 N. W. 725; First Nat. Bank. v. Reid, 122 Iowa, 280, 98 N. W. 107; Burnham ». Citizens’ Bank, 55 Kan. 545, 40 P. 912; Gowans »v. Pierce, 57 Kan. 180, 45 P. 586; Scanlan v. Grimmer, 71 Minn. 351, 74 N. W. 146, 70 A. S. R. 326; Koch v. Losch, 31 Neb. 625, 48 N. W. 471; Smith Co. »v. Farwell, 6 Okl. 318, 50 P. 149; Swope v. Jordan, 107 Tenn. 166, 64S. W. 52. 411 Q. B. 973. SECT. I.] RECITALS. 405 plaintiff in 1841 for a certain invention, and also recited a deed dated July 23, 1842, by which the plaintiff granted the defend- ant 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 consideration 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 de- fence 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 consideration had not wholly failed. The defendant was at all events bound by the indenture of July 23 to the royalty therein named, whether the patent was 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 » Laming.! The action was covenant to recover a certain sum stipulated to be paid as liquidated damages for the breach of a covenant con- cerning the use of certain patents. It appeared that there had been a dispute between the parties about their rights under cer- tain patents, which was finally adjusted by their entering into an agreement under seal, reciting that a certain patent had been granted to the defendant, and a certain other patent had been granted to the plaintiff, and that, to put an end-to their differ- ences respecting them, the parties covenanted that the de- fendant 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 de- fendant under similar limitations. The defendant 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, distinguish- ing the case from Hayne v. Maltby.? 19 Ex, 256. 23 T. R. 438. 406 ESTOPPEL BY DEED. [CHAP. X. The sureties in an administration bond, or a guardian bond, or the like are estopped by its recitals to deny that their princi- pal had been duly appointed to the office in question.’ So in the case of the bond of deputies given to the sheriff, if the bond recites that the parties signing were deputies, they will not be permitted to deny the allegation.” So also if the bond recites or stipulates that all the signers are principals, none of them can say against the obligee that he was a surety,’ except — and the ex- 1Cutler v. Dickinson, 8 Pick. 386; Bruce v. United States, 17 How. 437; Shroyer v. Richmond, 16 Ohio St. 455; Norris v. State, 22 Ark. 524; Williamson v. Wood- man, 73 Maine, 163; Jones v. Gal- latin, 78 Ky. 491; State v. Mills, 82 Ind. 126. See also Father Mat- thew Soc. v. Fitzwilliams, 84 Mo. 406; Teutonia Bank v. Wagner, 33 La. An. 732; Hine v. Morse, 218 U. S. 493, 31 Sup. Ct. 37, 54 L. Ed. 1123; People v. Hammond, 109’ Cal. 384, 42 P. 36; Hoffman ». Flemming, 66 Ohio St. 148, 64 N. E. 68; Hauenstein v. Gillespie, 73 Miss. 742, 19 So. 673, 55 A.S. R. 569,: overruling Thomas v. Burrus, 23 Miss. 550; Talbott v. Curtis, 65 W. Va. 132, 63 S. E. 877; Middle- ton v. State, 120 Ind. 166, 22 N. E. 123; Seabrook v. Brown, 71 N. H. 618, 51 A. 175. When an appeal bond recites that there was a judgment sureties are estopped to deny it, or say it was void. McCarthy v. Chimney Cons. Co., 219 Ill. 616, 76 N. E. 850. When indemnifying bond says that the constable had levied execution sureties estopped to claim no levy, Smith v. Rogers, 191 Mo. 334, 90 S. W. 1150. Having as- serted i in a supersedeas bond that he had filed a petition, surety is es- topped to deny it. Dunterman »v. Story, 40 Neb. 447, 58 N. W. 949. When insolvency bond says that the debtor had been arrested and is now in the custody of the sheriff, surety estopped to deny it. Hauser v. Ryan, 73 N. J. L. 274, 63 A. 4. A recital that an officer was duly ap- pointed estops the surety to deny the constitutionality of the act un- der which he was appointed. Blaco v. State, 58 Neb. 557, 78 N. W. 1056. One who gives a bond reciting that an attachment of property has been made is estopped to deny it. Sheldon v. Cooke, 177 Mass. 441, 59 N. E. 77. Recitals in an appeal bond that defendant had obtained judgment in District Court estops defendant from denying that no case was pending in District Court. Richardson v. Penny, 10 Okl. 32, 61 P. 584. On the other hand, land may be excepted from a conveyance by recital of definite description, or by clear refer- ence to some instrument containing a definite description of it.® However, a particular and definite recital may be shown to refer to either of two subjects when intended to refer to but one, and if it cannot be shown which was intended, the estoppel must fail.’ So where several particulars are set out in a de- scription of land, some of which are found to be inapplicable to the premises, these may be rejected and the other unambigu- ous and correct statements relied upon as fixing the rights of ‘the parties. But a party is not estopped by a recital in his deed, or in a deed of an earlier grantor of the premises, that the title was derived in a particular way unless it appears that he claims under that title.® It appears from several of the foregoing cases that there may be an estoppel by recital of a conclusion of law, as in the case of Hills ». Laming, where the defendant was held estopped to deny the validity of certain patents by reason of the recitals 1 Williams v. Sweetland, 10 Iowa, 51. ? Stevenson v. Saline Co., 65 Mo. 425. 3 Ballou v. Jones, 37 Ill. 95. 4 Dundas v. Hitchcock, 12 How. 256. 5 Nevett v. Berry, 5 Cranch C. C. 291. § McDonald v. Lusk, 9 Lea, 654. 7 This is upon the principle, of course, of introducing evidence to show a latent ambiguity in a writing. * Doane v. Willcutt, 16 Gray, 368; Wright v. Tukey, 3 Cush. 299; Whiting v. Dewey, 15 Pick. 428; Winn v. Cabot, 18 Pick. 553; Thatcher v. Howland, 2 Met. 41. ® Hovey v. Woodward, 33 Maine, 470. See Kidder v. Blaisdell, 45 Maine, 461; Great Falls Co. ». Worster, 15 N. H. 414, 450; Hou- satonic Bank v. Martin, 1 Met. 294, 307; Blackhall ». Gibson, 2 L. R. Ir. 49, 57. Trinidad Asphalt Co. v. Coryat, (1896) A. C. 587. SECT. 1.] RECITALS. 409 / of a deed executed between him and the plaintiff.1_ 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 binding, affording a sufficient consideration for a promise to pay money.? Hence the recitals of the deed, though admit- ting the validity of acts or instruments which in law were in- valid, will preclude the parties in an action upon the deed from contesting the same.? So too in the absence of fraud or mis- take a recital by deed of the existence of a judgment is a recital of the validity of the judgment; * for parties may agree to a re- cital which they know is not correct and bind themselves ac- cordingly.® It is held that where a party makes a deed confirming 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, without language to that effect.6 In the case cited, in order to prove the bankruptcy of one 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 there- under by his assignees. To this deed the defendant was not a party. By the latter deed the defendant, acting upon the for- mer, executed a settlement of the land upon himself after a certain event. The latter deed was silent respecting the bank- ruptcy. It was contended that the defendant had recognized and adopted the former deed by the latter. But the court held 1See also Independent Order of Aid v. Paine, 122 Ill. 625. 21 Story, Contracts, § 571, 5th ed. 3 And there may be an estoppel in pais upon a man’s liability in law; as in the case of the conduct of an indorser of a note or bill whose liability has in truth never been fixed. Libbey v. Pierce, 47 N. H. 309. See St. John v. Roberts, 81 N. Y. 441; Lucy v. Gray, 61 N. H. 151. But this would probably be true only of conduct understood to be an affirmation of fact, as that the indorser had received notice of dishonor. If understood to be a conclusion of law from a comparison of facts, propositions, or the like, quere if the party would be es- topped ‘to say the contrary? See Estoppel by Conduct, post. We have seen in considering the subject. of judgments that it is a funda- mental rule of law that a valid adjudication estops the parties from disputing, not only the facts found by the jury, but the legal conclusions of the court. 4 Blackburn v. Ball, 91 Ill. 434. 5 Ibid. ® Doe d. Shelton v. Shelton, 3 Ad. & E. 265, 283. 410 ESTOPPEL BY DEED. fendant adopted the statements of an anteri/r deed which went to make up his title. According to the current of authority définite recitals in mu- nicipal bonds, of preliminary facts relating to the regularity of their issuance, such as the performance of certain conditions or taking certain steps required by law, stand upon the same footing with recitals in ordinary deeds, and hence will estop the municipality, just as they would a private corporation or citi- zen, from disputing the facts.!. But the courts of New York have steadily refused to accept this position, and in all ordinary cases treat the recitals as open to dispute.” This, however, has nothing to do in any case with the right of a corporation, muni- cipal or other, to deny its entire power to do an act in question; the recital is binding only upon the assumption that the corpora- tion has the power, upon performing the required conditions, to make the instrument containing the recital. No recital of such power of the corporation is binding.’ §2. General Recitals. General recitals, on the other hand, do not ordinarily estop the parties from disputing the statements made in them, be- ' cause, as we have said, the certainty essential to every estoppel is wanting.* And it is perfectly consistent with a recital of in- 1-Cromwell v. Sac, 96 U. 8. 51; Block v. Commissioners, 99 U. 8. 686; Hackett v. Ottawa, ib. 86; Orleans ». Platt, ib. 676, 682; Lyons v. Munson, ib. 684; Buchanan ». Litchfield, 102 U. 8. 278; Menasha v. Hazard, ib. 81; Tipton v. Loco- motive Works, 103 U. 8S. 523; Harter v. Kernochan, ib. 562; Jasper v. Ballou, ib. 745; Insurance Co. v. Bruce, 105 U. 8. 328; School District v. Stone, 106 U. S. 183; Jenkins v. International Bank, 127 U.S. 484; Lake v. Graham, 130 U. S. 674; Waite v. Santa Cruz, 184 U. S. 302, 22 Sup. Ct. 327, 46 L. Ed..552; Presidio County v. Noel- Young Co., 212 U.S. 58, 53 L. Ed. 402; Webb v. Herne Bay Com., L. R. 5 Q. B. 642; post, chapter 16. 2 Starin v. Genoa, 23 N. Y. 439; Cagwin v. Hancock, 84 N. Y. 532; Ontario v. Hill, 99 N. Y. 324. 3 Northern Bank »v. Porter, 110 U.S. 608. See Carroll». Smith, 111 U. S. 556; Chaffee v. Potter, 142 U. S. 355, 363, 12 Sup. Ct. 216, 35 L. Ed. 1040; Sutliff ». Lake Co. Com., 147 U. S. 230, 13 Sup. Ct. 318, 37 L. Ed. 145. Further see chapter 16. ‘Right v. Bucknell, 2 Barn. & SECT. It] RECITALS. 411 tention or purpose to show that the intention or purpose was afterwards changed;! for the recital relates only to present intention. - In Right ». Bucknell,? which was an ejectment, it appeared: that the plaintiff claimed under a release which recited that the grantor was ‘ legally or equitably ’ seised 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 cer- tainty of allegation in the recital which was necessary to make it an estoppel. 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.t The same is Ad. 278; Muhlenberg v. Drucken- miller, 103 Penn. St. 631; Sheffey v, Gardiner, 79 Va. 313. Sometimes a party may be concluded without an express recital or affirmation, where it is evident from the tenor of the deed that it was the inten- tion of the parties that a certain state of facts should be affirmed as the inducement to the deed. See Van Rensselaer v. Kearney, 11 How. 297; post, chapter 11. 1See Denman ». Nelson, 31 N. J. Eq. 452. 22 Barn. & Ad. 278. 310 C. B. 35. ; 4Maule, J. observed: ‘As to the question of estoppel it appears to me that the matters that are stated in the case, — some of them by recital in the condition of the bond, — and which were in the knowledge of: all parties, show that in speaking of the appointment of Lee as collector they did not mean that he was fully armed with authority to collect the sum as-. sessed. He had been appointed to collect, and was the person who was intended to be armed with power to colleet and enforce pay- ment of the sums assessed. Still, he was a collector within the sense and meaning of the expressions used in the bond. I therefore think that the doctrine of estoppel does not apply.’ Mr. Justice Williams thus stated the position: ‘As to the remaining question, whether the defendants are estopped by the recitals in the bond from setting up this defence, it is to be observed that it is a rule that estoppels mus* be certain to every intent. And here it is at least doubtful whether the recital that Lee had been duly nominated and appointed a col- lector for the year ending the 5th ESTOPPEL BY DEED. [CHAP. X. 412 true of a recital in a deed that ‘immediate possession is delivered.’ The distinction between a conveyance by general and one by particular description is further illustrated by Doe d. Butcher v. Musgrave.? The action was ejectment to recover a certain canonry under.a demise for ninety-nine years of ‘all 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 hereto, 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 prop- erty had been specifically appropriated to the canonry, and the argument of counsel 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.4 An action of debt was brought on a bond of indemnity given to a sheriff, which recited that he had paid to the defendant a sum of money, the proceeds of a sale of the goods and chattels of one Chris- of April, 1847, and that duplicates of the assessment had been de- livered and given in charge to him, with a warrant or warrants for collecting the same, should be re- ferred to the assessments under schedule (A) or schedule (D). I ‘therefore think there is no estoppel.’ 1 Sheffey v. Gardiner, 79 Va. 313. 21 Man, & G. 625. 3¢ A preliminary objection,’ said the Chief Justice, ‘has been taken on behalf of the lessor of the plain- tiff, that as between her and the de- fendant, as mortgagee and mort- gagor, the defendant is estopped by the mortgage deed from denying that he has the title he therein as- sumed to have, or from setting up title in any one else. I entirely concur in that as a general propo- sition; but the question here is, not whether the defendant may set up a title in some third party, but whether he may not say that the house is not comprised in the de- scription contained in the mort- gage deed. If the house had been included in the mortgage by a particular description, the defend- ant could not have been allowed to say he had no title, and that the house belonged to the dean and chapter, he having only a permissive occupation. But here the subject- matter of the mortgage is described to be all that the canonry of him, the defendant, of the king’s free chapel at Windsor, and all glebe and other lands, messuages, tenements, and hereditaments belonging thereto.’ 4 Noble v. Cope, 50 Penn. St. 17. SECT. It] RECITALS. 413 tian Klusmeyer, under a fieri facias ‘at the suit of the said’ defendant. The fact was that the sheriff had had in his pos- session 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 subsequently 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. Chief Justice Woodward said that the bond did 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 had levied and sold by virtue of Collmar’s writ, as well as by that of the defendant. There was no inconsistency be- tween these facts and thé recital in the bond. Estoppel ex- cluded facts inconsistent 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. Ingersoll ! is 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.” 17 Barr, 185. 2Mr. Justice Bell, speaking for the court, said: ‘ How far the en- eroachment infringed on the orig- inal course, whether one inch or one hundred feet, is not even hinted at. Nay, it is not expressly averred that it continued to exist at the period of the conveyance, nor is there anything to show except in- ferentially that the defendant could not at once have possessed himself of the whole one hundred and fifty- nine feet conveyed. Without la- [CHAP. xX. 414 ESTOPPEL BY DEED. This subject is illustrated also in Farrar v. Cooper.! The question raised was whether a testator, the grantee in certain deeds of mill privileges, was estopped by a recital of the exist- ence 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 Justice observed, with the privileges and appur- tenances belonging to it, still, among them the right of prior occupation was not stated as appurtenant to the site. The con- veyances were all silent respecting such a right; and the tes- tator by denying it would not necessarily contradict anything stated in them. Nor will a general and indefinite recital in a replevin bond concerning the amount of property replevied estop a surety to show how much of the property in the writ was in fact replevied.? But a general recital may sometimes work an estoppel; and whether it does or not will depend 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 acts 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 demurrer to the replication. It then appeared that by an instrument 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 boring the argument it is perhaps sufficient to say that the extent and continued existence of the alleged encroachment being thus left at large was open to the inquiry of the jury as matter of fact both as to its continued existence and its alleged extent. It was certainly competent to the plaintiffs to show that it interfered not with the defendant’s possession beyond one inch, and if so, to prove it did not interfere at all; for the inquiry once entered upon there was noth- ing in the deed itself to limit a point at which it should be stayed. 134 Maine, 394. ? Miller v. Moses, 56 Maine, 128; State v. Neuert, 2 Mo. App. 295. : Southeastern Ry. Co. v. War- ton, 6 Hurl. & N. 520; Carpenter v. Buller, 8 Mees. & W. '209. SECT. I1.] RECITALS. 415 brought. It was contended that as the 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 other- wise.! 1The learned baron above named said: ‘Every deed must be construed according to that which, looking at the document itself, appears to be the intention of the parties. It is true that in construing a deed the court cannot look at collateral matters, but the intention of the deed as appearing upon the face of it must be regarded. If in the present case it had ap- peared that the parties intended to abandon every claim except those referred to in the schedule, the argument on the part of the defendant would have been un- answerable. But when the whole deed is looked at, no such in- tention appears. The parties in- tended to refer certain matters’ to arbitration. They introduce the 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 Henry Warden and the Southeastern Railway Com- pany 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, mat- ter, or thing whatsoever, as they the said Southeastern Railway Company and the said Charles Warton and Henry Warden do hereby severally admit and ac- knowledge; 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 dis- puted.” And the recital goes on to state that it had been agreed that the claims contained in the schedule should be referred to an arbitrator. The true meaning of the deed is that the arbitration shall be confined to the matters specified in the sched- ule; and the admission is made for the purpose of that deed. I do not think that the parties ever contemplated that whatever cause of action either might have against the other.should finally cease. A recital in such a deed would be binding, 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 Carpenter v. Buller, 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 intention of the parties to prevent the plaintiffs from bringing such an action as the present.’ Channell, B. observed: ‘If we could see the parties had agreed to release all other claims in con- sideration of the agreement to re- fer, then there might be an estoppel; but that does not appear to have been their meaning. On _ these grounds the plaintiffs 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 ex- press 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 terms of the whole deed; and in that way we have endeavored to [cHAP. X. 416 ESTOPPEL BY DEED. The rule respecting the recital of immaterial or unnecessary matters is the same as that in relation to general recitals; the recital 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 court of New York obseryed in the case above cited. The date of a deed may be denied when it is immaterial, though not otherwise? In the case first cited the plaintiff exe- cuted a deed to the Rockingham Manufacturing Company, bear- ing date the 28th of January, 1836, and the company were not organized until the 10th of February, 1836, though incorporated the November preceding, and in fact this agreement was made on the 22d of January, 1836, before the date of the deed and the organization of the company. 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 re- cited that it was then made and so made at their request, and this was conclusive that the deed was then made, and the date was immaterial. _ The ground of the estoppel, indeed, appears in those cases in which a party is held 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 contradicted.* 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. Chaffin ° it had been laid down arrive at the true construction of the deed in the present case.’ 1 Reed v. McCourt, 41 N. Y. 435; Walker v. Sioux City Co., 65 Iowa, 563 (unnecessary matter of law); Champlain R. Co. v. Valentine, 19 Barb, 484. See also .Deery »v. Cray, 5 Wall. 795; Comings v. Well- man, 14 N. H. 287, 293. 2Carpenter v. Buller, 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. 4 Hays v. Askew, 5 Jones, 63; Southeastern Ry. Co. ». Warton, 6 Hurl. & N. 520; Blackhall v. Gib- son, 2 L. R. Ir. 49, 57. 53 Dev. 108. SECT. I1.] RECITALS. 417 upon that ground that there was no estoppel to either party to a deed of bargain and sale to show that one of the bargainors, recited to be a feme covert, was in fact a feme sole at the time the deed was executed.!. The same doctrine applies to the ac- knowledgment of receipt of the considération in a deed; the recital, according to the weight of authority, is not conclusive. Mr. Justice Cowen, as we shall see, expressly rests the case upon the principle above set forth.’ 1 Henderson, C. J. speaking for the court, said: ‘ Recitals in a deed are estoppels when they are of the essence of the contract; that is, . where unless the facts recited exist the contract, it is presumed, would not have been made. As if A re- cites that he is seised in fee of cer- tain lands which he bargains and sells in fee he is estopped to deny that he is seised in fee; for without such seisin it is fair to presume that the contract would not have been made. But if the recital be that he is seised in fee by purchase from C, here neither the bargainor nor bargainee is estopped from aver- ring and proving that he is seised by purchase from D, unless it ap- pear that the seisin in fee by pur- chase from C was part of the con- tract, and without which it would not have been made. For ordinarily the seisin only is of the essence of the contract, and how and from whom derived are but circum- stances. So of every other recital. And this distinction reconciles the many apparent contradictions in the books, some declaring that re- citals are estoppels and others that they are not. In the case under consideration, that the feme was the wife of Jacks was not of the essence of the contract. It formed no part of it. It was a mere circumstance of description, more unfavorable to the defendant or rather the bargainee than if she had been sole. For if sole, the deed was effectual by sealing and delivery. If she was covert, her private examina- “tion was necessary to make it her deed. In truth, her coverture was a fact for which the bargainee neither gave nor received anything. Nor did he on that account re- ceive anything by the deed which he would not have received if she had been sole. Neither did it form the basis nor in any manner move or conduce to the contract. It is therefore mere matter of evidence, and like all other evidence may be rebutted by contrary proof... . But the case does not rest upon general reasoning. If A S by his deed, reciting that she is a feme covert when in truth she. is a feme sole, grants an annuity, it is a good grant, for that is but a void recital although the grantee had not put it in his writ; and it cannot be a conclusion to him when he shows the deed. Viner’s Abr. M. s. 8, pl. 11; Perkins, s. 40. So if a feme covert, reciting by her deed that she is a feme sole, grant an annuity, this is a void grant, and she shall not be concluded by this recital.’ Perkins, s. 41, note. 2 McCrea v. Purmort, 16 Wend. 460; Chaffee v. Browne, 109 Cal. 211, 41 P. 1028. [cHAP. XI. 418 ESTOPPEL BY DEED. CHAPTER XI. TITLE BY ESTOPPEL. § 1. History of the Subject. ‘Tue subject upon which we now enter / presents at once the most striking and the most complicated doctrine in all the ‘curious learning’ ? of estoppel. An estate by estoppel arises, generally speaking, in cases where a grantor without title makes a lease or conveyance of land * by deed with warranty, and sub- sequently by descent or by purchase acquires the ownership. This after-acquired title of the grantor ‘ inures,’ * it is usual to say, by estoppel to the benefit of the grantee.> It would perhaps more accurately state the situation, under our modern deeds of conveyance, to say that the deed, which the grantor engages to warrant and defend, is a solemn stipulation that the grantor has the title which he is now about to transfer to the grantee as a purchaser for value. In the face of this he cannot be heard to 1Chapter XI. of Rawle on Covenants for Title is recommended for study in connection with the following pages. In the 5th edi- tion of that acute and learned work the author examined the subject of title by estoppel afresh, and threw much new and valuable light upon it. No one did more to refute the vicious doctrine, which has found favor in some states, that estoppel by deed is, or should be made to be, a conveyance. To Judge Hare, however, in his notes to the Duchess of Kingston’s Case, 2 Smith’s Leading Cases, is due the credit of starting the true view. 2‘ Touching estoppels, which is an excellent and curious kind of learning,’ etc. Coke, Litt. 352 a, 3Or personalty. Coolidge »v. Ayers, 76 Vt. 405, 57 A. 970. 4A favorite expression used to be that the after-acquired estate ‘feeds’ the estoppel. 5 Such covenants in a deed by a husband would not bar the grantor from claiming statutory homestead, existing at the time of executing the deed. Doyle v. Coburn, 6 Allen, 71; Siiloway v. Brown, 12 Allen, 30, 33. The deed need not be at- tested to enable it to raise an es- toppel against the grantor, on the covenants. Contra, against a purchaser from him even with no- tice. Chamberlain v. Spargur, 86 N. Y. 603; Wood v. Chapin, 3 Kern. 509, under statutes. Title by estoppel is peculiar in SECT. I.] TITLE BY ESTOPPEL. 419 say, after making the transfer, that he had not that title at the time. So his new title lies lifeless in his hands against such purchaser; the estoppel not being a true conveyance.! By the old common law only four kinds of assurance 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; and we may pass this too 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 kind of conveyance, says the Touchstone;? was the most ancient in use, and in some respects exceeded in efficacy that by fine or recovery; for it was of such a nature, by reason of the livery of seisin ever inseparably incident to it, that it re- moved all disseisins, abatements, intrusions, and other wrong- ful 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 dé when the feoffor was out of possession by disseisin. And the learned editor of the Touchstone, Mr. Preston, in a note to this passage says that to make a feoffment good and valid, nothing was wanting but possession; and when the feoffor had possession, though entirely naked, yet a freehold or fee simple passed by it against the feoffor by reason of the livery. The feoffment passed not only al] present estates and interests of the feoffor, but also barred and excluded him (and his heirs prior to the statute 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 has been said, by the presence of the word ‘ dedi’ in the charter of this matter of binding after-ac- 2 Page 203. quired interests. See ante, p. 160. 34 Edw. 1, ¢. 6. 1 Text quoted in Whitley v. John- 418 Edw. 1, c. 104. son, 135 Iowa, 620, 113 N. W. 555. 5 Touchstone, 204. 420 ESTOPPEL BY DEED. [CHAP. XI. feoffment, which word imported a warranty to defend the estate.1 We must now ascertain the character and operation of this ancient warranty. As defined in the work to which we have before referred * the warranty was a covenant real, annexed to an estate of freehold or inheritance, whereby a man and his heirs were bound to war- rant the same, and either upon voucher or by judgment in a writ of warrantia chartz 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 used 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 his heirs in tail of the land so warranted) forever, so that all his rights, present and future, were bound.* ‘And .therefore,’ in the example given in the Touchstone, ‘ if the father be disseised, and the son in his life- time release all his right to the land to the disseisor, and make a warranty in the deed, and then the father dieth and the right descendeth 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 “* 1 Touchstone, 184; Coke, Litt. certain services, the law annexed 383, 384. We shall have something to observe on this word somewhat later. 2 Touchstone, 181. . 3 The subject is more fully ex- plained by Blackstone. ‘By the feudal constitution,’ he observed, ‘if the vassal’s title to enjoy the fee was disputed, he might vouch or call the lord or donor to warrant or insure his gift; which if he failed to do, and the vassal was evicted, the lord was bound to give him another feud of equal value in rec- ompense. And so by our ancient law if before the statute of quia emptores a man enfeoffed another in fee by the feudal verb “dedi,” to hold of himself and his heirs by a warranty to this grant, which bound the feoffor and his heirs, to whom the services (which were the consideration and equivalent for the gift) were originally stipu- lated to be rendered. . . . But in a feoffment in fee by the verb “dedi” since the statute of quia emptores the feoffor only is bound to the implied warranty, and not his heirs; because it is a mere personal contract on the part of the feoffor, the tenure and of course the ancient services resulting back to the superior lord of the fee.’ 2 Black. Com. 300. ‘Touchstone, 182. As to the heir see Bracton’s Note Book, case 944, SECT. I.] TITLE BY ESTOPPEL. 421 estate in tail against the 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 possi- bility of right thereunto. A word is necessary upon the perplexed subject of collateral warranty. This mode of assurance of title arose after and by reason of the passage of the statute de donis conditionalibus. Previous to that act, or rather previous to the statute of Gloucester, 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 estab- lish entails. The statute of Gloucester protected the son of ten- ant 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 war- ranty in the father’s feoffments of his own estate; but this was the extent of the protection. 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. Thus was a contrivance found to avoid the effect of the above-named statutes; and it was called collateral warranty. The warranty was collateral to the title; not necessarily, it should be ob- served, 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.2 An entail could so be effectually barred; and this 1See Bracton’s Note Book, iii. p. 1 — warranty binding heir though without assets. A. D. 1244. 2 And it was held still to prevail if the heir received by descent another estate from the ancestor equal to that conveyed by the latter. 2 Inst. 293; Rawle, Covenants, 6,7, 4th ed. 3No part of the law is more complicated than this subject of collateral warranty has been made. ‘If Littleton,’ said Vaughan, C. J. in Bole v. Horton, Vaughan, 375, ‘had taken that plain way in resolving his many excellent cases in his chapter of warranty, of saying 422 ESTOPPEL BY DEED. [CHAP. XI. -evasion of the policy of feudalism, modified somewhat by mod- ern statutes,' was a recognized mode of assurance in England until within about fifty years of the present time.’ And in either sort of warranty, lineal or collateral, if the warrantor should implead the warrantee the latter (the tenant) might show the warranty and demand judgment whether con- trary to the warranty the warrantor should be suffered to de- mand 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 con- trary to the warranty, the other party would recover the same lands or lands of equal value by force of the warranty. The warrantee, again, might at any time before he was im- pleaded for the land bring a writ of warrantia charte upon the warranty in the deed, against the warrantor or his heirs; and by this proceeding all the land that the heir had from the an- cestor was bound and charged with the warranty in the hands the warranty of the ancestor doth not bind in this case because it is restrained by the statute of Glouces- ter or the statute de donis, and it doth bind in this case as at the common law because not restrained by either statute (for when he wrote, there were no other stat- utes restraining warranties; there is now a third, 11 H. 7), his doc- trine of warranties had been more clear and satisfactory than now it is, being intricated under the terms of lineal and collateral; for that in truth is the genuine resolution of most, if not of all, his cases. For no man’s warranty doth bind or not, directly and a priori, be- cause it is lineal or collateral, for no statute restrains any warranty under those terms from binding, nor no law institutes any warranty in those terms. But those are restraints by consequent only from the restraints of warranties made. by statutes.’ 1 See St. 4 and 5 Anne, c. 16, § 21, by which the collateral warranty of an ancestor having no estate of inheritance in possession was declared void against the heir. This rendered void against an heir the ‘warranty of one who was merely tenant by the curtesy, and had no other estate of inheritance. But the warranty of a tenant in tail still falls upon the heir in England. 2 Black. Com. 303; Russ v. Al- paugh, 118 Mass. 369, 373. The common law of collateral warranty, if in force in Massachusetts, is so only as modified by this statute of Anne. Ibid. Collateral warranty as it stood before the St. 4 & 5 Anne probably never prevailed in this country. Ibid. 2 Warranties and real actions generally were abolished by 3 and 4 Will. 4, c. 27, § 39; ib. c. 74, § 14. See further in regard to collateral warranty, Rawle, Covenants, c. 1; Russ v. Alpaugh, 118 Mass. 369; Southerland v. Stout, 68 N.C. 446. 3 Coke, Litt. 265; Touchstone, 182. SECT. 1.] TITLE BY ESTOPPEL. 423 of all persons to whom it should afterwards go, from the im- petration of the writ; so that if the land warranted should afterwards be recovered from the warrantee, he should .be entitled to recover other lands of the heir, or of the warrantor if living. These observations are sufficient to show that the old com- mon-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 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 un- less, first, the heir have assets from him, and then only to the extent of such assets,’ or unless, secondly, the heir claim the land as 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 x circuity 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 y the land); so that he would be in no better position in a pecuni- ary aspect, which alone the law regards, after the litigation , than before. The law, therefore, wisely holds him estopped, or “ 1 Touchstone, 184. The remedy of recovering other lands in such a case was never in use in Massa- chusetts. Russ v. Alpaugh, 118 Mass. 369; Marston v. Hobbs, 2. Mass. 433, 438. 2 Carson v. New Bellevieu Cem. Co., 104 Penn. St. 575; Utter- back v. Phillips, 81 Ky. 62. With- out warranty the heir is not bound. Bohon v. Bohon, 78 Ky. 408. An heir claiming an independent title in himself is not estopped to assert it by the mere fact of the covenant of his ancestor. Zimmerman v. Wilson, 147 Ala. 275, 40 So. 515. 3See Russ v. Alpaugh, supra; Dodge v. Hogan, 19 R. I. 4, 31 A. 268. 4This is the English common law rule. Russ v. Alpaugh, 118 Mass. 369, 378, 19 Am. Rep. 464. And it is still the law in some of the states, unless recently changed by statute. See cases in note 2, supra; Den d. Flynn ». Williams, 1 Ired. 509. Not so now in Massachusetts. Russ v. Al- 424 ESTOPPEL BY DEED. [CHAP. XI. more properly rebutted, from claiming the land.!_ And the same would be equally true if he should claim the land as heir of his : father (under a title acquired by the father after the convey- ance), regardless of assets; for the land, if a recovery were per- mitted, 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 latter 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 rebutter. He could not, however, claim the premises as 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.” So much as introductory to what we have to say upon the existing law, and as showing the origin of this branch of the doctrine of title by estoppel. We shall recur to the subject hereafter in discussing 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 estoppel. § 2. Leases: Where no Interest passes an Estoppel arises. It is an established rule of law, regardless of covenant, and therefore unlike the case above considered, that where no in- terest passes by a sealed lease, an estate by estoppel is created between the parties and those claiming under them in case of a subsequent acquisition of title by the lessor. The newly ac- quired title ‘feeds’ the estoppel. Thus, in the example put in the case of Trevivan v. Lawrance * if a man makes lease by indenture of D, in which he hath nothing, and afterwards pur- chases 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, paugh, supra. See also Rawle, 2 Thid. Covenants, § 239, and notes. 31 Salk. 276; s. c. 6 Mod. 258; ‘Text quoted in Colton v, Gal- 2 Ld. Raym. 1036. braith, 35 S. C. 531, 14 S. E. 957. SECT. III] TITLE BY ESTOPPEL. 425 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 main- tainable 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 beginning by estoppel, but for all purposes it becomes an estate or interest. It binds the estate of the lessor, and therefore 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 con- sidered that any separation would seem unnatural and forced. § 3. Leases: Where an Interest passes no Estoppel arises. The converse of the above-stated rule is also true, that where an interest 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 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 defendant prevailed.’ 12 Preston, Abstracts, p. 210, where he had an estate at the time as cited by Tindal, C. J. in Webb v. Austin, 7 Man. & G. 701, 724. 2 Coke, Litt. 47 b; Doe d. Strode v. Seaton, 2 Crom. M. & R. 728. But it is held that this rule applies only to the case of leasehold estates; and that in the common conveyance with warranty the estoppel applies against the grantor in respect of after-acquired interests as well of the grant as where he had none. House v. McCormick, 57 N. Y. 310. 3‘TJg there any case,’ said Mr. Baron Parke, ‘ which establishes that the words of such a covenant make any difference? Who could have sued for a breach of this covenant, for not giving up posses- sion at the end of the term? It 426 ESTOPPEL BY DEED. [CHAP. XI. This point arose again 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 sufficient 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 sufficient duration to enable the grantee to take all that the deed purported to give him, — as in the illustration (supra) in Coke, Litt., if a tenant for life were to demise for a term, and then 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 deter- mined. For though it was an admitted principle that the lessee could not dispute the title of his landlord, it was equally clear that where he could confess and avoid it by showing that the landlord’s estate had determined, he was permitted to do so, and thus prove that the lease existed no longer. The rule was held to be the same where the interest was ab initio insufficient.” was not a covenant running with the land, and therefore the heir could not sue. This lease does not operate as an estoppel because Colonel Strode, having a life es- tate, had a right to grant a lease for twenty-one years determinable upon his life, and therefore an in- terest passed; and where an inter- est passes there is no estoppel. In Coke, Litt. 47 b, it is said: ‘A, lessee for the life of B, makes a lease for years by deed indented and after purchases the reversion’ 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.”’ That case is similar to the present except that there the reversion was purchased by the lessor instead of the lessee. That shows that an interest passes, _and then there is no estoppel.’ 1 Langford v. Selmes, 3 Kay & J. 220. 2‘In truth,’ said the learned judge, ‘ the question in this case is whether or not there is any reversion on which the purchaser of the ground rent would have a right to proceed for its recovery by distress or re-entry. As respects the rever- sion the case is in a singular posi- tion. Unquestionably a termor who grants a lease longer than his term thereby parts with his whole inter- est; 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 argument is that on the subsequent SECT. III.] TITLE BY ESTOPPEL. 427 The rule is stated by a writer of high authority in terms sub- stantially these; ! 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 cove- nant against him by the her of the lessor. And the following example is given: Where covenant was brought upon a lease for years by the plaintiff as heir in reversion in fee to his father, and breach being assigned for want of repairs the defendant acquisition of the fee simple by the original lessee an estoppel arose, by which on the expiration of the origi- nal lease the supposed under-lessee will hold of the under-lessor who had affected to demise to him, at a rent of £6, for a term greater than he was possessed of at the date of the underlease. There is no au- thority 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 suffi- cient to effect the whole object of the deed, yet where the interest was ab initio insufficient, there, in order that the deed may not lose its effect, the parties are estopped from say- ing 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. 275, which was of a different char- acter. That was a case where a person having a reversionary in- terest made a grant, and it was sup- posed from the report in 1 Salkeld that an interest there passed by way of estoppel during the first period, and out of the estate during the latter period of the demise. It appears, however, from another report of the same case, said to be in 3 Salkeld, sed qu. (and it is im- possible, therefore, to treat it as an authority), that there was no inter- est at all because there had been no attornment in respect of the original interest, of the lessor which he purported to grant, and there- fore 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 difficulty in that case because the true reason of the rule is that a lessee having accepted a lease can- not plead to an action by his lessor that the lessor nil habuit in tene- mentis. That is the principle of estoppel; but I never heard it doubted that where a person has granted a lease exceeding in dura- tion the actual term which he held, the effect of that would be a demise 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 reversion to belong to the lessor and heirs, the defendant must traverse it; for to confess and avoid would be to ad- ‘mit the existing title in the devisec. Weld v. Baxter, 1 Hurl. & N. 568, in Exchequer Chamber, per Cromp- ton, J.; s. c. 11 Ex. 816. 1Sir E. V. Williams, in note to Walton v. Waterhouse, 3 Saund. 419. 428 ESTOPPEL BY DEED. [CHAP. XI. pleaded that the father, when he made the lease, was only ten- ant for life, and the father being dead, the lease had determined, and traversing the allegation of reversion in fee in the father, — the plea was held good on demurrer.!_ Upon the same principle it seems that the lessee is not estopped from showing that the lessor was seised only in right of his wife, and that she died before the covenant was broken.? The principle is simply this; that while the lessor is not per- mitted to say that he had no estate when he executed the lease, he may say that he exhausted his interest by the lease. For example, the effect of a tenant’s granting a lease of a greater interest than he possesses, or merely of his entire interest, is to make an assignment of his term;* and therefore if he subse- quently acquire the interest of the original owner (that is, if he now acquire the reversion), he takes the position of the rever- sioner. And as the lease was void against him for the excess above the tenant’s interest, the (middle) tenant being now in the situation of the reversioner may avoid the lease at the expi- ration of his own original term.* But neither he nor the lessee can say that the former had no interest 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 a 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, because he took nothing by the lease, 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.§ In regard to the tenant the rule (as we shall see hereafter) is still broader. Thus, while he cannot deny that the landlord 1 Brudnell v, Roberts, 2 Wils. 143. _4See Langford v. Selmes, 3 Kay 2 Blake v. Foster, 8 T. R. 487. & J. 220. 3 1 Stephens’s Com. 512, 524, 7th 5 Abstracts, 217. ed. 6 Langford ». Selmes, supra. SECT. Iv.] TITLE BY ESTOPPEL. 429 had a title when he granted the lease, he may show that, being himself already in possession, he accepted the lease under a mistake of fact concerning the title, or through the fraud of the lessor. And the above-mentioned rules prevail as well where the lease is verbal (when not void under the Statute of Frauds) as where it is in writing under seal.! § 4. Grantor 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, mortgage,” and the like. The general rule, as we have said,’ is that upon the acquisition of title * by the grantor of a warranty deed for value, made before title accrued, the interest is a lifeless thing in the hands of the grantor; or, according to common language, it ‘ inures’ to the grantee, giving to him a title by estoppel; ° and the contrary if the conveyance was without warranty.’ We shall devote the 1See post, chapter 14. 2 See post, pp. 447, 448; Haney v. Ray, 54 Mich. 635. 3 Ante, p. 418. *He must have a beneficial in- terest and not merely an interest for re-transfer. Haslan v, Jordan, 104 Me. 49, 70 A. 1066. 5 But tenant in tail in remainder cannot, apart from statute, bar the entail by warranty deed. Allen ». Ashley Schoo] Fund, 102 Mass. 262. The statute allowing tenant in tail in possession to bar the entail is an- other thing. See Holland v. Cruft, 3 Gray, 162; Whittaker v. Whittaker, 99 Mass. 364. Contra, by statute, if at the time of the conveyance the land is in the adverse possession of another. Al- temus v. Nickell, 115 Ky. 506, 74 8. W. 221, 103 A. S. R. 333. One who has negligently purchased from grantor having no title does not have priority over one who has in good faith purchased from same grantor after having acquired title. Wheeler v. Young, 76 Conn. 44, 55 A. 670. The estoppel arises only when the covenantor takes the new title in the same right in which he had recently conveyed it. Lauve v. Wilson, 114 La. 699, 38 So. 522. 8Smith v. Williams, 44 Mich. 240; Brown v. Phillips, 40 Mich. 264; Boone v. Armstrong, 87 Ind. 168 (mortgage); Randall v. Lower, 98 Ind. 255, 257 (mortgage); Han- nah v. Collins, 94 Ind. 201 (attempt to set up tax title); Dugan »v. Fol- lett, 100 Ill. 581; Wadhams ». Swan, 109 Ill. 46; Dobbins v. Cru- ger, 108 Ill. 188; Smith v. De Russy, 29 N. J. Eq. 407; Hart v. Gregg, 32 Ohio St. 502; Kelly v. Seward, 51 Vt. 436; Western M. Co. v. Pey- tonia Coal Co., 8 W. Va. 406; Ryan v. United States, 136 U. 8. 68, 10 Sup. Ct. 918, 34 L. Ed. 447; De Frieze v. Quint, 94 Cal. 653, 30 P. 1, 28 A.S.R. 151; Armstrong v. Ports- mouth Building Co:, 57 Kan. 62, ESTOPPEL BY DEED. [CHAP. XI. 430 remainder of the present chapter to a particular examination 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, upon ther application, between grantor and grantee, of the above- stated rule. “To determine whether the grantee will have against the grantor a title by estoppel upon the acquisition of title by thé 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 sherifi’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.’ 45 P. 67; New Orleans v. Riddell, _ 118 La. 1051, 37 So. 966. So too of an assignment, without warranty, of a mortgage. Weed Sewing Ma- chine Co. v. Emerson, 115 Mass. 554. See Merritt v. Harris, 102 Mass. 326; Forster v. Forster, 129 Mass. 559. A grantor, notwith- standing his warranty, could prob- ably buy in a tax title on a sale of the premises for taxes due from his grantee; but not for taxes due when he (the grantor) owned the estate. Hannah v. Collins, 94 Ind. 201. . 1Quere in regard to the effect of a covenant to extend a line, or to convey, as title should subse- quently be acquired, where there is no present grant beyond the title owned? See Hoboken v. Pennsyl- vania R. Co., 124 U. 8. 656, 692, where it seems to be admitted that there might be an estoppel. But an estoppel of the kind which is the mere deduction of a statute may, it is said in this case, be extinguished by a later statute. If, however, a right of property had really been acquired under the first statute, could the second, as matter of con- stitutional law, cut it off? : 2 Emerson v. Sansome, 41 Cal. 552; Dougald v. Dougherty, 11 Ga. 578, 594; Frey v. Rawsour, 66 N. Car. 466. But it is of course bind- ing in regard to the existing title. Gorham »v, Brenon, 2 Dev. 174. See Eldridge v. Trustees of Schools, 111 Il. 576, 580, holding that a deed made in obedience to an order of court is not made under coercion. SECT. 1v.] TITLE BY ESTOPPEL. 431 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 warranty. Cases of this kind are those in which the grantor’s deed contains a certain recital or affirmation, express or implied, that he is seised 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 Recitals, will be to pre- vent the grantor ever after from denying that he was so seised (whatever may be the truth); and by consequence he will be estopped from saying that such estate has not passed to the grantee.? This subject is illustrated by a case decided by the Supreme Court of the United States.? In that case the averment of the specific estate in question was not in so many words expressed, but the court 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 convey 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 Courts have no power to make an order in the sale of a decedent’s es- tate, which will enable the purchaser to take an after-acquired title. Flemmer v. Travelers’ Ins. Co., 89 Ind. 164. Or, it seems, of any other estate to be sold by order of court. 1A buyer, however, will get no more than he bargains for, though the seller may misrepresent the extent of his title. Holman ». Dukes, 110 Ind. 195. In the ab- sence of anything of the kind, and of warranty, there is no estoppel against the grantor’s claiming the after-acquired estate. Cuthrell v. Hawkins, 98 N. Car. 203. The question is of course one of inten- tion on the face of the deed. _Han- non v. Christopher, 34 N. J. Eq. 459; McAdams ¥- Bailéy, 169 Ind: 518, 82 N. E. 1057, 124 A. S. R. 240; Shreve v. Copper Bell Min. Co., 11 Mont. 309, 28 P. 315; Salem Imp. Co. v. McCourt, 26 Or. 93, 41 P. 1105; Lindsay v. Freeman, 83 Tex. 259, 18 S. W. 727. The case of Smiley v. Fries, 104 Ill. 416, is probably not to be taken to mean that there can be no estoppel to set up an after-acquired estate upon a recital. 2Van Rensselaer v. Kearney, 11 How. 297. 432 ESTOPPEL BY DEED. [CHAP. XI. under them from denying that they were seised of the particular estate at the time of the conveyance.! The court upon a review of the cages 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 seised or possessed of a particular estate in the prem- ises, 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 will be estopped ever afterwards from denying that he was so seised and possessed 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 conveyance must necessarily have influenced the grantee in making the purchase, and hence the grantor and those in privity with him should in good faith and fair dealing be forever thereafter precluded from gainsaying it. And this principle has been applied to the conveyance (without regard-to warranty) of a married woman.? 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 affirma- tion. If to assert the interest is not inconsistent with the recital, the grantor and those in privity with him may of course assert it. The estoppel will be no wider than the terms of the deed.3 1 The following cases were cited: Watts & S. 151; Bachelder »v. Goodtitle v. Bailey, 2 Cowp. 601; Bensley v. Burdon, 2 Sim. & 8. 524; s.c.6 Law J. Ch. 85; Right v. Buck- nell, 2 Barn. & Ad. 278; Doe d. Marchant v. Errington, 8 Scott, 210; Rees »v. Lloyd, Wightwick, 129; Bowman v. Taylor, 2 Ad. & E. 278; Lainson v. Tremere, 1 Ad. & E. 792; Stowe v. Wyse, 7 Conn. 214; Pen- rose v. Griffith, 4 Binn. 231; Denn ». Cornell, 3 Johns. Cas. 174; Car- ver v. Jackson, 4 Peters, 1. To the same effect see Root v. Crock, 7 Barr, 378; McCall v. Coover, 4 Lovely, 69 Maine, 33; Magruder v. Esmay, 35 Ohio St. 221, 231; Weeks v. Wilkins, 139 N. C. 215, 51S. E. 909. The grantor cannot in a court of equity allege that the land was held in adverse possession by an- other when he conveyed. Ruffin v. Johnson, 5 Heisk. 604. 2 King v. Rea, 56 Ind. 1. See ante, p. 370. 3 See General Finance Co. v. Lib- erator Soc., 10 Ch. D. 15; Heath v. Crealock, L. R. 10 Ch. 30; Crofts v. Middleton, 2 Kay & J. 194; Lov- SECT. Iv.] TITLE BY ESTOPPEL. 433 ¥ To this class of cases must be referred certain decisions under statutes. In Missouri, for example, it is held under provisions of 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.! And similar ett v. Lovett, (1898) 1 Ch. 82; Jack- sonville R. Co. v. Cox, 91 Ill. 500. Release of dower is not convey- ance, and the widow may of course set up a title which she has acquired since releasing. McLeery v. Mc- Leery, 65 Maine, 172. 1 Gibson v. Chouteau, 39 Mo. 536. In this case Holmes, J. in delivering judgment said: ‘If this deed purports to convey the real estate in fee simple absolute, 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, quitclaim, 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 anything more; they do not even raise the statute cove- nants mplied in the words, “ grant, bargain, and sell,’’ nor would these transmit a subsequently acquired title. “Chauvin v. Wagner, 18 Mo. 531. There is no English authority that any other conveyance than a feoffment, fine, or lease operated by way of estoppel to pass an after- acquired title. Rawle, Covenants, 408. The land is described as being part of the tract located under a New Madrid certificate to James Y. O’Carroll, or his legal represent- atives, and as being the same parcel of land conveyed to Pierre Chou- teau, Jr. by Robert Wash, as trustee of Joseph Hertzog, by deed recorded. The habendum is to Pierre Chouteau, Jr. and his heirs forever. This description would seem to show very clearly that neither party contemplated any other than the inchoate title cre- ated by a location under a New Madrid certificate, whatever that might be, and not a fee simple, and that the grantee already had or claimed to have that inchoate right by virtue of a deed from Hert- zog’s trustee, and the grantor releases, quitclaims, and conveys all his interest in the same land and title for the small considera- tion expressed. It is essentially a quitclaim deed, and nothing more. It makes no positive averment that the grantor is seised or possessed of any particular estate in the premises which the deed undertakes to convey and confirm. Such aver- ments, to create an estoppel, must be positive and certain. ...No seisin or possession of any particu- lar estate is affirmed in the deed, either in express terms or by neces- sary implication, whereby an es- toppel might be created. In Van Rensselaer ». Kearney, 11 How. 297, the deed expressly affirmed that the grantor had seisin and possession of the estate conveyed, and undertook to convey and con- firm the same to the grantee. This is not a deed of that character. It falls within the general prin- ciple, which is fully recognized in that case, that a deed of this char- acter, which purports to convey and is understood to convey nothing more than the interest or estate of which the grantor is seised or possessed at the time, does not operate to pass or bind an inter- 434 ESTOPPEL BY DEED. [CHAP. XI. statutes in other states, as in Illinois, Arkansas, California, and Alabama have received a like construction.! In the last-named state it is provided by statute that the words, ‘ grant, bargain, ° and sell,’ or simply ‘ bargain and sell,’ import, in the absence of qualifying language, an express covenant to the grantee, his est not then in existence. In French v. Spencer, 21 How. 228, also the deed expressly affirmed the exist- ence 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 under- take to convey an indefeasible title. It must not be a quitclaim 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 aver- ments of an absolute title in fee simple as would amount to an ex- press warranty, if contained in a covenant of warranty, that the grantor was seised 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 inure to the grantee. The statute provision would seem to be the same in principle as the doctrine laid down in these de- cisions 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 intended to convey and purported to convey 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 under- take to convey a fee simple abso- lute. A similar statute in Illinois has received the same construction which is given to it in this state. Frink v. Darst, 14 Ill. 304. In Cocke v. Brogan, 5 Ark. 693, under a like statute the after-acquired title was held to pass by deeds which conveyed 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 con- clude, therefore, that the after- acquired, inchoate, equitable title to this location did not pass and inure to the grantee under this deed, and that neither the grantee nor these defendants thereby be- came the legal representatives of O’Carroll, Ruddell, and Wilt, in respect to this land.’ 1¥Frink v. Darst, 14 Ill. 304; Cocke v. Brogan, 5 Ark. 693; Vallejo Land Assoc. v. Viera, 48 Cal. 572; Chapman v. Abrahams, 61 Ala. 108; Stewart ». Anderson, 10 Ala. 504; Carter v. Doe, 21. Ala. 72, 91; Blakeslee v. Mobile Life Ins. Co., 57 Ala. 205. SECT. Iv.] TITLE BY ESTOPPEL. 435 heirs, and assigns, that the grantor is seised of an indefeasible estate in fee simple, and for quiet enjoyment.! Next, concerning the cases in which the grantor’s deed con- tains a covenant 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 operates to bar the grantor’s heir, or rather descendant; * but the question now is when the warranty will bar even the grantor. The effect of a limited warranty in a grant of ‘ right, title, and interest’ was considered 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 anything in the premises, one Waters was seised thereof in fee, and that while he was so seised he (the tenant) bargained with him verbally for the purchase of the land. Afterwards the de- mandants, having disseised 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 consideration paid, by deed ‘ granted, sold, and quitclaimed ’ to the demandants 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; ’ where- upon Waters conveyed the premises by deed to him. The de- mandants 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.® 1Jones v. Reese, 65 Ala. 134. For the English law see 44 & 45 Vict. ch. 41, § 19. 2 Huzzey v. Hefferman, 143 Mass. 232, 234; Thielen v, Richardson, 35 Minn. 509. 3 Ante, pp. 423, 424. As heir of the grantor he is barred of course by the warranty whenever the grantor is barred. All title which the grantor acquires after the con- veyance is made available to the grantee by a general warranty; and of course the heir is barred as heir. It is only when he derives title to the premises from another that he can hold them in the face ' of his ancestor’s warranty. 413 Pick. 116. 5‘It is a well-settled principle 436 ESTOPPEL BY DEED. [CHAP. XI. It is held that if a party having a vested and a contingent interest in property convey by deed, with general warranty, of the common law,’ said Mr. Jus- tice Wilde, ‘that if one conveys lands or other real estate with a general covenant of warranty against all lawful claims and de- mands, he cannot be allowed to set up against his grantee or those claiming under him any title sub- sequently acquired either by pur- chase or otherwise. Such new title will inure 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 cove- nant; and it is wise policy to re- press litigation and to prevent a circuity 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 subsequently obtained by him, because, if he should recover against his grantee, the grantee in his 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 administer strict and exact justice; whereas if the grantee were driven to his action to re- cover the value of the land, exact justice might not be obtained be- cause 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 es- toppel would not be applicable. And such appears to be the law in regard to the covenant in question, by which the demandants attempt to estop 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 undertook to assert and defend. To extend the cove- nant further would be to reject or do away the restrictive words of it, and to enlarge it to a general covenant of warranty 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 without 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, as the plea avers, the elder and better title; and this would also be no breach of the ten- ant’s covenant. He did not under- take to convey to the demandants an indefeasible estate but only his own title, nor did he agree to war- rant and defend it against all claims and demands but only against those derived from him- self; by which he must be un- derstood to refer to existing claims or encumbrances, and not to any title which he might afterwards acquire by purchase or otherwise from a stranger. (Ellis v. Welch, 6 Mass. 246, 250).... It was then contended by the demand- ants’ counsel that, admitting the tenant is not estopped by his SECT. Iv.] TITLE BY ESTOPPEL. 437 ‘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 es- tate devised to him by his grandfather, one half of which de- vise 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 oper- ated by way of estoppel. The court, however, was of a different opinion. Chief Justice Shaw said that the deeds did not con- tain anything which prevented the petitioner from asserting his title to the contingent interest. The indenture which had been most relied upon contained no stipulation or averment that covenant of warranty, he is never- theless estopped by his convey- ance to deny that he had any title in the land at the time of the conveyance. This also is a well- established principle of the common law. Coke, Litt. 45, 47; Jackson v. Murray, 12 Johns. 201; Jack- son v. Bull, 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 be- fore the time of his conveyance he was in possession of the land under Waters, that afterwards the de- mandants disseised Waters, and be- ing seised by disseisin they conveyed to the tenant all their right and title with a covenant of warranty similar to the one contained in his reconveyance to them. The de+ mandants 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 re-- conveyance might have had a valuable interest in the land by possession and improvements al- though Waters had 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 es- toppel, 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 becomes odious only when misunderstood and misap- plied.’ 1 Blanchard »v. Brooks, 12 Pick. 47; McBridge »v. Greenwood, 11 Ga. 379; Graham v. Graham, 55 Ind. 23; Nicholson v. Caress, 45 Ind. 479; Hanrick v. Patrick, 119 U.S. 156, 175; Rawle, Covenants, 393, 4th ed. ‘See Avery v. Akins, 74 Ind. 283, 291. Itis held that the effect of a warranty will descend upon subsequent remote grantors, though they may convey only their right, title, and interest, so as to bar them from setting up after-ac- quired titles against their grantees. ‘Covenants of warranty may de- scend through the operation of deeds that are mere naked releases indefinitely from party to party.’ Powers v. Patten, 71 Maine, 583; Wilson v. Widenham, 51 Maine, 566; Brown v. Staples, 28 Mame, 497. 438 ESTOPPEL BY DEED. [CHAP. XI. the petitioner’s share and property were of any particular pro- portion. It was manifest that the conveyance was fully satis- fied by applying it to the vested interest. No allegation or aver- ment was falsified by a denial of the claim to the land in con- troversy, 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.1 Indeed, it is settled in Massachusetts, Maine, and elsewhere that the covenant of warranty in a quitclaim deed of the gran- tor’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 con- tained a covenant that the grantor was lawfully seised in fee of the premises, that they were free from all encumbrance, 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 encumbrance created by the grantor be- fore making the conveyance. The covenants were held to be governed by the granting part of the conveyance, ‘ all my right, title, and interest.’ It would follow in accordance with the doctrine of Comstock »v. Smith, above referred to, that the grantor could recover the premises from his grantee under a title acquired from another which was in existence when the deed was executed. In other states, however, the use of such general covenant of warranty operates as effectually by way of rebutter as it does in 1 Brown v. Jackson, 3 Wheat.449. Shumaker v. Johnson, 35 Ind. 33; ? Hoxie v. Finney, 16 Gray, 332; White v. Brocaw, 14 Ohio St. 339; Doane v. Willcutt, 5 Gray, 328; Holbrook v. Debo, 99 Ill. 372. See Sanford v. Sanford, 135 Mass. 314; Merritt v. Harris, 102 Mass. 326; Allen ». Holton, 20 Pick. 458; Russ v. Alpaugh, 118 Mass. 369; Blanchard v. Brooks, 12 Pick. 47; Bennett v. Davis, 90 Me. 457, 37 Sweet v. Brown, 12 Met. 175; A. 864; Manson v. Peaks, 103 Me. Hanrick v. Patrick, 119 U.S. 156, 430, 69 A. 690, 125 A. S. R. 311; 175; Kinnear ». Lowell, 34 Maine, Weeks v. Wilkins, 139 N. C. 215, 299; Locke v. White, 89 Ind. 492; 5158S. E. 909. SECT. Iv.] TITLE BY ESTOPPEL. 439 a conveyance of the fee simple.! Jones v. King was a case in point. The grant was of ‘all right, title, interest, and claim;’ and the 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 forever 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, speak- ing 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 de- mands, he cannot be allowed to set up against his grantee therein ° or those claiming under him any title he himself may subse- quently acquire from another by purchase or otherwise. Such new title would inure by way of estoppel to the use and benefit of his grantee, his heirs and assigns; it was not just that a party should be permitted to hold or recover an estate in violation of his own covenant. In this connection grants with general warranty made by trustees, executors, and administrators, without authority, on behalf of the cestuis que trust or heirs, may be referred to. The warranty being unaythorized by the person intended, the law treats it as the undertaking of the trustee, executor, or adminis- trator himself; and it follows upon the principle of rebutter that: such person and his privies will, if the grant was general, be precluded from claiming against the grantee and his privies any -estate which such trustee, executor, or administrator may happen to acquire in the premises conveyed.? It is also laid down in Massachusetts that qualified 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 claim- 1 Jones v. King, 25 Ill. 383; Mills intention to pass a greater estate v. Catlin, 22 Vt. 98; Steiner v. there is estoppel to set up after- Baughman, 12 Penn. St. 106. See acquired interest. Balch v. Arnold, Calvert v. Sebright, 15 Beav. 156; 9 Wyo. 17, 59 P. 434. Dodge v. Hogan, 19 R. I. 4, 31 A. 2 Prouty v. Mather, 49 Vt. 415. 268. If the conveyance shows an 440 ESTOPPEL BY DEED. [cHAP. XI. ing aright to enjoy the way for some other purpose than that mentioned 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.? Upon these propositions the courts would probably all be agreed. In another case? involving the construction in a deed of par- tition of a similar warranty to that in Flagg v. Flagg 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.‘ This also: would probably be everywhere accepted law. 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 claim- ing 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,thave, claim, or demand any right or title to the aforesaid premises or their ap- purtenances, or any part or parcel thereof forever.’ The defend- ant claimed that the plaintiff had barred her right to dower by- a deed of release made to Joab Harriman subsequently to his quitclaim of the premises. But the court ruled that this was 1 Flagg v. Flagg, 16 Gray, 175. 3 Doane v. Willcutt, 5 Gray, 328. A prior estoppel will be extinguished by subsequent judgment estoppel. . Boynton v. Haggart, 120 Fed. Rep. 819, 57 C. C. A. 301. ? Brigham v. Smith, 4 Gray, 297. Otherwise if not of necessity. Hodges ». Goodspeed, 20 R. I. 537, 40 A. 373. 4See also Wight v. Shaw, 5 Cush. 56; Miller ». Ewing, 6 Cush. 34; Smith v. Strong, 14 Pick. 128; Stearns v. Hendersass, 9 Cush. 497; Horbach ». Boyd, 64 Neb. 129, 89 N. W. 644. i Harriman ». Gray, 49 Maine, 537. SECT. Iv.] TITLE BY ESTOPPEL. 441 no bar.’ The propriety of such a construction has, however, 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.4 A widow’s covenant against all en- cumbrances, in a mortgage of real estate by her, has been held, it may be added, to estop her to set up a claim of dower in the premises.® A deed of land through which a stream runs, though it con- tain the usual covenants of warranty, does not estop the grantor from subsequently erecting a dam below the land, and thereby flooding it under the protection of mill statutes, in the same manner as if the proprietor had derived his title from some other source. And of course if a certain portion of a tract of land is reserved by the grantor, the covenants of warranty cannot prevent him from asserting his right thereto whether under a present or an after-acquired title.’ If the covenants should become extinguished, they can have no effect, it is plain, upon after-acquired interests. In a recent case * the plaintiff brought ejectment under the following circum- stances: The land had been conveyed by A to B with warranty; B conveyed 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 inured to him by reason of the covenants in the first deed by A to B. But the court ruled 1*As between the demandant and Joab Harriman,’ Appleton, J. remarked, ‘ she would be estopped. But the release to Joab does not inure to his grantees, and not in- uring by estoppel to their benefit, they cannot set it up as a bar. It has been’ repeatedly settled that a grantee is not estopped from set- ting up a subsequent title by lan- guage such as is found in the deed of Joab to James Harriman. Nor do the subsequently acquired rights of Joab inure to the use of the grantee.’ Pike v. Galvin, 29 Maine, 183. 2 Rawle, Covenants, 414, 415, where it is said that Pike v. Galvin, and the subsequent case of Loomis ». Pingree, 43 Maine, 299, 314, have not elsewhere been followed. 33 Met. 121. 4See also Miller v. Ewing, 6 Cush. 34; Jackson v. Bradford, 4 Wend. 619. 5 Hoppin v. Hoppin, 96 Ill. 265. 6 Dean v. Colt, 99 Mass. 486. 7Gill ». Grand Tower Co., 92 Til. 249, ®Goodel v. Bennett, 22 Wis. 565. The Bankruptcy Act of 1841 did not extinguish covenants of 442 ESTOPPEL BY DEED. [CHAP. XI. 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 ac- quired the title, did not affect the case, and constituted no estop- pel against the defendant. The covenants, which passed to C, had been extinguished by the conveyance 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 con- veyance was fraudulent and invalid against creditors. The case cited was an action of trespass to land; the plaintiff having conveyed his life interest in trust for the benefit of his wife by deed of quitclaim 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 invalid, the grantor having been insolvent 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. Chief Justice Shaw 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 he had conveyed with warranty; and it was quite distinguishable from the case where the grantor subsequently purchased another estate. It was immaterial, he said, whether or not the original conveyance was fraudulent against creditors. If it was not, then the prop- erty 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 encumbrance against which he had war- ranted. In this case the purchase of the interest was only an ex- warranty in a deed. Bush v. Cooper, 2 Newcomb v. Presbrey, 8 Met. 18 How. 82. 406. 1 Gibbs v. Thayer, 6 Cush. 30. SECT. Iv.] TITLE BY ESTOPPEL. 443 tinguishment of an encumbrance; and by the doctrine of estoppel this purchase of the outstanding right of creditors in- ured to the benefit of the plaintifi’s grantee.! Improvements erected by the grantor in possession also inure 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 held to be as effective by way of estoppel as words of conveyance.2 The doctrine seems to rest upon the same grounds as that concerning the estoppel of a grantor in fee with warranty to set up an out- standing title against his grantee, namely, that of the prevention of circuity of action. 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. Indeed, whatever the form of the covenant of assurance, if a grantor obligate himself to protect his grantee in the estate which he assumes to convey, 1Text quoted in Hallyburton v. Slagle, 1832 N. C. 947, 44 S. E. 655. It is immaterial whether vendor had no title at time of conveyance or only a defective title. Ibid. : 2? Humphreys »v. Maine, 40. 3 Long Island R. Co. v. Conklin, 29 N. Y. 572; Goodtitle v. Bailey, 2 Cowp. 597; Smith »v. Williams, 44 Mich. 240. Some authorities hold that in regard to the acts of Newman, 51 strangers the covenant for quiet enjoyment upon an agreement for a lease in the future extends only to the time when possession is to be taken. Hertzberg v. Beisenback, 64 Texas, 262; King v. Reynolds, 67 Ala. 233. In New York the remedy is against the party in- terfering with the lessee’s right of possession. Gardner v. Keteltas, 3 Hill, 330. But see Coe v. Clay, 5 Bing. 440, and the two cases just cited. 444 [CHAP. XI. ESTOPPEL BY DEED. he will be estopped to set up an after-acquired title against him and turn him round to a suit upon the covenants.} It is important to notice the distinction between covenants of seisin and against encumbrances, and the cdvenants for further assurance and of warranty.2. The distinction was clearly pre- sented in the case of Chauvin v. Wagner.’ In this case Chauvin and wife joined in a conveyance of the wife’s land by a deed which the court held ineffectual to convey her estate by reason of a defective certificate of acknowledgment. This deed con- tained statutory covenants of seisin, against encumbrances, and for further assurance. The plaintiffs, 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 re- cover it of the defendants, who claimed under the conveyance mentioned. The court held that the plaintiffs were not estopped by the covenants. * 1Smith v. Williams, 44 Mich. 240. 2Chauvin v. Wagner, 18 Mo. 531. See Heath v. Crealock, L. R. 10 Ch. 30; General Finance Co. v. Liberator Soc., 10 Ch. D. 15. 318 Mo. 531. ‘Mr. Justice Gamble, who de- livered the opinion, said that but one of the statutory covenants in the deed in question ran with the land, which was the covenant for further assurance. Collier v. Gam- ble, 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 encum- brance. A right of action exists in either case upon the appropriate covenant, on the execution of the deed; but the damages to be re- covered may be enhanced by sub- sequent events. A recovery 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 cove- nant was made. Mosely v. Hunter, 15 Mo. 328. The liability 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 con- nected 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 asserting 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 SECT. Iv.] TITLE BY ESTOPPEL. 445 There remain to be mentioned certain cases of implied war- ranty having a similar operation. In the case of a partition of lands by writ between co-tenants the law imports a warranty of the common title, and holds it incompatible 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 Peters, 86; Kinsman ». Loomis, 11 Ohio, 478; Root v. Crock, 7 Barr, 380; Stowe v. Wyse, 7 Conn. 214. 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 making the con- veyance. ... If the plaintiffs are not estopped by the covenants of seisin or against encumbrances, are they affected by the covenant for further assurance? This cove- nant runs with the land. If Fran- cis D. Chauvin, the ancestor, had acquired a further or better title to the premises after his convey- ance, he would have been compelled 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 ac- quired any title to the property from their father. In respect to it there is no privity between 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 assets by descent were equal to the value of the prop- erty 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 Rectro v. Waugh, 17 Mo. 13; Dean ». 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 stipulation ‘“ 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 some- thing 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 mother, and they could not be held to convey it then unless they had assets of equal value from their father. No such fact has been shown in the case. If the plaintiffs are to be held bound to make as- surance because of equal assets descended from the father, it must be shown by the defendants.’ Sealed articles of agreement for the conveyance of land, it may be observed, do not amount to a cove- nant for further assurance, and do not estop the obligor from claiming the land. Anonymous, 1 Hayw. 331. 446 (CHAP. XI. ESTOPPEL BY DEED. himself in antagonism to his co-tenants and their common war- rantor.! The rule, it is said, does not apply to the case of partition in pais, by conveyance between the parties; in that case there appears to be no estoppel, apart from recitals, unless there is an express warranty.? And the rule itself has been subjected to some qualification. In a case in Ohio a question arose of the effect of a partition between co-devisees upon a then 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 seised in fee of the premises in which she now claimed dower. The land was conveyed to Hedges her father without any release of dower. He died leaving this and other land to his children; they made partition of the property, and the land in contro- versy was assigned to the defendant. It was held that-the rule of estoppel did not apply, because the title which had ripened in favor of the demandant was at the time of the partition inchoate and incapable of being asserted.* 1 Rountree v. Denson, 59 Wis. 522; Weiser v. Weiser, 5 Watts, 279; 1 Washburn, Real Prop. 431, 432; 2 Black. Com. 300. 2 Rountree v. Denson, 59 Wis. 522; Weiser v. Weiser, 5 Watts, 279. Where the grant is in fee with general warranty, the co-tenant grantee will have the benefit of the estoppel against his late as- sociate, the grantor, should he at- tempt to set up an after-acquired title. Rountree ». Denson, 59 Wis. 522. Contra, if the warranty is qualified so as to extend only to present interests. Doane »v. Willeutt, 5 Gray, 328; s. c. 16 Gray, 368. ? Walker v. Hall, 15 Ohio St. 355. 4Mr. Chief Justice Brinkerhoff, speaking for the court, said: ‘Is the plaintiff precluded from assert- ing her claim to dower in a portion of the lands partitioned among her and her co-devises by the mutual , warranty which the law implies as arising and subsisting inter se between parties to a partition so long as ,the privity of estate con- tinues between them? This is a serious question, and one not free from difficulty. That such warranty as a general rule exists at common law, is clear from the old books. “Tf the purparty of one parcener be evicted by a title paramount the partition shall be defeated; 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 be- tween them continues.”” Comyns’s Dig. “ Parcener,’ C, 18; Coke, Litt. 173 b and 174a. “ Applying this common-law duty of co-tenants to aid each other in protecting SECT. Iv.] TITLE BY ESTOPPEL. 447 ‘ The case of a mortgage given back by the purchaser to the vendor of an estate stands upon a footing of its own. While 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 recover any portion of the land by a paramount title and thus to place himself in antagonism to his co-tenants and their common war- rantor.” ‘And where partition 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 war- ranty, 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 off to him.” 1 Washburn, Real Prop. 431, 4382; Venable v. Beau- champ, 3 Dana, 321; Feather v. Strohoecker, 3 Penn. 505; Jones v, Stanton, 11 Mo. 433. That these are the established general rules bearing upon the question under consideration must be- admitted; and it is equally clear that when they are applied to the ordinary case of the acquisition by purchase of an independent, adverse, and paramount title by one co-tenant, and its assertion by him against another after partition, the oper- ation of these rules is equitable and just. In such case it is but just that the purchaser of the ad- verse title should be held to have purchased for the common benefit of all parties to the prior partition, and that his rights under such pur- chase 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 except the case of Woodbridge ». Banning, 14 Ohio St. 328, I have not been able. to find a case in which any exception to the appli- cation of these general rules has been recognized. But the cases in which the doctrine of implied warranty between partitioners has been invoked and applied 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 adverse and paramount title, and the attempt to assert such title against co-partitioners. But this is not such a case. As in Wood- bridge v. Banning, supra, this is a case in which by the operation of law and the act of God there has subsequent to the partition ri- pened 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 implied 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 doctrines of implied war- ranty and consequent estoppel between co-partitioners originated ‘at common law; and though based on considerations of natural equity they were long applied only in proceedings at common law by writ of partition. That form of proceeding is now obsolete, and has never had a place in the prac- tice of our courts; it being super- seded by proceedings in equity and under special statutes. And it [cHAP. XI. 448 ESTOPPEL BY DEED. it is true that where money is loaned, or something equivalent done, upon the security of a mortgage in fee with general warranty, the mortgagor cannot set up an after-acquired estate against the (unsatisfied) mortgagee;1 it is equally true that where the transaction is simply a purchase, with such mortgage back to secure payment of the purchase-money, the rule does not apply.? In Randall ». Lower the court well declared that a mortgagee who had with warranty granted the property to the mortgagor, and yet had no title at the time, had broken his own covenant,’ and by his own act in assuming to grant what he did not own lessened the estate which his grantee mortgaged seems to us that when the prin- ciples of the common law are as here invoked as guides to proceed- ings in equity, they ought to be applied only so far as the ends of justice will allow. The warranty under consideration is not a war- ranty in fact, but a warranty by im- plication of law only. The law raises the implication for the attainment of justice; and the implication should cease whenever its application will work injustice. To hold Mrs. Walker estopped to claim dower in this case by reason of an implied warranty would be unjust to her; but to award it to her in accordance with the provisions of our statute in respect to improvements made subsequent to alienation by the husband, and decreeing contribu- tion by all the co-partitioners to recompense Mrs. Hall for the loss of her equal proportion of the estate exclusive of the dower estate of Mrs. Walker wi!l do justice to all... . The case of Woodbridge v. Banning, before referred to, was closely analogous to this. There a partition was had between parties as heirs of Anthony Banning, de- ceased. Subsequently a spoliated will of the common ancestor was established and admitted to pro- bate. And in an action by a de- visee under the will who had been a party to the proceeding in parti- tion, to recover lands which the partition had assigned to other parties, he was held not to be estopped by the proceedings in partition. I think I am not mis- taken in saying, however, that in that case the common-law doctrine of implied warranty between co- partitioners escaped the attention of the court. Had it been other- wise, the reasons given for the decision would probably have been modified; but the decision would have been the same.’ 1 Randall v. Lower, 98 Ind. 255; Boone v. Armstrong, 87 Ind. 168. He cannot show that the estate is less than a fee simple. Trope »v. Kerns, 83 Cal. 553, 23 P. 691. ? Randall v. Lower, supra; Brown v. Phillips, 40 Mich. 264; Haynes v. Stevens, 11 N. H. 28; Smith ». Connell, 32 Maine, 123. The case of Hitchcock ». Fortier, 65 II. 239, contra, is not well considered, and is denied in Randall v. Lower. 3 And the purchaser could sue therefor notwithstanding the cove- nants of his mortgage. Ibid.; Hub- bard v. Norton, 10 Conn. 422; Connor v. Eddy, 25 Mo. 72; Lot v. Thomas, 2 N. J. 407; Sumner »v. Barnard, 12 Met. 459; Haynes ». Stevens, 11 N. H. 28; ante, p. 391, SECT. V.] TITLE BY ESTOPPEL. 449 back to him. It was not good faith in the grantor to grasp for after-acquired property, when he himself had assumed to con- vey all the title which his mortgagor undertook to mortgage back; it was enough that the grantor acquired what he had conveyed. That too was all that could in reason be considered to have been the intention in the grant of an estate momentarily to the purchaser, and directly reconveyed. The authorities indicate some divergence in regard to the ground of the rule,! but the rule itself is clear. § 5. Grantee before and Grantee after Title acquired.? We proceed to the case of a contest between a grantee be- fore title acquired and a grantee afterwards, who had no notice of the prior conveyance. And it now becomes necessary to ascertain more precisely than heretofore the 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 is the true view, does the estoppel fall upon the assigns of the grantor without notice, as well as upon the heirs? The answer to the first question has been antici- 1See Randall v. Lower, 98 Ind. 255, 260. 2 The author published the sub- stance of the following pages in the American Law Review for January, 1875. The discussion, to be fully understood, should be read entire. 3There are pernicious statutes of recent date in not a few of the states, which make the estoppel act as a conveyance, not saving the rights of purchasers for value with- out notice, after title acquired. See Rawle, Covenants, § 248, note, 5th ed. -Even between grantor and grantee the doctrine that the es- toppel is a conveyance is pernicious, for it cuts off, if the expression means anything, the right of ac- tion by the grantee upon the cove- nants, if he fails to sue before the grantor acquires a title; and ac- quiring a title after suit would de- feat an action well begun. The statute of Kansas may be quoted as an example of what at first might seem to be a very inno- cent and proper, if unskilful, piece of legislation, and of course it is not likely that any harm was in- tended by it: ‘Where a grantor by the terms of his deed undertakes to convey to the grantee an inde- feasible estate in fee simple abso- lute, and shall not, at the time of such conveyance, have the legal title to the estate sought to be con- veyed, but shall afterwards ac- quire it, the legal estate subse- quently acquired by him shall im- mediately pass to the grantee, and 450 ESTOPPEL BY DEED. [CHAP. XI. pated already, in the statement that estoppel is not convey- ance.! But that remains to be shown; and the answer to the second question must also be specially given. The whole sub- ject should be considered 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 similar efficacy. The feoffment was the conveyance by which the lord of a manor parcelled out his lands to his vassals in consideration of fealty and service; and as the vassal promised allegiance for life, the donor in the earliest times gave to him a life estate, and in later times a fee. The feoffment created in all cases a life estate at least, — by right if the feoffor owned an estate in the lands equal to that conveyed; 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 convey- ance, and should afterwards acquire the requisite interest, he was barred from setting it up against his feoffee. The feoffment such conveyance shall be as effect- ive as though such legal estate had been in the grantor at the time of the conveyance.’ Comp. Laws, restricted, inter partes also, to purchasers for value. But the better course by far would be to strike out the words, ‘ immediately 1879, c. 22, § 5, p. 211. If the statute is to stand in this form, clauses should be added saving the rights of purchasers for value without notice after the title was acquired, and also’ of grantees who may have sued for breach of war- ranty or for fraud; and it should be pass to,’ and substitute for them the words, ‘shall not be avail- able against,’ or ‘shall not be al- leged against,’ and then restrict the act to purchasers for value. 1 Ante, p. 419. ? Touchstone, 203; ante, p. 419. SECT. v.] TITLE BY ESTOPPEL. 451 ‘ passeth the present 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.’ ! There was no way in which the feoffor could avail himself of an after-acquired title except by disseising 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 alien 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 even in equity without possession. ‘He cannot purchase the fee,’ says Mr. Préston, “since his feoffment is a disseisin ’ of the owner.” That is, since the owner has been put out. of possession, he cannot alien to one not in possession. Even a release of the new interest to any one but the tenant in possession would be void? Such was what is often called ‘the high and transcendent effect’ of an estoppel at the common law; in point of fact it appears to be nothing more than the transcendent effect of a delivery of the donor’s seisin in the gift of a fief. He who tech- nically disseised another acquired for all purposes, so long as he retained uncontested possession, an estate of freehold; and the disseisee though having still the right of property could make no use of it until the disseisin was terminated, except by way of release to the party in possession. Now, this estate of freehold was as effectually passed by livery of seisin 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. Among the acts giving rise to an estoppel in pais (and in early times the feoffment was an act in pais) Coke mentions livery, entry, etc.; these being acts of a notorious char- acter having the like conclusive effect of a deed.* 1 Touchstone, 204. 3 Coke, Litt. 270 a. 22 Preston’s Abstracts, p. 211. 4 Coke, Litt. 352 a. 452 ESTOPPEL BY DEED. [CHAP. XI. From 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 either from an ex- press warranty, or, in the absence of such, from 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 as well as an express warranty was usually something different from the estoppel. The estoppel was merely the effect of the livery, operating actually to pass after-acquired interests; the implied warranty arising from dedi, like an express warranty, was probably most generally used either as a voucher against the feoffor when the lands were demanded by another, or as ground for a writ of warrantia charts, 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.! But it seems that the 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 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 use of the warranty directly against the warrantor was probably seldom called into requisition; for it would not often happen that the lord would endeavor to regain possession in this way, knowing how vain (when he could not overawe the court) would be the attempt to enter an action at law against his tenant in the face of his own solemn conveyance. If dissat- isfied with his tenant, he would be more likely to resort to the rough but effective method of the times, an eviction vi et armis. But if the 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 (dedi) relied upon as creating the implied warranty certainly possessed no inherent potency, as 1 Touchstone, 181, note; 2 Black, 2 Coke, Litt. 265 a; Touchstone, Com. 300. 182. SECT. V.] TITLE BY ESTOPPEL. 453 appears from the fact that in other kinds of alienation, as in the grant and bargain and sale where the words ‘ dedi et concessi ’ are also the operative terms, ‘ dedi’ has never imported a war- ranty. Indeed, the only reason why it was deemed necessary to fix a warranty inseparably upon the particular gift con- taining the words ‘dedi et concessi’ was because that gift was the gift of a fief, and without the fief the relation which was entered into between feoffor and feoffee, that of lord and vassal, could not endure. When, therefore, feoffors bethought themselves, by omitting a clause of warranty, to escape the consequences of a disseisin of the feoffees, Par- liament took action of a special nature, applicable only to the feoffment, and established the implied warranty under consideration.! It follows that the passing of future interests 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 where the contest related to the pass- ing to the feoffee of after-acquired interests, 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 that is true, no argument can be based upon the operation of the feoffment warranty to show the effect of a warranty 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 only an agknowledgment of record of a feoffment made; though it did not in all respects possess the efficacy of a feoff- 18¢. de bigamis, 4 Edw. 1, c. 6 (a. D. 1276). Writers from Coke down have spoken of this statute as though the warranty was raised by reason of the words, ‘ dedi et con- cessi.’ These words are merely de- scriptiveof the conveyance intended, to wit, a feoffment. The warranty was annexed because a fief was given. 2 See also the consideration of the common-law warranty in 2 Smith’s L. C. 731, 6th Am. ed. 3 Doe d. Christmas v. Oliver, 10 Barn. & C. 181; Weale v. Lower, Pollexf. 66. 454 ESTOPPEL BY DEED. [cHAP. XI. ment.1 But the form of fine above mentioned had in some particulars even greater 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. It was in reference to this property of a fine that rights were said to be barred by fine and non-claim.’ This particular fine also oper- ated to bar estates tail,* and therefore had the-further tortious effect of a feoffment in displacing remainders and reversions; ° and it was also used to pass the estates and bar the rights of married women. But this last operation appears not to have been tortious, since it was preceded by a private examination of the wife.® Spence, however, says that the fine sur concessit — which was employed where the cognizor, in order to make an end of dis- putes, though he acknowledged no precedent right, yet granted to the cognizee an estate de novo by way of supposed compo- sition 7 — was usually resorted to in order to bind by way of estoppel the contingent, or executory, or other estates and inter- ests of married women.’ And in the same connection he speaks of fines generally as operating by way of estoppel, which might include 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 reasonable 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 1See Touchstone, 203. 41 Spence, ut supra. 21 Spence, Equity, 164. 51 Stephen’s Com. 566. 31 Stephen’s Com. 564, 565. 61 Spence, Equity, 165. The references to this valuable work 71 Stephen’s Com. 563. are uniformly to the 7th edition. 8 Ibid. SECT. V.] TITLE BY ESTOPPEL. 455 estate or a fee. If a tenant for years, for example, levied the fine without 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 the 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 was brought should be actually seised of the freehold, otherwise the recovery was void.2 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 disseising the ancestor in tail, he had a freehold estate; and this the demand- ant recovered. And when the title descended, it passed of neces- sity to the recoveror; for the tenant could not enter upon him contrary to his conveyance so as to enfeoff another, or to suffer a fine or another recovery. And an attempt to alien the interest by bargain and sale, grant, or release, would be futile, for the same reason that prevailed where a feofiment had been made. Concerning this method of assurance also we fail to find even the slightest evidence that the ‘ transcendent effect of estoppel ’ was anything 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 equally 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, commonly at least, a fief. ‘These estates for life are, like in- heritances, of a feudal nature, and were for some time the high- est 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 12 Sanders, Uses, 15. 32 Sanders, Uses, 15; 1 Spence, 21 Stephen’s Com. 572; 1 Equity, 165. Spence, Equity, 165. 41 Stephen’s Com. 512. 456 ESTOPPEL BY DEED. {cHAP. XI. or livery of seisin, as fees themselves.’ 1_ This method of assur- ance may therefore be passed over as already explained in its effects upon after-acquired interests in what has been said con- cerning 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; 2 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 a 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, inuring to him and creating and vesting in him the freehold during the continuance of the term for years.* The tenant was considered, and is still considered, as having possession, but not 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 in- terest passes by the lease, no estoppel arises concerning after- acquired estates, and the converse 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- wards purchases the reversion 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 rever- sion, stands in the shoes of the assignor, who could not be bound by the lease for the excess. However, in equity the lessor upon acquiring an interest equal to that demised will be bound, if the lease was founded on a valuable consideration, to give effect and confirmation to the demise by way of grant- ing a further assurance.’ In order, then, to show the operation of the lease upon after- 11 Stephen’s Com. 254. See also 53 Washb. Real Prop. 498 ib. 172-174, where the feud is more 6 Coke, Litt. 47 b; Doe d. Strode fully explained. v. Seaton, 2 Crom : : ; p. M. & R. 728 21 Stephen’s Com. 512. Webb ». Austin, 7 Man. & G. 701: ea Stephen’s Com. 512; Coke, ante, pp. 416, 417. Litt. 143 a. 72 Preston, Abstracts, 217. 4 Coke, Litt. 49 a, 49 b. SECT. vV,] TITLE BY ESTOPPEL. 457 acquired interests, we must suppose that the lessor had no interest 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 inden- ture of lease, or a fine sur concessit, for years, operates at first by way of estoppel, and finally when the grantor acquires an ownership, it attaches the seisin and creates an interest, or produces the relation of landlord and tenant. The term com- mences 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 case of Trevivan v. Lawrance,? which may be con- sidered 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 suffers it to descend to his heir, or bar- gains and sells it to A, the heir or A shall be bound by this estoppel. In Bacon’s abridgment there is a still stronger ex- ample to the effect that the acquisition of title by the lessor will avail the lessee for years, even against a subsequent feoffee of the lessor. . ; The explanation of this property of the lease seems (apart from the operation of the registry laws) to be found in the fact of the possession of the lessee. Possession is notice of an inter- est the nature or extent of which a purchaser is bound to ascer- tain. The purchaser therefore cannot, on the strength of an after-acquired title of the lessor which he (the purchaser) now sets up against the lessee, claim the right to eject the lessee.‘ 12 Preston, Abstracts, 210. 21 Salk. 276; s. c. 6 Mod. 258; 2 Ld. Raym. 1036. 3 Leases, O. See also Webb ». Austin, 7 Man. & G. 701. 4A more elaborate explanation was given in the second edition of this work, which, however, amounted to much the same thing as the one just given. In substance it was this: 1. The lease is without effect until possession is taken under it. 2. After possession taken by the lessee the lessor is in no situa- tion to give effect to an estate after- wards acquired to a subsequent pur- chaser, without the consent of the tenant. The tenant’s refusal to be cut off would constitute him an adverse holder in respect of the term; which would prevent the sale from taking effect as against the term. The lessor, while able to convey the reversion without hav- ing possession, could not convey with it the particular estate against the tenant’s will. He could, in other words, convey’ his scisin (CHAP. XI. 458 ESTOPPEL BY DEED. Now, there cannot be a perfect tenancy without actual posses- sion,! but there may be a perfect grant by mere passing of title deeds. Hence the case of the lease does not necessarily carry with it ordinary grants. The estoppel upon the lessor’s assign is founded upon notice, not upon any notion of privity between the lessor and the purchaser from him. Privity in estoppel, it cannot be too strongly laid down, is a different thing from priv- ity in contract. The position of privy in contract is one of mutual relation, as between contractor and contractee, and can- not be supported without a consideration, actual or (as in a deed) implied. The question, then, of privity in such a case, supposing the existence of a consideration, is the question whether the supposed privy may be treated as party to the con- tract. Privity in estoppel, on the other hand, is purely a rela- (which of course was not parted with by the lease for years), but he could not convey seisin and pos- session without having possession. The lease would therefore stand, 1 Coke, Litt. 270 a; 1 Stephen’s Com. 513. It is sometimes said that under the Statute of Uses an entry of the lessee of a term is not neces- sary the statute transferring the possession to the use. Touchstone, 267, note e. But this, if intended as a universal proposition, seems to. be inaccurate. Estates less than a freehold are not embraced within the statute, and remain as they stood before. 3 Washb. Real Prop. 378. The statute carries the posses- sion of present freehold estates to the grantee (cestui que use) by de- claring that the seisin shall pass to him, and in no other way; and if an interest less than a frechold be aliened, the possession does not pass since the seisin remains in the grantor. In the first case there was at common law a livery of seisin, which was of course a delivery of the possession’ and the freehold; in the latter there never was livery, and the consequence is that the pos- session as well as seisin remains in the alienor, and that an entry is necessary to give the tenant a pos- session. And the editor of the Touchstone, unless his remark is limited, is inconsistent with him- self; for in the same note he says that a person having only an in- teresse termini cannot maintain trespass or ejectment. But why not, if the statute gives him direct possession? His right would not be an interesse termini at all, if the editor be correct (and this he him- self suggests), but an estate in pos- session. That there is no transfer of possession in such a case is stated in Coke, Litt. 270 a. ‘ Before en- try,’ says Coke, ‘ the lessee has but interesse termini, an interest ofa term, and no possession.’ There is one case, however, where the stat- ute does transfer the possession to a lessee; but that is the case of a lease followed by a release of the reversion. In that case if the lessee should not enter under the lease, both the seisin and the possession -would remain in the lessor; and upon executing a release the statute would execute the use by transfer- ring the seisin, and with it of course the possession. SECT. v.] TITLE BY ESTOPPEL. 459 tion of succession or subordination of rights, and is inconsistent with consideration, or at least independent of it. The heir is the type of a privy in the law of estoppel. He is bound because he takes without value. It is right that he should be bound; no injustice is done him. Purchase for value without notice cuts away equitable claims, and even legal claims (e. g. actions for breach of contract) which do not amount to estates. Privity is wanting, and notice is excluded. If in the case in question the lessee were not in possession, one who purchased of the lessor for value would take the estate free from the claims of the lessee unless he had notice in some other way. Of the other common-law agsurances, none have had the effi- cacy before or since the Statute of Uses, even with warranty, of transmitting future estates in any other sense than that in which the lease has been seen to operate. The only assurances that need be considered are the release, lease and release, grant, and bargain and sale; the rest being of a character never to raise a question of this kind. The purpose of the release was to effect a conveyance of an ulterior interest in the 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. If the releasor had nothing to release, the release was void, even though, as it seems, it was accompanied with a war- ranty. In other cases of warranty, and solely by reason of the warranty,' the releasor was precluded from ‘setting up an after- acquired interest; but there was this in the nature of the situa- tion to prevent him from conveying the new estate to another, to wit, that the releasee’s being in possession would (as in the ordinary case of a lease) fix upon others notice of his rights. 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- 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 1 Because at common law the port it. Rawle, Covenants, 413, 4th warranty required an estate to sup- ed. 460 ESTOPPEL BY DEED. [CHAP. XI. no estate; and it was void, though he had an estate, if the lessee had not entered.!. Nor would it have changed the case had the releasor added a warranty, since a warranty at common law was void without an estate.2, There was no livery of seisin connected with the conveyance; and it never had a tortious operation. Vice-Chancellor Leach, it is true, in one well-known instance,’ declared that a conveyance by lease and release of itself alone worked an estoppel; but the only question before him was whether there was an estoppel against the releasor and by consequence against a purchaser with notice, which is not the question now under consideration. In point of fact there was a specific recital of title in the release, and upon this ground the ruling upon the existence of an estoppel was affirmed by the Lord Chancellor.4 The opinion of the Vice-Chancellor, it may be added, that a deed of release of itself estopped the re- leasor from claiming an after-acquired estate was soon after impugned and overruled.* The estoppel will not arise for such purpose unless there be a specific recital of a definite estate, as the cases just cited show;® and this too, as it seems, though there be a warranty in common form. The effect of the deed seems therefore much the same as that of a conveyance of right, title, and interest as understood in Massachusetts and Maine.’ The common-law grant was employed for conveying rever- sions and remainders and incorporeal hereditaments, such as advowsons, rents, and the like. There is no suggestion that it was ever used for any other purpose. Livery of seisin was of course inapplicable to it; 9 and it results that it could never pass more than the interest which the grantor had. It never worked a discontinuance when made by a tenant in tail of an advowson, common, remainder, or any other inheritance lying’ 1 Coke, Litt. 270 a; 1 Stephen’s v. Liberator Soc., 10 Ch. D. 15, Com. 519. 22. ? Rawle, Covenants, 413, 4th ed.; 6 See also Heath v. Crealock, L. Seymor’s Case, 10 Coke, 96. R. 10 Ch. 30; Crofts ». Middleton, 3 Bensley v. Burdon, 2Sim.& 8. 2 Kay & J. 194. 519. 7 Ante, pp. 438-441. 48 L. J. Ch. 85. 81 Stephen’s Com. 510, 511; 2 5 Right v. Bucknell, 2°Barn. & Sanders, Uses, 25. Ad. 278; Lloyd v. Lloyd, 4 Dru. & ®Stephen’s Com. 510, 511; 2 War. 369; General Finance Co. Sanders, Uses, 25. SECT. V.] TITLE BY ESTOPPEL. 461 in grant.! So too the grant of a rent-charge out of lands of which the grantor was not seised at the time of the grant was void, though the grantor afterwards purchased the same lands.? The last of the common-law assurances to be noticed, that by bargain and sale, needs a more particular examination; for that has come down to modern times, possessed of the same charac- teristics as distinguished it before the time of Henry VIII., modified only by the Statute of Uses. This conveyance originated from an equitable construction adopted by 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) of attornment. Such was the situation before the Statute of Uses. 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? 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, be- came in process of time transferable by a formal conveyance under the name of a bargain and sale.4 Courts of law in no respect recognized this conveyance, or the claim of the bargainee under it.*> The only redress the bar- gainee 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 bar- gainor was afterwards disseised 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 12 Sanders, Uses, 41; Coke, 4 Thid. Litt. 332. 51 Spence, Equity, 442; 2 22 Sanders, Uses, 28. Washb. Real Prop. 360. © : 32 Sanders, Uses, 43; 1 Spence. 81 Spence, Equity, 445; 2 “Equity, 452; 2 Washb. Real Prop, Washb. Real Prop. 360. 292. 7 Ibid. 462 ESTOPPEL BY DEED. [CHAP. XI. 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 observed 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, nothing for even the Court of Chancery to take cognizance of in such a case. That this is true appears abundantly from the chapter on Bargain and Sale in Sanders.” ‘ There must be a use,’ he says, ‘and a seisin to serve it, in every bargain and sale.’* And on the following page: ‘ All corporeal hereditaments of which the bargainor has a seisin, and all incorporeal hereditaments in actual existence, may be conveyed by bargain and sale, because they may be limited to uses.’ Now, it would seem to make no difference whether the bar- gainor owned the premises and had been disseised, or 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 after- wards 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, if he were a bona fide purchaser, would acquire the right to protection in chancery against the first grantee. 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 the bargainee’s interest was not regarded at law, the bar- gainor, in whom the seisin was held to remain, could make liv- ery 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.* Upon this point the Stat- ute of Uses has affected a radical change, as will be seen later. 1 Tudor’s Lead. Cas. 252; Chud- 22 Sanders, Uses, 43-59. leigh’s Case, 1 Coke, 121; 2 Washb. ' Page 50. Real Prop. 358. 41 Spence, Equity, 445. SECT. v.] TITLE BY ESTOPPEL. 463 In short, the bargain and sale at common law was one of the ‘innocent conveyances ’ of the law, operating merely upon what the grantor might lawfully convey. It could not work a dis- continuance, create a forfeiture, or destroy contingent remain- ders dependent upon particular estates.! A bargain and sale for a term of years, however, had a dif- ferent effect, since this was a lease. Such a conveyance, as it did not create a trust and confidence repugnant to the owner- ship of the legal estate, was upheld at law; 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 pass directly to the use of the bargainee, even when the bargainor had possession; for in any view it must have been very different in character from the warranty of the feoffment. That war- ranty, as we have attempted to show, was, when applied be- tween feoffor and feoffee, simply an expression of the necessary effect of the feoffment itself. It derived its potency from the peculiar nature of the assurance. 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 to legal notions 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 which 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 principles. 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 12 Sanders, Uses, 54. 21 Spence, Equity, 443. 464 [CHAP. XI. ESTOPPEL BY DEED. 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 indeed a warranty was ever employed in this kind of conveyance before the Statute of Uses. When the bargainor had an estate, chancery upheld the trust without a warranty; if he had none, the warranty itself was void.? This view of the operation of the common-law assurances shows that possession and seisin in an alienor who had no 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 statute dispensed with the necessity of livery of seisin by pro- viding that he to whose use another was seised 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 obso- lete; and fines and common recoveries, having been abolished in England and never having gained a strong foothold in this country, are now unknown. 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 potency of all existing modes of assurance. Now, it is safe to affirm 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 in which such an ob- 1 Even since the statute equity may, it seems, sometimes decree a conveyance of the new interest though there was no warranty. Whitfield v. Fausset, 1 Ves. Sr. 389; Wright v. Wright, ib. 409. 2 See Heath v. Crealock, L. R. 10 Ch. 30; General Finance Co. v. Lib- erator Soc., 10 Ch. D. 15, 21, Jessel, M. R.; Moore v. Willis, 2 Hawks, 559. In the last-named case Hen- derson, J. a very able and learned common lawyer, said that if A sold land to B by indenture, he thereby SECT. v.] TITLE BY ESTOPPEL. 465 ) ject can be effected in the most favorable circumstances is by the introduction of appropriate covenants of warranty or for further assurance, or of covenants of seisin and title, or of an express or implied recital of the nature of the interest owned and aliened. There are, indeed, many dicta of the courts, with a few express decisions, giving color to the idea that a deed of bargain and sale, with any of these additions of covenant or recital, 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 executed his deed. Mr. Rawle, in his valuable work on Covenants, makes a very broad and just im- peachment 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 force 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. Few of the cases, however, required any decision of this question; and the statements of the courts are for the greater part mere generalities, having reference to the relation of grantor and grantee or their real privies. In Somes v. Skinner ? Chief Justice Parker, after referring to several of the early authorities, says: ‘The general principle to be deduced 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 conveyance, 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 ques- tion required a solution of the state of the title, the point not arising between grantor and grantee. But the defendant was only a trespasser (asserting no legal claim to the particular affirmed that he had title when he none then to pass, but because A made the deed, and if he had not, _is precluded from showing the fact.’ but afterwards acquired one, the See Cuthrell v. Hawkins, 98 N. Car. claim of B to it would prevail 203, 205; infra, pp. 469 et seq. against A, ‘ not because A passed to 1 Rawle, Covenants, 404, 4th ed. him any title by his deed, for he had 23 Pick. 52, 60. 466 ESTOPPEL BY DEED. [cHAP. XI. locus), 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 trespassers or those who should attempt to disseise him after his title is established.’ Whether the court intended to narrow the foregoing state- ment 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 de- cided was that where a title has inured 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 Chief Justice in Somes v. Skinner deduces his general principle are the old ones relating to feoffments 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. . The defendant was a stranger, setting up no title but relying upon the plaintiff’s want of any. The plaintiff re- covered. The court indeed used broad language upon the point of estoppel. ‘ We think,’ it was said, ‘ the principle is well set- tled 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 to the facts of the case, for the court proceeds 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 fre- quently lock up the title in him and his heirs against whom the 1 Blanchard ». Ellis, 1 Gray, 195, 201. 217 Ala. 770. SECT. v.] TITLE BY ESTOPPEL. 467 estoppel operated, and the party for whose benefit it was in- tended 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 ! Chief Justice Shaw says: ‘It is a well- established rule of law that although a deed as a present convey- ance 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 running 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 after- wards acquire a good title, it forthwith inures to the benefit of the grantee to the same extent as if the grantor and warrantor had had the same good title at the date of the grant and war- ranty, to operate by way of estoppel if the action be brought in such a form that it may be pleaded by way of estoppel; other- wise by way of rebuttal to the claim of any one bound by such warranty.’ ? é 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 ». Ellis, supra, was not cited by counsel or mentioned by the court; and it is not to be sup- posed that it was intended to overrule that well-reasoned case. And it would seem that Cole ». Raymond might be supported upon other grounds than those assumed. The grantor being seised of a life estate in the premises, conveyed them in fee to the defendants, who apparently went into possession; and they 19 Gray, 217, 218. land upon condition of reimbursing 2If the second grantee himself the first grantee in the amount of acquire the new title from another his outlay; and this though the source than his own estopped second grantee took with notice. grantor, he will be allowed, itseems, Smith »v. Hitchcock, 130 Mass. even in Massachusetts to keep the 570. {cHAP. XI. 468 ESTOPPEL BY DEED. 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 obliga- tion taken upon himself the father’s warranty. Now, as the son had no possession, his conveyance to Cole (the plaintiff) would be void under the champerty acts, the land being 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 as- sumed his father’s warranty was estopped. It was not necessary, therefore, to hold that the after-acquired title had actually passed to the defendants.!_ However, the Supreme Court of Massachusetts has recently reaffirmed the doctrine under criti- cism, declaring it to be settled in that state that the estoppel prevails against the second grantee as well as against his grantor.” There are other cases which hold the same doctrine, and in even stronger terms;* especially Jarvis v. Aikens, which also was a contest between the first grantee anda purchaser after title acquired. But this case, besides arising under the record- ing acts, was decided partly upon the authority of Trevivan ». 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 4 was also referred to with approval, 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 ad- heres to the land, is transmitted with the estate; it becomes a muniment of title, and all who afterwards acquire the title 1Jn regard to Cole v. Raymond, see Russ v. Alpaugh, 118 Mass. 369. 2 Knight v. Thayer, 125 Mass. 25, citing Somes v. Skinner, supra; White v. Patten, 24 Pick. 324; Russ v, Alpaugh, 118 Mass. 369, 376. 3 Jarvis v. Aikens, 25 Vt. 635; Doe d. Potts v. Dowdall, 3 Houst. 369; Tifft v. Munson, 57 N. Y. 97 (two judges dissenting); McCusker v. McEvey, 9 R. I. 525; Walker v. Arnold, 71 Vt. 263, 44 A. 351; Gue- gain v. Langis, 1 N. B. 549. Dissent- ing opinion of Potter, J. in 10 R. I. 606. In all of these cases, however, the question arose under the re- cording acts. See also McCarthy v. Mann, 19 Wall. 20, under an act of Congress. 45 Ohio, 198. SECT. V.] TITLE BY ESTOPPEL. 469 take it subject to the burden which the existence of the fact im- poses upon it.’! Upon 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 Bucking- ham 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 conclu- sively bound by the estoppel.’ We shall endeavor to show pres- ently that the assigns, when purchasers without notice, come in, 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 trans- mission of the new interest is denied? The Supreme Court of: Ohio has denied it in Buckingham ». 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 Eveland, under whom the defendant claimed, had an equi- table title prior to the mortgage of Ramey, and that he had afterwards obtained a decree that the patent should be con- sidered 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 Eveland’s grantee. Now, it was claimed for the plaintiff that when Ramey became invested with the legal title by patent from the government, that title 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 Eveland could operate. But the court in an able opinion ruled otherwise. However, the point was not considered material in the case, since Eveland had claimed by an equitable title paramount to that of Ramey, and anterior to the date of the mortgage. 1 See also Bank of Uticav. Merse- _ ting, 50 Conn. 113 (where the ques- reau, 3 Barb. Ch. 568. tion was not decided); Robinson v, 22 Ohio St. 551. Douthit, 64 Texas, 101, 106 (ques- 3 See General Finance Co. v. Lib- _ tion not decided). erator Soc., 10 Ch. D. 15, 24, Jessel, 42 Ohio St. 551. M.R.; Salisbury Sav. Soc. v. Cut- 470 ESTOPPEL BY DEED. [cHAP. XI. 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 on his covenant of warranty; and this brings us to Blanchard ». Ellis,: already mentioned. There it was decided that though upon eviction of a grantee his grantor (who had conveyed with warranty) had acquired a paramount title to the premises, this would not prevent the grantee from maintain- ing an action on the covenant against encumbrances and recover- ing the amount paid for the land, with interest. ‘ Strictly speaking,’ said Mr. Justice Thomas, ‘ there would seem to be no transmutation of estate when the new title comes to the grantor. Nor is there any force in the 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 according 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 war- ranty from the simple rebutter of Lord Coke,? which should bar a future right to avoid a circuity of action, to its present condi- tion, in which there is claimed for it the full force of a feoffment, or fine, or common recovery at the common 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 application. . . . Supposing it to be well settled that if a new title come to the grantor before the eviction of his grantee, it would inure 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 deci- 11 Gray, 195. the notion that the covenant of 2 Coke, Litt. 265 a. warranty, however broad, could °The writer personally knows have the effect of actually trans- that the opinion of this able judge _mitting an estate. was to the last very strongly against SECT. v.] TITLE BY ESTOPPEL. 471 sion 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 paramount, 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 encumbrances, or in mitigation of damages for the breach of it.’ ! The point has been more directly decided.in Pennsylvania. In Chew v. Barnet? certain parties sold to James Wilson a large tract of land under articles by which he was to recon- vey the same in mortgage, and agreed that they would have patents for the same taken out in his name. Before this agree- ment was performed Wilson conveyed the land with covenants of warranty and for further assurance to the plaintiff Chew. Af- terwards 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 convey- ance from Judge [James] Wilson? When that conveyance was executed, the legal title was in Jeremiah Parker by patents from the commonwealth; 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 inured to the benefit of Mr. Chew. It did so, but only in equity, and to entitle him to call for a convey- ance from Judge Wilson, and not as vesting the title in him of itself, as contended, by estoppel. The facts present the ordinary 1 See to the same effect Burton». Smith, 12 Mo. 344, a remarkable Reeds, 20 Ind. 87; Noonan ». Ils- case, in which the court compelled ley, 21 Wis. 139; Innisv. Lyman, 62 the grantee to take an after-ac- Wis. 191; Nichol v. Alexander, 28 quired title, and enjoined a judg- Wis. 118; Tuckerv. Clarke,2Sandf. ment at Jaw on the covenants. Ch. 96; Bingham v. Weiderwax, 1 Scott, J. dissented. Comst. 509; Woods v. North, 6 211 Serg. & R. 389. Humph. 309. Contra, Reese v. 472 ESTOPPEL BY DEED. [CHAP. XI. 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 seised 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 intention of the grantor. But here there is not a single feature of a covenant to stand seised, the consideration of which is always blood or marriage; nor is there any of a bargain and sale, where the consideration is valuable; for in every conveyance to uses the covenantor or bargainor must be seised 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 conveyance operates, as I have said, as an agreement which the grantee is entitled to have executed in chancery, as was decided in Whitfield ». Fausset.’ + The court of Pennsylvania in Brown v. McCormick ? seems, however, to have restricted the doctrine of Chew v. Barnet to the position 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- cited case of Brown v. McCormick the first grantee was pre- ferred to the second; but the first grantee was put into posses- sion, which would be a sufficient reason for the decision. The same subject was considered 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. 11 Ves. Sr. 391. 3 See also Bellas v. McCarty, 10 Watts, 26. 26 Watts, 60. 44 Wend. 619. SECT. v.] TITLE BY ESTOPPEL. 473 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 de- scended 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 defendant 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 war- ranted by Sir Marmaduke Wivel’s Case.? In that case a tenant in tail of an advowson, and his son and heir, joined in a grant of the next avoidance. 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 advow- son, 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 uncertain, 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 au- thority 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 war- ranty, 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 re- butter in the case, on the ground that no action could be main- tained upon a covenant of non-claim. There are other cases which support this view, but they need not be set out.® 13 Preston, Abstracts, 25, 26. 4 Page 239. 2 Hob. 45. 5 Wright v. Wright, 1 Ves. Sr. 3 See Lord Hardwicke’s explana- 409. tion of this, 1 Ves. Sr. 391. 6 See Bivins v. Vinzant, 15 Ga. 474 ESTOPPEL BY DEED. [cHAP. XI. In looking upon these authorities as standing upon sound principle it will not be necessary to cast discredit upon the modern covenant of warranty (or that of seisin and title) as not an efficient instrument of rebutter. There is no doubt that the modern covenant may be employed to as good purpose against a grantor (for value) as could the old warranty of the feoff- ment. But that it has not the potency directly to transmit after- acquired interests can, we think, be satisfactorily shown. There is, however, as there was under the old warranty, a distinction between cases where the grantor having no title has a seisin (that is, by disseisin) and where he has not. We pur- pose to devote the remainder of this discussion to the con- sideration of these two situations, taking first the case of a warranty in a bargain and sale by one having neither title nor seisin. 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 seised 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 seised of land of which the covenantor is not at the time seised.? So too it is said that if a joint tenant covenant to stand seised 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 any suggestion that the Statute of Uses operates upon interests acquired after the grant when the con- veyance 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 521; Way v. Arnold, 18 Ga. 181; 1 Cruise, Dig. 349; Tudor’s Lead. Faircloth v. Jordan, 18 Ga. 350; Cas. 258; Crabb, Real Prop. §1646. Jacocks v, Gilliam, 3 Murph. 47; 2Tbid.; Moore, 342; Croke, s. c. 4 Hawks, 310; Dodd v. Will- Eliz. 301; Sanders, Uses, 83. iams, 3 Mo. App. 278. 52 Rolle, Abr. 790, pl. 9. 13 Washb. Real Prop. 376-380; SECT. V.] TITLE BY ESTOPPEL. 475 of the statute. And the only instance in which a use is said to inure 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 shifting uses. But as the examples all show, it is as essential to a conveyance containing such executory limita- tions 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 suspended? 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 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 equity pro- ceeded independently of the warranty. That is, at common law there would not even be 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 cove- nant 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 efficient without as with an estate. But we do not think that it could avail for anything more (aside from giving the grantee a right of action in case of a breach) than a rebutter to the grantor and those in priv- ity with him. ‘Can you produce,’ said a great judge to counsel in a recent case, ‘any authority for the proposition that an es- toppel can be created by a covenant?’ And counsel could not. Warranty, even in its palmy days, when collateral as well as 11 Cruise, Dig. 353. 2 See 2 Touchstone, 529, note; 1 Spence, Equity, 483, 484, note. See also the example given by Lord Hale, C. J. in Weale v. Lower, Pol- lexf. 65: ‘ If a feoffment be made to the use of C and his heirs after the death of A and B, this is no remain- der, but a future use, and the feoffee is seised in fee simple... . So if s the limitation of a use be that after two years, or after the death of John at Stiles, it shall be to the use of J N in fee, the feoffor hath the fee simple remaining in him until this future use come in esse.’ 31 Sanders, Uses, 231. 4 Jessel,» M. R. in General Fi- nance Co: v. Liberator Soc., 10 Ch. D. 15, 18, 24. Of course it was not 476 ESTOPPEL BY DEED. [CHAP. XI. 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 therefore when employed in aid of a wrongful alienation, it operated only against the alienor and his representatives. It always took effect if at all in one of three ways, — by rebut- ter, voucher, or warrantia charte. It cannot, we apprehend, do more now. If title could actually pass when subsequently ac- quired, 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 ancestor. 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 sufficient for all proper purposes that it can be used effectively whenever the grantor or his privies attempt to defeat his expressed intention. Besides, if a cove- nant 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? 7. Again, how impotent a warranty is to pass an estate may be seen by the rule that a tenant in tail in remainder cannot, in the absence of statute, bar the entail or pass an estate by warranty deed; no estoppel arises in such a case? intended to question the operation _ of a covenant by way of rebutter. 18ee 2 Smith’s L. C. 725, 6th Am. ed. 2 Holroyd v. Marshall, 10 H. L. Cas. 191, 211, Lord Westbury; Mitchell v. Winslow, 2 Story, 630 (mortgage of personalty to be ac- quired, as to which, post, p. 483, note); Whitfield v. Fausset, 1 Ves. Sr. 889; Wright v. Wright, ib. 409; Taylor v. Dabar, 1 Cas. in Ch. 274; Noel v. Bewley, 3 Sim. 103; Smith v. Baker, 1 Younge & C. Ch. 223; Goodson v. Beacham, 24 Ga. 154; McWilliams v. Nisly, 2 Serg. & R. 515; Chew v. Barnet, 11 Serg. & R. 389; Steiner v. Baugman, 12 Penn. St. 108; Chauvin v. Wagner, 18 Mo. 531; 2 Sugden, Vendors, 541. But see Bensley v. Burdon, 2 Sim. & S. 519; s. c. 8 L. J. Ch. 85, in which equity refused to interfere as against a purchaser with notice of the es- toppel. The better opinion, how- ever, is in favor of exercising the jurisdiction in such cases. 3 Allen v. Ashley School Fund, 102 Mass. 262. See Whittaker ». Whittaker, 99 Mass. 364; Holland v. Cruft, 3 Gray, 162. Secus, of course, under the statute, in the 4 SECT. vV.] TITLE BY ESTOPPEL. 477 Some of the cases, however, stop short of asserting that the warranty operates as a conveyance, but take a view scarcely less objectionable. Thus, the court of Ohio have said in Doug- * lass v. Scott that the estoppel by warranty ‘ 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 imposes upon it.’ Now, it is apprehended that this is wholly at variance with the prin- ciple upon which burdens fall upon third persons; for it is an elementary principle that a purchaser of land for value without notice takes it free from its latent burdens.1_ 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 se- cret.2. And Mr. Rawle declares that even under the American tegistry acts a grantee is not bound to take notice of a convey- ance made by his grantor before he had a title.2 There is the greatest force in this statement; and it is apprehended that experienced conveyancers would agree in affirming its correct- ness. Besides, there is direct and sufficient authority for the doctrine. * It may, however, be supposed from the analogy of the relation of feoffor and feoffee that there is 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 Bacon’s Abridgement * 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.® case of such deed by tenant in tail in possession. 1See Vredenburgh v. Burnet, 31 N. J. Eq. 229. 2 1 Stephen’s Com. 534. 3 Rawle, Covenants, 428, 4th ed. 4 Dodd v. Williams, 3 Mo, App. 278; State v. Bradish, 14 Mass. 296, 303. Comp. Morse v. Curtis, 140 Mass. 112. And see dissent- ing opinion of Potter, J. in Mc- Cusker v. McEvey, 10 R. I. 606. 5 Leases, O. 6 See Armstrong v. Wheeler, 52 Conn. 428. The true ground of this case was not privity, but that [CHAP. XI. 478 ESTOPPEL BY DEED. We apprehend that this is not an accurate view of the princi- ple of privity.! It is true that in the old law a feoffee was considered to be in privity with his feoffor;? but this was because of the feoffee’s tenure and of 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 is for most purposes held antagonistic. Thus, in Oster- hout v. Shoemaker * Mr. Justice Bronson 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 occu- pant 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 allegiance 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 ». Rochester,* Averill ». Wilson,® and in other cases.® It is true that this doctrine applies to the case of the acquisi- tion of an outstanding title on the part of the grantee; and it is also true that where both parties to a contest for land claim from the same common title only, each may in a rather loose sense be said to be estopped to deny the other’s title.’ But this rule prevails where the common title is identical, and where the 1 the party who owned the right in question owned it not only against his grantor but also against every- body, especially purchasers with notice, and hence against another grantee of his own grantor. , 1 That a man is not necessarily estopped by an estoppel upon his , grantor touching the same estate, see Cracknal] v. Jackson, 11 Ch. 1D. 1 ‘ 2 Coke, Litt. 352 a. 33 Hill, 513. 47 Wheat. 535. 54 Barb. 180. 6 See ante, pp. 376, 388, 389. Com- pare also the well-settled doctrine that an assignee of a mortgage taken for value and without notice takes ' clear of all secret claims against the assignor. Vredenburgh »v. Burnet, 31 N. J. Eq. 229. See Bybee »v. Oregon & Cal. R. Co., 189 U. 8. 663, 11 Sup. Ct. 641, 35 L. Ed. 305. 7 Murphy v. Barnett, 1 Car. L. Rep. 106; Ives ». Sawyer, 4 Dev. & B. 52; Den d. Love v. Gates, ib. 363; Den d. Johnson ». Watts, 1 Jones, 228; Carver v. Jackson, 4 Peters, 1, 83. SECT. v.] TITLE BY ESTOPPEL. 479 _grantee has no other to rely upon.! Thus, in Ives v, Sawyer the plaintiff brought ejectment against the defendant, the plain- tiff 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 rightly 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 different’ 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 executed after he had acquired both. Besides, in Ives v. Sawyer the reason of the defendant’s defeat was that his deed was de- fective; 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. 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 acquires no better title than his grantor appears to possess, he may well be considered (and in general is by the law considered) as freed from the effect of any secret obligations relating 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 putting anything 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 bound in his hands, unless he purchased with notice. In a word, the heir represents the ancestor and 1 Collins v. Bartlett, 44 Cal. 371. | McArthur, 15 Gray, 526, and Fos- 2 The view of ‘the text is borne ter v. Wightman, 123 Mass. 100. out by such cases as Fairchild v. See ante, p. 376, note 3. 480 ESTOPPEL BY DEED. [CHAP. XI. continues his estate; a purchaser does not represent his vendor. It is sufficient protection to one who has been so rash as to purchase before the grantor has a title, that he may call upon his grantor to make a further assurance upon acquiring title, 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 ven- dor;1 the estoppel in such a case is not a conveyance. It would be difficult to draw a sound distinction between the two estoppels. 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 who had no title is very different. Such a case comes within the terms of the Stat- ute 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. The true 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 le- gal estate. Nor could he recover the land in the name of his grantor, for his grantor is estopped by his previous deed. Be- sides, the second conveyance being executed while another is in adverse possession is void against him and those claiming under him under the champerty law.? We have thus attempted to show that our modern assurances with warranty do not possess the efficacy of the ancient feoff- ment in respect of after-acquired estates. But there is another difference which is worthy of note. At common law there was probably no case in which the donor was precluded from set- ‘! Thistle ». Buford, 50 Mo. 278, 126; Farrar v. Farrar, 4 N. H. 191; 281; Shaw v. Beebe, 35 Vt. 204; = Trull v. Skinner, 17 Pick. 213; Rutz Snodgrass v. Ricketts, 13 Cal. 359; v. Kehn, 143 IIl. 558, 29 N. E. 553. Dukes v. Spangler, 35 Ohio St. 119, 23 Washb. Real Prop. 293. SECT. v.] TITLE BY ESTOPPEL. 481 ting 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 doctrine of rebutter. At the present day there are many instances of estoppel upon grantors where there can be no rebutter. Mr. Rawle mentions five classes of cases of this kind, to wit: 1. Where the question has arisen between the assignees of the original title and the assignees of that subsequently ac- quired. 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 es- topped by the covenants, though not liable to an action upon them.? 4. Where the covenantor has been adjudged a bank- rupt; in which case it is held that although his discharge in bankruptcy may be a release from liability on his contracts, yet ‘he will be precluded by his covenants from asserting title? 5. Where the covenants are barred by limitation.* Another case may be mentioned, to wit, where the consideration of the grant with warranty was love and affection only, the contest being between the grantee and a subsequent purchaser, and the grantor making no claim.* 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 future estates directly pass in such cases. In most of the cases under the foregoing heads the point was not neces- 1 Ante, pp. 369, 370. 2 But see ante, p. 371. 3 Rawle, Covenants, 401-403, 4th ed.; Gregory v. Peoples, 80 Va. 355, 357; Bush v. Person, 18 How. by a third person and then ac- quired by the father. The defend- ant was a purchaser of the premises from the father with notice of the deed to the son. It was held that 82. 4Cole v. Raymond, 9 Gray, 217. 5 Robinson v. Douthit, 64 Texas, 101. There a father conveyed to his son with warranty upon the con- sideration above stated. The father had previously created an encum- brance upon the land which, after the grant to his son, was bought in the title derived from the discharge of the encumbrance inured to the son, against the claim of the pur- chaser. Clearly this result would not have followed in a contest be- tween the father and the son. War- ranty in a voluntary conveyance could not rebut the warrantor; re- butter requires a warranty in nature enforceable. 482 ESTOPPEL BY DEED. [CHAP. XI. sarily raised. The question was between grantor and grantee or their privies, while almost the only way that the point could arise (upon a conveyance for value) would be in a con- test between purchasers before and after title acquired. Be- _ tween grantor and grantee for value it is well enough in a mére contest for the new estate to say that it inures and passes to the grantee.! It might as well be so in such a case; the grantor would be no worse off, the grantee no better. The only case of the five which this explanation will not reach is the first. That is the case we have been considering in the main in the preceding pages; and we have endeavored to show that the new title passes to a subsequent purchaser without notice. And Mr. Rawle, upon a learned examination of the subject in another way, reaches the same conclusion.? 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-mentioned 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 estoppel is concerned, are of no greater effect than a specific recital of the facts. The only difference is that by put- ting 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. §6. 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 property; and though it has been held to be so applicable by the Supreme Court of the United States ¢ and by the courts of 1 But not for general purposes. ‘Gottfried v. Miller, 104 U. S. See ante, p. 449, note. 521, patent; Faulks v. Kamp, 17 2 Rawle, Covenants, 427 et seq., Blatchf. 432, same; Curran ». 4th ed. Burdsall, 20 Fed. Rep. 835; same; §2 Smith’s L. C. 720, 6th Am. Littlefield v. Perry, 21 Wall. 205, ed, though there was no warranty. SECT. VI.] TITLE BY ESTOPPEL. 483 South Carolina! and of New York,” strong opinion has been expressed the other way. Mr. Baron Parke doubted the doc- trine in Bryans v. Nix; 4 and the American editors of Smith’s Leading Cases * 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 may now, however, be considered that the weight of authority is in favor of the estoppel wherever there is a sufficient warranty or recital. It is clear, as we have said, that a purchaser without notice is not bound by an estoppel resting on his vendor.’ 1 Frazer v. Hilliard, 2 Strob. 309. See Moore v. Byrum, 10 S. Car. 452, 463. ? Gardiner v. Suydam, 7 N. Y. 357, 363. See Kimberly v. Patchin, 19 N. Y. 330, 339: 3 2 Smith’s L. C. 742, 6th Am. ed. 44 Mees & W. 775, 794. 5 Supra. 6 If a man agrees to sell personal or real property not yet acquired by him, equity will, when he acquires it, enforce his agreement to convey it. Holroyd v. Marshall, 10 H. L. Cas. 191, 211, Lord Westbury. Ante, p. 476. So of mortgages of personalty to be acquired. Ib.; Mitchell v. Winslow, 2 Story, 630. The American authorities upon the latter subject are very numerous and not altogether in harmony; but they are not treated as belonging to the law of title by estoppel. That is a matter of the courts of law as well as of equity. 7 Ante, p. 480. [cHAP. XII. 484 ESTOPPEL BY DEED. CHAPTER XII. RELEASE OF DOWER. TuE 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; though a widow may of course set up any title she may have or acquire distinct from dower, if her deed was merely a release of dower.” Nor is it necessary that the wife should release her dower in the same instrument by which the husband’s estate is conveyed. In the case of Stearns v. Swift the wife had joined with her hus- band ‘ in token of her relinquishment of dower,’ when in fact the husband had previously parted with all his interest in the prem- ises to the grantee in the present deed; and this deed contained 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 release of dower always operated by way of estoppel, 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 1Stearns v. Swift, 8 Pick. 532; Farley v. Eller, 29 Ind. 322; Usher v. Richardson, 29 Maine, 415. That the wife is not estopped to claim dower without a release of the same, even though she join with the husband in the deed, see Lothrop v. Foster, 51 Maine, 367; Gainey v. Anderson, 87 S. C. 47, 68 8. E. 888. Nor is a husband es- topped to claim curtesy in his wife’s lands by having consented to her devising the same. Roach v. White, 94 Ind. 510. 2 McLeery v. McLeery, 65 Maine, 172. 5 Fowler v. Shearer, 7 Mass. 14, CHAP. XII] RELEASE OF DOWER. 485 deed in token of relinquishment of all her right in the bargained premises, she is not estopped to claim the land after her hus- band’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 annexed as expressing her assent to the act of her husband, without words expressing her formal participation in the granting part of the deed. The case does not stand upon the footing of A’s witnessing a conveyance of his own land made by B as B’s land.* On the other hand, if a second husband join his wife in conveying lands of the first husband, the wife will be estopped to claim dower in right of her first marriage.® But in general, where the husband’s deed is inoperative, the wife’s re- lease of dower works no estoppel.® The question was considered by the Supreme Court of Ohio in Woodworth ». Paige ’ whether a wife who releases dower in a deed made without consideration, and to defraud her husband’s creditors, is 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 ex- pressed the opinion that there was no estoppel. This view is not without support; ® but there are serious difficulties in the way of it. It is not the same case at all as the case of a con- test between the widow and the husband’s creditors; in such a contest it is clear that the widow must prevail,® because the 1 Bruce v. Wood, 1 Met. 542. 2 Doane v. Willeutt, 5 Gray, 328, 332; ante, p. 371. The husband’s covenants, of course, will not estop the wife to claim any after-acquired estate. Thompson v. Merrill, 58 Towa, 419. ; 3 Lithgow v. Kavenagh, 9 Mass. 161; Powell v. Monson & M. Co., 3 Mason, 347; Lufkin »v. Curtis, 13 Mass, 223; Raymond »v. Holden, 2 Cush. 264. ‘ 4 Post, chapter 18, §3; Hale v. Skinner, 117 Mass. 474. 5 Rosenthal v. Mayhugh, 33 Ohio St. 155; Usher v. Richardson, 29 Maine, 415. 6 Blain v. Harrison, 11 Ill. 387; Hoppin v. Hoppin, 96 Ill. 265. 75 Ohio St. 70. 8 Lockett v. James, 8 Bush, 28. 9 Robinson v. Bates, 3 Met. 40; Richardson v. Wyman, 62 Maine, 280; Malloney v. Horan, 49 N. Y. ESTOPPEL BY DEED. [CHAP. XII. 486 statutes against conveyances in fraud of creditors do not enlarge the creditors’ rights. Creditors of the husband could not take property of the wife, nor will her joining in her husband’s fraud make the matter different. But in a contest with the husband’s grantee, the ordinary principle may well apply; the widow is estopped against her own releasee; ' the release does not operate indeed by grant, at common law, in any case, but it operates as effectually by estoppel.” 111; Porter v. Lazear, 109 U. S. 84; Morton v. Noble, 57 Ill. 176; Mat- till v. Baas, 89 Ind. 220. 1 Of course, after the death of her husband, her act of conveying in fee with warranty will estop her to claim dower or homestead. Reeves v. Brooks, 80 Ala. 26; Jones v. Reese, 65 Ala. 134; Mattock v. Lee, 9 Ind. 298; Grant v. Parham, 15 Vt. 649. So of fraudulent acts by her. Knox ». Higginbotham, 75 Ga. 699. 2 The subject is further consid- ered in 2 Bigelow, Law of Fraud, 65-67. If fraud was practised on the wife by the grantee, the case would be different. Ib. p. 67. PART IIL. ESTOPPEL IN PAIS. PART IIL. ESTOPPEL IN PAIS. CHAPTER XIII. 5 PRELIMINARY VIEW. Estoppe in pais arises (1) from contract, (2), independently of contract, from act or conduct which has induced a change of position in accordance with the real or apparent intention of the party against whom the estoppel is alleged; ! and it designates some present or past fact ? fixed by or in virtue of the contract, or of the act or conduct in question.’ This statement would not have suited the estoppel in pais of 1 Ante, p. 3. See Gray v. Gray, 83 Mo. 106; Yates » Hurd, 8 Col. 343, 349; Scharfenburg v. New De- catur, 155 Ala. 651, 47 So. 95; Dol- beer v. Livingstone, 100 Cal. 617, 85 P. 328; Nicholson v. Randall Banking Co., 130 Cal. 533, 62 P. 930; Washington Home v. Chicago, 157 Til. 414, 41 N. E. 893; Johnson- Brinkman Com. Co. v. Missouri P. R’y., 126 Mo. 344, 28 8. W. 870, 47 A.S. R. 675; Boles ». Benning- ton, 186 Mo. 522, 38 S. W. 306; State v. Dorton, 145 Mo. 304, 46 S. W. 948; Dye »v. Crary, 13 N. Mex. 439, 85 P. 1038. In these cases the definition given in the third edition of this work was adopted, to wit: ‘An estoppel by matter in pais may be defined as an express or implied admission, be- come indisputable by reason of the circumstance that the party claim- ing the benefit of it has, while act- ing in good faith and in accordance with the real or presumed assent of the other party, been induced by it to change his position.’ But that is cumbrous, and the term ‘ admis- sion’ is not suited to all kinds of estoppel in pais, as e. g. to the case of waiver; chapter 19. 2 See ante, pp. 3, 159, 160. Hence, as a rule, it cannot bind after-ac- quired interests. Mowatt ». Castle Steel Co., 34 Ch. D. 58; East Ala- bama R. Co. v. Tennessee R. Co., 78 Ala. 274. But this may possibly be different in a case analogous to title by estoppel in virtue of a recital. See ante, pp. 431, 482; also pp. 482, 483, as to personalty. A 3 It is believed to be safer to de- scribe than to define estoppel in pais 490 ESTOPPEL IN PAIS. [cuHapP. XIII. the earlier common law. The following acts created the estop- pel of Sir Edward Coke’s time: Livery (of seisin), entry, accept- ance of rent, partition, and the acceptance of an estate.’ These acts in pais possessed the same conclusive effect as the estoppel by record or by deed. The feoffment itself at first, or rather the livery of seisin by which that conveyance was effected, 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 trans- fer a reversion in the same land when held by a tenant of the feoffor.2, But oral conveyance was terminated by the Statute of Frauds. The estoppel arising in cases of partition has already been considered; * estoppel by entry has become obsolete, at least in America; and 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.* Estoppel by the acceptance of rent, as known to 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 hereafter appear. Indeed, the estoppel in pais of the present day has grown up almost entirely since the time of Coke, and embraces cases never contemplated in that character by him or by the lawyers of even much later times, though the old lines are often visible in the newer pathways. Thus, 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 tenant being by virtue of a deed, as we shall see), an estoppel has been in- troduced in the case of bailment, which forbids a bailee, in gen- in the fluctuating condition of the upon the Estoppel of a Tenant to law relating to the subject. Text deny his Landlord’s Title, by Mr. quoted in Murray Hill Min. Co. v. Joseph Willard of the Boston bar. Havenor, 24 Utah, 73, 66 P. 762. §2 Black. Com. 209; 3 Black. \Inst. 352 a. Com. 175. 2 2 Smith’s L. C. 742, 6th Am. ed. 6 Moffat v. Strong, 9 Bosw. 57, * Ante, pp. 445, 446. 65, per Woodruff, J.; Duke ». ‘5 American Law Review, p.1 Ashby, 7 Hurl. & N. 600, 602, Pol- (October, 1871), A valuable article lock, C. B. CHAP. XIII] PRELIMINARY VIEW. 491 eral terms, to dispute his bailor’s title. Other cases of a similar character have arisen; while still others, wholly unlike any of the estoppels of the older law, have come into existence, even within living memory. In no part of the law, indeed, are ac-; tivity and growth more manifest than in this branch of our sub- ject; nowhere is the expansiveness of the common law seen better advantage. The whole subject, as we have intimated, is modern, and, re- jecting most of the old nomenclature, may be considered under two or three heads having modern names. One class of cases is designated in this work as Estoppel by Contract, a term which is intended to embrace (1) all cases in which there is an actual or virtual undertaking to treat a fact as settled, so that it must stand specifically as agreed, and (2) all cases in which an estoppel grows out of the performance of the contract by oper- ation of law. Whether all the cases here referred to ought to be called estoppels is now probably too late to inquire, for it would be vain to resist the current. Much of it must certainly have fallen without the lines of estoppel as laid down by Coke; how some of it, had it arisen, would have been disposed of, is not clear. The truth appears to be that the requirements of modern \ society could not have been expressed in the terms of the old ~ law, and the bands had to be unloosed. Estoppel by Contract / will be the first division to be considered. It should be observed, however, that this head does not include cases of estoppel not arising by or by virtue of the contract itself, though arising in the course of the contract; if the estoppel is no part of the contract itself, or of its legal effect, it belongs to the next head. This next head, which constitutes a most important addition in recent times to the law of estoppel, embraces the class of cases known and herein designated as Estoppel by Con-\, duct; the estoppel arising without regard to contract, or rather . the fact to be taken as true not being necessarily or ordinarily the subject or the effect of contract. At the present day no subject is more constantly before the courts. What would have been done at Jaw in Sir Edward Coke’s time with a case like Pickard v. Sears !— where the owner of goods permitted the / 16 Ad. & E. 469. 492 ESTOPPEL IN PAIS. [cHaP. XIII. property to be sold as another’s 1 — does not appear. Probably upon the attempt of the owner to recover the property in trover or in detinue the defendant would have had recourse to the chancellor to stay the plaintiff’s hand; or perhaps he would have gone there in the first instance upon discovering the fraud and rescinding the contract. At any rate, the estoppel at law for such cases appears to have been unknown. A learned judge has said that this estoppel was a device of the common-law courts, worked out through the system of special pleading, to strengthen and lengthen the arm of the law judges, and so to enable them to do what the Court of Chancery had always done unaided.” This will be the second subject for consideration, and will com- plete the substantive law of estoppel in pais proper. Besides these two classes of cases, the doctrine, or at least the name, of estoppel has been extended during the present century, and especially within thirty or forty years past, to a variety of cases, embraced in the present work under the heads of Election,. and Inconsistent Positions, herein called Quasi-Estoppel, and following the two subjects before mentioned. There are cases too in which the term appears to have been used merely for convenience, as equivalent to ‘bar.’ Such need not be con- sidered. Indeed, in regard to many modern cases it may be doubtful whether anything more has been done than to add a new name to subjects already worked out upon grounds of their own, however nearly those may resemble the grounds of ad- mitted estoppels of the present time. But it must always be understood that such cases stand upon their own grounds, so far as these are distinctive. Thus, in the case of waiver of rights, which is often called a case of estoppel by conduct, the ground upon which the waiver rests is, at least in ordinary cases, knowledge by both parties of the facts; it is not to be supposed that by calling the case ‘estoppel by conduct’ knowledge of the facts on the part of the one claiming the waiver is fatal,? as in the typical example of estoppel by conduct, to wit, misrepresentation of some fact.4 1 See chapter 18. 4In that the waiver, when bind- 2 Bacon, V. C. in Keate v. Phil- ing, operates specifically, and not lips, 18 Ch. D. 560, 577. in the alternative of damages, the 3See post, chapter 19. effect of an estoppel is produced. CHAP. XIII.] PRELIMINARY VIEW. 493 This is enough to indicate that there may be danger in using the term ‘ estoppel ’ freely. It is common enough at present to speak of acquiescence and ratification as an estoppel.!_ Neither the one nor the other, however, can be more than part of an estoppel, at best. An estoppel is certain, being a legal infer- ence or conclusion arising from acts or conduct; while acquies- cence and ratification, like waiver, are but matters of fact which might have been found otherwise. Besides, the most that acquiescence or ratification can do, and this either may under certain circumstances do, is to supply an element neces- sary to the estoppel, and otherwise wanting, as e. g. knowledge of the facts at the time of making a misrepresentation.? But each stands upon its own grounds, and must be made out in its own way, not in the way required by the ordinary estoppel by conduct.? Again, there are cases of agency which have been put as estoppels that are not properly such or are such only with a difference. No doubt at foundation there is a common ele- ment in estoppel in pais and agency; but the two have had a different origin and a different development and hence must be cautiously assimilated. Thus, the rule that one who has left with another, one’s signature to an incomplete mercantile instrument or other contract — that is, with a blank to be filled — is bound by the act of that person, in completing the instrument, has been called an estoppel. Estoppel by conduct broadly this cannot be, for the principal’s conduct in trusting the agent is not, or may not be, in immediate connection with the other’s change of position, as it must be for an estoppel.® 1 See e. g. Aldrich v. Billings, 14 R. I. 232, 239; Sheldon Hat Co. ». Eichmeyer Hat Co., 90 N. Y. 607, 614; McCreary v. Parsons, 31 Kans. 447, 451; Vallette v. Bennett, 69 Ill. 632; Bank of Monongahela Val- ley v. Weston, 172 N. Y. 259, 64 N. E. 946, and other cases in chap- ter 21, at the end. 2 See chapter 18, § 5. 3 Text quoted in Steffens v. Nel- son, 94 Minn. 365, 102 N. W. 871. See Blood v. La Serena, 113 Cal. 221, 41 P. 1017; ante, p. 3. 4See e. g. Jewell v. Rock River Paper Co., 101 Ill. 57. 5 Bank of Ireland v. Evans Char- ities, 5 H. L. Cas. 389; Swan v. North British Co., 2 Hurl. & C. 175, 182, Exch. Ch.; Arnold v. Cheque Bank, 1 C. P. D. 578; Seton v. La- fone, 19 Q. B. D. 68, C. A. affirming 18 Q. B. D. 189; Merchants of the Staple v. Bank of England, 21 Q. B. D. 160,C. A. That this is agency rather than estoppel is clear. Schol- field v. Londesborough, (1895) 1 Q. B. 536, 548; (1896) A. C. 514. x [cHAP. XIII. 494 ESTOPPEL IN PAIS. Nor is there any false representation, the only other kind of estoppel the case could fall under. On the contrary, there is a true representation, to wit, of agency; and the only question is how far the agency ought to extend. That is not estoppel, but agency. The conclusion from the facts is not perhaps necessary and it is a question of excess of instructions. On the other hand, where the principal’s act or omission in the agency is in im- mediate connection with the very change of position by the person dealing with the agent, and is the proximate cause of such change, there may be an estoppel against the principal from denying effect even to a forgery by the agent.! So, again, to hold one out as agent, and then attempt to deny the agency altogether, is (after some one has acted upon the representation) another thing; that is a case of estoppel. The result in this particular case is of course the same; but where there is danger of confusion, things should be called by their right names.? It may be observed in this connection that estoppel by mis- representation or concealment of title was at first argued at the bar, and perhaps considered by the bench, as resting on agency;* but that view never gained acceptance.‘ Similarity is a case for special caution; a point is likely to be reached where the similarity ends. This is particularly true of subjects of such diverse origin as estoppel and agency, notwithstanding their points of contact; estoppel in pais coming from equity, while agency originated probably in slavery. The same conclusion may be reached in such cases by different routes, or a different conclusion may be reached on similar facts. Thus in estoppel the conclusion upon the facts, if clear, is certain, while in agency, where the eatent. of the au- thority is in question, the conclusion is not always necessary and certain, — it may be found either way, though the facts from which the conclusion is to be drawn are not in doubt. See Farquharson v. King, (1902) A. C. 325, reversing same case in (1901) 2 K. B. 697, and showing this distinction; Union Bank ». Mersey Docks, (1899) 2 Q. B. 205. 1Cases in note 5, p. 493. See Brocklesby »v. Temperance’ Soc., (1895) A. C. 173. 2 Even purchase for value with- out notice has been called estoppel. Grimes v. Taft, 98 N. Car. 193, 198. 3 Pickard v. Sears, 6 Ad. & E. 469. 4 See note (a), near the beginning of chapter 18. SECT. I.] ESTOPPEL BY CONTRACT: FACTS AGREED. 495 ~ A. ESTOPPEL BY CONTRACT. CHAPTER XIV. FACTS AGREED OR ASSUMED. §1. The General Principle. Tue first class of cases under the head of Estoppel by Con- tract, as stated in the preceding chapter, arises where there is an actual or a virtual undertaking to treat a fact as specifically settled. Stated in full, the general rule of law appears to be this: A fact agreed or assumed to be true, as the basis of a con- tract, must be taken to be true specifically, until the contract _ itself is lawfully impeached by plaintiff or by defendant, or until some legal proceeding is taken to impeach the truth of the (supposéd) fact; assuming that the contract itself is not con- trary to law.1 In other words, supposing the contract to be lawful and binding, the party or parties (it may be one, it may be all) pledging or justly assuming the fact in question will be estopped from taking any position, to the detriment of other parties, inconsistent with the special fact, except for the purpose of reforming the language of a written contract and making it conform to the real terms of agreement. The rule may be illustrated by two or three examples. Thus, dealing with a person on the footing that he occupies a particu- lar position or character, it may be as administrator, execu- : 1As to illegal contracts see 8. E. 333; Shorman v. Eakin, 47 * Brightman v. Hicks, 108 Mass. 246; Ark. 351, 354; Klenk v. Knobel, 37 Oregonian Ry. Co. v. Oregon Ry. Ark. 304; Webb v. Davis, ib. 555. 2» Co., 10 Sawy. 464; Dupas ». Was- The Arkansas cases were cases of ~ sell, 1 Dillon, 213; Langan v. San- recitals and covenants held con- key, 55 Iowa, 52; Stringfield v. trary to public policy, and hence Southern R. Co., 152 N. C. 125,67 as not creating any estoppel. [CHAP, XIV. 496 ESTOPPEL IN PAIS. tor, trustee, director, agent, or holder of any manner of office, will estop that person, generally speaking, to deny the fact agreed or assumed in regard to his position or character.’ So a contract based upon one’s having a certain title to property will estop the parties, or the party pledging the fact if it be the act of but one,? in the performance of the contract, from claim- ing a different title. And so accepting and treating an article in shipment as baggage may estop owner and carrier from treat- ing it as freight.‘ : The estoppel in this class of cases is fixed by the execution of the contract; nothing further need be shown, where the fact in question is clearly agreed or assumed. The question, then, will be whether the fact has been so agreed; where, in the intention of the parties or in contemplation of law, it has not been, something more than the execution of the contract will be necessary for the estoppel. Acknowledgment of receipt of money or of a commodity, in a contract (to be considered later), may be a case of the kind. On the other hand, this class of estoppels being founded upon contract, it can seldom be an answer to the alleged estoppel, unlike the case of estoppel by conduct, that the party supposed to be estopped acted in ignorance of the facts and under mis- take. There are some exceptions, it is true, but they appear to belong mainly to those cases in which the fact in question turns upon some act done in pursuance of the contract, — as in the case of delivery of possession to a tenant constituting the ground of the tenant’s estoppel, — in distinction from an agreement of the fact itself. 1 See State v. Spaulding, 24 Kans. 1, 11; State v. Stone, 40 Iowa, 547; Du Val v. Marshall, 30 Ark. 230; Hill v. Huckabee, 52 Ala. 155; Riddle v. Hill, 51 Ala. 214; Meyer v. Wiltshire, 92 Ill. 395; Floyd Co. v. Morrison, 40 Iowa, 188; Oak- land Paving Co. v. Rier, 52 Cal. 270; McClure v. Commonwealth, 80 Penn. St. 167; Morris v. State, 47 Texas, 583; Central Railroad »v. Henderson, 69 Ga. 715; Campbell v. Trunnell, 67 Ga. 518; Imboden v. Etowah Mining Co., 70 Ga. &6. 2 See Strougill v. Buck, 14 Q. B. 781; ante, p. 402. 3 Welsch v. Belleville Bank, 94 Til. 191. ‘ Hoeger v. Chicago Ry. Co., 63 Wis. 100. For other examples of the general rule see Perdue ». Brooks, 85 Ala. 459, usury; Gayle v. Johnson, 80 Ala. 388; Cothran v. Brower, 75 Ga. 494, agreement as to issues; Fourth National Bank v. Olney, 63 Mich. 58, authority; State ». Anderson, 16 Tea, 321. SECT. 11.] ESTOPPEL BY CONTRACT: FACTS AGREED. 497 Such is the general rule, and its meaning. But there may be a question further back, for thus far the existence of a valid contract has been assumed. In general, either party may show that the contract is invalid; but may this rule of law itself be subject in any case to the law of estoppel? May the parties, or either of them, be estopped to show some fundamental fact or law, at variance with the fact or law agreed or assumed as necessary to the transaction, which fundamental fact or law, if it could be shown, would invalidate the contract? 1 This ques- tion touches mainly the law relating to corporations, to which we now turn. § 2. Corporations. What we shall have to say now will concern mainly the question of the existence and powers of a corporation; for where there is no dispute concerning the existence of the corpora- tion or its power to perform the particular contract, but the sole inquiry is whether an act or a representation has generated an estoppel, the decision of the case must turn upon the principles of estoppel by conduct, of which later. And in regard to cor- porations it may at the outset be observed that there is no radical 2 distinction between municipal and private bodies or individuals so long as the act in question is not in any form ultra, vires.2 What, however, is ultra vires ‘in any form’ re- mains to be seen. First, then, concerning the question whether a body of men contracting as a corporation can dispute their existence as such St. Louis, 76 Mo. 393; New Haven R. Co. ». Chatham, 42 Conn. 465; Society for Savings v. New London, That is, some fundamental fact in the beginning, as distin- guished from ratification or appro- priating the benefits of the contract. As to that see the chapter on Elec- tion, post. 2 There is perhaps one of degree. The doctrine of acts ultra vires is, no doubt, applied with greater strictness to municipal than to private corporations. Newbery ». Fox, 37 Minn. 141, 143. 3 See e. g. Bank v. Flour Co., 41 Ohio St. 552; Union Depot Co. v. 29 Conn. 192; Chicago Ry. v. Peo- ple, 91 Ill. 251; Martel v. Hast St.’ Louis, 94 Ill. 67; Roby v. Chicago, 64 Ill. 447; Chicago R. Co. v. Joliet, 79 Ill. 39; Logan Co. »v. Lincoln, 81 Ill. 156; Curnen v. New York, 79 N. Y. 511; Calhoun v. American Emigrant Co., 93 U. 8. 124, 130; People v. Maxon, 139 III. 306, 28 N. E. 1074; Sanitary Dist. v. Met. El. Ry. Co., 241 Ill. 622, 89 N. E. 800. 498 ESTOPPEL IN PAIS. [cHAP. XIV. before the law, and so defeat the contract. This question may arise in at least two ways: first, in the way of an attempt to deny that any act of incorporation has ever been granted to the body; secondly, in the way of an attempt to deny the validity of a charter of incorporation issued under a real act of the legis- lature, as e. g. on the ground that that act was unconstitutional. The first form of the question does not often arise, and what is to be said on authority remains to be seen. Ordinary cor- porations are certainly the creatures of statute purely; there can be no such thing without statute. But a non-existing thing can be treated as existing to the extent of creating an estoppel to deny its existence, as in the familiar case of a false represen- tation or warranty of title by the vendor of land, or of the false assumption of the character of executor or the like; and supposing that the assumption of incorporation is not a viola- tion of statute, there may be ground enough for believing that the assumption may be such as to estop the body. Direct stipulation that the body has received a charter from the legis- lature would perhaps make such a case.” The doubt applies only to ordinary corporations; that is, to commercial, religious, and eleemosynary corporations. Counties and towns are deemed corporations at common law in many of the states; and certainly in such states it never could be al- leged (if it could anywhere be alleged) by way of defence to an action against the municipality that it had never been incorpora- ted by the legislature. It should be added that a third person, ase. g. one assuming to act for a supposed corporation, will be estopped probably in any case to deny the truth of the represen- tation expressed or implied in holding out the corporate exist- ence of a body to an innocent person, who has been induced’ thereby to deal upon that footing.’ Supposing, on the other hand, that an act of incorporation (where one is necessary) has been obtained, we are brought to the more common question whether a body assuming to act un- der chartered authority has the right to deny the legality of its existence as a corporation in an action to enforce liability de- 1 Supra, p. 496. §See Corwith v. Culver, 69 Ill. 2 See Rikhoff v. Brown’s Sewing 602. Machine Co., 68 Ind. 388. SECT. II.] ESTOPPEL BY CONTRACT: FACTS AGREED. 499 pendent upon such existence. In answer to this it may be laid down with reference to cases of contract that the bar of estoppel appears to prevail whenever a body, assuming according to the - mode prescribed by law to be a public or a private corporation, attempts to set up any defect in the steps towards its organiza- tion, required by law, against a party who had no notice of such defect when the contract was made.! Thus, in Dooley 2. Cheshire Glass Co. the defendants in an action of contract at- tempted to set up in defence the falsity of the certificate of their organization filed according to the requirement of law; but the court refused to hear them. It was declared that by placing the certificate upon the records the officers were precluded from disputing its truth against an innocent person. A further objection by the defendants, that there had been no such pub- lication of the certificate as the statute required, was also disregarded by the court.? The right of the party with whom a supposed corporation has contracted, to escape liability upon his engagement by denying the legal existence of the body, is a different thing. This ap- pears to be permitted only when it is shown to be of the essence of the contract that the body should be a lawful corporation.’ In ordinary cases it is not allowed an individual to escape an obligation by showing the incapacity of the other party to the contract to act as he has assumed to act. We have elsewhere seen that this is a broad rule of law; 4 and ordinarily it is quite as true of persons liable in contract to corporations as in other cases. In whatever forni a person may have contracted with a de facto corporation, at least where the contract is not in itself entirely beyond the powers of the corporation,’ whether the contract is by subscription to stock, by promissory note, by 1 Dooley v. Cheshire Glass Co., 15 Gray, 494; Lehman v. Warner, 61 Ala. 455; Sherwood ». Alvis, 83 Ala. 115; McCarthy v. Lavasche, 89 Ill. 270; Barboro v. Occidental Grove, 4 Mo. App. 429; Attorney- Gen. v. Simonton, 78 N. Car. 57; Hagerman v. Ohio Building Assoc., 25 Ohio St. 186. But see Boyce v. Methodist Church, 46 Md. 359. 2 Original incorporators who have failed to give notice as required by statute cannot object that others have failed to do the same thing. Seaton v. Grimm, 110 Iowa 145, 81 N. W. 225. 3Lehman »v. Warner, 61 Ala. 455. ‘See infra, p. 501. 5 This limitation is held neces- sary in Alabama. Sherwood »v. Al- vis, 83 Ala. 115, and cases cited. [cHAP. XIV. 500 ESTOPPEL IN PAIS. bond, mortgage, or otherwise, he cannot when sued thereon by the corporation allege the plaintiff’s non-existence before the law at the time of the agreement,! except in the unusual case above mentioned, or where there was fraud in securing recognition as a corporation.” A corporation may in general be required to show its legal existence preliminary to its right to sue in the courts, but that is done as against the defendant (which is of course enough for the particular case) by showing the contract.’ On the other hand, one not a party to a contract with a cor- poration except by force of law may, it seems, dispute the legal existence of the body.* A fortiori may one sued in an action of tort by a body professing to be an ordinary corporation re- quire proof of the plaintiffs’ incorporation and dispute the legal- ity of the acts constituting the supposed corporate existence. But it probably would not be enough in this or in any other case to show that certain preliminary steps not of the essence of the legal organization of the body were omitted. Indeed, what would be enough to show the invalidity of the organization, especially where it has been recognized by the courts or by the state as a legal body, must always be a question of difficulty 1There are many illustrations. See Close v. Glenwood Cem., 107 U.S. 466, 477; Oregonian Ry. Co. v, Oregon Ry. Co., 10 Sawy. 464; Lehman v. Warner, 61 Ala. 455; Cahall v. Citizens’ Building Assoc., ib. 232; Marion Bank v. Dunkin, 54 Ala. 471; Eaton ». Aspinwall, 19 N. Y. 119; Franklin v. Twogood, 18 Iowa, 515; Broadwell v. Merritt, 87 Mo. 95; Butchers’ Bank ». Mc- Donald, 1830 Mass. 264; Commis- sioners v. Bolles, 94 U. 8. 104; Mc- Laughlin v. Citizens’ Building As- soc., 62 Ind. 264; Massey »v. Build- ing Assoc., 22 Kans. 624. See also Phoenix Warehouse Co. v. Badger, 67 N. Y. 294; Stoutimore v. Clark, 70 Mo. 471; National Ins. Co. ». Bowman, 60 Mo. 252; St. Louis v. Shields, 62 Mo. 247; Nashua Ins. Co. v. Moore, 55 N. H. 48; Wilks v. Georgia R. Co., 79 Ala. 180, 187; Commercial Bank v. Pfeiffer, 108 N. Y. 242, 254; Harris v. Gateway Land Co., 128 Ala. 652, 29 So. 611; Raphael v. Crittenden, 189 Cal. 488, 73 P. 238; Young v. Plattner Imp. Co., 41 Colo. 65, 91 P. 1109; Lincoln Park v. Swatek, 204 III. 228, 68 N. E. 429; Minnesota Gas Light Co. v. Denslow, 46 Minn. 171, 48 N. W. 771; West Mo. Land Co. »v. Railway Co., 161 Mo. 595, 61S. W. 847; Marsh v.{Matheas, 19 Utah, 350, 56 P. 1074. 2 Doyle v. Mizner, 42 Mich. 332. 3Lehman ». Warner, supra; Sherwood v. Alvis, 83 Ala. 115. More may be required where there is no contract between the parties, showing the incorporation. Savage v. Russell, 84 Ala. 103, contract rescinded. 4Marion Bank v. Dunkin, 54 Ala. 471. SECT. I1.] ESTOPPEL BY CONTRACT: FACTS AGREED. 501 where there is no specific declaration of statute. It may be added that just as the existence of a supposed corporation may be denied by a defendant sued for a tort, so may the supposed corporation show its non-existence when itself sued for a tort. Next, with regard to the question of the right to deny the power of a lawful corporation to do an act which it has assumed to do, concerning which a distinction must be noticed similar to the one just under consideration. A corporation may in many cases deny its powers to do what it has undertaken when the opposite party could not make such denial. A man cannot set up the incapacity of the party with whom he has contracted in bar of an action by that party for breach of the contract. Legal disability generally, as e. g. in the case of an infant,! is a defence personal to him who is under it, and cannot be made use of by another.? The case of a corporation, not prohibited by law to do the act in question, makes no exception; * one sued 1 Kendall v. Titus, 9 Heisk. 727. 2 The principle is general that one cannot set up a defence which is personal to another, except in cases in which agreement or public policy permits. See e. g. Swann v. Wright, 110 U. S. 590. It was there held that if a party purchase property under a decree reciting the sale to be subject to liens operating against bondholders, already judicially es- tablished or afterwards to be es- tablished in a certain way, he can- not afterwards dispute the validity of such liens, while retaining the property, by showing that fraud was practised in obtaining them. That is a matter for the bondholders. 3 Oregonian Ry. Co. v. Oregon Ry. Co., 10 Sawy. 464, where the ground taken in the text is directly upheld (though reversed on other grounds. 130 U.S.1). ‘ The law,’ said the court, ‘is well settled that a person who contracts with an ap- parent corporation as such is es- topped, when sued on such contract, to say that the plaintiff had no cor- porate existence or power to make such contract. A corporation, like an individual, when sued on a con- tract, may set up as a defence its want of power or capacity to make such contract; but the party with whom it contracts cannot set up such want of power or capacity as a defence to an action by the corpo- ration for a breach thereof. And the reason of the distinction is that legal disability, as in the case of a minor, is a defence personal to the party who is under it, and cannot be taken advantage of by another.’ Deady, J. at p. 477, citing Cowell v. Springs Co., 100 U. S. 61, and the text, supra. See also Branch »v. Jesup, 106 U. S. 468, 481; Gow »v. Collins Lumber Co., 109 Mich. 45, 66 N. W. 676; St. Louis v. David- son, 102 Mo. 149, 14S. W. 825, 22 A. 8. R. 764; Spokane v. Costello, 57 Wash. 183, 106 P. 764. But if the contract of the sup- posed corporation was not only unauthorized but absolutely pro- hibited by law and therefore illegal, 502 ESTOPPEL IN PAIS. [CHAP. XIV. in contract by the body cannot say that the corporation had no lawful existence 1 or power to make the contract,” unless it was such fact may, it seems, be shown when the corporation seeks to enforce the contract. Oregonian Ry. Co. v. Oregon Ry. Co., at p. 479; Semple v. Bank, 5 Sawy. 93. _ It may very well be too that a person who has dealt with a cor- poration upon the footing of stat- utory power in the corporation to do an act may show, when the corporation seeks to enforce its supposed powers against him in the matter, that the statute au- thorizing the transaction was un- constitutional. South Ottawa »v. Perkins, 94 U. 8. 200, 267; Tone v. Columbus, 39 Ohio St. 281. Public policy requires that an ‘act of the legislature which is in contravention of the constitution should be shown to be so as soon as may be, before serious ¢on- sequences have resulted; and cases which declare that a man may be estopped to show such a fact should be scrutinized, to see if the decision is not to be confined within very narrow limits. Of cases of the kind see Motz ». Detroit, 18 Mich. 526; Ferguson v. Landram, 5 Bush, 230; s. c. 1 Bush, 548; Tone v. Columbus, 39 Ohio St. 281, conceding with Counterman »v. Dublin, 38 Ohio St. 515, 517, and South Ottawa v. Perkins, 94 U. 8. 200, 267, that the general rule is against the es- toppel. Benefits received and re- tained may make an exception. See, further, chapter 20. 1One who makes a note payable at a certain place is estopped to deny the existence of the place. Brown v. First Nat. Bank, 103 Ala. 123, 15 So. 435. 2 See Commercial Bank v. Pfeif- fer, 108 N. Y. 242, 254, 15 N. E. 311; Oregonian Ry. Co. v. Ore- gon Ry. Co., 10 Sawy. 464; Cowell v. Springs Co., 100 U. 8. 61; Close v. Glenwood Cem., 107 U. S. 466, 477; Whitney v. Robinson, 53 Wis. 309; Manufacturing Co. ». Montgomery, 74 Mo. 101; French v. Donohue, 29 Minn. 111; Frank- lin v. Twogood, 18 Iowa, 515; Pan- coast v. Travelers’ Ins. Co., 79 Ind. 172; Smelser v. Wayne Turn- pike Co., 82 Ind. 417; Hasselman v. United States Mortg. Co., 97 Ind. 365; Dooley v. Wolcott, 4 Allen, 406; Brouwer v. Appleby, 1 Sandf. 158; St. Louis Gas Co. v. St. Louis, 84 Mo. 202; Father Matthew Soc. v. Fitzwilliams, ib. 406; Imboden v. Etowah Mining Co., 70 Ga. 86; Helena v. Turner, 86 Ark. 577; Central Agric. Assoc. v. Gold Ins. Co. 70 Ala. 120; Estey Manuf. Co. v. Runnels, 55 Mich. 1380; First National Bank v. Gillilan, 72 Mo. 77; Branch »v. Jesup, 106 U. S. 468, 481; -Teu- tonia Bank v. Wagner, 33 La. An. 732; Latiolais v. Citizens’ Bank, ib. 1444; Black River R. Co. »v. Clarke, 25 N. Y. 208; Eaton ». Aspinwall, 19 N. Y. 119; Dutchess Cotton Manuf. Co. v. Davis, 14 Johns. 238; McBroom v. Lebanon, 31 Ind. 268; Eppes v. Mississippi R. Co., 35 Ala. 33; Worcester Med. Inst. v. Harding, 11 Cush. 285; Congregational Soc. v. Perry, 6 N. H. 164; Cochran ». Amold, 58 Penn. St. 399; Ray v. Indian- apolis Ins. Co., 39 Ind. 290; Lucas v. Greenville Assoc., 22 Ohio St. 339; Frost v. Frostburg Coal Co., 24 How. 278; Montgomery ». Whitbeck, 12 N. D. 385, 96 N. W. 327; Portland v. Bituminous Pav. Co., 33 Or. 807, 52 P. 28, 72 A. S. R. 713. The rule in regard to ultra vires appears to be contra in Alabama. Chambers v. Falkner, SECT. I1.] ESTOPPEL BY CONTRACT: FACTS AGREED. 503 prohibited by law to make it, or unless it was stipulated that the bargain should be off in case it should turn out that the cor- poration was acting ultra vires, or unless there was fraud on the part of the body in this particular. The more important question is, When if at all may a cor-: poration itself, not the opposite party, repudiate its under- : taking by alleging that the undertaking was without its powers? Confusion among the earlier authorities will be found in the answer given to this question; nor are the recent cases in per- fect harmony. It appears, however, to be agreed by the better authorities of the present time that if the act undertaken was in and of itself ultra vires of the corporation, no act of the body can have the effect to estop it to allege its want of power to do what was undertaken.! The powers of the ordinary corpora- tion being dependent upon the statute which created the body, those powers cannot of course be enlarged by the body itself; and the act in question being in itself ultra vires, the corpora- tion cannot make it otherwise whether diréctly or indirectly. 65 Ala. 448; Montgomery ». Montgomery Plank Road Co., 31 Ala. 76; Marion Bank »v. Dunkin, 54 Ala. 471. But the reasoning is insufficient. The es- toppel applies there to the question of existence. Central Agric. Assoc. v. Gold Ins. Co., 70 Ala. 120. Whether one who has participated in the formation and business of a corporation de facto is not es- topped to deny the incorporation of the company, quxre. Whipple v. Parker, 29 Mich. 369. See Swartwout v. Mich. Air Line R. Co., 24 Mich. 389, holding that there may be such an estoppel; Wheelock v. Kost, 77 Ill. 296. Dealing with an agent as such may work a like estoppel. Camp- bell v. Trunnell, 67 Ga. 518; Cen- tral Railroad v. Henderson, 69 Ga. 715. 1 Fairtitle v. Gilbert, 2 T. R. 169; In re Companies Acts, 21 Q. B. D. 301; Daviess v. Dickin- son, 117 U. S. 657; ante, p. 380; Saeger v. Mueller, 133 Ill. 86, 24 N. E. 513; Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, 91 N. W. 1081; Macon¥St. R. Co. v. Macon, 112 Ga. 782, 38 S. E. 60; Miester v. Spartan- burg, 68 S. C. 26, 46 S. E. 539. Text quoted in State v. Murphy, 134 Mo. 548, 31 8. W. 748, 56 A. S. R. 515; and in Stealey v. Kansas City, 179 Mo. 400, 78 8. W. 599. 2 McPherson »v. Foster, 43 Iowa, 48; Schaeffer v. Bonham, 95 Iil. 368; South Ottawa v. Perkins, 94 U. S. 260; Anthony v. Jasper, 101 U. 8. 693, 697; Northern Bank »v. -Porter, 110 U. 8. 608, 618; Union Pac. R. Co. v. Chicago Ry. Co. 163 U. S. 564, 16 Sup. Ct. 1173, 41 L. Ed. 265; California Sav. Bank v. Kennedy, 167 U. 8S. 362, 17 Sup. Ct. 831, 42 L. Ed. 198; Concord Nat. Bank v. Hawkins, 174 U. S. 364, 19 Sup. Ct. 739, 43 L. Ed. 1007; Wichmann ». Placerville, 147 Cal. 162, 81 P. 587; Badger v. Inlet Dist., 141 [CHAP. XIV. 504 ESTOPPEL IN PAIS. Thus, if the issuance of municipal bonds was without the powers of the municipality, the fact that citizens stood by and saw them sold to bona fide purchasers for value, and that the corpo- ration afterwards recognized the act of issuance as binding, will not estop it to deny the legality of the bonds in whose hands soever it may be sought to enforce them.! Nor will recitals in the bonds, of the power of the corporation to issue them, work an estoppel.? Nor will the payment of taxes to meet interest on the bonds have the effect of an estoppel in such a case. However, if a contract with a corporation has been performed in good faith by the other party, and the corporation has re- ceived the benefits thereof, it probably cannot interpose against its duties assumed thereunder the defence of ultra vires,‘ as e. g. that the statute creating the charter was unconstitutional.’ Per- Mil. 540, 31 N. E. 170; Eddy Valve Co. v. Crown Point, 166 Ind. 613, 76 N. E. 536; Chehalis Co. »v. Hutcheson, 21 Wash. 82, 57 P. 341, 75°A. S. R. 818. 1 McPherson v. Foster, supra. 2? Northern Bank »v. Porter, 110 U.S. 608. See Carroll v. Smith, 111 U. 8. 556; Boyce v. Methodist Church, 46 Md. 359; Lake v. Gra- ham, 130 U. S. 674; Chaffee v. Potter, 142 U. S. 355, 363, 12 Sup. Ct. 216, 35 L. Ed. 1040; Sutff v. Lake Co. Com’1s., 147 U. S. 230, 138 Sup. Ct. 318, 37 L. Ed. 145. 3 Schaeffer v. Bonham, supra. See Leavenworth v. Barnes, 94 U. 8. 70, 24 L. Ed. 63; Moran »v. Miami, 2 Black. 722, 17 L. Ed. 342. 4Ward v. Johnson, 95 Ill. 215, 240; Darst v. Gale, 83 Ill. 141; Thomas v. Citizens’ Ry. Co., 104 Ill. 462; Peoria R. Co. v. Thomp- son, 103 Ill. 187; Louisville R. Co. v. Flanagan, 113 Ind. 488, 493; Daniels v. Tearney, 102 U. 8. 415, 420; Railway Co. v. Me- Carthy, 96 U. 8. 267; San Antonio v. Mehaffy, ib. 312; Hitchcock »v. Galveston, ib. 351; Morris R. Co. v. Railroad Co., 29 N. J. Eq. 452; Whitney Arms Co. v. Barlow, 63 N. Y. 62; Texas Ry. Co. v. Gentry, 69 Texas, 625. See Bliss v. Keweah Canal Co., 65 Cal. 502. And comp. the rule in equity in regard to in- fants. Goodman v. Winter, 64 Ala. 410, 437; Commonwealth ». Sherman, 18 Penn. St. 346; Magee v. Pacific Imp. Co., 98 Cal. 678, 33 P. 772, 35 A. S. R. 199; Heims Brew. Co. v. Flannery, 187 Iil. 309, 27 N. E. 286; Wood v. Mystic Circle, 212 Ill. 582, 72 N. E. 783; Albin v. Commonwealth, 128 Ky. 295, 108 S. W. 299, quoting the text; Whitehead Lamp ». Brass Co., 70 N. J. Eq. 581, 62 A. 554; Trustees v. Piedmont Realty Co., 1384 N. C. 41, 46S. E. 723; Bond v. Terrell Mfg. Co., 82 Tex. 309, 18 S. W. 691. But a corporation having paid money on a contract which it has afterwards found to be ultra vires may, it seems, rescind and recover back the money. Green Bay Canal Co. v. Hewitt, 62 Wis. 316, 327; Northwestern Packet Co. v. Shaw, 37 Wis. 655. 5See McDonnell v. Alabama Ins. Co., 85 Ala. 401, as to the SECT. 11.] ESTOPPEL BY CONTRACT: FACTS AGREED. 505 haps the corporation could still show that its act was a direct violation of statute.! If, on the other hand, the undertaking was within the general scope of the powers of the corporation, the question will gener- ally be one of agency. If the other contracting party had no knowledge or notice ? that the corporation acted without taking all the steps required by its charter or by-laws, the defence, it is generally held, of irregularities and omission of requirements is not open.’ And the same appears to be true where the power in question is germane to other power given to the corporation by statute.* Nor could the corporation say that a person held out as having authority to sign its bonds, though the holding out consisted only in allowing him to sign them, had no author- ity to act in that way.® Often, however, the case is strengthened by some representa- tion on the part of the corporation, to the effect that the neces- sary steps have been taken to make the contract conform to the requirements of law. When this is the case, and the representa- stockholders’ attempt to deny such constitutionality; Daniels v. Tear- ney, 102 U.S. 415, 420, 421. 1§$wann v. Miller, 82 Ala. 530, 537. 2'Where bonds show on their face that they were issued before the time when the law authorizing them took effect, the holder has fatal notice, for he is bound to know the law authorizing the exe- cution of the bonds. McClure v. Oxford, 94 U. S. 429. See North- ern Bank v. Porter, 110 U. S. 608, 618; Bissell v. Spring Valley, ib. 162. 3In re Romford Canal Co. 24 Ch. D. 85; Webb v. Herne Bay Comrs., L. R. 5 Q. B. 642; An- thony v. Jasper, 101 U. 8. 693, 697; Northern Bank v. Porter, 110 U. S. 608, 618; Gaus v. Chi- cago Ry. Co., 60 Wis. 12; Mer- chants’ Bank v. State Bank, 10 Wall. 604, 644; Commonwealth v. Reading Bank, 137 Mass. 431, 440; Eminence ». Grasser, 81 N. Y. 52; Stoddard v. Shetucket Foundry Co., 34 Conn. 542; Home Ins. Co. v. Sherwood, 72 Mo. 461; Schaeffer v. Bonham, 95 Ill. 368. The New York cases are contra. See infra, p. 506, note 3. Nor perhaps will the rule of the text ap- ply to preclude a supposed cor- poration, when sued upon a con- tract by it, from showing that it has never become a corporation; for in that case its power to make the contract may be wanting al- together. See Boyce v. Methodist Church, 46 Md. 359. A corporation doing business in a state other than that which created it will be es- topped when sued there to say that it has no authority to do business in such state. Clay Ins. Co. ». Huron Salt Co., 31 Mich. 346. 4 West v. Menard Agr. Board, 82 Ill. 205; Chicago Building Assoc. v. Crowell, 65 Ill. 453. 5 Weyauwega v. Ayling, 99 U.S. 112. See Oakland Paving Co. v. Rier, 52 Cal. 270. 506 ESTOPPEL IN PAIS. [cHAP. XIV. tion is a clear, distinct statement,! the corporation, like an in- dividual, will be estopped, if the transaction was not beyond its powers, in favor of an innocent person who has acted upon the representation, to deny the truth of the statement.? This sub- ject has found frequent illustration in actions upon municipal bonds. In these cases it has been repeatedly laid down by the Supreme Court of the United States, by state courts, and in England, that a bona fide purchaser for value, without notice of any defect in the steps preliminary to the execution of the bonds, is not bound to look further than to see that the munici- pality had legislative authority, and that (when required by statute) the officers authorized have decided that the conditions to issuing the bonds have been fulfilled.? And in such a case a 1That of course is essential. School District v. Stone, 106 U. 8. 183. In this case bonds issued by a school district of Iowa recited that they were ‘issued by the board of school directors by au- thority of an election of the voters of said school district held on the thirty-first day of July, 1869, in conformity with the provisions of ch. 98 of acts 12th General Assembly of the state of ‘Iowa.’ The constitution of the state limits indebtedness of school dis- tricts to an amount not exceeding five per cent on the value of their taxable property. The court held that the recital did not import a compliance with the law; it im- plied nothing more than that the bonds were issued by authority of the electors, and that the elec- tion was held in conformity to the statute. The statute, it was said, might have been pursued in regard to the time and place and man- ner of election, and yet the law might have been disregarded in respect to the limitation of indebt- edness. The court conceded that this might be a somewhat strict construction of the recital, but declared that construction ought to be strict when it was proposed by mere recitals on the part of of- ficers of a municipal corporation to exclude inquiry whether bonds issued in its name were made in violation of the constitution. 2 But as to representations in re- gard to its own incorporation, see Boyce v. Methodist Church, 46 -Md. 359; Sutliff v. Lake Co. Com’rs., 147 U. S. 230, 13 Sup. Ct. 318, 37 L. Ed. 145; Waite v. Santa Cruz, 184 U.S. 302, 22 Sup. Ct. 327, 46 L. Ed. 552. That may be a very different thing. 3 New Providence v. Halsey, 117 U. 8. 336; Block v. Commissioners, 99 U. S. 686; Hackett v. Ottawa, ib. 86; Cromwell v. Sac, 96 U. S. 51; Carroll v. Smith, 111 U. S. 556; Sherman v. Simons, 109 U. S. 735; Insurance Co. v. Bruce, 105 U. §. 328; Northern Bank ». Porter, 110 U. S. 608; Coloma »v. Eaves, 92 U. S. 484; Buchanan »v. Litchfield, 102 U. 8. 278; Knox County v. Aspinwall, 21 How. 539; Cotton v. New Providence, 47 N. J. 401; Mutual Benefit Ins. Co. v. Elizabeth, 42 N. J: 235. Contra, Starin ». Genoa, 23 N. Y. 439; In re Sharp, 56 N. Y. 257; Cagwin v. Hancock, 84 N. Y. 532; wu SECT. II.] ESTOPPEL BY CONTRACT: FACTS AGREED. 507 recital upon the bonds that the necessary conditions have been performed is sufficient to estop the municipality as against such a, holder.! It appears unnecessary to the estoppel, in the absence of statute, that the bonds should contain any recital of the perform- ance of the preliminary steps or conditions by the corporation; 2 enough that the holder has taken for value and without notice bonds which the corporation had the power to issue. But no recital will work an estoppel if the act in question was wholly beyond the powers of the corporation; and if part of the bonds issued were within the corporate power, and part beyond, the latter will not be made good by recital.’ The estoppel applies as well against the stockholders of the corporation as against the corporation itself, where the act is within the powers of the body. Thus, a stockholder cannot allege informalities in the issue of stock, which the corporation had power to issue; * but such person may object to an increase of stock not authorized at all by law. Even acquiescence of a stockholder would not bind him in such a case.5 Again, if a Ontario v. Hill, 99 N. Y. 324. And see Steckett v. East Saginaw, 22 Mich. 104; Tone v. Columbus, 39 Ohio St. 281, 298; Brewton »v. Spira, 106 Ala. 229, 17 So. 606; post, chapter 18, § 10. 1 Cases last cited; also Lake ». Graham, 130 U. S. 674, 681; Or- leans v. Platt, 99 U. S. 676, 682; Lyons v. Munson, ib. 684; Me- nasha v. Hazard, 102 U. S. 81; Buchanan v. Litchfield, ib. 278; Tipton v. Locomotive Works, 103 U. S. 523; Harter v. Kernochan, ib. 562; Jasper v. Ballou, ib. 745; San Antonio v. Mehaffy, 96 U. S. 312; Coloma v. Eaves, 92 U. 8. 484; Kenicott v. Supervisors, 16 - Wall. 452; Moultrie v. Savings Bank, 92 U. S. 631; Marcy v. Os- Avego, ib. 637; Rogers v. Burlington, 8 Wall. 654; Moran v. Miami County, 2 Black. 722; Knox Co. v. Wallace, 21 How. 546; Bissell ». Jeffersonville, 24 How. 287. See, further, Mercer County v. Hacket, 1 Wall. 83; Gelpcke ». Dubuque, ib. 175; Meyer v. Mus- catine, ib. 384; Von Hostrup »v. Madison, ib. 291; Cincinnati »v. Morgan, 3 Wall. 275; Eminence v. Grasser, 81 Ky. 52; In re Rom- ford Canal Co., 24 Ch. D. 85; Webb v. Herne Bay.Comrs., L. R. 5 Q. B. 642; Fountaine v. Car- marthen Ry. Co. L. R. 5 Eq. 316. 2 See Brooklyn v. Insurance Co., 99 U.S. 362; Weyauwega v. Ayling, ib. 112. 3 Daviess v. Dickinson, 117 U. 8. 657. See Waite v. Santa Cruz, 184 U. S. 302, 22 Sup. Ct. 327, 46 L. Ed. 552. 4Scovill v. Thayer, 105 U. S. 143, 149; Upton v. Tribilcock, 91 U.S. 45; Chubb »v. Upton, 95 U.S. 665; Pullman v. Upton, 96 U. 8. 328. 5 Scovill v. Thayer, supra. 508 ESTOPPEL IN PAIS. [cHAP. XIV. municipal corporation is estopped to question its bonds, tax- payers will be estopped.? 1See Thatcher v. People, 98 Ill. 632, where a tax-payer was held estopped to question the validity of the proceedings of a municipality, by assisting in the passing of a vote for the execution of bonds, though notice of the meeting was defective. Cases of that kind are considered in chapter 20. As to acts of the officers of municipal corporations, see Sturgeon v. Hampton, 88; Mo. 203; St. Louis Ry. Co. v. Belle- ville, 122 Ill. 376; Rush Co. »v. State, 103 Ind. 497; Union School Township v. First National Bank, 102 Ind. 494. CHAP. XV.] ESTOPPEL BY CONTRACT: RECEIPT. 509 CHAPTER XV. ACKNOWLEDGMENT OF RECEIPT. PartTIES may by apt terms of contract bind themselves not to question an acknowledgment of receipt of money; that is, they may bind themselves specifically, and not merely in the alternative of damages, to the admission. But such things are not common. And that an acknowledgment of receipt of money or commodities, not clearly agreed in the writing to be binding as a contract ! or as the basis of a contract, is not gener- ally conclusive evidence between the parties of the fact stated is well settled.2_ The 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, 1 See Hoeger v. Chicago Ry. Co., 63 Wis. 100. 2¥For a variety of illustrations see Farrar v. Hutchinson, 9 Ad. & E. 641; Skaife v. Jackson, 3 Barn. & C. 421; Graves v. Key, 3 Barn. & Ad. 313; Bowes »v. Foster, 2 Hurl. & N. 779; Megargel v. Megargel, 105 Penn. St. 475; Van Ness v. Hadsell, 54 Mich. 560; Marco v. Fond du Lac Co., 63 Wis. 212; Baker v. Union Ins. Co., 43 N. Y. 283; Sheldon v. Atlantic Ins. Co., 26 N. Y. 460; Insurance Co. of Penn. v. Smith, 3 Whart. 520; Pitt ». Berkshire Ins. Co., 100 Mass. 500; Miller v. Brooklyn Ins. Co., 2 Big. 35, 757. But see Teutonia Ins. Co. v. Anderson, 77 Ill. 384; Illinois Ins. Co. v. Wolf, 37 Ml. 354; Providence Ins. Co. v. Fennell, 49 Til. 180; Goit v. National Ins. Co., 25 Barb. 189; Young v. Mu- tual Ins. Co., 4 Big. 1; Hegreum- bough v. Edwards, 155 Mo. 514, 56 S. W. 490; Hudson v. Baker, 185 Mass. 122, 70 N. E. 419. But Goit v. National Ins. Co. was over- ruled by Baker v. Union Ins. Co., supra; and the statement in Young v. Mutual Ins. Co. was only a dictum. There is, however, convincing force in the distinction taken in this case, and in the case from 25 Barb. (see also Southern Ins. Co. v. Booker, 9 Heisk. 606; Peck »v. Vandenberg, 30 Cal. 23; Ashley v. Vischer, 24 Cal. 322), between the effect of an acknowledgment of receipt as a simple receipt for money, and as constituting part of a contract. ‘In the first aspect,’ says the court in Young v. Mutual Ins. Co., ‘ and for collateral purposes, such as the recovery of the money, the acknowl- edgments may be contradicted. In the second, and for the purpose of defeating the operation of the con- tract, they cammot be contradicted.’ 510 ESTOPPEL IN PAIS. [CHAP. Xv. and had been written by Farrar, one of the partners. The plain- tiffs, however, 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.!. Indeed, such ac- knowledgment is held not conclusive even though appended .to the record of a judgment, so long as it forms no part of the judgment.” In another case Mr. Baron Martin said that Alner v. George, just referred to in the note, was not law.’ The case before the learned baron 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 1Lord 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 is affected; but it was alleged that third persons who had an in- terest in the demand were injured by the transaction. Lord Ellen- borough 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 ». Bennett, 1 Camp, 394, note. . a receipt signed by the plaintiff was produced by the de- fendant, but he was proved to have obtained it from the plaintiff 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 ex- plained.’ 2 Lapping v. Duffy, 65 Ind. 229. 3 Bowes v. Foster, 2 Hurl. & N. 779. 4Mr. Baron Martin said: ‘In Alner v. George Lord Ellenborough 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 estab- lished. The fact of a release must be pleaded and put on the record. A receipt cannot be pleaded in an- swer to the action; it is only evi- dence 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? ” 53 Bam. & Ad. 313. CHAP. XV.] ESTOPPEL BY CONTRACT: RECEIPT. 511 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 purchased 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 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 herself have paid the premium at the proper time and saved the policy; but the circumstance was held immaterial. 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 this rule, for reasons peculiar to the transaction by which it is made; and ordinarily the acknowledgment is conclusive of the fact stated.* So other receipts may when acted upon, without knowledge of the facts,® by third persons estop the party giving them to deny their pur- port. Bickerton v. Walker was to the following effect: A mort- 1Lord Tenterden said: ‘ We all think upon full consideration that the action is maintainable. It is not necessary for us to say what the effect of these indorsed memo- randa of receipts would be, suppo- sing that it were incompetent for the plaintiff to contradict or explain them by parol evidence; because it seems to us that the plaintiff may by law give such contradiction or explanatjon, and that in this case the parol evidence does satisfacto- rily explain the last memoranda made on each security, and shows distinctly that the balance was not paid by either Almon or the defend- ants. A receipt is an admission only; and the general rule is that an admission, though evidence against the person who made it and. those claiming under him, is not conclu- sive evidence except as to the per- son who may have been induced by it to alter his condition. A receipt may therefore be contradicted or explained.’ 2Baker v. Union Ins. Co., 43 N. Y. 283. : 31 Big. 595. 4See Arnould, Insurance, 180, 181, 4th ed. The rule arises from the method of keeping the accounts between the broker and the assured. See ib. 179. 5 If the party acting has knowl- edge, actual or imputed, there will be no estoppel. Marco v. Fond du Lac Co., 63 Wis. 212. 6 Armour v. Michigan Cent. R. Co., 65 N. Y. 111; Griswold ». Haven, 25 N. Y. 595; Miller v. Sul- livan, 26 Ohio St. 630; Carr ». Miner, 42 Ill. 179; People ». [CHAP. XV. 512 ESTOPPEL IN PAIS. gaged goods to B for £250, acknowledging receipt of that sum in the mortgage deed, and signing a receipt therefor indorsed upon the mortgage. Soon after, B transferred the mortgage to C for the full value of £250, C taking the same without notice that A had not in fact received the amount named. It was held that A could not claim against C that he had not received from B £250.! A case of the same nature was recently decided by Mr. Jus- tice Miller of the Supreme Court of the United States, on the circuit.? 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 Reeder, 25 N. Y. 302; Knights v. Wiffen, L. R. 5 Q. B. 660; Bicker- ton v. Walker, 31 Ch. D. 151, C. A.; Rice v. Rice, 2 Drew. 73; Turner v. Flinn, 72 Ala. 532. See Winsmith v. Winsmith, 15 8. Car. 611. But the party claiming the estoppel must be justified in acting upon the receipt, and the party giving must have intended or have had reason to suppose that it would be acted upon. Kuhl »v. Jersey City, 8 C. E. Green, 84; Rimmer v. Webster, (1902) 2 Ch. 163, explains and fol- lows Herrick v. Atwood, (1857) 2 De Gex & J. 21; also explains and distinguishes Carritt v. R. & P. Advance Co., (1889) 42 Ch. D. 263. 1 Tt had been contended that the assignee of the mortgage had been guilty of negligence in not making inquiry in regard to the matter, ac- cording to what appears to be the usual course of things, of the mort- gagor. To this Lord Justice Fry said: ‘In the ordinary course of business a prudent assignee of a mortgage, before paying his money, requires either the concurrence of the mortgagor in the assignment or some information from him as to the state of the accounts between mortgagor and mortgagee. The reason of this course of conduct is, however, in our opinion, to be found in the fact that an assignee of a mortgage is affected by all transac- tions which may have taken place between mortgagor and mortgagee subsequently to the mortgage. . . . But in the present case the assign- ment was made very soon after the execution of the mortgage and be- fore the time of payment had ar- rived; so that, whilst it was pos- sible, it was not probable, that any payment would have been made either of principal or interest; and we are of opinion that if an assign is willing to take the risk of any payment having been made after the date of the mortgage, he is not guilty of carelessness or neg- ligence if, in the absence of any circumstances to arouse suspicion, he relies upon the solemn assurance under the hand and seal of the mortgagor as to the real bargain carried into effect by the mortgage deed, upon the possession of that deed by the mortgagee. and upon the receipt for the full amount of the mortgage money under the hand of the mortgagor.’ 2 McNeil »v. Hill, Woolw. 96. CHAP. XV.] ESTOPPEL BY CONTRACT: RECEIPT. 513 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. The decision is supported by many other au- thorities;? but in some cases the defendant has been held entitled to show that the receipt was given by mistake, as in ‘*Tnstruments of this kind,’ said the court, referring to bills of lading and warehouse receipts, ‘are sui generis. From long use in trade they have come to have among commercial men a _ well- understood meaning. And the indorsement or assignment of them as absolutely transfers the general property of the goods and chattels therein named as would a bill of sale. Austin v. Craven, 4 Taunt. 644; Whitehouse v. Frost, 12 East, 614; White v. Wilks, 5 Taunt. 176; Conard v. Atlantic Ins. Co., 1 Peters, 386; Gardiner v. Suydam, 7 N. Y. 357; Gibson v. Chillicothe Bank, 11 Ohio St. 311. When a warehouseman issues such a receipt, he puts it into the power of the holder to treat with the public on the faith of it. He enables him to say and to induce others to believe that he has certain property which he can sell or pledge for a loan of money. If the warehouseman 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 heen mis- led by it. This is within the most exact definition of estoppel. If A gives to_B his note for $100, al- though 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 warehouse receipt. If A issues such a paper to B, for articles which he has never received, a third party treat- ing 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 consequence what the transaction may be between the original par-. ties, whether the receipt, as is claimed here, was intended as a security for a loan or was entirely false.’ 2 Rowley v. Bigelow, 12 Pick. 307, 314; Armour v. Michigan Central R. Co., 65 N. Y. 111 (doubt- ing Grant v. Norway, 18 C. B. 665) (a); Van Santen v. Standard Oil Co., 81 N. Y. 171; Brooke v. New York R. Co., 108 Penn. St. 529; Hale v. Milwaukee Dock Co., 29 Wis. 482; Davis v. Russell, 52 Cal. 611, 616; Coventry v. Great Eastern Ry. Co., 11 Q. B. D. 776, C. A. (a) Which has since been approved in Whitechurch v. Cavagnagh, (1902) A. C. 117, where it appeared that the secretary of a corporation had with- out authority and fraudulently issued a receipt for shares which had not been lodged in the office, although transfers had been lodged there. [CHAP. XV. 514 ESTOPPEL IN PAIS. relation to facts which he could not know,! and in other cases of doubtful soundness.? To the same class of cases belongs the acknowledgment of receipt in bills of lading; prima facie evidence of the fact re- cited, of the receipt of the property, in the first instance,’ the acknowledgment in the bill becomes, by the weight of authority, conclusive in favor of one who has acted upon it in good faith, by changing his position materially, without notice of any error.* It does not make the bill of lading or the warehouse receipt negotiable (the common objection) to allow the estoppel; ® it only makes one particular admission, as in other cases, binding after it had misled some one. Negotiability is a much more sweeping doctrine than that. The plaintiff must at the outset show that he has purchased for value without notice; and it must appear that the representation, in connection with the nature or situation of the property, was such that the defendant ought to have known the facts and that the plaintiff might well have been misled.. Under circumstances too 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 receipt given to an attaching officer, with knowledge, for 1See Hale v. Milwaukee Dock Co., supra. 2 Williams v. Wilmington R. Co., 93 N. C. 42; Second National Bank v. Walbridge, 19 Ohio St. 419. See Blanchet v. Powell’s Co., L. R. 9 Ex. 74. As this is a case of estoppel by contract, the situation should be exceptional in which mistake can be an answer to the estoppel. The subject is con- sidered again in connection with misrépresentation, in §§ 5 and 7 of chapter. 18. The case is often treated as one of purchase for value of a title tainted with fraud. If the, purchase is without notice, the right of the defrauded party is cut off. See e..g. Michigan Central R. Co. ». Phillips, 60 IN. 190; Western Union- R. Co. ». Wagner, 65 Ill. 197; Hide and Leather Bank v. West, 20 Bradw. 61. But see Burton v. Curyea, 40 Ill. 320; Solomon v. Bushnell, 11 Oreg. 277. The doctrine of pur- chase for value applies to equities, and there is no equity here. Es- toppel in pais by contract appears to be the better ground. 3 Berkley v. Watling, 7 Ad. & E. 29; Witzler v. Collins, 70 Maine, 290; Hastings v. Pepper, 11 Pick. 43; Nelson v. Woodruff, 1 Black, 156. 4See the cases cited supra, on both sides of the question. 'In Rowley v. Bigelow, 12 Pick. 307, 314, it is said that the bill of lading is, guasi negotiable, which is well enough. SSee Oregonian Ry. Co. »v. on Ry. Co., 10 Sawy. 464, 88. CHAP. XV.] ESTOPPEL BY CONTRACT: RECEIPT. 515 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.!. And as we have already intimated, contract that an acknowledgment of receipt is true, or contract based upon the truth of such an acknowledgment, will work an estoppel.” Again, it has long been settled, though after considerable conflict of authority, that the ordinary acknowledgment of re- ceipt of consideration in a deed is not conclusive between the parties,® since it is not to be understood that they have con- tracted that the statement shall be binding. In point of fact the acknowledgment is considered a mere formal matter, having no special significance. But the courts did not directly reach the conclusion that the statement could for all purposes be disputed. The first step was to hold that the statement of payment was not coriclusive. In Shephard ». Little, just cited, the plaintiff sued for money had and received. At the trial he offered to prove that, being possessed of a lease of the value of $500, and that, being in debt to a third person in a smaller sum, he borrowed of the defendant the amount of the debt, giving him an assignment of the lease, which the defendant was to sell, paying over the surplus to the plaintiff. The assignment was by deed, and stated the consideration to be $500 in hand paid. The defendant objected to the admissibility of the evidence against the acknowledgment, but the Supreme Court held it 1Dewey v. Field, 4 Met. 381; Dezell v. Odell, 3 Hill, 215; Dres- bach v. Minnis, 45 Cal. 223; Bleven v. Freer, 10 Cal. 172; Gaff v. Harding, 66 Ill. 61;- Roswald »v. Hobbie, 85 Ala. 73, 77. See Bull- ard v. Hascall, 25 Mich. 132; post, pp. 614, 615. 2 Wharfingers wrote letters to bank stating that they held goods to bank’s order, on faith of which bank advanced money on the goods. Later another bank and this bank claimed goods adversely to each other, and the wharfingers were allowed an order of interpleader restraining the claimants from proceeding against them, except in respect to claim of first bank on the latter, assuming it to create an estoppel. Mersey Docks and Harbor Board, Ex parte, (1899) 1Q. B. 546. 3 See e. g. Shephard »v. Little, 14 Johns. 210; McCrae v. Purmort, 16 Wend. 460; Barter v. Greenleaf, 65 Maine, 405; Miller ». Goodwin, ’8 Gray, 542; Mobile Ry. Co. v. Wilkinson, 72 Ala. 286; Houston v. Blackman, 66 Ala. 559; Carmack v. Lovett, 44 Ark. 180; Irvine ». McKeon, 23 Cal. 472. (CHAP. XV. 516 ESTOPPEL IN PAIS. proper; taking a distinction, based on prior decisions,’ between an attempt to disprove the amount stated to have been paid, and an attempt to show a different consideration from the one declared by the deed. And some courts still refuse to go fur- ther than this.? Most of the courts, including the courts of New York, have, however, taken a second step, and allowed the parties to prove an altogether different consideration from that expressed in the deed. Thus, in the case of McCrae v. Purmort,‘ before the Court of Errors of New York, 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.® 1 See Maigley ». Hauer, 7 Johns. 341. 2 See cases reviewed in Houston v. Blackman, 66 Ala. 559. 3 Irvine v. McKeon, 23 Cal. 472; Coles v. Soulsby, 21 Cal. 47. 416 Wend. 460. 5Mr. Justice Cowen, who de- livered the judgment, after show- ing that there had been much con- flict on the subject both in New York and elsewhere, said: ‘A party is estopped by his deed. He is not to be permitted to contra- dict it; so far as the deed is in- tended 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 everything ‘which it may con- tain. For instance, it is not the only evidence of the date of its execution, nor is its omission of a consideration conclusive evidence that none passed; nor is its ac- knowledgment of a particular con- sideration an objection to other proof of other and _ consistent considerations. And by analogy the acknowledgment in a deed that the consideration had been received is not conclusive of the fact. This is but a fact; and testing it by the reason of the tule which we have laid down, it may be explained or contradicted. It does not necessarily and unde- niably prove the fact. It creates no right; it extinguishes none. A release cannot be contradicted or explained by parol, because it ex- tinguishes a pre-existing right; but no receipt can have the effect of destroying per se any subsisting right; it is only evidence of a fact. The payment of the money dis- charges or extinguishes the debt; a receipt for the payment does not pay the debt; it is only evi- dence that it has been paid. Not so of a written release; it is not only evidence of the extinguishment, but it is the extinguisher itself.(c) The acknowledgment of the pay- ment of the consideration in a deed (a) ‘In speaking of a written release as an extinguisher of itself I do not understand him to mean the releasing clause in a conveyance which usually accompanies an acknowledgment of the receipt of the money, but an abso- lute, separate, and distinct release.’ Miller, J. in Stackpole ». Robbins, 47 Barb. 212. CHAP. XV.] ESTOPPEL BY CONTRACT: RECEIPT. 517 * 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.” - There can be little doubt that this is the true view. It is not the correct way of putting the effect of a deed to say that a consideration is conclusively presumed between the parties; that way of putting the case was an after-thought of the judges, adopted so as to meet the supposed requirements of the law after the doctrine of consideration had been added to the Eng- lish law. But the truth is, that neither consideration nor any- thing of the kind ever was necessary in the case of a deed; and the result, properly speaking, is that a mere acknowledgment of consideration received, forming no part of the contract, is only evidence, and hence may be qualified or disputed altogether. The acknowledgment in the deed can have no more effect than would an acknowledgment upon the back of the deed or upon a separate piece of paper. Tn favor of, though not against, subsequent purchasers and creditors without notice, however, the recital of a consideration received may be conclusive; * as indeed it will be in any case where another has innocently acted upon it to his prejudice. A case has arisen in Pennsylvania which illustrates this latter is a fact not essential to the convey- Livermore v. Aldrich, 5 Cush. 431; ance. It is immaterial whether the Preble v. Baldwin, 6 Cush. 550; price of the land was paid or not; Clark ». Deshon, 12 Cush. 589; and the admission of its payment Paige ». Sherman, 6 Gray, 511; in the deed is generally merely Miller v. Goodwin, 8 Gray, 542. formal.’ 2See Rex v. Scammonden, 3 1 Wilkinson v. Scott, 17 Mass. T. R. 474. 249; Gale v. Coburn, 18 Pick. 397; 3 Levering v. Shockey, 100 Ind. Clapp v. Tirrell, 20 Pick. 247; 558; Turner v. Flinn, 72 Ala. 682. 518 ESTOPPEL IN PAIS. [CHAP. XV. qualification of the general rule.' It was an action of trespass quare clausum fregit. The facts were that the defendant agreed to convey the premises to the plaintiff provided a certain piece of land should be given to him (defendant) by his father by will. The bargain 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, ac- cepted 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 was against equity that he should be permitted to defeat the operation of the grant by showing that the consideration was not paid. Between the vendor and the purchaser the consideration was to be treated as fully paid, and the vendor was estopped from denying it. Indeed, it is not permitted a party to prove a different con- sideration from that named in his deed if such change would vary the legal effect of the instrument. Thus, the grantor of a deed, who acknowledges receipt of payment of the considera- tion, will not be allowed, it is held, to disprove that fact and so establish a resulting trust in himself.? 1 McMullin v. Glass, 27 Penn. 2 Mobile Ry. Co. ». Wilkinson, St. 151. 72 Ala. 286. SECT. 1.] | CONTRACT: COMMERCIAL PAPER. 519 CHAPTER XVI. COMMERCIAL PAPER. In the further consideration of estoppels arising upon some fact agreed or assumed to be true, we have to call attention, first, to the admission of genuineness implied by the acceptance of a bill of exchange and by the indorsement of a bill of exchange or a promissory note; secondly, to the admission of capacity im- plied in the acceptance of a bill or in the making of a note; thirdly, to the certification of checks; and fourthly, to the case of a transfer by an indorser after his liability has been fixed. In these cases the fact in question is assumed as if it had been actually agreed. § 1. Genuineness. , First, then, of the admission of genuineness referred to. The acceptance and the indorsement of commercial paper give rise to an estoppel peculiar in kind, and as yet not fully developed, and therefore not clearly defined, on some of its sides. The doc- trine stated in general terms is this, that the acceptance of a bill and the indorsement ! of a bill or note are a conclusive admis- 1By the general current of 260; Stafford v. Rice, 5 Cowen, 23; authority an indorser, though es- topped in an action against him- self to allege that the plaintiff could not maintain an action upon the paper against a prior party, may still give evidence in favor of such a party impeaching the validity of his engagement, sup- posing the plaintiff’s right of ac- tion to depend upon the validity of the defendant’s engagement. Jordaine v. Lashbrooke, 7 T. R. 601 | (overruling Walton v. Shelley, 1 T. R. 296); Townsend v. Bush, 1 Conn. Williams v. Walbridge, 3 Wend. 415; Haines v. Dennett, 11 N. H. 180. Contra, Freon v. Brown, 14 Ohio, 482. In Massachusetts the indorser’s testimony is received only when the plaintiff took the paper with notice, suing virtually as payee. Newell v. Holton, 10 Gray, 349; Fox v. Whitney, 16 Mass. 118. See also Clapp v. Han- som, 15 Maine, 345; Davis ». Brown, 94 U. S. 423; Bigelow’s Bille and Notes, 174, 175. 520 ESTOPPEL IN PAIS. [CHAP. XVI. sion in favor of a bona fide holder for value that the signature of the drawer in the one case, and of all the prior parties in the other, is genuine. By the recent Negotiable Instrument Law, and according to dicta in many decisions of the courts before, indorsement constitutes a warranty of such facts. A near likeness to this estoppel is found in estoppel by mis- representation; ! but the likeness after all is superficial. Estop- pel by misrepresentation does not require any contract; be- sides, in the present case there is no external misrepresentation —no representation beyond that necessarily involved in the contract itself — by which the other estoppel is characterized. But the situation here, as in the preceding chapter, is one of contract, 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 ex- change is Price v. Neal.2_ This was an action on the case by Price to recover from Neal the amount paid to 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 Mans- field said that it was incumbent upon the plaintiff to be satis- fied that the bill drawn upon him was the drawer’s hand before he accepted or paid it; but it was not incumbent upon the defend- ant to inquire into it. Here was notice given by the defendant to the plaintiff of a bill drawn upon him, and he sends his serv- ant to pay it and take it up. The other bill he actually ac- cepts, after which acceptance the defendant innocently and bona fide discounts it. The plaintiff lies by for a considerable time after he has paid the bills, and then finds out that they were forged; and the forger comes to be hanged. He made no objec- tion to them at the time of paying them. Whatever neglect there was, was on his side. The defendant had actual encour- agement from the plaintiff himself for negotiating the second 1 Chapter 18. will be different. Ellis v. Ohio Life 23 Burr. 1354. Ins. Co., 4 Ohio St. 628. See 3 But where, by usage or agree- National Bank v. Bangs, 106 Mass. ment, such duty is devolved upon 441. The point will be more fully the holder, it is held that the case _ noticed later in the chapter. af SECT. 1] CONTRACT: COMMERCIAL PAPER. 521 bill from the plaintiff’s having without any scruple or hesitation paid the first; and he paid the whole value bona 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 a like rule applies to an indorser appears from the case of the State Bank v. Fearing.?- This was an action of as- sumpsit 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, in the usual course of business, and dis- counted 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.’ 1A fortiori a person who ad- its tenor upon due presentment, mits that an acceptance is in his own handwriting, and thereby induces another to take the bill, is estopped to deny the genuine- ness of the acceptance. Leach ». Buchanan, 4 Esp. 226; Goodell v.° Bates, 14 R. I. 65; infra, p. 532. 216 Pick. 533. See also Alleman v. Wheeler, 101 Ind. 141. 8 Chief Justice Shaw, who de- livered the opinion of the court, said: ‘ In general it is not necessary for the holder to prove the signa- ture of any party prior to the party whom he sues. The reason seems to be obvious that the party defendant by his indorsement has admitted the ability and the sig- nature of all prior parties... . The effect of the engagement of the indorser is that if the prior parties do not pay the note according to upon notice to him he will. It is therefore a rule upon this subject that the plaintiff is under no ob- ligation to prove the signature of those prior to the party in- tended 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 estab- lish no title, and to prove such order he must prove the genuine- ness of his signature.’ This doctrine concerning the right of an acceptor or indorser to deny the genuineness of the signatures of parties is firmly es- tablished in the law. Hortsman v. Henshaw, Bigelow’s Bills and Notes, 541; s. c. 11 How. 177; 522 ESTOPPEL IN PAIS. [CHAP. XVI. 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 enti- tled to recover the money.’ Coggill », American Bank, 1 Comst. 118; Canal Bank v. Bank of Albany, 1 Hill, 287; Crichlow v. Parry, 2 Camp. 182; Story, Promissory Notes, § 380. The rule applies to all prior signatures. Story, Promissory Notes, §§ 135, 387; Bills of Ex- change, §§111, 225, 412. The question arose in MacGregor ». Rhodes, 6 El. & B. 266, whether an indorser could deny the indorse- ment to himself; and it 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 defend- ants, and that the defendant in- dorsed- it to the plaintiff, and that it was presented and dishonored. The plea admits all these allega- tions except the allegation of the indorsement by Pinkney to the defendants. 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 defendants in blank or specially, the fact of the indorsement by the defend- ants would at the trial be conclu- sive evidence of Pinkney’s in- dorsement to them, and would estop them from showing what purported to be Pinkney’s indorse- ment was a forgery. The request is to pay to the order of the payee. When a man indorses 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.’ 1 Canal Bank v. Bank of Albany, 1 Hill, 287; Hortsman v. Henshaw, 11 How. 177; Beeman v. Duck, 11 Mees. & W. 251. See Bigelow’s Bills and Notes, 567, 568. 2°On the merits,’ said Cowen, J. for the court, ‘there was noth- ing in the nature of the transac- tion to conclude the plaintiffs against showing the forgery. They had done no act giving currency to the bill on the strength of Bentley’s name. Even had they accepted it on the day when it was drawn, the defendants could have holden them concluded only in respect to the genuineness of the drawer’s name, he being their immediate correspondent. Chitty, Bills, 336, 7th Am. ed. And the act of payment could amount to no more. Ibid. Neither accept- ance nor payment at any time, nor under any circumstances, (a) (a) This must be taken with some caution. See Hortsman v. Henshaw, infra. SECT. I.] CONTRACT: COMMERCIAL PAPER. 623 © 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 bona fide and for full value. They afterwards transmitted it to London, where it was represented, ac- cepted, and paid at maturity. It turned out that the in- dorsement of the payee’s name was forged; whereupon the present action was brought to recover the money paid. The court held that the plaintiff was not entitled to recover.” is an admission that the first or any other indorser’s name is gen- uine. Chitty, Bills, 628, 7th Am. ed. In point of title, then, the ease 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 ‘exhibition of a forged title as a genuine one. The plaintiffs paid their money on the mistaken be- lief thus induced that the name was genuine.’ 1 Hortsman v. Henshaw, 11 How. 177; Ford v. Meacham, 3 Hill (8. C.) 227; Burgess v. Northern Bank of Ky., 4 Bush, 600; Coggill ». American Exchange Bank, 1 Comst. 113. See Bigelow’s Bills and Notes, 567. 2Taney, C. J. who delivered the opinion, said: ‘The general rule undoubtedly is that the drawee by accepting the bill ad- mits 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 hand- writing 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 com- pelled to repay it. The reason of the rule is obvious. A forged indoisement cannot transfer any interest in the bill; and the holder therefore has no right to demand the money. If the bill is dis- honored by the drawee, the drawer is not responsible. And if the drawee pays it to a person not authorized to receive the money, he cannot claim credit for it in his account with the drawer. But in this case the bill was put in cir- culation by the drawers with the names of the payees indorsed upon it. And by doing so they must be understood as affirming 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 en- titled to recover from the drawer. The drawers must be equally liable to the acceptor who paid the (CHAP. XVI. 524 ESTOPPEL IN PAIS. The contrary would be true if the forgery were subsequent to the acceptance.! A similar question arose in 1847 in Coggill ». American Bank.? 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 holder, to whom he had paid the bill, to recover the sum paid. The court held that the action could not be maintained, basing the decision on the fact that the payee had no interest in the bill, and comparing it to a bill drawn to a fictitious person, such a bill being in effect payable to bearer.2 The cases further show that the drawee may deny the genuineness of the indorsement if the forgery occurred after the bill passed out of the drawer’s. bill. For having admitted the handwriting of the payees and precluded themselves from dis- puting it, the bill was paid by the acceptor to the persons authorized to receive the money, according to the drawer’s own order. Now the acceptor of a bill is presumed 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 be determined as if this bill was paid by Hortsman out of the money of Fiske and Bradford in his hands. And as Fiske and Brad- ford were liable to the defendants in error, they are entitled to re- tain the money they have thus received. We take the rule to be this: Whenever the drawer is liable to the holder, the acceptor is entitled to a credit if he pays the money; and he is bound to pay upon his acceptance when the payment will entitle him to a credit in his account with the drawer. And if he accepts without funds upon the credit of the drawer, he must look to him for indemnity, and cannot upon that ground de- fend himself against a bona fide indorsee. The insolvency of the: drawer can make no difference in the rights and legal liabilities of the parties.’ The rule in Hortsman v. Hen-- shaw obviously applies only to- cases in which the forgery in question took place hefore the acceptance; the acceptor cannot be bound by his acceptance if the forgery was subsequent to the- act. Scholfield v. Londesborough,. (1896) A. C. 514. The ‘rule,’ i. e. the ground of the rule, as stated by Chief Justice Taney, supra, can. _ therefore hardly be correct. 1§cholfield v. Londesborough, (1896) A. C. 514, affirming (1895): 1 Q. B. 536, (1894) 2 Q. B. 660. 21 Comst. 118. 3 Cooper v. Meyer, 10 Bam. &: C. 468; s. c. 5 Man. & R. 387; Vere v. Lewis, 3 T. R. 182; Minet v. Gibson, ib. 481; s. c. 1 H. Black.. 569; Collis ». Emmett, 1 H. Black.. 313; Phillips » Thurn, L. R. 1 C. P. 463; Plets v. Johnson, 3 Hill, 112. See particularly, in regard’ to fictitious or non-existing payegs,. Bigelow, Bills and Notes, 26, 2d ed. 4 SECT. I.] CONTRACT: COMMERCIAL PAPER. 525 hands;! and this is the line of distinction drawn in Hortsman v. Henshaw. The case of Beeman v. Duck ? presents another phase of the doctrine 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 their order; the paper being accepted by the defendant, and indorsed by Bradshaw and Williams to the plaintiff... The drawing and indorsement (in the same hand- writing) were forgeries. There was a plea traversing the draw- ing 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 principle 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 genuine- ness of the indorsement as well as that of the drawing. But the judges inclined to the opinion that if he was ignorant of the for- gery, he would not be precluded from denying the genuineness of the indorsement, though it was in the same hand as that of the drawer’s signature.? 1 Burchfield v. Moore, 3 El. & B. 683; Talbot v. Bank of Roches- ter, 1 Hill, 295. 211 Mees. & W. 251. See Greenfield Bank v. Crafts, 4 Allen, 447, 3¢On the argument before us,’ said Mr. Baron Parke, ‘it was contended by the plaintiff’s coun- sel that, the drawing being a forgery, the defendant by his acceptance had undertaken to pay to any one who held the bill by an indorsement in the same hand- writing, according to the principle laid down in Cooper v. Meyer, 10 Barn. & C. 468; s. c. 5 Man, & R. 387; and it was said there was evidence in the case that the sig- natures in drawing and indorsing were those of the same person. If this were so, the rule ought to be made absolute for a new trial, as the question as to the identity of the signature has not been sub- mitted to the jury. But on the part of the defendant it is insisted that the case of Cooper v. Meyer is distinguishable from the present, for there the drawers were ficti- tious; here they really existed, though their signature was forged; and that in such case the acceptor, though he admits that the bill was drawn by the’ parties by whom it purports to be drawn, does not admit the indorsement by the same parties, —a doctrine which is clearly established as to bills wherein the signature is not forged. Robin- son v. Yarrow, 7 Taunt. 455. In analogy to that case the defendant, [cHaP. XVI. 526 ESTOPPEL IN PAIS. The fact should be observed that the estoppel of the drawee by acceptance or payment extends only to the signature.1_ The acceptor may show an alteration in the body of the instrument, whether the act was before or after the acceptance,’ unless it was done by the drawer before acceptance.? The point was decided in Bank of Commerce v. Union Bank.* This was as- sumpsit to recover $1,005 paid by the plaintiffs 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’ principle, 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 been 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 in the signature, 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 it is said, admits by his acceptance that the bill was drawn in the name of Bradshaw and Williams by themselves, or some agent au- thorized to draw in their name; but it does not admit that it was indorsed by themselves, or some agent authorized to indorse, which is a different species of authority. And we cannot help thinking there is great weight in that argument, if the -defendant accepted the bill in ignorance of the forgery; but if he knew it, and intended that the bill should be put into circu- lation by a forged indorsement, in the name of the same firm, by the same paity who drew it, the case seems to fall within the prin- ciple of that of Cooper v. Meyer.’ The learned baron added that there was some doubt whether the bill should not have been de- clared upon as payable to bearer, according to Gibson v. Minet, 1 H. Black. 481, and Bennett »v. Farnell, 1 Camp. 130, 180 ¢, which cases had not been cited or this question raised in Cooper v. Meyer. 1 Ante, p. 520. 2 Clews v. Bank of New York, 89 N. Y. 418. *The language of Ward ». Allen, 2 Met. 53, especially the headnote, might imply that ac- ceptance admits the body of the paper entire, as it then stood; but the alteration in question in that case had been made by the drawer, as in Hortsman v. Henshaw, supra, p. 523. The same may be said of Langton v. Lazarus, 5 Mees. & W. 629. . 43 Comst. 230. SESE SECT. 1.] CONTRACT: COMMERCIAL PAPER. 527 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 plaintiffs entitled to recover on the ground that it could not be presumed that the acceptor was familiar with the handwriting of the body of the bill.? Acceptance also conclusively admits the procuration to draw in the case of a bill drawn by procuration; but it does not ad- mit 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 Mr. Justice Park, ‘ proves the drawing, but it never proves the indorsement. 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 appears to be not mate- 1*There is no ground,’ said acquainted with the drawer’s sig- Ruggles, J. speaking for the court, ‘for presuming the body of the bill to be in the drawer’s hand- writing, 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 handwriting 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 nature, or able to ascertain whether it is genuine, is reasonable. In most cases it is in conformity with the fact. But to require the drawee to know the handwriting of the residue of the bill is unrea- sonable. It would in most cases be requiring an impossibility. Such a rule would be not only arbitrary and rigorous, but unjust. The drawee would be answerable for negligence in paying an altered bill if the alteration were manifest on its face.’ An acceptor is not es- topped to show that the bill is a for- eign one, contrary to its date. Stead- man v. Duhamel, 1 Com. B. 888. 2 Robinson v. Yarrow, 7 Taunt. 455; Beeman v. Duck, 11 Mees. & W. 251; Garland v. Jacomb, L. R. 8 Ex. 216, Ex. Ch. 528 ESTOPPEL IN PAIS. [CHAP. XVI. rially different in effect from acceptance by the drawee. 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. & Co., among others, not being genuine. Due notice of the fact was given; whereupon the defendants having refused to repay the money, the present action of assumpsit was brought to recover the amount. And the action was sustained.? 13 Barn. & C. 428. 2 Abbott, C. J. in delivering judgment, said: ‘The plaintiffs were not drawers or acceptors of the bills, nor the agents of any supposed acceptors. They dis- covered the mistake in the morn- ing of the day they made the pay- ment, and gave notice thereof to the defendants in time to enable them to give notice of the dishonor to the prior parties; which was accordingly given. The plaintiffs were called upon to pay for the honor of Heywood & Co., whose names appeared on the bills among other indorsers. The very act of calling upon them in this char- acter was calculated in some degree to lessen their attention. A bill is carried for payment to the person whose name appears as acceptor, or as agent of an acceptor entirely as a matter of course. The person presenting very often knows nothing of the acceptor, and merely carries or sends the bill according to the direction that he finds upon it; so that the act of presentment informs the acceptor or his agent of nothing more than that his name appears to be on the bill as the person to pay it; and it be- hooves him to see that his name is properly on the bill. But it is by no means a matter of course to call upon a person to pay a bill for the honor of an indorser; and such a call, therefore, imports on the part of the person making it that the name of a correspondent for whose honor the payment is asked is actually on the bill. The person thus called upon ought certainly to satisfy himself that the name of his correspondent is really on the bill; but still his attention may reasonably be less- ened by the assertion that the call itself makes to him in fact, though no assertion may be made in words. And the fault, if he pays on a forged signature, is not wholly and entirely his own, but begins at least with the person who thus calls upon him. And though where all the negligence is on one side it may perhaps be unfit to inquire into the quantum, yet where there is any fault in the other party, and that other party cannot be said to be wholly innocent, he ought not in our opinion to profit by the mistake into which he may by his own prior mistake have led the other; at least if the mistake is discovered before any alteration in the situation of any of the other. parties; that is, whilst the rem- edies of all the parties entitled to remedy are left entire, and no one is discharged by laches. ... We think the payment in this case was a payment by mistake and with- out consideration to a person not wholly free from blame, and who SECT. I.] CONTRACT: COMMERCIAL PAPER. 529 Some of the reasoning of the Chief Justice in this case may possibly be broad enough to cover the case of an acceptance for the honor of the drawer. But the later cases do not sanction such a view, and it is settled law that acceptance for honor like ordinary acceptance amounts to a conclusive admission of the hand of the drawer when the acceptance was made for the drawer’s honor; ! subject, no doubt, to the like limitations as prevail in the case of acceptance by the drawee in the usual manner. Phillips ». Thurn was an action by the holder of a bill accepted by the defendant supra protest for the honor of the drawer, acceptance having been refused by the drawee. The question raised in the first stage of the case ? (for there were two stages of it) was upon the validity of a plea setting up the defence that the payee was a fictitious person, and that the defendant was ignorant of that fact at the time he accepted the bill. The plea was held bad. The point thus raised was not whether the acceptor supra protest was bound to know the handwriting of the drawer, but whether the acceptance had put the defendant in the position of the drawer; and it was held that it had. And as the drawer would be estopped to say that the payee was a fictitious person, the defendant was also held estopped. ‘It seems to me,’ said Chief Justice Erle, ‘ that there is good reason for saying that that which the drawer would be estopped from denying, the acceptor for honor should also be estopped from denying. I think he is equally to admit that the bill is a valid bill.’ When Phillips » Thurn came before the court the second time ? it appeared that the drawee, having refused to accept, gave the person presenting the paper a letter to the plain- tiffs, intimating that the defendant would probably accept the bill for the drawer’s honor. The plaintiffs took the letter and bill to the defendant, and he assuming it to be genuine accepted it for the drawer’s honor; and the plaintiffs there- upon discounted it. It turned out that the drawer’s signature ought not, therefore, in our opin- 147; Story, Bills of Exchange, ion to retain the money.’ §§ 261, 262. 1 Phillips ». Thurn, 18 C. B. N. 8. 218C. B.n. 8. 694. 694; 8. c. L. R. 1 C. P. 463; God- 3L. R.1C. P. 463. dard v. Merchants’ Bank, 4 Comst. 5380 - ESTOPPEL IN PAIS. [CHAP. XVI. was a forgery; but the court now held that the defendant was estopped from asserting the fact, the plaintiffs having been in- duced to part with their money on the faith of the defendant’s acceptance. ‘ The English cases all show that where there are prior parties to the paper, entitled to remedies against antecedent parties, if the forgery is discovered too late to enable them to fix the liability of such parties, the acceptor will not be permitted to recover the sum paid to a bona fide holder.!’ In Mather »v. Maidstone, just cited, the acceptor instead of paying had given a fresh acceptance after the maturity of a previous bill drawn on him and purporting to have been accepted by him. A month later he discovered that the previous acceptance was a forgery; but the court held him estopped to allege the fact on the ground that the plaintiff, a bona fide indorser, had lost his remedy against the prior indorsers. Still, a person is not bound as an acceptor of a bill bearing a forged acceptance’by the mere fact that he has previously paid a bill similarly forged, if in fact he has not led the holder to believe that the acceptance of the bill sued upon was genuine.” But if it is made to appear that there has been a regular course of mercantile business, in which bills have been accepted by a clerk or agent whose signature has been acted upon as the 1Cocks v. Masterman, 9 Barn. charged in that case. And the & C. 902; Mather »v. Maidstone, 18 C. B. 273; Wilkinson v. John- son, 3 Barn. & C. 428; Smith »v. Mercer, 6 Taunt. 76. But it is said that the strict rule held in England respecting the time within which notice must be given does not prevail in America. Canal Bank v. Bank of Albany, 1 Hill, 287, 292. See 2 Parsons, Notes and Bills, 598, 599. This seems doubtful. See Irving Bank v. Wetherald, 36 N. Y. 335; Merchants’ Bank: v. National Bank, 101 Mass. 281; National Bank v. Bangs, 106 Mass. 441. Goddard v. Merchants’ Bank, 4 Comst. 147, certainly is not an authority for the proposition, for there was no prior party to be same may he said of Ellis v. Ohio Ins. Co., 4 Ohio St. 628, 660. The strict rule, in England, of immedi- ate notice appears however to apply without regard to prior parties. London Bank »v. Liverpool Bank, (1896) 1 Q. B. 7, Mathew J. See also as falling under the same distinction, Leather Manufactures Bank v. Morgan, 117 U. S. 96, 6 Sup. Ct. 657, 29 L. Ed. 811; Dana v. Nat. Bank v. Republic, 132 Mass. 156; Shepard Lumber Co. v. Eldridge, 171 Mass. 516, 51 N. E. 9, 68 A. S. R. 446; Wins- low v. Everett Nat. Bank, 171 Mass. 534, 51 N. E. 16. ? Morris v. Bethell, L. R. 5 C. P. 47; Cohen v. Teller, 93 Penn. St. 123. SECT. 1.] CONTRACT: COMMERCIAL PAPER. 531 signature of the principal, then there will be ‘ almost conclusive evidence ’ against the latter that the acceptance has been written by his authority.! An exception has been made to the rule that prevents a re- covery of money paid by the acceptor of a forged draft, where the defendant becomes holder of the draft before acceptance by the plaintiff, and where the loss had already attached; the acceptor giving notice of the forgery immediately upon the dis- covery of it.2 If this is correct (and it probably is) Price ». Neal, heretofore stated, is partly wrong. One of the bills in that case had been paid without acceptance; but no notice of this fact was taken. The decision however in Price v. Neal, in 1Morris v. Bethell, L. R. 5 C. P. 47, Bovill, C. J.; Barbell v. Gingell, 3 Esp. 60; Crout v. De Wolf, 1 R. I. 393. . ?McKleroy v. Southern Bank, 14 La. An. 458. See National Bank of North America v. Bangs, 106 Mass. 441. ‘The defendant be- came the holder of the draft,’ said the court in the case first cited, ‘before it was accepted by the plaintiffs, and before they had any knowledge of its existence, and consequently before the defendant had any right of action against them for its recovery. The plain- tiffs, therefore, had done no act which induced the defendant to believe the signature of the drawer to be genuine at the time the bill was purchased. How, then, can it be said that the defendant pur- chased the bill on the faith of the plaintiffs’ acceptance, or on their guaranty of the genuineness of the drawer’s signature? Or how can it be said that the plaintiffs misled the defendant at the time of the purchase of the bill, or were then guilty of the omission of any duty toward the defendant as the pur- chaser of the bill? If the defend- ant had purchased the bill on the faith of the acceptance of plaintiffs, or had sustained any loss in con- sequence of their negligence, we would have no difficulty in affirming the judgment of the lower court; but such are not the facts made known to us by the record.’ The court cited Chitty, Bills, 464, where the learned author says: ‘Tf he [the holder] thought fit to rely on the bare representation of the party from whom he took it [the bill} there is no reason why he should profit by the accidental payment when-the loss had al- ready attached upon himself, and why he should be allowed to re- tain the money when by an imme- diate notice of the forgery he is enabled to proceed against all other parties precisely the same as if the payment had not been made, and consequently the payment to him has not in the least altered his situation, or occasioned any delay or prejudice. It seems that of late upon questions of this nature these latter considerations have influ- enced the court in determining whether or not the money shall be recoverable back; and it will be found on examining the older cases that these mere facts afford a distinction, and that upon at- tempting to reconcile them they are not as contradictory as might on first view have been supposed.’ [cHAP. XVI. 532 ESTOPPEL IN PAIS. this as well as in the other aspect of the case, has been accepted by the later law merchant, probably on the footing of custom.} The Ohio court has gone still further, and held that even in the case of payment to an innocent indorsee the acceptor may recover the money if it appear that by the settled course of business between the parties or by a general custom of the place the holder took upon himself the duty of exercising some material precaution to prevent the loss, and failed to perform that duty.? And it is held in Massachusetts that if the holder indorse the paper (for collection) before it is presented to the drawee for payment, the latter can recover the money paid by him, on the ground that the holder’s indorsement tended to put the drawee off his guard; such an act being an assertion of the genuineness of the bill.* So too if the owner of the paper on presenting it to the drawee withhold from him information important to the drawee upon the question of genuineness, the estoppel will be removed.‘ Acknowledging a signature as one’s own works of itself, it should seem, an estoppel in favor of a person to whom the acknowledgment is made, or for whom it was intended, if he is induced thereby to purchase the paper.’ Indeed, it has been held that where a person receives from another paper purport- ing to be his (the receiver’s) own paper, as genuine, and passes the amount to the credit of such person, the party receiving cannot, after any considerable lapse of time, recover the amount so credited by alleging that the paper was forged.® In the case cited the Bank of Georgia having originally issued the paper in 1See Bigelow, Bills and Notes, 224, 225, 2d ed. ? Ellis v. Ohio Ins. Co., 4 Ohio St. 628. 3 National Bank of North Amer- ica v. Bangs, 106 Mass. 441. 4 First National Bank v. Ricker, 71 Til. 4389. 5 Goodell v. Bates, 14 R. I. 65; Leach ». Buchanan, 4 Esp. 226; Cohen ». Teller, 93 Penn. St. 123; Rudd v. Matthews, 79 Ky. 479. See, however, Koons ». Davis, 84 Ind. 387, 389, which may be doubted. A party must be bound to know whether a sig- nature is his own, at least if he has an opportunity to see the writing. And in a case of this kind there may well be a warranty of genuineness, so as to cut off any right of the vendor to say that the purchaser knew the facts. 6 Bank of United States v. Bank of Georgia, 10 Wheat. 333. See Oddie ». National Bank, 45 N. Y. 735, 742; Tyler v. Bailey, 71 Ill. 34, holding this rule not to apply to government officers receiving land warrants. SECT. 1.] CONTRACT: COMMERCIAL PAPER. 533 question, it was in the course of circulation fraudulently altered, and subsequently found its way into the Bank of the United States. The latter then presented it to the former, which re- ceived it as genuine and placed it to the general account of the Bank of the United States as cash by way of deposit. The forgery was discovered nineteen days afterwards, upon which notice was given and a tender of the paper made to the Bank of the United States, and refused. Both7zparties were equally innocent, and it was not disputed that the Bank of the United States was a bona fide holder for value. The Bank of Georgia now sued to recover the amount of the deposit. But the court held that the action could not be maintained.! 1‘The modern authorities,’ ob- served Mr. Justice Story in de- livering judgment, ‘ certainly do in a strong manner assert that a pay- ment received in forged paper or in any base coin is not good; and that if there be no negligence in the party, he may recover back the consideration paid for them, or sue upon his original demand. . .. But without entering upon any examination of this doctrine it is sufficient to say that the present is not such a case. The notes in question were not the notes of another bank, or the security of a third person, but they were received and adopted by the bank as its own genuine notes in the most absolute and uncon- ditional manner. They were treated as cash, and carried to the credit of the plaintiff in the same manner, and with the same general intent, as if they had been genuine notes or coin... . But if the present ease is to be considered, as the defendant’s counsel is most solici- tous to consider it, not as a case where the notes have been paid, but as a case of credit, as cash, upon the receipt of them, it will not help the argument. In that point of view the notes must be deemed to have been accepted by the defendants as genuine notes, and payment to have been prom- ised accordingly. Credit was given for them as cash by the defendants for nineteen days, and during all this period no right could exist in the plaintiffs to recover the amount against any other person from whom they were received. By such delay, according to the doc- trine of Lord Chief Justice Gibbs in Smith v. Mercer, 6 Taunt. 76, the prior holders would be dis- charged; and the case of the Gloucester Bank v. The Salem Bank, 17 Mass. 33, adopts the same principle; so that there would be a loss produced by the neg- ligence of the defendants. But waiving this narrower ground, we think the case may be justly placed upon the broad ground that there was an acceptance of the notes as genuine, and that it falls di- rectly within the authorities which govern the cases of acceptances of forged drafts. If there be any difference between them, the prin- ciple is stronger here than there; for there the acceptor is presumed to know the drawer’s signature. Here a fortiori the maker must be presumed and is bound to know his own notes.’ 534 ESTOPPEL IN PAIS. (CHAP. XVI. According to the better authorities, one who passes to an- other for value and without notice a negotiable bill, note, or check, without indorsing the same, is still deemed in law to have asserted to the purchaser the genuineness of the whole paper as it stands.!. This, however, is not (though at first it may resemble) a case of estoppel, for the vendor of the paper does not seek to deny the truth of any affirmation. He denies making any affirmation at all. It has sometimes been supposed that negligence on the part of the drawer of a bill or check, or of the maker of a note, in leaving a blank which has been so filled as to escape detection, may have the effect, to estop such party to allege that the paper has been altered.2. This notion started from a misconception of Young v. Grote.? That was a case of the proper adjustment of a loss, between the drawer and the acceptor, and merely decided that the result of the act of the drawer in carelessly leaving a blank after the words expressing the sum payable should be laid at his own door, and not charged to the acceptor who had innocently paid the forged bill. It has been repeatedly shown that the case was not based upon estoppel,‘ even if it can be sustained at all (for it is not the natural result of leaving a blank that a forgery should be committed);> and the better authorities agree that no estoppel can exist upon any such facts to prevent the party, drawer of a bill or maker of a note, from setting up the alteration.£ This assumes, of course, that the 1 Bigelow’s Bills and Notes, 168. Stowell, 123 Mass. 196, 200, 201. 2Rainbolt v. Eddy, 34 Iowa, 440; McCramer v. Thompson, 21 Iowa, 249; McDonald ». Musca- tine Bank, 27 Iowa, 319; Capital Bank v. Armstrong, 62 Mo. 59; Tron Mountain Bank v. Murdock, ib. 70; Redington v. Woods, 45 Cal. 406; Worrall v. Gheen, 39 Penn. St. 388; Garrard v. Haddan, 67 Penn. St. 82; Phelan v. Moss, ib. 59; Bigelow’s Bills and Notes, 218-220, 2d ed. 34 Bing. 253. 4Swan v. North British Co., 2 Hurl. & C. 175, 189, 190; Halifax Union v. Wheelwright, L. R. 10 Ex. 183, 192; Greenfield Bank v. See also Seton v. Lafone, 19 Q. B. D. 68, C. A. affirming 18 Q. B. D. 139; Merchants of the Staple v. Bank of England, 21 Q. B. D. 160, C. A.; Arnold v. Cheque Bank, 1 C. P. D. 578. These cases are considered in chapter 18, § 10. 5See Merchants of the Staple v. Bank of England, 21 Q. B. D. 160, 176, Bowen, L. J. These cases show that negligence, to work an estoppel in such cases, must be immediately connected with the transaction which _fol- lowed. See, further, chapter 18, § 10. 6 English cases, supra, note 4, SECT. II.] CONTRACT: COMMERCIAL PAPER. 535 paper had been delivered as a completed instrument; it has nothing to do with the similar appearing case of violations of confidence by the wrongful filling of blanks in. paper not com- pleted.!| That is a case of agency. § 2. Capacity. The execution of a negotiable note estops the maker to deny the existing capacity of the payee to indorse the paper.? The case cited was an action of assumpsit by the indorsee of a promissory note against the maker, to which the defendant pleaded that the payee had, before the note was made, become a bankrupt and that his property had passed to assignees, whereby the right to indorse the note had become vested in them, so that his indorsement of the paper was void. But this was held an inadmissible defence, though the jury found that the indorsement had been made without the consent of the assignees.’ and authorities there cited; Holmes v. Trumper, 22 Mich. 427; Green- field Bank v. Stowell, supra, and the cases therein reviewed. 1See Bigelow’s Bills and Notes, 571 et seq. 2 Drayton v. Dale, 2 Barn. & C. 293; and cases infra. Where shares of stock are transferable by the vendor’s signature to a blank trans- fer, he is estopped to deny the authority of the buyer to insert his name therein as the transferee. Colonial Bank v. Hepworth, 36 Ch. D. 36, Chitty, J. This was a case of a contest between two innocent purchasers for value of the same stock, in which the party pre- vailed whose name was finally inserted in the blank transfer. See the similar case of Williams v. Colonial Bank, 36 Ch. D. 689, reversed 38 Ch. D. 388; 15 A. C. 267. 3 Abbott, C. J. took the ground that as it did not appear that the assignees had interfered or made any claim, the payee had a right to indorse. But the better ground, it would seem, was stated by Bayley, J. ‘This is an action,’ said he, ‘upon a note payable to Clarke, or to the order of Clarke. The defendant therefore by making such note intimates to all persons that he considers Clarke capable of making an order sufficient to transfer the property in the note. The defence now set up is that although he has issued a security to the world importing on the face of it that Clarke was capable of making such an order, yet that in fact he was incapable. Now, this is a fraud upon the public. It is a general principle applicable to all negotiable securities that a per- son shall not dispute the power of another to indorse such an instru- ment when he asserts by the in- strument which he issues to the world that the other has. such 536 ESTOPPEL IN PAIS. [CHAP. XVI. In like manner, the acceptor of a bill is estopped to say that the drawer and payee was a married woman, or otherwise in- competent.? power.’ The same ground sub- stantially was taken by Holroyd, J. The learned judge cites the case of Taylor v. Croker, 4 Esp. 187, showing that the same prin- ciple applies to acceptance. In this case a bill was drawn by in- fants. The defendants accepted the bill, and the infants indoised it. Lord Ellenborough held that as the defendants had by their ac- ceptance admitted the competency of the infants to indorse, they should not now be permitted to say that they were incompetent. See Jones v. Darch, 4 Price, 300. 1Smith v. Marsack, 6 C. B. 486. ‘In support of a contrary doctrine,’ said Wilde, C. J. in de- livering judgment in Smith ». Marsack, supra, ‘the cases of Connor v. Martin, 1 Strange, 516, Barlow v. Bishop, 1 East, 482, and Prince v. Brunatte, 1 Bing. N. C. 485, s.c. 1 Scott, 342, were cited on the argument by the counsel. for the defendant. In Connor v. Martin, as reported in Strange, the plaintiff declared on a note made to a feme coyert, and indorsed by her to him; and on argument judgment was given for the defendant, the right being in point of law in the husband, and the wife having no power to dis- pose of it. But this case was cited by Dennison, J. in Rawlinson »v. Stone, 3 Wils. 1, 5, from a note taken by himself in court; and it appears from that learned judge’s statement that the promissory note in question had been given to the wife before marriage. Bar- low v. Bishop is certainly a direct authority for the position that if In a ease already cited? it was held by Lord a note is drawn payable to a woman or order, and her indorsee sues the maker, he may set up as a defence that she was a married woman, though he knew her to be such at the time he made the note. But it was observed by Lord Abinger in Pitt v. Chappelow, 8 Mees. & W. 616, that in Barlow »v. Bishop the plaintiff must be taken to have known the fact of the husband’s property in the bill, and therefore could not take an assign- ment of it from the wife. Indeed, it appears from the report of the case at nisi prius in Espinasse, 3 Esp. 266, that the wife had given a previous note for the money in her own name, and that the note in question was given in conse- quence of such former note not being negotiable, which appears to favor Lord Abinger’s supposi- tion that the plaintiff must have known of her coverture before the note was indorsed to him. In Prince v. Brunatte, it was cer- tainly assumed by the court as well as by the counsel on both sides that such a plea as the present. would be a good answer to the action; and the same observation arises with respect to the case of Cotes v. Davies, 1 Camp. 485, and that of Prestwick »v. Marshall, 7 Bing. 565; s. c. 5 Moore & P. 513. But in none of these cases does it appear that the point now under consideration was ever made, viz. that the case falls within the general principle — which is stated by Bayley, L. in his judgment in Drayton v. Dale f{ante, p. 535], as applicable to all negotiable securities — that a person shall 2 Pitt v. Chappelow, 8 Mees. & W. 616, SECT. II.] CONTRACT: COMMERCIAL PAPER. 537 Abinger that the estoppel arose even though the drawer was a bankrupt before the bill was executed; and the doctrine has been confirmed in the Queen’s Bench, so that no doubt can now exist upon the point.! In this case, assumpsit by a bona fide indorsee against the acceptor of a bill, the defendant pleaded that the drawer was an uncertificated bankrupt before the acceptance was given. But the court on demurrer held him estopped.” The same ruling was again made by Mr. Baron Parke, in Hallifax v. Lyle. This was an action on a bill of exchange against the acceptors, who pleaded that the drawers (who were also payees and indorsers) were a body corporate having no authority to draw, indorse, issue, or negotiate bills of exchange. But the plea was held bad on demurrer.‘ This estoppel in respect of capacity, however, appears to be affirmative only, not prospective and promissory. Hence, not dispute the power of another to indorse an instrument when he asserts by the instrument that the other has such power. And we can discover no reason why this principle should not be applicable; and if it is, it appears to us to govern the present case, and to prove that the plea in question is bad. It need scarcely be added that in so deciding we do not mean at all to impugn the proposition that if a bill or note is made payable to the order of a married woman the property in it will pass by the in- dorsement of the husband, or he may sue on it, either joining his wife as a party to the action, or in his own name at his option. And consequently -it cannot be denied that the defendant may possibly be compelled’ to pay the bill in question twice. But this is a consequence which follows from his own act of accrediting the capacity of a woman to indorse, by accepting a bill payable to her order, who in truth was incapable.’ 1 Braithwaite v.- Gardiner, 8 Q. B. 473. 2 Lord Denman, C. J. observed: ‘Lord Abinger was a high au- thority on subjects of this kind. It is clear what his opinion was on the point of estoppel in Pitt ». Chappelow, 8 Mees. & W. 616; and I think it rests on sound prin- ciples. In this case all parties knowing the bankrupt’s situation the defendant accepts a bill drawn by him. He thereby admits that the bankrupt had power to draw upon him; and therefore on a short and simple ground, which is always the best, I am of opinion that the plaintiff has a right to maintain the action.’ Kitchen v. Bartsch, 7 East, 53, was distinguished on the ground that there the drawer, who was the bankrupt, himself brought the action. Wightman, J. said that the answer which availed against him as a plaintiff could not serve an acceptor who of his own authority had made the bill of the bankrupt negotiable, and was sued upon it by a bona fide holder. 33 Ex. 446. 4 Sanderson v. Collman, 4 Man. & G. 209, was distinguished. 538 [CHAP. XVI. ESTOPPEL IN PAIS. should the payee have become wholly incompetent at the time of his indorsement, supposing the act to be substantially after + the execution of the paper by the maker or the signature of the acceptor, the maker or acceptor would be permitted to set up the fact in bar of the indorsee’s right of action. Still, if this subsequent incapacity of the payee is not complete, but partial only, so that his or her indorsement is but voidable and not void, then, it seems, the indorsement will pass a title that will be good until properly repudiated. Thus, though it has some- times been declared that the contract of a lunatic is absolutely void,? unless entered into during a lucid interval, the better opinion appears to be that it is voidable only;* and in this view his endorsement will pass a title to a bona fide purchaser for value until the act has been duly repudiated by his guard- ian or other representative. Hence, until repudiation so made, it would be of no avail to the acceptor of a bill to say that the. payee, though sane when the bill was accepted, was insane when he indorsed it.* Indorsement appears to work a sort of warranty of capacity, in regard to prior parties; that is, the case 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 plain- tiff had been aware when he took the paper. The incapacity of the makers to contract was now alleged in defence by the indorser; but judgment was given for the plaintiff. So too the guarantor of a bond perhaps warrants, but certainly is es- topped to deny, the competency of the makers of it.6 Accepting 1Quere in regard to an in- dorsement made by the payee of a bill before acceptance; the war- ranty is of present capacity. 2 Rogers v. Blackwell, 49 Mich. 192. 3 Carrier v. Sears, 4 Allen, 336; Allis v. Billings,’6 Met. 415; Arnold». Richmond Iron Works, 1 Gray, 434; Burke v. Allen, 29 N. H. 106; Ashcraft v. De Armond, 44 Iowa, 229; Riggan v. Green, 80 N. Car. 236; 2 Kent, 451. ‘Carrier v. Sears, 4 Allen, 339, explaining Peaslee v. Robbins, 3 Met. 164, apparently contra. And see Burke v. Allen, 29 N. H. 106, a doubtful case in regard to in- fancy. 5 Erwin v. Down, 15 N. Y. 575; Bigelow, Bills and Notes, 98, 99, 2d ed. But see Barlow v. Bishop, supra, p. 536. 6 Remsen v. Graves, 41 N. Y. 471. SECT. I1T.] CONTRACT: COMMERCIAL PAPER. 539 a bill or (it seems) making a note only admits by way of estop- pel in pais, the capacity of the payee to indorse the instrument.! It may be added that sureties upon official bonds executed by de facto officers are estopped to deny (do they warrant?) the proper execution of the bonds.? § 3. Certification of Checks. The certification of checks and the like acts bear some re- -semblance to those above considered.*? Indeed, so far as the question of the right of the certifying party to set up an alter- ation is concerned, the law is no doubt the same as prevails in regard to the acceptance of a bill. Certification conclusively admits the genuineness of the drawer’s signature, with the same limitations, it seems, that apply to acceptance; it does not ad- mit the genuineness of other signatures or of the body of the check.* The law in regard to admitting the capacity of the drawer to draw and of the payee to indorse is also, it seems, the same in both cases. But there is another case of a different nature. An 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; but not if there has been no 1See Bigelow, Bills and Notes, 52, 2d ed. 2 State v. Cooper, 53 Miss. 615; Jones v. Scanland, 6 Humph. 195; People v. White, 24 Wend. 520; Stephens v. Crawford, 1 Kelly, 574; s. c. 3 Kelly, 499; Iredell v.-Barber, 9 Ired. 250; Green v. Wardwell, 17 Ill. 278. 3A” certificate of stock in a corporation, under seal, and signed by the proper officers, estops the corporation towards innocent pur- chasers for value to say that the stock was irregularly issued, so far at least as to make the corporation responsible for the value of the stock where for any reason the possessor cannot be recognized as a stock- holder. Commonwealth v. Read- ing Bank, 137 Mass. 431, 440, dis- tinguishing Moores v. Citizens’ Bank, 111 U. 8S. 156. See West- minster Nat. Bank »v. Electrical Works, 73 N. H. 465, 62 A. 971, 111 A. S. R. 637. 4Clews v..Bank of New York, 89 N. Y. 418, 422; Espy v. Bank of Cincinnati, 18 Wall. 604; Conti- nental Nat. Bank v. Tradesmen’s Nat. Bank, 173 N. Y. 272, 65 N. E. 1108. 5 Irving Bank v. Wetherald, 36 N. Y. 335. 540 ESTOPPEL IN PAIS. [CHAP. XVI. change of position. In Irving Bank v. Wetherald mistake in the state of funds of the party whose note was certified as good was discovered on the very day when 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 defend- ants were liable.? 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, though a bona fide holder.?- But in New York it is held that a bona fide holder for value of a negotiable check certified to be good by 1Jn delivering judgment in this case Hunt, J. said: ‘Both the judge at the circuit and the gen- eral term were of the opinion that the notice by the plaintiffs to the Seventh Ward Bank [which had presented the paper] of the mis- take in certifying Wilson’s check to be good, before any steps had been taken or any measures omit- ted by the Seventh 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 certifi- cate possesses no extraordinary or hidden .power. It would impose no greater liability than its terms fairly require. ... The correct- ness of this certificate is a matter which the certifying bank has the means of knowing, and is bound to state correctly. If the pre- senting bank relies upon its ac- curacy, 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 upon such statement, the certify- ing 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 erroneous. Meads v. Merchants’ Bank of Albany, 25 N. Y. 143; Farmers’ & M. Bank v. 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 consequence 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 opportunity 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. 2 Mussey v. Eagle Bank, 9 Met. 306. SECT. 111.] CONTRACT: COMMERCIAL PAPER. 541 the paying teller of the bank on which it is drawn, though his 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 notwithstanding the fact that the drawer had no funds in the bank and the certification by the teller was in violation of his duty.1_ And this decision has been followed by the Supreme Court of the United States in a recent case.” 1Farmers’ Bank v. Butchers’ Bank, 16 N. Y. 125; Continental Bank’ v. National Bank, 50 N. Y. 575; see Continental Nat. Bank v. Tradesmen’s Nat. Bank, 175 N. Y. 272, 65 N. E. 1108. Lia- bility rests not merely on certi- fication but on estoppel, caused by continued neglect. 2 Merchants’ Bank v. State Bank, 10 Wall. 604. In the New York ease above referred to Mr. Justice Selden, who delivered the opinion, thhaving remarked that in the case of funds a certification by the teller would be proper, said: ‘ But it is insisted that his power extended only to cases where the bank had funds in hand, he having been expressly prohibited from certify- ing in the absence of funds, and thence that the bank is not bound. It may be doubted whether such ‘a prohibition adds anything to the * restrictions which would other- ‘wise exist upon the powers of the agent. general power to certify checks would be guilty of an excess of authority, and a clear violation of duty, if he certified without funds. The powers of the cashier himself or other principal finan- cial officer of the bank would no doubt be subject to the same limita- tion. 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 con- ferred upon any other officer could A teller acting under a_ be construed to authorize that. Hence if a bank is holden in any case upon a certificate of its cash- ier that a check is good when it has no funds of the drawer, it is not * because the cashier is deemed au- thorized to make such a certificate, 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 checks 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 in- quire whether a bona fide holder for value of a negotiable check certified by a special agent whose 542 ESTOPPEL IN PAIS. [CHAP. XVI. In the case referred to as decided by the Supreme Court of the United States * the checks had been certified as good by authority is limited to cases where the bank has funds of the drawer in hand can enforce payment of the check, provided the bank has no such funds. ... The defence assumes that principals are bound only by the authorized acts of their agents, and admits of no qualifica- tion of this general rule except where the agent has been apparently clothed with an authority beyond that actually conferred. But this proposition is too broad to be sus- tained. Principals have been re- peatedly held responsible for the false representations of their agents, not on the ground that the agents had any authority cither real or apparent to make such representa- tions, but for reasons entirely different. In Hern ». Nichols, 1 Salk. 289, the leading case on the subject, where an agent authorized to sell a quantity of silk had made certain fraudulent representations by which the purchaser was de- ceived, the principal was held liable. Lord Holt there said: “ See- ing somebody must be loser by this deceit it is more reasonable that he that employs and puts a confidence in the deceiver should be a loser, than a stranger.” The principle of this case has never, I think, been overruled, but on the con- trary 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 reasoning of Lord Holt in the case of Hern v. Nichols applies here with peculiar force. The bank selects its teller and places him in @ position of great responsibility. The trust and confidence thus re- posed in him by the bank lead others to confide in his integrity. Persons having no voice in his selection are obliged to deal with the bank through him. If, there- fore, while acting in the business of the bank and within the scope of his employment 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 respon- ‘ sible? It is worthy of consideration that the fact misrepresented in this case is not only one peculiarly within the knowledge of the agent, but ove with which he is made ac- quainted by means of the posi- tion in which he is placed by the bank, and which it is his especial province and duty to know, and which could scarcely be definitively ascertained except by application tohim. These circumstances would seem to bring the case decidedly within the principles adopted in Hern v. Nichols, and in the sub- sequent decisions based upon that. case. This conclusion is in no respect in conflict with that doc- trine 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 with- out funds. But this knowledge alone would not apprise him that the certificate was defective and. unauthorized. To discover that, he must not only have notice of 1 Merchants’ Bank v. State Bank, 10 Wall. 604. SECT. III.] CONTRACT: COMMERCIAL PAPER. 543 the cashier of the bank. Mr. Justice Swayne, in delivering the judgment, observed that estoppel in pais presupposes an error the limitations upon the powers of the teller, but of the extrinsic fact that the bank had no funds; and as to this extrinsic fact, which hefcannot justly be presumed to know, he may act upon the rep- resentation of the agent. There isa plain distinction between the terms of a power and facts entirely ex- traneous upon which the right to exercise the authority conferred may depend. One who deals with an agent has no right to confide in the representation of the agent as to the extent of his powers. If, therefore, a person knowing that the bank has no funds of the drawer should take a certified check upon the representation of the cashier or other officer by whom the certificate was made that he was authorized to certify without funds, the bank would not be l- able. But in regard to the extrin- sic 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 have any means of knowing. Were he held bound to ascertain it, the teller would be the most direct and reliable 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 pet- mitted to rely upon the representa- tion of the agent as to the exist- ence of a fact, and to hold the prin- cipal 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 dealing with an agent has ascer- tained that the act of the agent corresponds in every particular, in regard to which such party has or is presumed to have any knowl- edge, with the terms of the power, he may take the representation of the agent as to any extrinsic fact which rests peculiarly within the knowledge 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 partnership 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 ean bind the firm by making, indorsing, and accepting bills and notes in such business; but he has no more authority than a mere stranger to execute such paper in his own business or for the accommodation of others. If he gives the partner- ship note or acceptance for his own debt, it is void in the hands of any party having knowledge of the consideration for which it is given; but when negotiated to a bona fide holder, the firm is pre- cluded from questioning the au- thority of the partner and is effec- tually bound. The cases in this state by which this doctrine is illustrated and established are nu- merous and uniform. Livingston v. Hastie, 2 Caines, 246; Lansing v. Gaine, 2 Johns. 300; Laverty v. Burr, 1 Wend. 529; Williams ». Walbridge, 3 Wend. 415; Boyd v. Plumb, 7 Wend. 309; Gansvoort v. Williams, 14 Wend. 133; Joyce v. Williams, ib. 141; Wilson »v. Williams, ib. 146; Catskill Bank v. Stall, 15 Wend. 364; s. c. 18 Wend. 466. It will be found diffi- cult to distinguish these cases in principle from that now before 544 ESTOPPEL IN PAIS. [cHaP. XVI. or a fault implying an act in itself invalid. The rule proceeded upon the consideration that the author of the misfortune should the court. Every person taking the negotiable note or acceptance of a partnership executed by one of the partners in the name of the firm is bound to know the extent of the partner’s authority 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 partner- ship. 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 unauthorized act of the agent, but whether he is ‘estopped by the representation of the agent from disputing facts which show that the act was au- thorized. There is no analogy be- tween 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 confidence 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 foundation of the liability, and which justify the party dealing with the agent in relying upon his Tepresentation in respect to facts especially within the agent’s knowl- edge. The giving a note in the partnership name by one of the partners is a virtual representation that it is given in the partnership business, and if negotiable, the representation is deemed in law to have been made to every sub- sequent bona fide holder of the note. The State of Illinois »v. Delafield, 8 Paige, 527, s. c. in error, 2 Hill, 159, is another illus- tration 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 Dela- field on time and at a sacrifice. The state filed a bill against Delafield for relief, and applied to the Court of Chancery for an injunction to restrain the defendant from nego- tiating the bonds on the ground that if negotiated the state would be liable to pay them. The defend- ant’s counsel insisted that if the bonds were void in the hands of Delafield, they would be equally so in the hands of any person to whom he might transfer them. The Chancellor nevertheless granted the injunction, saying that if the se- curities 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 Chan- cellor was affirmed by a nearly unanimous vote. It would be difficult, I think, to discover any valid distinction in principle be- tween this case and the one we are considering. The purchaser of the bonds from Delafield would equally with Delafield himself be presumed to know the limits of the authority conferred upon the agent; but it must have been held that he would not be bound to inquire as to the extrinsic facts at- tending the sale or negotiation of the bonds.’ But the better ground is agency, not estoppcl. SECT. Iv.] CONTRACT: COMMERCIAL PAPER. 545 not himself 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 was 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 satis-' faction, 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 payable 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 consequences, and it was liable accordingly.? Any language, it has indeed 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 cus- tomers, representing 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 by Indorser after Liability fixed. A case of estoppel arises also where an indorser, whose lia- bility has been fixed by notice of non-payment, again becomes 1S$wan v. North British Co., 7 Hurl. & N. 608; s. c. 2 Hurl. & C.175; Hern v. Nichols, 1 Salk. 289. 2 The following authorities were cited in support of the ruling: Bickford v. First National Bank, 42 Ill. 238; Willets v. Phoonix Bank, 2 Duer, 121; Barnet v. Smith, 30 N. H. 256; Farmers’ Bank v. Butchers’ Bank, 14 N. Y. 624; s. c. 16 N. Y. 125; Meads v. Merchants’ Bank, 25 N. Y. 148; Brown v. Leckie, 43 Ill. 497; Girard Bank v. Bank of Penn., 39 Penn. St. 92. See also Clarke National Bank ». Bank of Albion, 52 Barb. 592. 3 Pope v. Bank of Albion, 59 Barb. 226, 238. 546 ESTOPPEL IN PAIS. [CHAP. XVI. possessed of and negotiates the paper upon a representation of having received due notice of dishonor. The late case of St. John v. Roberts ! 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 pay- ment 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 by the Court of Appeals.” 131 N. Y. 441. 2‘The Superior Court,’ said Davies, J. in delivering the opinion, ‘treated the case as if there had been a new contract by the defend- ants 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 indorsement unless there has been subsequent to such indorsement and transfer a demand 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 in- dorsement on the transfer and deliv- ery of this note to the present plain- tiff. 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 presented, and they have received the amount of the pur- chase-money and should not be permitted to deny their liability.’ After referring to Williams »v. Mathews, 3 Cowen, 252, as a case so nearly analogous as to be de- cisive on authority, the learned judge proceeded to say: ‘In‘ the present case the plaintiff dealt with Nicolay 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 con- troverting 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 no- tice. Libbey v. Pierce, 47 N. H. 309. SECT. I.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 547 CHAPTER XVII. LEGAL EFFECT OF CONTRACT: TAKING POSSESSION. WE have now to consider the second class of estoppels by contract, — that class in which the estoppel arises, not by reason of some fact agreed or assumed to be true, but as the legal effect of carrying the contract into execution; and first, of the effect of taking possession of property from the hand of another. §1. Estoppel of Tenant to deny Landlord’s Title. Creation of the complete relation of landlord and tenant has the effect in law of estopping the tenant to deny the validity of the title which he has admitted to exist in the landlord.2? We have already alluded to the fact that this estoppel is 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 estop- pel, 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 certain that at the present time it is immaterial to the existence of the estoppel whether the lease be by deed-poll or by inden- ture, or even whether there be any written lease at all. And 1 The estoppel upon the landlord has already been considered under Title by Estoppel. Ante, pp. 424— 429, Hatch v. Bullock, 57 N. H. 15; Betts v». Wurth, 32 N. J. Eq. 82; Terrett v. Cowenhaven, 79 N. Y. 400; Nims »v. Sherman, 43 Mich. 45; Campau »v. Lafferty, ib. 429; Ward v. Ryan, 10 Ir. R. C. L. 17; Peterson v. Kinkead, 92 Cal. 372, 28 P. 568; Ballance »v. Peoria, 180 Ill. 29, 54 N. E. 428; Reese v. Caffee, 133 Ind. 14, 32 N. E. 720; South v. Deaton, 113 Ky. 312, 68 S. W. 137. The trans- action, for the purpose of the estoppel, must not be contrary to law. Shorman v. Hakin, 47 Ark. 3851; Dupas v. Wassell, 1 Dill. 213. 3 Ante, pp. 489, 490. 548 ESTOPPEL IN PAIS. [CHAP. XVII. again, the estoppel then terminated with the expiration of the lease; while at the present day the estoppel continues until the surrender of possession.!_ And the tenant’s estoppel of the present day arises as well in regard to personalty as to realty.” Moreover, even though there was a lease by indenture, no estoppel 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 habuit in tenementis.’* The estoppel, therefore, could not arise in debt for rent; for the indenture could not be the foundation of such an action. ‘ How narrow and technical the distinction established by this rule was,’ says a learned writer in the American Law Review,‘ ‘ will appear on referring to the ancient precedents of debt for rent, In Carson v. Faunt * the declaration avers a demise, setting out specifically the date, term, premises, and rate of rent; yet nil habuit, etc. was pleaded, and issue was joined thereon. In Offey v. Ormes ® the indenture is set out in full; yet nil habuit, etc. was a good plea. . . . Indeed, the entire distinction be- tween 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, etc.; and that in covenant that the cove- nant recited had been broken, etc.’ It is 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 feud required an estate of 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 1 Even though he was the actual 1550; Veale ». Warner, 1 Wms. owner of the property at the time Saund. 325, n. 4; Syllivan ». of the lease. Sage v. Halverson, Stradling, 2 Wils. 208. 72 Minn. 294, 75 N. W. 229; Camp- 4Vol. 5, p. 1. bell v. Hart, 118 La. 871, 43 So. 533. 51 Lilly, Ent. 168 (1698). 2 Ryder v. Mansell, 66 Maine, 167. 8 Tbid. 179. 3 Palmer v. Ekins, 2 Ld. Raym. 71 Washburn, Real Prop. 356. SECT. I.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 549 cases. In the familiar case of Doe d. Knight v. Smythe,! an action of ejectment, Mr. Justice Dampier 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 Buller, J. on the western circuit.’ The case re- ferred to was perhaps Doe d. Bristow »v. Pegge,? decided in 1785, in which Mr. Justice Buller 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, 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; the writer in the American Law Review, after mentioning 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 in the statute passed in 1738 for the relief of land- lords,? as was supposed by Mr. 14 Maule & S. 347 (1816). 2 Reported in note, 1 T. R. 758. 3 It was enacted by § 14 of this statute, that, ‘to obviate some difficulties that may at times occur in the recovery of rents where demises are not by deed, it shall and may be lawful to and for the landlord, where the agreement is not by deed, to recover a rea- sonable satisfaction for the lands, tenements, and hereditaments held Justice Woodruff in Moffat »v. or occupied by the defendant, in an action on the case [assumpsit] for the use and occupation of what was so held and enjoyed; and if in evidence on the trial of such action, any parol demise or agreement, not being by deed, whereon a certain rent was re- served, shall appear, the plaintiff in such action shall not therefore be nonsuited, but may make use thereof as an evidence of the [CHAP. XVII. 550 ESTOPPEL IN PAIS. 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 tenementis, in indebitatus assumpsit for use and occupation; a case tried twelve years prior to the passage of the act. In Gibson v. Kirk 4 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 occupa- tion of land had been frequently held maintainable.* The fact is also mentioned that debt for use and occupation antedated the statute. The conclusion appears to be justified 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 compensation from day to day for actual enjoyment. But to the maintenance of the action the relation of landlord and tenant must have been established; and when established, the modern estoppel in pais arose. Enjoyment by 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. Two conditions, then, are essential to the existence of the estoppel: first, possession; secondly, permission; when these conditions are present the estoppel arises.® quantum of damages to be re- covered.’ And by § 22, ‘it shall be lawful for all defendants in replevin to avow and make cog- nizance generally that the plaintiff in replevin, or other tenant of the lands and tenements whereon such distress was made, enjoyed the same under a grant or demise at such a certain rent during the term wherein the rent distrained for was in- curred, which rent has heen and still remains due... without setting forth further the grant, terms, demise, or title of the land- lord.’ 11 Geo. 2, c. 19. 19 Bosw. 57, 65. 21 Wils. 314. : 3 Hil. T. 18, Geo. 1 (1727); Pappe v. Trout, 3 Okl. 260, 41 P. 397. 1Q. B. 840, 855. 5 See also Churchward »v. Ford, 2 Hurl. & N. 446; Curtis v. Spitty, 1 Bing. N. C. 15; Beverly »v. Lincoln Gaslight Co., 6 Ad. & E. 839, note; Egler v. Marsden, 5 Taunt. 25. § Morrison v. Bassett, 26 Minn. 235; Hussman v. Wilke, 50 Cal. 250. It has been suggested, and with much soundness apparently, SECT. IL] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 551 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 estoppel 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 instrument 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 prem- ises were not his freehold. This decision proceeds upon the mistaken assumption that the seal is the foundation of the tenant’s estoppel, the court no doubt having in mind the estoppel of the early common law. — And the same remark is applicable to Davis v. Shoemaker,’? and that the estoppel will arise even if there appears no entry or pos- session by the tenant if he does not show that he could not get possession. 5 Am. Law Rev. 16; Varnam v. Smith, 15 N. Y. 327, 331. In this case Denio, C. J. ob- served: ‘If the defendant in his answer had confined himself to a denial that the plaintiff at the time of the demise had any estate in the premises, the question would be presented whether the ancient rule of the common law, to which I have referred, prevails at this day. There would not be much appearance of justice in holding that where one has taken a written lease of premises and agreed to pay the rent, but has not thought proper to avail himself of the right he had thus contracted for by going into possession, where he might have done so without hindrance from any one, he can defend against his engagement by showing that there was a defect in the lessor’s title, and that he was not really seised of the land.’ See Wiggins Ferry Co. v. Ohio & M. R. Co., 142 U.S. 396, 12 Sup. Ct. 188, 35 L. Ed. 1055, for estoppel on receiver who has enjoyed by permission the property in dispute. Also on manager of real estate, as agent of a principal when sued in eject- ment by the principal. Seymour v. Slide Gold Mines, 153 U. S. 523, 14 Sup. Ct. 847, 38 L. Ed. 807. If defendant is in possession claim- ing title at time of agreement for lease there is no estoppel. People v. Lundquist, 84 Cal. 28, 24 P. 153. 118 Johns. 490. 2A third person whose goods have been distrained for arrears of rent is not estopped from dis- puting lessor’s title. Tadman »v. Hemman, (1893) 2 Q. B. 168. 31 Rawle, 135. 552 ESTOPPEL IN PAIS. [cHAP. XVII. 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 habuit 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 ex- piration of the term the tenant might set up his own title to the premises without giving back the possession. But the court in this case, misconceiving the true origin of the modern doctrine, rests the 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 determines.’ > The seal being the effi- cient element of estoppel in the early common law, the estoppel was removed when, by the expiration of the term, its power terminated. But permissive possession being the ground of the modern estoppel, it is clear that the estoppel will prevail so long as such possession continues,® though the contract of lease was void.’ And the authorities upon this point are numerous. We proceed now to a more detailed examination of the modern doc- 1Syllivan v. Stradling, 2 Wils. 208; Smith v. Scott, 6 C. B. n. s.- 771, obiter. 2See 5 Am. Law Rev. 15. 3 Moore v. Beasley, 3 Ohio, 294; Gray v. Johnson, 14 N. H. 414; Varnam v. Smith, 15 N. Y. 327. 443 N. H. 328. See Carpenter v. Thompson, 3 N. H. 204; Gray ». Johnson, 14 N. H. 421; Russell v. Fabyan, 27 N. H. 537; Accidental Death Ins. Co. ». Mackenzie, 5 L. T. n. s. 20; 5. c.10C. Bn. ss. 870, Am. ed. 5 Coke, Litt. 47 b. 6 Bishop v. Lalouette, 67 Ala. 197; Littleton v. Clayton, 77 Ala. 571 (secret surrender and collusive resumption of possession). There were other matters involved in Page v. Kinsman, however, and the decision was in fact correct, though this erroneous ground was taken. 7 Crawford v. Jones, 54 Ala. 459. 5 See Bailey v. Kilburn, 10 Met. 176; Miller v. Lang, 99 Mass. 13; Doe d. Bullen v. Mills, 2 Ad. & E. 17; Fleming v. Gooding, 10 Bing. 549; 5 Am. Law Rev. 21, 22, and cases cited; Morrison v. Bassett, 26 Minn. 235; Love v. Law, 57 Miss. 596; Nims v. Sherman, 43 Mich. 45; Pool v. Lamb, 128 N. C. 1, 37 8. E. 9538. SECT. I.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 553 trine of the tenant’s estoppel, and, as heretofore, by a presenta- tion of the cases. : Payment of rent is evidence of permissive occupation, and when unaccompanied by fraud or mistake establishes the rela- tion of landlord and tenant,' and is the ordinary evidence upon which the estoppel arises, though it is by no means the only evidence upon which the estoppel may be founded.? In the English case first cited, an action of ejectment, it appeared that, upwards of thirty years before, the defendant had en- closed 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, whe paid it. Six years later the plaintiff gave notice to quit, with which the defendant 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 rule that the estoppel of the 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 is one of contract, it follows that the same rules concerning the competency of parties prevail as in the case of estoppels by deed. A lease, like other contracts, is binding only 1Doe d. Jackson v. Wilkinson, 3 Barn. & C. 413; Cooper »v. Blandy, 4 Moore & S. 562; Killoren v. Murtaugh, 64 N. H. 51; Lucas v. Brooks, 18 Wall. 486; Dunshee ». Grundy, 15 Gray, 314; Whalin v. White, 25 N. Y. 462. Payment of rent may also be conclusive evidence that the tenant is an assignee of a lease. Williams v. Heales, L. R. 9 C. P. 177. What constitutes a letting in cases of payment on shares, so as to raise an estoppel, see Strain v. Gardner, 61 Wis. 174; Jackson v. Brownell, 1 Johns. 267; Overseers v. Over- seers, 14 Johns. 365; Taylor ». Bradley, 39 N. Y. 129. Judgment for the plaintiff in a suit for un- lawful detainer conclusively es- tablishes the relation of landlord and tenant between the parties. Norwood v. Kirby, 70 Ala. 397. 2 See e. g. Conwell v. Mann, 100 N. Car. 234. 3°The payment of rent,’ said Holroyd, J. ‘was an acknowledg- ment that the occupation was by permission. Had the defendant known that the lessor of the plain- tiff could not otherwise prove a tenancy, it is probable that he would not have paid the rent; but having paid it, the tenancy is acknowledged.’ 554 ESTOPPEL IN PAIS. [CHAP. XVII. upon parties sui juris; and persons under disability not being bound by the contract are not estopped to deny its validity. On the other hand, since a contract made with a person under disability, when not absolutely void, may be avoided only by the incompetent party, and is 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.1 In the case first cited a parol gift of land had been made by a third person to an infant, and the infant’s mother had been put in possession 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 had not been created, the mother was still estopped before the sur- render of possession from denying her son’s title. As in other cases, the estoppel binds the tenant’s privies as well as the tenant. The rule is illustrated in Doe d. Bullen 2. Mills.2 Certain premises were in the possession of a lessee under an indenture from Bullen, the plaintiff. Subsequently the defendant laid claim to the premises, and offered the 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. Mr. Justice Taunton said that the de- fendant 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 immediate lessee.? Mr. Justice Patterson said that the act of the defendant by which he was let into pos- session 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. 1 Russell v. Erwin, 38 Ala. 44. § Otis v. McMillan, 70 Ala. 46, 53; See Grant v. White, 42 Mo. 285; Dobson v. Culpepper, 23 Gratt. 352. Byrnes v. Douglass, 23 Nev. 83, 4See Doe d. Knight v. Smythe, 42 P. 798. 4 Maule & S. 347; Doe d. Bliss 22 Ad. & EF. 17. v, Estey, 8 N. B, 489. SECT. I.] ESTOPPEL BY CONTRACT: LEGAL EFFECT 555 If the tenant sublet the premises, the sub-lessee cannot dis- pute the title of the original lessor.!_ In Barwick v. Thompson, just cited, the master of a school, holding under the mayor and aldermen of the borough in their capacity of guardians and gov- ernors 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 plaintiffs, 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 in this re- spect the case differed from the ordinary one where a tenant was not permitted to impeach his landlord’s title. But the court was 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. 1863 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.’ 1 Barwick v. Thompson, 7 T. R. 488; Stewart v. Keener, 131 N. C. 486, 42 S. E. 935. 2London & Northwestern R. Co. v. West, L. R. 2 C. P. 553. Further, of privity, see Woodruff v. Erie Ry. Co., 73 N. Y. 609; Pate v. Turner, 94 N. Car. 47; Bishop v. Lalouette, 67 Ala. 197; Nor- wood v. Kirby, 70 Ala. 397 (ad- ministrator and administrator de bonis non); White v. Barlow, 72 Ga. 887 (purchaser from tenant, with notice); Blake ». Sanderson, 1 Gray, 332; Lunsford v. Alex- ander, 4 Dev. & B. 40; Rennie v. Robinson, 1 Bing. 147; Doe d. Wheble v. Fuller, 1 Tyr. & G. 17. 3 Willes, J. said: ‘ It seems to me that the question is whether, if Budd had been the defendant in- stead of West, he could have resisted this ejectment, for West came in under Budd; and since [CHAP. XVII. 556 ESTOPPEL IN PAIS. Passing to the fundamental rule that a tenant cannot while in possession set up an outstanding title to overthrow the title of one under whom he holds, or otherwise dispute such title,! — that rule is illustrated in Doe d. Ogle v. Vickers,? an ejectment for land in Shropshire. The facts were these: In 1824 the de- fendant executed a mortgage in fee to the plaintiff of the prem- ises in question. Subsequently other parties brought eject- ment 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 judgment subject to the award of a barrister, who was to di- rect what sort of lease should be executed by the successful parties to the defendant. The arbitrator awarded a lease which was executed and had not expired at the commencement of the no change has taken place in the right of the different parties since his tenancy commenced, he can- not dispute that the rights of Budd have duly vested in him. Would, then, Budd be able to dispute the plaintiffs’ title? If his tenancy had commenced after 1859, when the land is alleged to have vested in the adjoining owner, there is no doubt that he would have been estopped from doing so, since a ten- ant cannot dispute his landlord’s title except by showing that such title has terminated since the commencement of the tenancy. In this case the answer is to be found in a conclusion of fact, namely, that as the question is raised by a mere stranger who does not even allege that he has any title him- self, we ought to conclude if necessary that Budd intended to remain tenant to the plaintiffs after 1859, and that there was there- fore a new tenancy in law from year to year created subsequently to the year 1859. He therefore could not have disputed the plain- tiffs’ title, and neither can the defendant.’ . } Helena v. Turner, 36 Ark. 577; relief.’ Baker v. Barclift, 76 Ala. 414; Caldwell v. Smith, 77 Ala. 157; Littleton v. Clayton, ib. 571; Ben- ton v. Benton, 95 N. Car. 559; Davis »v. Williams, 130 Ala. 530, 30 So. 488, 89 A. S. R. 55; Wash- ington v. Moore, 84 Ark. 220, 105 8. W. 253, 120 A.8. R. 29; Camp- bell v. Everhart, 1389 N. C. 503, 52 8. E. 201; Tadman v. Henman, (1892) 2 Q. B. 168; Allen ». Griffin, 98 N. Car. 120. But in Allen v. Griffin it is said, quoting Davis v. Davis, 83 N. Car. 71, that ‘the rule does not preclude the tenant from showing an equi- table title in himself, or such circumstances as under our former system would call for an inter- position of a court of equity for Quere whether this means anything more than is to be in- ferred from the qualifications infra of the rule? See Spafford v. Hedges, 231 Ill. 140, 83 N. E. 129. If the effect. of the suit to recover pos- session would be the destruction of title of tenant he may defend by showing superior title in him- self. Stevenson v. Rogers, 103 Tex. 169, 125 8. W. 1. °4 Ad. & E. 782. SECT. I.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 557 present action. The defendant having suffered judgment for one third, contended that the plaintiffs could not recover the other two undivided thirds, as the defendant held them by a title acquired subsequently to the mortgage, upon which the mortgage could not operate. But judgment was given for the plaintiff. In a case in the English Common Pleas ? the defendant to an avowry for rent pleaded that ‘before the lessor (who claimed title under a pretended agreement between him and one T R) had anything in the premises, and before the demise by the lessor to the lessee, T R mortgaged them in fee to J C; that the mortgage 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. 1See Doe d. Hurst v. Clifton, 4 Ad. & E. 809, 813, holding that the case is not different where the deed is set up by a mere nominal party for the benefit in reality of the mortgagor. 2 Achorne v. Gomme, 2 Bing. 54. 3 Best, C. J. having stated that the plea amounted to a plea of nil habuit 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,’ he replied, ‘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 permitted to effect if it was stated simply; and the tule 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 qual- ification 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 from the rent. These cases, therefore, rather confirm 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, in regard to which Park, J. said: ‘In Taylor v. Zamira the land was expressly subjected to distress by a charge created be- fore the lessor’s title commenced. In the present case unless the ten- ant had attorned, though the 558 ESTOPPEL IN PAIS. fcuap. XVII- The rule of estoppel, again, applies as well to cases in which the tenant has obtained possession by indirection, e. g. by fraud, as to ordinary cases of lease.1 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 privi- lege 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.? The estoppel of the tenant and his privies, however, relates only to the title of the landlord at the time the lease was granted ; the tenant’s acceptance of the lease is simply an admission that his landlord had sufficient right to lease the property at that time. mortgagor might have evicted, he could not have distrained.’ 1Doe d. Johnson v. Baytup, 3 Ad. & E. 188; s.c. 4 Nev. & M. 837. 2Mr. Justice Patterson said: ‘In the case of a person who has become tenant there is no doubt as to the law. Doe d. Knight ». Lady Smythe, 4 Maule & S. 347, shows that he must first give up possession 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 eject- ment. It was held in that case, not that the party claiming as land- lady to the tenant was altogether estopped from trying the right, but that the tenant must first restore possession. If the defend- ant here has any right, she might in the first instance have brought ejectment or have entered on Mrs. Johnson and disseised 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 plain- tiff and insists upon holding the land. The rule as to claiming title, which applies to the case of a tenant, extends also to that of a person coming in by permission as That the tenant may show that his landlord’s 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 admitted that . there was a title in the landlord. ‘Suppose,’ he proceeded to say, ‘that under the license an undis- turbed possession were enjoyed for some considerable time, and an action were brought for use and occupation, could the licensee dis- pute 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 circumstances here present an irresistible case of license? Here is a party quietly in possession. 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 disseise, and having entered might have stood upon her right. But here that was not.done; and under the circumstances of this case the defendant before she could dispute the title was bound to put the lessor of the plaintiff in the situa- tion in which she stood before the leave was granted.’ SECT. I.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 559 title has since in any way expired is shown, among other cases,! by the case of Hopcraft ». Keys.?. The action was replevin to try the validity of a distress for rent. Issue was joined on the plaintiff’s plea of non tenuit. The facts were these: Hopcraft was let into possession of a 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 ex- press power of re-entry, and avoiding the agreement 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 Hopcraft to Hawkins, re-entered. for the condition broken and turned out all the tenants, Hopcraft among them. Kent there- upon put a man in possession of the house which had been oc- cupied 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 1Emmes v. Feeley, 1382 Mass. 346; Hilbourn v. Fogg, 99 Mass. 11; Lamson v. Clarkson, 113 Mass. 348; Farris v. Houston, 74 Ala. 162; Caldwell ». Smith, 77 Ala. 157, 166; Clarke v. Clarke, 51 Ala. 498; St. John v. Quitzow, 72 Ill, 334; Ryder »v. Mansell, 66 Maine, 167; Presstman v. Sill- jacks, 52 Md. 647; Delmege v. Mullins, 9 Ir. R. C. L. 209, 214. Tenant at will may show that his landlord’s title has expired. Em- mes v. Feeley, supra. See Abraham v. Casey, 179 U. S. 210, 21 Sup. Ct. 88, 45 L. Ed. 156; Sadler v. Jeffer- son, 148 Ala. 669, 39 So. 380; Fry v. Boman, 67 Kan. 531, 73 P. 61; Sherman »v. Spaulding, 126 Mich. 561, 85 N. W. 1129; West Shore v. Edwards, 24 Or. 475, 33 P. 987; but he can not set up a title which could have an exist- ence only because of his own de- fault. Hubbard v. Shepard, 117 Mich, 25, 75 N. W. 92 72 A.S. R. 548. 29 Bing. 613. 560 ESTOPPEL IN PAIS. [CHAP. XVII. entered under a new agreement made bona fide with another person. The case of Claridge v. Mackenzie ! presents another phase of the same important rule. The action was trespass for two dis- tresses 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 plain- tiff 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.? 14 Man. & G. 148. 2Chief- Justice Tindal came to this conclusion upon two grounds: First, that there was no new taking of the premises by the plaintiff or any letting into possession by the defendant; and secondly, that even assuming there was a new taking or letting into possession, the jury had found that the trans- action had taken place without a knowledge on the part of the plaintiff of the circumstances. ‘Upon the first point,’ he said, ‘I think it was competent for the plaintiff to show that the defend- ant’s title had expired. The plain- tiff was in possession of the prem- ises; and after the expiration of the defendant’s interest he continued to occupy as tenant by sufferance under the party who was entitled to the intermediate term of three quarters of a year. The witness .Richards speaks of a new agree- ment having been entered into be- tween the plaintiff and the defend- ant that the former should con- tinue in possession as tenant to the latter; but there was no new possession given by the defendant; she was in no way prejudiced; she could not have turned the plaintiff out of possession; and before their agreement, if she had brought her ejectment, the plain- tiff might have shown that she had no title, and that the title was in some one else. It is not like the case of a person letting another into possession of vacant premises; it is, in fact, a remaining in possession of premises which had been formerly 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 precluded 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 consideied to be the result of the evidence. And if she had a legal right at that time and might have turned the SECT. I.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 561 The tenant, again, may purchase the property from the land- lord, and set up the title thus acquired against him.! In the case first cited, an action of covenant for rent, the defendant offered to show that he had become the purchaser at execution sale of the reversion of a portion of the demised premises, and the Supreme Court held the evidence admissible in mitigation of damages. And it was said that if the purchase had covered the entire reversionary interest of the landlord, the fact could have been alleged, and would have constituted a perfect bar to the action. Mr. Justice Cowen, speaking for the court, said that the tenant could not deny that the landlord had a right to demise at the time the lease was given; nor could he defend on the ground that he had acquired an outstanding title adverse to that of the landlord. But this was the extent of the doc- trine. If the landlord parted with his title pending the lease, the tenant would be bound to pay rent to the assignee; and should the tenant then buy in the assignee’s right, the lease would be extinguished. And the result would be the same if the landlord should sell and release to the lessee. No action would lie for rent in these cases. And, therefore, had there been a sheriff’s sale of the whole reversion, and had the defendant redeemed or purchased under the judgment, no action could have been sustained; for a purchase or acquisition of title under a judg- ment against the lessor was the same thing as if the lessor had granted by deed. However, a tenant bound to pay the taxes, and neglecting to do so, cannot buy in the title at tax sale, and set it up against his landlord. This would be to profit by his own wrong.? The tenant is not estopped to allege that he was let into pos- session under a title since acquired by him, under which subor- plaintiff out of possession, Iam not her. The question then is, Was this prepared to say but that he must have formally surrendered to the defendant. But the infirmity of the defendant’s case consists 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 can- not be said to have been let in by agreement made under a mistaken notion as to the facts? This point was properly left to the jury, and they have found in the affirmative.’ 1 Nellis ». Lathrop, 22 Wend. 121; Tilghman .v. Little, 13 Ill. 239; Farris v. Houston, 74 Ala. 162. ? Haskell v. Putnam, 42 Maine, 244, 562 ESTOPPEL IN PAIS. (CHAP. XVII. dinately the landlord claims.1 In the case cited the plaintiff in ejectment claimed title to the premises in dispute through one Quinton Ford, by a conveyance in fee. Quinton had acquired the title by being put into possession by his father, and occu- pying the premises for twenty-five years without payment of rent or other acknowledgment of the father’s title. The latter, after putting his son into possession, mortgaged the prop- erty. After Quinton had conveyed to the plaintiff, and after he had attorned to him as tenant, he gavé up possession in consid- eration of a sum of money to the representatives of the mort- gagor (his father) and of the mortgagee, who united in a conveyance to the defendants. The question was whether the defendants were estopped by reason of their relation’ to the plaintiff. The court decided that they were not. Mr. Baron Channell said that the case was distinguishable from Doe d. Bullen v. Mills.2 Although up to a certain point it resembled that case in its facts, it differed from it in the circumstances under which the plaintiff’s tenant was originally let into pos- session. The defendants did not seek to dispute the plaintiff’s title, but to show an affirmative title in themselves from which any title the plaintiff had was derived. It is well settled that a tenant in possession cannot, even after the expiration of his lease, deny his landlord’s title with- out (1) actually and openly ® surrendering possession to him, or (2) being evicted by title paramount, or attorning thereto, or (3) at least giving notice to his landlord that he shall claim under another and a valid title.* In Littleton v. Clayton the tenant, by collusion with another, removed from the premises at the termination of the lease, for a few days, without the land- lord’s knowledge, and then by the same collusion resumed pos- session. It was held that this was not enough to break the force of the estoppel; the tenant must act in good faith, and restore the landlord to the position he held at first.5 ’ Ford v. Ager, 2 Hurl. & C. 279. Hilbourn v. Fogg, ib. 11; Morse 22 Ad. & E. 17; ante, p. 554. v. Goddard, 13 Met. 177. 3 Littleton v. Clayton, 77 Ala. 5“ Mere leaving possession and 571. resuming it a short time after- ‘Miller v. Lang, 99 Mass. 13; wards, without notice to the land- SECT. I.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 563 In Morse 2. Goddard, just cited, to illustrate the second case, 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 contest his landlord’s title, or set up a para- mount adverse title in a third person. The court, however, received the evidence.’ The instruction to the jury had been lord, or giving him an opportunity to take possession, is not sufficient.’ Ib. Clopton, J. . 1Chief Justice Shaw, speaking for the court, observed that the general doctrine of estoppel upon a tenant was not inconsistent with another rule, that where there is an eviction or ouster of the lessee by title paramount which he cannot resist, it is a good bar to the de- mand for rent, on the plain ground of equity, that the enjoyment of the estate is the consideration for the covenant to pay rent, and when the lessee is deprived of the benefit, he cannot be held to pay the com- pensation. Bacon’s Abr. Rent, L; Cruise’s Dig. tit. 28, c. 3. ‘It is not enough, therefore,’ the Chief Justice proceeded to say, ‘that a third party has a para- mount title; but to excuse the payment of rent the defendant must have been ousted or evicted under that title. Hunt v. Cope, 1 Cowp. 242; Pendleton v. Dyett, 4 Cowen, 581. But an eviction un- der a judgment of law is not neces- sary. An actual entry by one hav- ing 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 action, and is not, therefore, compellable to resist such entry. Hamilton v. Cutts, 4 Mass. 349. So when an execution creditor 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, 3 Mass. 523. There is a recent case which seems to us alike [sic] in principle. Smith »v. Shepard, 15 Pick.. 147. A mort- gagor in possession made a lease for years, reserving rent. After- wards the mortgagee, having a paramount title, entered, 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 forbade 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. [cHAP. XVII. 564 ESTOPPEL IN PAIS. that if the defendant bona fide had yielded possession of the premises to the third persons to prevent being actually ex- pelled, of which fact the plaintiff had notice, and if upon the evidence the third persons had a good title paramount 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.! The settled doctrine, in this country at least, is in accordance with the above-named case of Morse v. Goddard, that a con- structive eviction 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. Some doubt has been raised in a recent English case® whether constructive eviction is enough in England; but it has been distinctly declared enough in one case,’ and evidently so considered in others. And it See also Hardy v. Akerly, 57 Barb. 4 Waldron v. McCarty, 3 Johns. 148. 1Shaw, C. J. said that it was to be understood that when a ten- ant thus relied on an ouster in pais, without judgment, 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 entering. See Winstell v. Hehl, 6 Bush, 58. 2 Grist v. Hodges, 3 Dev. Ross v. Dysart, 33 Penn. St. Simers v. Saltus, 3 Denio, Greenvault v. Davis, 4 Hill, Whalin v. White, 25 N. Y. 465; Jeffers v. Easton, 113 345, 45 P. 680. 3Lansing v. Van Alstyne, 2 Wend. 563, note; Webb v. Alex- ander, 7 Wend. 281; Greenby »v. Wilcocks, 2 Johns. 1. 198; 452; 214; 643; 462, Cal. 471; Kortz v. Carpenter, 5 Johns. 120; Kerr v. Shaw, 13 Johns. 236. 5Simers v. Saltus, supra; St. John v. Palmer, 5 Hill, 599; Green- vault v. Davis, supra; Whalin »v. White, supra. In California it is held that a tenant cannot justify an attornment to one who has re- covered the land under an ejectment against the tenant if the landlord was not notified to come in and _ defend. Douglas v. Fulda, 45 Cal. 592. § Delaney v. Fox, 2 C. B. Nn. 8. 768, per Cockbum, C. J. 7Poole v. Whitt, 15 Mees. & W. 571, 577. 8 Doe d. Higginbotham v. Bar- ton, 11 Ad. & E. 307; Hawkes »v. Orton, 5 Ad. & E. 367; Emery »v. Barnett, 4 C. B. n. 8. 423. SECT. I] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 565 has been said that the law must be regarded as settled in England in this way.! The estoppel of the tenant may rest upon the sole ground that he has received possession from the landlord. It is per- force an admission of some title in him; and by reason of the landlord’s change of position the act is deemed a binding admission that he had sufficient title to make a lease. Where, however, the tenant, being already in possession, has merely made an attornment or an acknowledgment of a tenancy, he may show that he did so through ignorance or mistake.” In the case of Jew v. Wood 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 injunc- tion 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 the death of the original landlord, it appearing that this had been done in ignorance of the fact that the title was in dispute.? 15 Am. Law Rev. 35. 2 Wiggin v. Wiggin, 58 N. H. 285; Farris v. Houston, 74 Ala. 162; Jew v. Wood, Craig & P. 185; Doe d. Plevin ». Brown, 7 Ad. & E. 447; Cornish v. Searell, 8 Barn. & C. 471; 5. c. 1 Man. & R. 703; Rogers v. Pitcher, 6 Taunt. 202; Gravenor v. Woodhouse, 1 Bing. 38; Blankenship v. Black- well, 124 Ala. 355, 27 So. 551, 82 A. S. R. 172; Doe exdem Sands v. Phillips, 3 N. B. 86. A tres- passer in possession after. becoming tenant to one claiming title cannot afterwards dispute his title by showing title in a stranger to both. Hughes v. Holmes, 6 N. B. 12. 3‘Tt appears to me well es- tablished,’ observed Lord Chan- cellor Cottenham, ‘by the uni- form current of all the cases (for there is not that discrepancy be- tween the cases which was sug- gested) that the rule of law is that after the death of the person to whom the occupier became tenant the tenant may require the person claiming under the original lessor to sprove his title under such original lessor; and that although the tenant has paid rent to the person so claim- ing under the original lessor, he is not precluded from so doing by the pay- ment of rent and other acts which might under other circumstances amount to an attornment. Several cases were cited. Rogers 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 misrep- resentation by the party so ob- taining the rent; it was a mere misapprehension, and the payment of rent under such misapprehension 566 ESTOPPEL IN PAIS. [cHAP. XVII. In like manner, where the title of the lessor who let the ten- ant into possession has expired, and the tenant has continued to acknowledge the tenancy, he may show that he has done so through mistake in regard to his landlord’s title. In Fenner v. Duplock ! replevin was brought for goods distrained for rent. The defendants avowed for a year’s rent of a cottage and land held by the plaintiff as tenant to one of the defendants. It was not considered ag 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 misapprehension; 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 decision 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 per- son under whom the tenant held. That title was disputed by his assignee; but Lord Denman, in holding that the tenant was at lib- erty to dispute the title of the person to whom he had attorned, says that it was competent for him “to explain and render inconclu- sive acts done under mistake or through misrepresentation;’’ put- ting, therefore, mistake and mis- representation for that purpose upon the same footing. So far, I think, it was admitted at the bar that the cases were uniform. But a case was referred to, Hall v. But- ler, 10 Ad. & E. 204, which it is contended establishes a different doctrine. Now, I think the doc- trine of that case is by no means inconsistent with the former cases, but completely and entirely con- sistent with them. In that case the tenant took possession and held under a person named Nevitt who afterwards directed the tenant to pay his rent in future to the defendant Butler. Another person then claimed by title paramount to Nevitt. Butler the defend- ant was entitled to stand in Nevitt’s place; and the tenant, who could not dispute Nevitt’s title, was held to be equally precluded 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 ob- served that in either case the tenant was disputing the title of the person from whom he derived his tenancy, and not the title of a party claiming through such person. There is nothing, there- fore, at all inconsistent in the doctrine of that case with the doctrine of all the preceding cases.’ 12 Bing. 10; s. c. 9 Moore, 38. SECT. I] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 567 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. Subse- quently, 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-levied 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 Col- lins. A verdict was therefore found for the plaintiff; and it was now moved that it should be set aside on the ground that the payment of rent to Duplock by the plaintiff after he became aware of the adverse claim was an acknowledgment of Duplock as landlord, equivalent to a new taking. But the court held otherwise.! The estoppel of the tenant applies, certainly in the absence of fraud or mistake, where he has taken a new lease, while still in possession from the same landlord. In such a case there arises what is called a surrender of the old lease by operation of law. The term ‘ surrender by operation of law,’ according 1Best, C. J. referring to the was it honest in him to persist general principle that the tenant may show that his landlord’s title has expired, said: enters on a new tenancy, he shall be bound; but before he can be so bound it must appear that he was acquainted with all the cir- cumstances of the landlord’s title. The landlord before he enters into any new contract must say openly, “ My former title is at an end; will you, notwithstanding, go on?” The defendant in the present case knew that his title was at an end; ‘Yet if he | in his claim, and to call for rent under such circumstances? There is no ground whatever for saying that any attornment took place. Payment of rent may indeed be evidence of an attornment; but before we can decide whether an attornment has taken place we must look at the circumstances and see whether they do or not rebut the presumption of an attornment, and the circumstances of the pres- ent case repel any such presump- tion.’ 568 (CHAP. XVII. ESTOPPEL IN PAIS. to Mr. Baron Parke, is applied where an owner of a particular estate has been party to an-act the validity of which he has become estopped to dispute, — an act which would not be valid if his particular estate continued to exist. Among other ex- amples he gives the one here mentioned, of a new lease. ‘ Thus,’ he says, ‘if the lessee for years accepts a new lease from his lessor, he is estopped from saying that his lessor had not power to make the new lease; and as the lessor could not do this until the prior lease had been surrendered, the law says that the acceptance of such new lease is of itself a surrender of the former.’ ! The tenant or his assignee, it may then be broadly stated, is not estopped to explain the circumstances under which, being already in possession, he has made an acknowledgment or an attornment to the plaintiff.2_ In Doe d. Plevin v. Brown,’ to give a general illustration, an ejectment was brought against the assignees in bankruptcy of John Platt, who had demised to Joseph Platt. Subsequently to the demise 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 with them in writing to sur- render possession to them. Soon after this a fiat in bankruptcy was issued, and John was declared a bankrupt, the defendants being appointed his assignees. The 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 after the payment of the shilling and signing the memorandum by which he agreed to deliver possession to the plaintiffs, he was 1 Reed v. Lyon, 13 Mees. & W. Walker v. Richardson, 2 Mees. & 285, 305. But quezre whether ac- cepting a new tenant, with consent of the former lessee, will work a surrender in law? Reed v. Lyon decides the question in the nega- tive; so does Creagh v. Blood, 3 Jones & L. 133. Contra, Thomas v. Cook, 2 Barn. & Ald. 119; W. 882; Nickells »v. Atherstone, 10 Q. B. 944. See Everest & Strode, Estoppel, 263 et seq. 2 Attornment is not necessary, it seems, in Massachusetts upon a change of landlords. See Granger v. Parker, 137 Mass. 229. 37 Ad. & E. 447, SECT. 1] estopped from disputing their title. otherwise.! ESTOPPEL BY CONTRACT: LEGAL EFFECT. 569 But the court ruled There has been some conflict upon the question whether the bare taking a lease of land of which the tenant was already in possession may estop him to deny his lessor’s title. It is agreed in all the cases, as we have seen, that if the tenant was induced to take the lease by mistake, fraud, or misrepresentation on the part of the lessor, he may dispute his title.2 So of a tenant in 1Lord Denman, in delivering the judgment, said: ‘No general rule, when rightly understood, is more important, or more strictly to be observed, than that which precludes the tenant from dis- puting the title of his landlord; and we may concede that in the present case the defendants stood in the same situation as Joseph Platt, and could avail themselves of no defence which was not open to him. But he had not received his possession first from the lessors of the plaintiff, nor was any at- tempt made to question that title under which he had received pos- session. Assuming that the one shilling was paid by way of ac- knowledgment ... still, it was paid, in the first instance, upon the request and under the repre- sentations made by John Platt, and the memorandum signed only as a consequence of that payment, and upon the faith of the same representations. If at the very time when John Platt informed Joseph of the assignment of the lessors of the plaintiff he had com- mitted an act of bankruptcy, and that assignment which he repre- sented as valid was in truth void, he was practising a fraud on Joseph; and no case has decided that it would not be open to Joseph to explain under what cir- cumstances he made any attorn- ment or other acknowledgment. Gregory v. Doidge, 3 Bing. 474, is a strong and direct authority to the contrary. There was both the fact of one shilling paid as an acknowledgment of Doidge’s title, and an agreement 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 repre- sentation of Doidge’s brother, and in ignorance of a defect in his title; and the Court of Common 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 Jobn Platt 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 de- mise; for that would have been consistent with the accepting pos- session from him. Upon the broad principle, however, that it is al- ways open to a party, not guilty of laches, to explain and render inconclusive acts done under mis- take or through misrepresentation, we think this inquiry properly gone into.’ 2 Miller v. McBrier, 14 Serg. & R. 382; Swift v. Dean, 11 Vt. 323; Shultz v. Elliott, 11 Humph. 183; Franklin »v. Merida, 35 Cal. 558, 571; Carter v. Marshall, 72 III. 609; Claridge v. Mackenzie, 4 Man. & G. 148; Blankenship »v. Blackwell, 124 Ala. 355, 27 So. 551, 82 A, S. R. 172; Camp ». 570 ESTOPPEL IN PAIS. [CHAP. XVII. common who takes a lease from a wrongful claimant of the remaining interest, after the termination of the lease at all events.! On the other hand, a trespasser on lands who accepts a lease and agrees to give up possession when the term expires will be estopped to dispute the lessor’s title until surrender.” The conflict arises in cases in which there is a simple question growing solely out of prior possession and later acceptance of a lease by the same person. 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 even in that state it is held that the Camp, 5 Conn. 291, and note thereto in 13 Am. Dec. 60; Michigan Cent. Ry. Co. v. Bullard, 120 Mich. 416, 79 N. W. 635. Text quoted in Dixon v. Stewart, 113 N. C. 410, 18 8. E. 325; ante, p. 565. 1 Fuller v. Sweet, 30 Mich. 237. 2Campau v. Lafferty, 43 Mich. 429, distinguishing Fuller v. Sweet, 80 Mich. 237. 3 Jackson v. Ayres, 14 Johns. 224; Prevot v. Lawrence, 51 N. Y. 219; McConnell v. Bowdry, 4 T. B. Mon. 392; Patterson v. Hansel, 4 Bush, 654. See also Reed ». Lyon, 18 Mees. & W. 285, 305; ante, pp. 567, 568, (that by accepting a new lease the tenant will be es- topped to deny a surrender of the old term); Caldwell ». Smith, 77 Ala. 157, 166; Lucas v. Brooks, 18 Wall. 436. 4 Tewksbury v. Magraff, 33 Cal. 237; Franklin v. Merida, 35 Cal. 558. 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 ad- vantage. If A being in possession of land deliver the possession to B upon his request and upon his promise to return it, with or with- out rent, at a specified time, or at the will of A, B cannot be allowed 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 de- priving him of the advantage which bis 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 over- looked, — ‘‘ Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself.” If B is in posses- sion and takes a lease from A, the latter parts with nothing, and the former has attained nothing by the transaction. If, however, either has gained anything, it is A. He has 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 \ SECT. I.], ESTOPPEL BY CONTRACT: LEGAL EFFECT. 571 estoppel arises if the tenant does not prove a paramount title either in himself or in some one under whom he claims.! there has been an open repudiation and disavowal of the 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 possession which he might have obtained the rent promised by B is a legal equivalent. Having thus obtained no advantage over A by the transaction, why should B be estopped from showing precisely what he would have been per- mitted to show had the transaction never occurred? If A is thus in no worse plight than he was before the transaction, upon what prin- ciple 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 prom- ised to pay rent, or hold the pos- session for it, he having 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 oc- cupation to C, and surrender 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 doctrine of estoppel be- tween 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 ffor the destruction of the tenant.’ Further on the learned judge’ pro- ceeds to say that the precise ques- tion is ‘whether the bare posses- sion of the tenant at the time the lease is given and taken is suf- ficient 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 posses- sion of the tenant some force, fraud, misrepresentation, or mistake in- duced by the landlord, beyond what is implied in the transaction itself (2) by which the tenant was influenced to take the lease. The latter view is maintained by coun- sel, while in Tewksbury v. Magraff we declared the former. Counsel does not claim that force, fraud, misrepresentation, etc., 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 fol- lows that on the score of principle the fact of possession is a false quantity for all the purposes of the question. If the bare posses- sion of the tenant is not enough, and force, fraud, misrepresentation, and the like are of themselves enough to take the case out of the operation of the general rule, ob- viously the fact of possession is then wholly immaterial, and constitutes no quantity in the problem to be solved. So on the score of logic the argument, if it proves anything, proves too much. But it is said (a) That is, the giving and receiving a title not the landlord’s. 1 Holloway v. Galliac, 47 Cal. 474. Text quoted in Dixon v. Stewart, 118 N. C. 410, 18 8. E. 325. 572 ESTOPPEL IN PAIS. [CHAP. XVII. x The doctrine of the California cases seems at first to derive support from a late English case in which it was held that that Tewksbury v. Magraff goes further than any previous case has gone, and that it cannot be maintained 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 can- not be denied; nor can it be de- nied, as we shall presently see, that there are cases the other way. The latter, in our judgment, ac- cord 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 there are two classes: first, those in which the facts presented the dry question whether the-bare possession of the tenant at the letting relieves him from the es- toppel; 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 en- titled to no consideration as prec- edents. For the former only can that distinction be claimed. Of them only two have been called to our attention in which the de- cision turned upon a bare posses- sion by the tenant at the time of the letting, — McConnell v. Bow- dry’s Heirs and Widow, 4 T. B. Mon. 392, and Jackson v. 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 consistent 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, de- manded 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 demanded the next quarter’s rent, paid part of it on account. Lord Chief Justice Denman, Mr. Justice Littledale, and Mr. Justice Patter- son, all delivered opinions to the effect that the tenant was estopped, but put their conclusions upon somewhat different grounds. Lord Denman put his judgment upon two grounds: 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, unaccompanied 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, how- ever, recognized the contrary doc- trine. 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 SECT. 1.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 573 where a person in possession of land under a good title became tenant by attornment to another, under an arrangement for an taking from B himself; for N treats himself as the agent of B, who adopts the demise.” This com- mon 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. In- graham v. Baldwin, 9 N. Y. 45, was a case where the tenant entered under the lease, and the landlord afterward conveyed to the plain- tiff, to whom the tenant then at- torned, and it was held that the ten- ant could not dispute the title of the plaintiff. Instead of being at war with Tewksbury v. Magraff, this case is entirely consistent with it. We there held that in such a ease 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 Penn. 402; Hamilton v. Marsden, 6 Binn. 45; Brown v. Dysinger, 1 Rawle, 408; Miller v. McBrier, 14 Serg. & R. 382; Swift v. Dean, 11 Vt. 323; Shultz vo. Elliott, 11 Humph. 183. Of them it is suf- ficient to say that they are not authority upon the question in hand. They establish the propo- sition 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 dis- pute his landlord’s title, —a prop- “when he took the lease. osition which no one disputes. Because they do that, however, they cannot be taken as negatively establishing the proposition that the tenant cannot dispute the title of his landlord solely upon the ground that he was in possession ... We now come to those cases by which, as we consider, the rule in Tewks- bury v. Magraff is sustained. Chet- tle v. Pound, 1 Ld. Raym. 746, was action of debt for rent. Upon nil debet pleaded the plaintiff gave in evidence a note in writing by which the defendant had agreed to hold for one year, rendering rent of fifteen pounds sterling. The plaintiff was grantee of a re- \version expectant upon an estate for life, and the tenant for life was dead at the time the note was given. The grant to the plain- tiff 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 pos- session; but if he had, that then the defendant could not have given the prior grant in evidence with- out 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 implied in the trans- action itself, and the case turned wholly upon the bare fact that the defendant did not receive the possessicn from the plaintiff. Rogers v. Pitcher, 6 Taunt. 202, 574 ESTOPPEL IN PAIS. -[CHAP. XVII. assignment (which had never been perfected) between the original lessor and the party to whom the attornment was was replevin for property dis- trained for rent. The plaintiff was in possession, and the defend- ant 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 payment 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 acknow]l- edged the defendant as her land- lord, and was now estopped from contesting his title. It was held that the plaintiff was not estopped. There was no pretence of any ex- trinsic misrepresentation, or the like, on the part of the defendant, by which the plaintiff had been in- duced 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 attornment; 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 infer- ence that the case included express misrepresentation or the like. But it is well understood 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. Grave- nor v. Woodhouse, 1 Bing. 38, was also an action of replevin for property distrained for rent. At the trial the defendant 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 seventy pounds ster- ling, 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 evidence was offered of a feoffment made to the plaintiff by a person under whom the defendants claimed, and of certain letters from that per- son containing expressions which were said to be adverse to the defendants. The court, however, thought the avowries sustained by the language of the attornment, and rejected the evidence upon the ground that the plaintiff could not dispute his tenancy after having made the attormment in question. There was no pretence, so far as the case shows, that the attornment had been obtained by any unfair means not implied in the tiansaction, 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 nevertheless granted; the court holding that the attornment did not estop the plaintiff. Cornish ». 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 sequestra- tion issued in the said suit in chancery, and to hold the same SECT. 1.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 575 made, he would not be required after the termination of the lease to give up the possession before he could dispute the les- for such time and on such condi- tions as may be subsequently agreed upon.” It was held, first, that this was an agreement to become tenant, and required a stamp; and second, that A, not having received possession 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 in- duced 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 en- tirely 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 re- ceived 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 attocned by mistake to one who has no title. In the former case the tenant cannot (except under very special circumstances) dis- pute 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 “ mis- take” in the foregoing passage. There was no mistake whatever as to the title of C and D. There could be none; for the instrument which was signed by A showed upon its face that they were only se- questrators, and therefore with- out legal claim to the rents. It cannot be supposed that a person 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 “ mistake; ” and it is in that sense that we understand Mr. Justice Bayley. But were it otherwise the incau- tious 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 es- topped by that act. In Jackson v. Cuerden, 2 Johns. Cas, 353, the defendant A, being in possession under B, the supposed proprietor, applied by letter to C as the real owner to purchase, 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 mis- take, or that the fee existed in him- self or out of the plaintiff. See also Jackson v. Spear, 7 Wend. 401. In all cases where a party out of possession seeks a taking and hold- ing under himself by another in possession, from the very nature of the case there must be a rep- resentation by him that he is the owner. The bare proposition to lease involves such a representation; and if he be not the owner, the repre- sentation is false. If under such circumstances a party in possession takes a lease, his act can be ac- counted for upon no rational theory except that he was influenced by ‘ ESTOPPEL IN PAIS. [cHaP. XVII. 576 sor’s title! Without expressing any opinion how the case might have been during the continuation of the lease, Chief Justice Erle 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 to sustain the case that the assignment was not perfected. In a similar case recently before the Supreme Court of Massa- chusetts ? the tenant, who had attorned to the heirs of his lessors, 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 forbidden. 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 been evicted, or that he had renounced his tenancy under the plaintiffs. So too in another recent case 4 in the same state a defendant 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 plaintiff, and that before the end of the term he had given notice to the plaintiff that he should renounce his title and claim thenceforth under that of his wife. Nothing was said of fraud or mistake. And a similar ruling in effect was made in Hogan »v. Harley.® tual possession against the trickery this express or implied representa- or sharp practice of the tenant, tion. When, therefore, in the opinions of the judges such ex- pressions are used, their sense is fully satisfied, as we consider, by the intrinsic probability that jthere was unfair means employed, or there was some mistake by which the tenant was induced to act; and in our judgment such intrinsic probability not only justifies but requires the courts to look behind the lease, and unearth the truth. As already suggested, the doctrine of estoppel was not designed to secure to any one an advantage over another, but to prevent such a result, and to maintain the status which existed at the outset; to protect the landlord in his ac- not to enable him to impose upon the tenant and thereby to obtain that which before he had not.’ 1 Accidental Death Ins. Co. ». Mackenzie, 10 C. B. n. s. 870, Am. ed.; s.c. 5 Law T. n. s. 20. 2See Doe d. Jackson v. Wilkin- son, 3 Barn. & C. 413; ante, p. 552. See also Shelton v. Carrol 16 Ala. 148; Agar v. Young, Car. & M. 78; Bybee v. Oregon & Cal. Ry. Co., 139 U. S. 663, 11 Sup. Ct. 641, 35 L. Ed. 305. 3 Hawes v. Shaw, 100 Mass. 187. See Trafton v. Hawes, 102 Mass. 533. 4 Miller v. Lang, 99 Mass. 13. 58 Allen, 525. SECT. I.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 577 The prior case of Cobb v. Arnold / is still stronger. This was an action for use and occupation; and the defendant, who had taken a lease from the plaintiff, offered to prove that for thir- teen years before the lease was taken, and down to the time of the trial, twelve years later, he had been in quiet, exclusive and adverse possession of the land, using and treating it as his own all the time. But the evidence was excluded. The question under consideration -has nothing to do with the case of an attornment to one claiming under the original lessor. Nothing is more certain than that an attornment to such a per- son leaves the tenant ordinarily in precisely the same position (so far as the question of the estoppel to deny the title of the lessor is concerned) as he was with the original landlord; he cannot dispute the title in the one case more than in the other,? except by showing that the derivative title is defective, or that the attornment was made under the influence of fraud or mis- take, or the like.’ The only room for the question raised in California is either in the case of an original lease, or when the attornment is made to a stranger to the title of the lessor. In such a case is bare possession in the tenant, without mistake, fraud, or the like, in the leasing or attornment sufficient to remove the estoppel? The landlord may still have changed his position, reasonably induced by the lessee’s acceptance of a tenancy. There would then be the elements of an estoppel in pais; and without stopping longer than to refer to the fact that the doctrine that the act of the party against whom the estoppel is claimed must have been wilful in a literal sense, if it ever prevailed, has been overruled,‘ it is enough to say that the case might present fea- tures quite as conclusive as those in the case of the estoppel of a tenant who has received possession from his landlord; for taking possession from a landlord is only one way in which a 18 Met. 398. Some of the exceptions to the rule are stated in this case; all of them, however, 2Otis v. McMillan, 70 Ala. 46, 53; Dobson v. Culpepper, 23 Gratt. 352. The nature of the are covered by the statements in our text, — entry under a stranger, expiry of title, and constructive eviction by judgment. See also First Parish v. Dow, 3 Allen, 369. alienation of the reversion is not material. Otis v. McMillan, supra. 3 Carter v. Marshall, 72 Ill. 609. 4Cornish v. Abington, 4 Hurl. & N. 549. 578 ESTOPPEL IN PAIS. [cHAP. XVII. change of position may take place. It is immaterial what may be the nature or extent of the change, provided there has been a substantial change in fact, so that the landlord would be placed in a less advantageous position by allowing the denial of his title than he would have occupied had not the tenancy been created.! A very important qualification of the rule of the tenant’s estoppel prevails in the case of an actual disclaimer. If the tenant disclaim to hold of his lessor, and notice of the fact is brought home to the lessor, the tenant’s possession then be- comes adverse; the lessor may at once eject him from the premises; and if he fails to do so before the period of limitation has expired, the tenant may then set up his own title acquired by adverse possession, or the title of any other person under whom he claims to hold. But he cannot set up such title in an action brought by the lessor before the expiration of the period _ of limitation.” The subject is exhaustively reviewed in the case first cited, _and stated to apply as well to the relations of mortgagor and mortgagee, trustee and cestui que trust, and generally to all cases where a person obtains possession of real estate belonging to another in subordination to his title. In this case Willison had been a tenant of one Bordeaux under whom the plaintiff claimed, and afterwards Bordeaux was apprised that Willison claimed the premises by adverse title. It appeared that Willi- son had been in possession a sufficient length of time since the fact of his disclaimer came to the knowledge of Bordeaux to acquire a title under the Statute of Limitations, provided it should be held that he was entitled to the benefits of the statute. The action was trespass to try title; and the plaintiff contended that Willison was precluded from setting up title in himself, without first surrendering possession. But the court 1Text quoted in Dixon »v. ley, 14 Peters, 156, 162; Zeller Stewart, 113 N. C. 410, 18 8S. E. v. Eckert, 4 How. 289; Doe d. 325. See Campbell v. Everhart, 139 Clun v. Clarke, Peake, Add. Cas.. N. C. 503, 52 S. E. 210. 239; Wells v. Sheerer, 79 Ala. 2See Willison ». Watkins, 3 142; Taylor, Land. & T. § 522, Peters, 43; Peyton »v. Stith, 5 and cases cited; Hammond ». Peters, 485, 491; Walden v. Bod- Blue, 132 Ala. 337, 31 So. 472. SECT. I.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 579 held otherwise. It was an undoubted principle of law, the court observed, that a tenant could not dispute his landlord’s title either by setting up title in himself or in a third person during the existence of the tenancy. He could not change the char- acter of the tenure by his own act merely, so as to enable him to hold against his landlord (who reposed under the security of the tenancy, believing the possession of the tenant to be his own, held under his title, and ready to be surrendered by its termination) by the lapse of time, or by demand of possession. But the court did not think that the doctrine in this or in any of the analogous relations had been adopted to the extent contended for in the present case, which presented a disclaimer by a tenant with the knowledge of his landlord, and an unbroken possession beyond the period of limitation. By the known disclaimer of Willison the tenancy had been terminated, and Bordeaux had the right to treat him as a wrongdoer holding adversely; and having the right to do so, he was bound to exer- cise his power. It would be an anomalous possession which in relation to one party was adverse and in relation to the other fiduciary, if after a disclaimer known to the landlord the tenant forfeited his possession and all the benefits of the lease. No injury could be done the landlord unless by his own laches. If he sued within the period of limitation, he would prevail; and if he suffered the time to pass by without suit, it was but the common case of a party losing his rights by his own negli- gence.! The cases show that a tenant may prove that one to whom he has paid rent by attornment has no derivative title from his 1The court having shown that the leading authorities (Hovenden v. Annesley, 2 Schoale & L. 607; Kane v. Bloodgood, 7 Johns. Ch. 90, 122;° Hughes »v. Edwards, 9 Wheat. 490, 497; and other cases, relating to trusts and mort- gages) supported the rule which it had adopted, then said: ‘All these principles bear directly on the case now before us; they are well-settled and unquestioned rules in courts of law and equity, and necessarily lead to the same con- clusion to which this court has arrived. The relations created by a lease are not more sacred than those of a trust or a mortgage. By setting up or attorning to a title adverse to his landlord the tenant commits a fraud as much as by the breach of any other trust. Why, then, should not the statute protect him, as well as any other fraud- Z [CHAP. XVII. 580 ESTOPPEL IN PAIS. original lessor. Doe d. Higginbotham v. Barton? was such a case. It was an ejectment for certain lands in Cheshire. On the trial the plaintiff proved that one Morton, being seised in fee of the premises in controversy, demised a part to the de- fendant Barton as tenant from year to year. Subsequently he assigned all the premises by way of mortgage to Higginbotham the plaintiff; whereupon Barton on demand made by the plaintiff paid the rent to him for several years. In the mean time the plaintiff demised the part not leased to Barton to one Bullock, who having paid rent for a year and upwards then underlet to Warburton the other defendant. Subsequently both Barton and Bullock refused to pay rent to the plaintiff, who then served notices to quit. The defence was that Morton had mortgaged the same premises to one Marriott in fee prior to the mortgage to the plaintiff, but that he (Morton) had re- mained in possession; that Marriott had conveyed the prem- ises in fee to one Woodhead, and that Woodhead had given notice to the defendants to pay the rent to him, which they obeyed, refusing to pay longer to the plaintiff. The question raised was whether the defendants were estopped to make this defence. The court held that they were not.? ulent trustee, from the time the fraud is discovered or known to the landlord? If he suffers the tenant to retain possession twenty years after a tenancy is disavowed, and cannot account for his delay in bringing his suit, why should he he exempted from the operation of the statute more than the mort- gagor or the mortgagee? We can perceive no good reasons for allow- ing this peculiar and exclusive priv- ilege to a lessor; we can find no rule of law or equity which makes it a matter of duty to do it, and have no hesitation in deciding that in this case the Statute of Limita- tions is a bar to the plaintiff's ac- tion.’ 111 Ad. & E. 307. ? Lord Denman, who delivered the judgment in this important case, said: ‘Supposing the facts to be as above stated, it is clear that the lessor of the plaintiff never had any legal estate, and he must rely on the rule with regard to landlord and tenant. That rule is fully established, viz. that the tenant cannot deny that the person by whom he was let into possession had title at that time, but he may show that such title is determined. Doe d. Knight v. Smythe, 4 Maule & 8. 347. With respect to the title of a person to whom the tenant has paid rent, but by whom he was not let into possession, he is not concluded by payment of such rent if he can show that it was paid under a mistake. These de- fendants, therefore, stand in differ- ent situations. Warburton is pre- cluded from denying that the lessor of the plaintiff ever had a title, and must show that such SECT. I.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 581 This doctrine that a tenant is not estopped to deny the validity of a derivative title is also illustrated by the recent case of Hilbourn v. Fogg.!_ This was an action of tort for eject- ing the plaintiff from a room in a house in Charlestown. It appeared that McGrath, one of the defendants, was tenant at will of the house, and that the plaintiff was tenant at will under her. Subsequently McGrath made a written lease to Fogg, who with the assistance of McGrath and other defendants, after due notice to quit, entered the plaintiff’s room and re- moved her effects. It was contended on the part of the defend- ants that the plaintiff was estopped to maintain the action; but the court ruled otherwise.” title as he had is determined. Barton is precluded from denying that Morton had a title, but he is at liberty to deny that the lessor of the plaintiff ever had any deriv- ative title from Morton unless the payment of rent concludes him.’ We do not think that he is so concluded because he, being tenant to Morton and having notice of a subsequent mortgage by Morton to the lessor of the plaintiff, had no right to question it; nor until he received notice from Woodhead of the prior mortgage had he any reason to doubt that the legal estate had passed to the lessor of the plaintiff. He may truly be said to have paid the rent under a mistake; and then he may show, not that Morton had not a title by which he (Barton) would be estopped as against Morton him- self, but that Morton’s title was not such a one as would enable him to pass a legal estate to the lessor of the plaintiff. If the evi- dence had been received, he would have shown that Morton had only the equity of redemption, and that nothing more passed to the lessor of the plaintiff from Morton. And this, we think, he was at liberty to show, though if there had been a demise in the declara- tion by Morton himself it might have been otherwise.’ See Doe d. Diffin v. Simpson, 5 N. B. 194. 199 Mass. 11. 2 The court by Mr. Justice Gray observed that the well-settled rule of law by which a tenant entering under an oral lease is estopped so long as he continues in possession thereunder to deny the _ lessor’s title at the time of making the lease, as against the lessor, his heirs and assigns, is founded on the injustice of allowing one who has obtained possession by ad- mitting the title of another to deny the title, and in case of failure in proof of it hold the premises. ‘The rule holds good,’ said the court, ‘where the actual title of the lessor is that of a mere tenant at will, and applies in every form of action by which the lessor may seek to assert the rights reserved or promised to him in his lease. Coburn v. Palmer, 8 Cush. 124; Towne v. Butterfield, 97 Mass. 105. But it is equally well settled that the tenant is not estopped to deny that since his own entry into possession his lessor’s title has expired, either by its own limitation, or by the act of the lessor, or by eviction by title paramount; and that when the estoppel is set up by one claim- + [CHAP. XVII. 582 ESTOPPEL IN PAIS. The tort in this case, it will be noticed, was committed by Fogg, and McGrath and the other defendants evidently stood in the relation of agents to him. Had McGrath expelled the plaintiff after properly putting an end to the lease, it is plain that the action could not have been maintained; for the plain- tiff would not have been permitted to question the lessor’s title. The ruling in the case was simply to the effect that the plaintiff was not estopped to say that no title had passed by the subsequent lease to Fogg. When the relation of landlord and tenant is established, the rule of estoppel upon the tenant prevails though the tenancy be created by a deed which ‘shows that the landlord possessed no legal estate,! unless possibly the nature of the action requires a legal estate to support it, as in the case of ejectment or ing as assignee of the lessor, the tenant may show that such assign- ment was ineffectual to pass the lessor’s title. England v. Slade, 4 T. R. 682; Doe d. Marriott v. Edwards, 5 Barn. & Ad. 1065; Doe d. Higginbotham »v. Barton, 11 Ad. & E. 307; s.c. 3 Per. & D. 194; Mountnoy »v. Collier, 1 El. & B. 630; London & Northwestern Railw. Co. v. West, L. R. 2 C. P. 553; Despard v. Walbridge, 15 N. Y. 374. In Doe [d. Higginbotham] v. Barton [supra] Lord Denman said that if the lessor had been strictly tenant at will of another, no doubt his tenant might have shown the determination of that will on the part of the lessor’s lessor. In this case the plaintiff occupied her room as tenant at will of McGrath, and while this tenancy at will continued might maintain an action against McGrath or any person claiming under her for disturbing the plaintiff’s posses- sion. Dickinson v. Goodspeed, 8 Cush. 119. “McGrath made a written lease of the room to Fogg, which if the lessor had had a suffi- cient title would have terminated the tenancy at will of the plaintiff, and prevented her from maintaining this action for the removal of her goods. Curtis v. Galvin, 1 Allen, 215; Pratt v. Farrer, 10 Allen, 519. But the report finds that McGrath did not own the estate, and was herself a mere tenant at will of the rightful owner, and could not therefore make a valid alienation by written lease which would give Fogg a better title than she had previously granted to the plaintiff. Cooper v. Adams, 6 Cush. 87, 90. This fact is in no way inconsistent with her title as lessor at will of the plaintiff; and the plaintiff by having entered into possession as her tenant at will was not es- topped to deny that she had any greater estate, and to maintain this action.’ To the same effect Palmer v. Bowker, 106 Mass. 317. 1 Tilyou v. Reynolds, 108 N. Y. 558, 563; Jolly ». Arbuthnot, 4 De G. & J. 224; Dancer v. Hast- ings, 12 Moore, 34; s. c. 4 Bing. 2; Morton v. Woods, L. R. 4 Q. B. 293; Cornish v. Searell, 8 Barn. & C. 471. SECT. 1.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 583 covenant.’ This doctrine is an important qualification to the tule that there is no estoppel where the truth appears.” 1See ante, pp. 394, 395. 2In Jolly v. Arbuthnot, supra, the question was whether the re- lation of landlord and tenant had been created by a receivership deed between the receiver and another party, a bankrupt, so as to give the receiver the right to distrain for rent; the deed showing an at- tornment by the bankrupt to the receiver, and at the same time showing that the legal title was not in the latter. ‘It is contended,’ said Lord Chancellor Chelmsford, ‘that the attormment to Aplin [the receiver] had no operation; not by agreement, because he had no interest in the land to which it could apply; nor by the estoppel, because the deed sets forth the rights and interests of all parties, and shows that Aplin had no re- version in the premises to which the power of distress could be in- cident. It appears to me, however, that the circumstance of the truth of the case appearing upon the deed is a reason why the agreement of the parties which it embodies should be carried out, either by giv- ing effect to their intentions in the manner which they have pre- scribed, or by way of estoppel to prevent their denying the right to do the acts which they have authorized to be done.’ In the still more recent case of Morton ». Woods, above cited, in which the same point arose, Kelly, C. B. in delivering judgment, remarked con- cerning the objection that the de- fendanits not having the legal estate could have no right of dis- tress: ‘That they had not in fact the legal estate is clear; but that may be said of all lessors where there is a lease and a tenancy by estoppel, and where the lessors have frequently no title at all, Here the defendants have an equitable title only, and the ques- tion becomes of primary importance because it is only by estoppel that the defendants can be said to have the legal estate, and it is said that no estoppel arises where the truth appears upon the face of the instrument which is the evidence of the agreement between the parties; and it may be taken, as appears on the mortgage deed, that the defendants were not seised of the legal estate, but that it was in the first mortgagee, Mr. Horn. A number of cases bearing on this point have been cited; but when we come to look at the facts and the ratio decidendi of each, none of them are directly in point. They were either actions of covenant, in which the covenant: must be en- forceable as an obligation at law, or actions of ejectment on a clause of re-entry, where it is perfectly clear there must be the legal estate in. the plaintiff, and that if it is outstanding he cannot succeed. (The cases referred to are Pargeter v. Harris, 7 Q. B. 708; Cuthbert- son v. Irving, 4 Hurl. & N. 742; s. c. in error, 6 Hurl. & N. 1385; Saunders v. Merryweather, 3 Hurl. & C. 902. See ante, pp. 394, 395.] But even if any of the. decisions or dicta were to lead to the con- clusion that where the truth ap- pears there can be no estoppel, that doctrine must be taken to be overruled by the case of Jolly v. Arbuthnot, 4 De G. & J. 224. ... There is undoubtedly this difference between Jolly v. Arbuth- not and the present case, that the mortgagee was a party to the deed in that case, whereas the original mortgagee is not a party to the [CHAP. XVII. 584 ESTOPPEL IN PAIS. The only case directly holding that where the deed shows that the lessor had not a legal reversion, the lessee may dispute’ the title in an action upon the covenants, is Pargeter v. Harris;1 though the doctrine is referred to with approval in a dictum by Mr. Baron Martin in the subsequent case of Cuthbertson ». Irving.2 The distinction must be a fine one which will allow the tenant in a lease showing the facts to dispute the title in covenant, and refuse him the power in a contest concerning the validity of a distress. The doctrine of the cases of Jolly ». Arbuthnot and Morton v. Woods, above cited, seems sound, and they leave a very narrow ground for Pargeter v. Harris and the like cases to stand upon. The question arose again in a late case in the Exchequer. In this case the plaintiff had granted a lease to the defendant which recited that it was subject to a prior lease to other per- sons. The action was ejectment, and it was admitted that the covenant to repair had been broken and that rent had been paid to the plaintiff under his lease. It was objected by the defendant that the plaintiff could not recover because it ap- peared from the face of the lease that there was an outstanding title. But the objection was overruled.‘ agreement in this; but it is the creation of the tenancy, or the estoppel which arises from the creation of the relation of landlord and tenant by agreement between the parties, that makes the actual legal estate unnecessary to support the distress, and not the consent of the third party in whom the tegal estate is. Therefore the two cases are essentially identical, and if we had any doubt on the subject, which we have not, we should be bound by that authority; and we therefore hold that the right of distress, so far as this point of the want of the legal estate is’ con- cerned, is unaffected by the fact that such want of the estate ap- peared on the agreement by which the relation of landlord and tenant was created between the parties.’ A lessor having no title cannot distrain for arrears of rent due from the tenant the goods of a third person which happen to be on the premises by the tenant’s license. Tadman v. Henman, (1898) 2 Q. B. 168. 17 Q. B. 708. 24 Hurl. & N. 742. 3 Duke v. Ashby, 7 Hurl. & N. 600. 4¢The question,’ said the Chief Baron in the course of the argu- ment, ‘is whether, when a person accepts a lease admitting upon the face of it some infirmity of title in the lessor, the doctrine applies that there is no estoppel where all the facts appear. I do not think that that technical doctrine of es- toppel applies to the case of land- lord and tenant. Suppose a mort- gagor in possession grants a lease; could the lessee dispute his title SECT. 1] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 585 A similar point arose in the Pennsylvania case of Holt ». Martin.’ This was an ejectment by Martin, in which it ap- peared that he, being owner of an undivided seventh part of a house, leased the whole in his own name as agent. Having conveyed away his interest, he brought the present action. The defendant Holt attempted to show that the owners of the other interests had revoked Martin’s agency, but the court held the evidence inadmissible.? The doctrine that the tenant cannot dispute his landlord’s title is not confined to the action of ejectment; that was expressly decided in Delaney v. Fox.’ This case was an action of trespass upon certain premises. The defendant pleaded liberum tenementum, and a special plea showing a tenancy of the plaintiff under him, and its determination by notice. The plaintiff gave evidence that at the time she was let into posses- sion 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. because the legal estate is in the mortgagee?’ See Cuthbertson »v. Irving, 4 Hurl. & N. 742; s. c. in error, 6 Hurl. & N. 185. But he said the case would have been dif- ferent had the defendant obtained an assignment of the prior lease. 151 Penn. St. 499. 2‘ At first sight,’ said Agnew, J. for the court, ‘this might seem competent, 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 between 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 It was objected that she was estopped from dis- 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 informed. Was he a mere agent without an estate; or, him- self holding the legal title, was he an agent for purposes connected with the title he held? None of these appear by the lease. And if agent for others, were they the same persons indicated in the offer? If not, clearly Martin could rebut the proof offered. His calling himself agent was no admission of title in the persons named in the offer. Thus, it was a direct at- tempt to deny the title of Martin; for, if competent, 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.’ 32C. B. n. s. 768. So in Ward v. Ryan, 10 Ir. R. C. L. 17. 586 ESTOPPEL IN PAIS. [CHAP. XVII. puting 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 de- cided in favor of the defendant. Chief Justice Cockburn said that upon principle there was no distinction between the case of ejectment and the present case. There could be no substan- tial difference between the landlord’s asserting his title by bring- ing ejectment at the immediate 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 considered as a determina- tion of the landlord’s title.? The rule of the tenant’s estoppel prevails against one who is in possession of land under a mere license. On the other hand, 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 rec- ognizing an absolute title in the mortgagee, he will not be estopped to dispute the mortgagee’s title.4 Whether the estoppel prevails where the tenancy is created by act of the law is not quite clear. It has been held that a widow by continuing in, possession of her husband’s land will be estopped against the heir to deny his title on the ground that she thus becomes tenant to the heir; ® also that she would be 1 Referring to the language of Pollock, C. B. in Watson v. Lane,’ 11 Ex. 769, citing Heath, J. in Ogle v. Atkinson, 5 Taunt. 759. ?That constructive eviction is sufficient to remove the estoppel in America, and probably also in England, see ante, pp. 563, 564. 3 Glynn v. George, 20 N. H. 114; Doe d. Johnson v. Baytup, 3 Ad. & HE. 188, Coleridge, J.; ante, p. 558; Wilson v. Maltby, 59 N. Y. 126; Hamilton Hydr. Co. v. Cin- cinnati R. Co., 29 Ohio St. 341; Dills ». Hampton, 92 N. Car. 565. Manager of real estate for another when sued in ejectment by his principal is under no estoppel like that between landlord and tenant. Seymour »v. Slide Gold Mines, 153 U. S. 523, 14 Sup. Ct. 847, 38 L. Ed. 807. 4Sahler v. Signer, 37 Barb. 329. 5 See Tully v. Tully, 71 Cal. 338, trustee. 5 Den d. Bufferlow », Newsom, 1 SECT. I.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 587 estopped against the husband’s grantee.! So too it is held that a tenant by the curtesy cannot allege that the title of his wife was defective against one who claims under the wife.2 The case cited was an action of waste alleged to have been com- mitted by the defendant occupying as tenant for life. The plaintiff claimed title under a deed from the defendant’s wife. It appeared that the latter’s title had been derived from a location which was irregular and defective. The defendant for this reason objected that the location had given no title to his wife; but the court overruled the objection: Mr. Justice Hubbard said that the title of the plaintiff was voidable, but the defendant was not in a position to take advantage of any defect in it, since he had entered under his wife’s right, and held as tenant by the curtesy, subject to the rights of the children. He was estopped to deny the title under which he entered by alleg- ing that he was now a disseisor. However, in Vance v. Johnson ® it appeared that Vance had conveyed the real estate in question in trust to one Bailey, but that Vance had remained in pos- session until his death, and- that his widow continued in pos- session thereafter. After the conveyance in trust the land was sold under execution to one Washington, from whom the widow of Vance took a lease; and the question was whether in her relation to Bailey she had the legal right to take the lease from Washington. The court decided in the affirmative, deeming the widow entitled to disclaim any holding under Bailey.* Dev. 208; Den d. Williams ». Bennett, 4 Ired. 122; Den d. no privity either of estate or con- tract; where there is no obligation Grandy v. Bailey, 13 Ired. 221. 1 Den d. Bufferlow v. Newsom, 1 Dev. 208; Den d, Williams »v. Bennett, 4 Ired. 122; Den d. Grandy v. Bailey, 18 Ired. 221. 2 Morgan v. Larned, 10 Met. 50. 710 Humph. 214. 4*This rule [of tenant’s es- _toppel] cannot be held applicable.’ said McKinney, J. in delivering judgment, ‘to the same extent to a case where no such actual re- lation exists; where the person in possession did not receive such possession from the legal owner; where there exists between them on the part of the person in pos- session to pay rent or other serv- ice, or pledge of faith to restore possession; -in ‘short, where there exist no reciprocal duties or ob- ligations binding equally upon the parties, or either of them. The relation of mortgagor (suffered to remain in possession until fore- closure) to the mortgagee is in some respects like that of a tenancy at will, but it is not strictly such. And the relation of the conveyor in a deed of trust to the trustee is exactly similar. In the case of Moss ». Sallimore, 1 Doug. 279, 588 * ESTOPPEL IN PAIS. [CHAP. XVII. In regard to the relation of mortgagor and mortgagee, with- out attempting to define it it is sufficient to say that when the mortgagor retains possession, a relation is created similar to that of landlord and tenant, and the mortgagor is estopped to deny the title of the mortgagee;1 unless after a distinct dis- 282, Lord Mansfield says, “A mortgagor is not properly tenant at will to the mortgagee, for he is not to pay him rent. He is so only quodammodo. Nothing is more apt to confound than a simile. When the court or counsel call a mortgagor a tenant at will, it is barely a comparison. He is like a tenant at will.” The same doctrine is held by Buller, J. in the case of Birch v. Wright, 1 T. R. 378, 383. All the authorities, however, concur that the possession of the mort- gagor is not to be regarded as ad- verse to the mortgagee; and so as regards the parties to a deed of trust, which stands on the same principle. In other words, the possession in such case will be presumed to be in subordination to the legal title until proof of actual disclaimer. And this principle ap- plies to all cases where the relation of landlord and tenant is created by mere operation of law. But there exists this important dis- tinction between the actual and constructive relations. The ten- ant in the former case is not per- mitted to disclaim the landlord’s title, or to set up an adverse pos- session, so long as the relation sub- sists (2). But in the latter case there is no such restraint imposed upon the quasi tenant, as he is styled in some of the cases. He is not within the principle that precludes a tenant from setting up an adverse title or possession. His relation is founded upon mere ac- quaintance, and may be terminated at any moment. He may while in possession attorn to another, or acquire an adverse title in himself; and in either case the possession is thereby changed, and the Statute of Limitations will attach. And all this is perfectly consistent with the doctrine maintained by this court in the cases of Mitchell v. Lipe, 8 Yerg. 179, and Wood »v. Turner, 8 Humph. 685, 689, and other cases upon the same sub- ject. In the former case it was held that the title of the defendant in an execution, being transferred. to the purchaser by the sale and sheriff’s deed, his possession after-- wards was consistent with the pur- chaser’s title; and he would, there- fore, be deemed to continue the possession in the character of a quasi tenant at will until an actual disseisin or disclaimer on his part. In Wood v. Turner it is held that the only restriction imposed by such quasi tenancy is to preclude the execution debtor, who remains in possession of the land sold at sheriff’s sale, from requiring the purchaser in an action of ejectment against the former, to produce any other evidence of title than proof of his (the defendant’s) possession, a judgment and execution against him, a sale and purchase thereon, and a deed from the sheriff.’ 1Stewart v. Anderson, 10 Ala. 508; Jones v. Reese, 65 Ala. 134; (a) That is, the disclaimer cannot avail him during the tenancy; but after the tenancy has expired he may avail himself of it from the time it was made known to the landlord, and set up a title in himself under the Statute of Limitations. Willison v. Watkins, 3 Peters, 48; ante, p. 578, SECT. I.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 589 claimer brought to the knowledge of the latter he has acquired a title by adverse possession,’ or unless the mortgage is void by statute.? By the mortgage the mortgagor professes to convey, and thus declares that he has an interest coextensive with what he undertakes to transfer; and he will not be heard to say, in contradiction of his own deed, or in opposition to a claim founded thereon, that he was guilty of a falsehood and had no estate or interest therein.? But a mortgagor does not, in mere virtue of retaining possession, become tenant to a mortgagee prior to his own. The same principle seems to prevail in the case of those trusts which are the mere creatures of a court of equity.> The posses- sion of the trustee not being adverse to the cestui que trust, the Statute of Limitations does not run between them unless there is a clear repudiation of the trust brought home to the party so as to require him to act as upon a clearly asserted adverse title.® Indeed, the principle upon which such cases rest is one of the Farris v. Houston, 74 Ala. 162; Leary v. New, 90 Ind. 502; Turner v. First National Bank, 78 Ind. 19. Purchasers under decree of foreclosure also have the benefit of the estoppel. Leary »v. New, supra. But see Keokuk v. Scot- land County, 152 U. S. 318, 14 Sup. Ct. 605, 38 L. Ed. 457. 1Doe d* Higginbotham v. Bar- ton, 11 Ad. & E. 307, 314; Par- tridge v. Bere, 5 Barn. & Ald. 604; Hitchman v. Waltman, 4 Mees. & W. 409;+ Moss v. Sallimore, 1 Doug. 279, 282; Birch v. Wright, 1 T. R. 378, 383; Fisher v. Milmine, 94 Ill. 328; Vance v. Johnson, 10 Humph. 214; Willison v. Watkins, 3 Peters, 43, 52; Strong v. Waddell, 56 Ala. 471. Of course a mortgagor with warranty or recitals (express or implied by statute) cannot say that he had no title when he exe- cuted the mortgage. Sutlive »v. Jones, 61 Ga. 676; Pancoast »v. Travelers’ Ins. Co., 79 Ind. 172. 2 Brewster v. Madden, 15 Kans. 249, 3 Stewart v. Anderson, 10 Ala. 508, quoted in Jones v. Reese, 65 Ala. 134, 139; Griffis v. First Nat. Bank, 168 Ind. 546, 81 N. E. 490. 4 Holmes v. Turner’s Falls Co., 142 Mass. 590, 594. Field, J.: ‘A prior mortgagee might enter, and the tenant might attorn to him, and this would be a good defence to an action by the mortgagor, or those claiming under him, for rent accruing subsequently to the entry; but until such an entry, and until the lessee attorns to the mortgagee, or until the mortgagee requires the lessee to pay rent to him, the mortgagee and the lessee are strangers.’ 5 Kane v. Bloodgood, 7 Johns. Ch. 90; Willison v. Watkins, 3 Peters, 43, 52; Vance v. Johnson, 10 Humph. 214. 6 Merriam v. Hassam, 14 Allen, 516, 522; Baker v. Whiting, 3 Sum. 475; O’Halloran v. Fitzgerald, 71 Ill. 58. See Perry, Trusts, §§ 863, 864, and cases cited. [CHAP. XVII. 590 ESTOPPEL IN PAIS. broadest in the law, to wit, that one who has received property or money from another shall not dispute the title of that person or his right to do what he has done.! Some special phases of this doctrine remain to be examined. § 2. Estoppel under Contract for Purchase. The relation which the purchaser of land not fully paid for, or hought subject to condition,? bears to the vendor is held to be the same in effect in equity as that between landlord and tenant so far as the doctrine of estoppel is concerned.? The purchaser cannot, while claiming under the deed, refuse to perform duties imposed by it, on the ground that it is invalid; * nor can he set up an outstanding title against the vendor in bar of a proceeding by the latter to compel payment of the purchase-money or to enforce the penalty of a broken condi- tion.* In Bush v. Marshall, just cited, it appeared that Bush having purchased the premises in controversy from one of the plaintiffs, who at the time had no title, subsequently acquired the title, and then sought to escape the payment of the residue of the purchase-money for which Bush had given a mortgage. The plaintiffs now filed a bill to foreclose the mortgage; and their suit was sustained.® 1See Hadley v. State, 66 Ind. 271; Bunger v. Roddy, 70 Ind. 26; O’Halloran v. Fitzgerald, 71 Ill. 53; Keyser v. Simmons, 16 Fla. 268; McKee »v. Monterey Co., 51 Cal. 275; Placer Co. v. Astin, 8 Cal. 303; Perryman v. Greenville, 51 Ala. 507; Guilfoil v. Arthur, 158 Ill. 600, 41 N. E. 1009. 2 Woburn v. Henshaw, 101 Mass. 103; O’Brien v. Wetherell, 14 Kan. 616. . Quoted in Marsh v. Thomp- son, 102 Ind. 272, 277; Crumb ». Wright, 97 Mo. 18, 18, 19; Gallo- way v. Finley, 12 Peters, 264, 295; Willison v. Watkins, 3 Peters, 43, 48; Bush v. Marshall, 6 How. 284, 291; Bowers v. Keesecker, 14 Iowa, 301, 305; Strong v. Waddell, 56 Ala. 471; Raley v. Ross, 59 Ga. 862; McMath v. Teel, 64 Ga. 595; Shorman v. Eakin, 47 Ark. 351, 354; Cassin v. Nicholson, 154 Cal. 497, 98 P. 190. In Willison v. Watkins, supra, the court re- marked that the same principle applies also between trustee and cestui que trust, and generally to all cases where one man obtains possession of real estate belonging to another, by a recognition of his title. 4 Woburn v. Henshaw, 101 Mass. 103; Allen v. Studebaker, 152 Ind. 406, 53 N. E. 422. 5 O’Brien v. Wetherell, 14 Kan. 616. 5‘ As to lot No. 7,’ said Grier, J. for the court, ‘Bush having ob- SECT. 11.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 591 The doctrine of this case is that until the grantee has paid for the land he holds in respect of the payment a relation of duty to the grantor similar to that of a tenant to his landlord. The case cannot be considered as holding that the relation exists beyond the duty to pay the purchase price.? It is certain, as we have seen, that a grantee holds adversely to his grantor, and while in possession may disclaim the title of his grantor, or purchase an outstanding title and claim under that.? But according to the doctrine of the case above presented the grantee could not by this means escape wholly the payment of the price agreed upon. The relation of landlord and tenant is also virtually created, so far as the question of estoppel is concerned, where a party enters into possession of land under a contract to purchase it; and such a person, until ousted or disturbed in possession by one having a paramount title, will not be permitted in an action for possession by the party under whom he entered to set up a tained possession under White- sides cannot by the purchase of an outstanding title defeat the claim of his vendor. It is a well-estab- lished rule of equity that if a vendee buys up a better title than that of the vendor, and the vendor was guilty of no fraud, he can only be compelled to refund to the vendee the amount of money paid for the better title. Searcy v. Kirkpatrick, Cooke, 211; Mitchel v. Barry, 4 Hayw. 136. Equity treats the purchaser as a trustee for his vendor, because he holds under him; and acts done to perfect the title by the former, when in possession of the land, inure to the benefit of him under whom the possession was obtained, and through whom a knowledge of a defect of title was obtained. The vendor and vendee stand in the relation of landlord and tenant. The vendee cannot disavow the vendor’s title. (a) In the present case the vendee has bought in for twenty dollars the legal title to a property worth more than two thousand, the possession of which he received from his vendor; and not only so, but contrary to good faith and fair dealing he has interfered to overbid his vendor, who was using every endeavor to purchase the title for the use of his vendee in fulfilment of his own covenants. The appellant has paid no more . .. than ‘he agreed to pay for the purpose of getting the legal title. He has got a good title to the hays and ought in justice and uity to pay for it the full con- sideration which he has covenanted to pay.’ 1Quoted in Crumb v. Wright, 97 Mo. 13, 18, 19. 2 Quoted in Crumb v. Wright, 97 Mo. 13, 18, 19. 8 Ante, pp. 376, 388, 389; Croxall v. Shererd, 5 Wall. 268, 287, and cases cited. (a) Quoting the language of Mr. Justice Catron in Galloway v. Finley, 12 Peters, 264, 295. [CHAP. XVII. 592 ESTOPPEL IN PAIS. title inconsistent with his.1_ Nor will a person who has bought the right of fishery upon rental from a town be permitted, when sued for the price, to say that the town had no right to sell, unless the defendant has been evicted by title paramount.? A purchaser of personalty too, who takes and retains the sub- ject of sale, is ordinarily estopped to dispute the validity of the sale when the vendor seeks to enforce the same.® § 3. Estoppel of Bailee: Receiptor of Goods. The relation between bailor and bailee, and that of depositor and depositary of money,‘ is analogous to that of landlord and tenant.’ Until something equivalent to title paramount has been asserted against the bailee or depositary, he will be estopped 1 Towne v. Butterfield, 97 Mass. 105; Lacy v. Johnson, 58 Wis. 414; Potts v. Coleman, 67 Ala. 221; Tennessee R. Co. v. East Alabama Ry. Co., 75 Ala. 516; Lesher v. Sherwin, 86 Ill. 420; Tilghman v. Little, 13 Ill. 239; Den d. Love v. Edmonston, 1 Tred. 152; Pershing v. Canfield, 70 Mo. 140; Smith v. Busby, 15 Mo. 387; Harvey v. Morris, 63 Mo. 475; Winnard v. Robbins, 3 Humph. 614; Sayles v. Smith, 12 Wend. 57; Jackson v. Ayers, 14 Johns. 224; Jackson ». Walker, 7 COwen, 637; Fitzgerald v. Spain, 30 Ark. 95; Sanford v. Cloud, 17 Fla. 557; Coates v. Chaves, 92 Cal. 427, 28 P. 580; Gervaise », Brookins, 156, Cal. 103, 103 P. 329; Keating ». Wilbert, 119 La. 461, 44 So. 265; Wolf v. Holton, 92 Mich. 136, 52 N. W. 459; Jordan v. Katz, 89 Va. 628, 16 8. E. 866; Spinning »v. Drake, 4 Wash. 285, 30 P. 82. Contra, in Tennessee: Baker »v. Hale, 6 Baxter, 46; James »v. Patterson, 1 Swan, 312; Gudger v. Barnes, 4 Heisk. 570; Corder. v. Dolin, 4 Baxter, 238. When one entering under another’s sale, void for want of authority in the vendor, may hold possession and _ still resist payment, see Waggener v. Lyles, 29 Ark. 47, 2EHastham ». Anderson, 119 Mass. 526; Watertown »v. White, 13 Mass. 477, 3 Post, chapter 20, §2. But see Carey v. Gunnison, 65 Iowa, 702, which may perhaps be doubted, though the court says that the estoppel does ‘not necessarily’ arise, which is true enough. The fact that the vendor would have a right of action for the value of the goods is not enough to prevent the estoppel upon the buyer; that would be equally true in the case of land. The possession taken and retained creates the estoppel. 4 Seneca v. Allen, 99 N. Y. 532, 539. A tax collector cannot set up the invalidity of a statute in bar of an action for money which he has collected for the plaintiff under such statute. Perryman v. Greenville, 51 Ala. 507. 5An attornment by a bailee operates like one by a tenant. Henderson ». Williams, (1895) 1 Q. B. ; SECT. IIl.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 593 to deny the title of his bailor to the goods intrusted to him.!_ In Sinclair ». Murphy it appeared that the plaintiff in the lower court 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. Subsequently 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 could not question the plaintiff’s right to the money. The right of the bailor to the proceeds of goods sold by his bailee is of course of the same nature. Thus, in Osgood ». Nichols, just cited, the plaintiff sued the defendant for money had and received in respect of goods intrusted to him by the plaintiffs, and sold by him as auctioneer. The defendant offered to show property in himself, but the evidence was excluded. Indeed, the same rule applies between the vendor and the pur- chaser of goods, in an action by the vendor to recover the price. It is laid down that no principle of law can be found which would permit the purchaser (in the absence, of course, of an assertion of superior right by another) to set up in defence of the claim for the price a defect of title in the vendor. It is not permitted such a party to volunteer the protection of the claims of those who do not themselves assert them.? The same principle applies to the case of a receiptor for goods attached by an officer; having received possession of the goods from the officer, he must, in the absence of fraud upon him or specially modifying facts,® deliver them back when required by his contract. He will be estopped in trover or other suit for 1 Pulliam v. Burlinghame, 81 Mo. .S. 575; Bank of Lockhaven ». 111, 116, 117; Cheesman v. Exall, Mason, 95 Penn. St. 113. 6 Ex. 341; Biddle ». Bond, 34 L. 2Lund »v. Seaman’s Bank, 37 J.Q. B. 187; Sinclair v. Murphy, 14 Barb. 129, Leonard, J.; Ah Tone v. Mich. 392; Osgood v. Nichols, 5 McGarry, 22 Nev. 310, 36 P. 1009. Gray, 420; Lund v. Seaman’s Bank, 3 See Barron v. Cobleigh, 11 N. 37 Barb. 129; The Idaho, 93 U. H.559; Dewey ». Field, 4 Met. 381. 594 ESTOPPEL IN PAIS. [CHAP. XVII. the goods to set up a title to them.’ So of a wharfinger who agrees to hold goods for the plaintiff under a delivery order from a purchaser of the defendant wharfinger; he cannot resist trover for them on the ground, e. g. that they have never been separated from bulk, and that, therefore, no property passed to the person delivering.’ But, as has been intimated, the estoppel of the bailee ceases with dispossession by or assertion of superior right. Cheesman v. Exall ‘ is an important case upon this point. The action was trover for plate. It appeared that the plaintiff sold the plate to May and Biggenden for a valuable consideration, but for the purpose of defeating an execution. He, however, retained possession of the goods, and the judgment creditor assigned his judgment to May and Biggenden. They issued execution, whereupon the plaintiff deposited the plate with the defendant. The latter now, in the suit to recover the goods, set up the title of May and Biggenden. The court held that he had the right to do so. 1Dezell v. Odell, 3 Hill, 215; Dresbach v. Minnis, 45 Cal. 223; Dewey v. Field, 4 Met. 381; Burs- ley v. Hamilton, 15 Pick. 40; Staples v. Fillmore, 48 Conn. 510; Horn v. Cole, 51 N. H. 287; Dorr »v. Clark, 7 Mich. 310; Lindner ». Brock, 40 Mich. 618, 621; Bell v. Shafer, 58 Wis. 223; Case »v. Shultz, 31 Kans. 96; Roswald »v. - Hobbie, 85 Ala.’ 73, 77, and cases cited. 2 Woodley v. Coventry, 9 Jur. N. 8. 548; s. c. 2 Hurl. & C. 164; Knights ». Wiffen, L. R. 5 Q. B. 660. The point is further con- sidered in the chapter on Equitable Estoppel, post. 3 Pulliam v. Burlinghame, 81 Mo. 111, 116; The Idaho, 93 U. S. 575; Matheny v. Mason, 73 Mo. 677; Cheesman v. Exall, 6 Ex. 341. 46 Ex. 341. 5 Chief Baron Pollock said: ‘ My impression is that if a person pledges with another property to which he has no title and which he has no right to pledge, the real owner may interpose and get possession of the property. In the administration of the criminal law it constantly occurs that where stolen property has been pledged, the pawnbroker is called upon to deliver it up to the right- ful owner. If the servant illegally pledges his master’s plate, the servant cannot recover it by an action, since the pawnbroker may inquire who is really the true owner and deliver it to him.’ He also referred to Ogle v. Atkin- son, 6 Taunt. 759, as deciding that a warehouseman receiving goods from a consignee who has had actual possession of them, to be kept for his use, may nevertheless refuse to redeliver them if they are the property of another. Mr. Baron Martin thought, however, that Mr. Justice Heath had ex- pressed the doctrine too broadly in the case just cited in saying that the rule against setting up the jus ss SECT. 111.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 595 The case of Biddle v. Bond ! contains a clear exposition of the doctrine, and a review of the more important English cases. The case was this: The plaintiff had seized goods of one Rob- bins under a distress for the rent of a house alleged to have been demised by the plaintiff to Robbins, and had delivered them to the defendant, an auctioneer, to sell by auction. When the sale was about to begin, Robbins served a notice on the defendant that the distress was void, as the relation of landlord and tenant did not exist between the plaintiff and himself, and there was no rent in arrear. By the notice he required the de- fendant not to sell the goods, or if he sold them, to retain the proceeds for him. The defendant sold the goods, but refused to pay the proceeds over to the plaintiff, relying on the right of Robbins. tertii was limited to the action of ejectment. ‘I do not concur,’ said he, ‘in thinking that there is no case except that of land in which the jus tertii may not arise. There are numerous cases in con- nection with wharves and docks in which, if the party intrusted with the possession of property were not estopped from denying the title of the person from whom he received it, it would be difficult to transact commercial business.’ 134 Law J. Q. B. 187. ? Blackburn, J. in delivering judgment, said: ‘ We do not ques- tion the general rule that one who has received property from another as his bailee, or agent, or servant, must restore or account for that property to him from whom he received it. . . . But the bailee has no better title than the bailor, and consequently if a person entitled as against the bailor to the property claims it, the bailee has no defence against him. Wilson v. Anderton, 1 Barn. & Ad. 450. Such was the position of the defendant in the present case. If Robbins had chosen to sue him in trover, or waiving the tort had sued for And the court sustained him.? money had and received, the de- fendant would have had no de- fence. He was therefore compelled to yield to-Robbins’s claim; and it would certainly be a hardship on him if without any fault of his own the law left him without any defence against the plaintiff for so yielding. We do not, however, think that such is the law. Several cases were cited on the argument at the bar, and more might have been cited, such as Stonard ». Dunkin, 2 Camp. 344, Gosling v. Birnie, 7 Bing. 339, and Hawes »v. Watson, 2 Barn. & C. 540, in which a bailee who by attorning to a purchaser of the goods has in effect represented to him that the prop- erty 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 was thus at- torned, 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 596 ESTOPPEL IN PAIS. [CHAP. XVII. It is, however, laid down in a case distinguishing Biddle »v. Bond, that if a party accept a bailment with full knowledge, at in all these cases the estoppel pro- ceeded upon the representation, which was analogous to a warranty of title for good consideration to the purchaser. Now, in the or- dinary class of bailments, such as the present, the representation 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 [su- pra, p. 594], in the case of a pledge, and is indicated as one of the grounds on which the judgment of the Court of Common Pleas proceeded in Sheridan v. The New Quay Company, 4 C. B. n. s. 618, which was the case of a carrier. The position of an ordinary bailee, where there has been no special contract or misrepresentation on his part, is very analogous to that of a tenant who, having accepted the possession from another, is estopped from denying his land- lord’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. There the plaintiff sued in assumpsit against the bailee of a horse for the breach of his contract to re- deliver it. The defendant pleaded that J S, the true owner of the horse, took it from the defendant. After verdict for the defendant the plaintiff moved in arrest of judg- ment; but ‘‘ by Fenner and Yelver- ton, contra, for the matter alleged by the defendant does in law dis- charge the promise, by reason of the former property of the horse in J 8; and then it is, as it were, an eviction of the horse out of the defendant’s possession, which discharges the promise, as well as an eviction of the lessee 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 ». Scotsford, but evi- dently having it in mind, states the law to the same effect. And accordingly in Hardman ‘v. Will- cock, 9 Bing. 382, in Cheesman v. Exall, 6 Ex. 341, and in Sheridan v. The New Quay Company, 4 C. B. n. 8. 618, a bailee was permitted under circumstances similar to the present to set up the jus tertii. It is true that in the first two of these cases the plaintiffs had ob- tained 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 circum- stance alters the law on the subject. The position of the bailee is pre- cisely 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 bail- ment on 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. We agree in what is said in Betteley v. Reed, 4 Q. B. 511, that “to allow a depositary of goods or money who has ac- SECT. Iv.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 597 the time, of the right of another to the property, he will be precluded from setting up that right in bar of the bailor’s claim.1 In the case just cited Mr. Justice Lush said that in Biddle ». Bond notice of the adverse claim was given to the auctioneer when the sale was just about taking place, and the auctioneer did not elect in favor of one of the claimants, but merely sold the goods under the authority which had been given to him by his bailor. § 4. Employees: Assignees and Licensees: Patents. A similar rule of law applies to employees and contracting parties generally; they cannot accept the benefits of the con- tract and yet, when called upon to perform their duties under it, repudiate it as made without right, or as otherwise wanting in force,? if it is not actually in violation of law,’ or wholly void.* The assignee or the licensee of any right, accepted and acted under, may accordingly be estopped to deny the knowledged the title of one person to set up the title of another who makes no claim or has abandoned all claim, would enable the deposi- tary 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 Thorne 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 per- son.” Thus restricted we think the doctrine is supported both by prin- ciple and authority, and will not be found in practice to produce any inconvenient consequences.’ See Rogers v. Lambert, L. R. 24 Q. B. D. 578; s.c. (1891) 1 Q. B. 318, C. A. 1Ex parte Davies, 19 Ch. D. 86. See Kingsman v. Kingsman, 6 Q. B. D. 122. 2See Briggs v. Hodgdon, 78 Maine, 514, attorney; Gayle v. Johnson, 80 Ala. 388; Speer ». Matthews, 78 Ga. 757, attorney; Burgess v. Badger, 124 Ill. 288, 306, 307, partner; Woburn ». Henshaw, 101 Mass. 103; McClure v. Commonwealth, 80 Penn. St. 167; Probstfield v. Czizek, 37 Minn. 420; New York v. Sonne- born, 113 N. Y. 423; Warrenton v. Arrington, 101 N. C. 109; Loveman v. Taylor, 85 Tenn. 2. The rule stated is, in some cases, no more than the old rule of equity, that the superior party in a fidu- ciary or a confidential relation can- not acquire rights against the beneficiary by taking advantage of this position. See 1 Bigelow, Law of Fraud, 261. See, further, chapter 20, on Election, to which doctrine the rule may also be re- ferred, in some cases. 3See New York v. Sonneborn, supra. 4Dunham »v. Reilly, infra. 598 ESTOPPEL IN PAIS. [CHAP. XVII. authority from which the right proceeds.! Thus, an assignee or a licensee of a patent, apparently valid and in force,” who has acted under it and received profits from the sale of the patented article, will be estopped to deny the validity of the patent in an action by the patentee to recover royalties or to obtain an ac- count. In the case first cited the court says that the defend- ants having, under an agreement for the manufacture and sale of the patented article, 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, the matter of the validity of the patent was imma- terial. But the court proceeded to say that the defendants were estopped from alleging that invalidity. They had made and sold the machines under the complainant’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 obligation of the defendants to account. Even when money had been re- ceived, either by an agent or by a joint owner, by force of a contract which was illegal, the agent or joint owner could not protect himself from accounting for what was so received by setting up the illegality of the transaction in which it was paid to him.4 But a licensee of a void patent may of course set up 1 Commonwealth v. Rourke, 141 Mass. 321, license to sell intoxica- ting liquors; New York v. Sonne- born, 113 N. Y. 423; Dunham ». Reilly, 110 N. Y. 366; Multnomah County v. White, 48 Or. 183, 85 P. 78. 2Quere in regard to a case in which the letters-patent disclose their invalidity? Comp. the cases in regard to recitals, ante, pp. 392-395. 3 Kinsman v. Parkhurst, 18 How. 289; Marston v. Swett, 82 N. Y. 526, 533; Marsh v. Harris Manuf. Co., 63 Wis. 276, 283; Lawes »v. Purser, 6 El. & B. 930; Noton ». Brooks, 7 Hurl. & N. 499; Crossley v. Dixon, 10 H. L. Cas. 293; Forncrook Manuf. Co. v. Barnum Wire Works, 54 Mich. 552; Eureka Co. v. Bailey, 11 Wall. 488; Jones v. Burnham, 67 Maine, 98. See Jackson v. Allen, 120 Mass. 64, 79; Rhodes v. Ash- urst, 176 Ill. 351, 52 N. E. 118; Multnomah County v. White, 48 Or. 183, 85 P. 78. 4 Thus,’ said the court, ‘ when a vessel engaged in an illegal trade carried freight which came into the hands of one of the part-owners, SECT. v.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 599 a want of consideration in an action on the notes given for the use of the patent.? § 5. Possession taken under Will or Intestacy. We have now to call attention to some cases of estoppel akin to those already considered, in which, however, there is no con- tract, or in which there may be no contract, giving to the party estopped the right of possession. Still, it will be found that the view taken of the situation is that the taking possession is in accordance with a right which would not have been granted except upon the understanding that the possessor should not dispute the title of him under whom the possession was derived. The cases referred to are successions post mortem, that is, estates. devolving by testacy or intestacy upon the persons taking possession. It is also a general principle of law that an executor or ad- ministrator 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 representative of the estate when claiming under a title of her husband.? The property must be surrendered and administration abandoned before the estoppel is removed. Tn a recent case * the question was raised whether an admin- istrator who finds property among the assets of the estate, takes and on a bill filed by the other part- owner for an account, the defend- 84 1Saxton v. Dodge, 57 Barb. ant relied on the illegality of the trade, but it was held to be no de- fence. Sharp v. Taylor, 2 Phil. Ch. 801. So in Tenant v. Elliot, 1 Bos. & P. 3, the defendant, an insur- ance: broker, having effected an illegal insurance for: the plaintiff and received the amount of a loss, endeavored to defend against the claim of his principal by showing the illegality of the insurance, but the plaintiff recovered.’ See also McBlair v. Gibbes, 17 How. 232, 236; MeMicken »v. Perin, 18 How. 507. The patentee is not estopped, it seems, to show the invalidity of his patent against an assignee thereof who has sued him for in- fringing it. See Smith v. Cropper, 10 App. Cas. 249; 26 Ch. D. 700, so holding of a suit by an assignee of the patentee’s trustee in bank- ruptcy. , 2Smith v. Sutton, 74 Ga. 528. 3 Benjamin v. Gill, 45 Ga. 110; Fitts v. Cook, 5 Cush. 596, 601; 1 Jarman, Wills, 13. ‘Irby v. Kitchell, 42 Ala. 438. 600 ESTOPPEL IN PAIS. [cuap. XVII. 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 liability 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 beneficiaries 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 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, the court strongly observed, that it did not tolerate such a thing.? 1 McWilliams »v. Ramsay, 23 charging himself therein with the Ala. 818. Text quoted in In re fund, it was held in an action Murphy’s Estate, 30 Wash. 1, 70 P. 107. 2Tn the case of McWilliams v. Ramsay, above cited, the court held that where an administrator re- turns 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 administra- tor, who was also guardian of the intestate’s heirs, charged himself as administrator with a fund, and failed to credit himself with its payment to him as guardian, and in an attempted settlement of his account as guardian refrained from on his bond as administrator for the recovery of the fund that he was estopped to deny that he held the fund as administrator. Wilson . v. Wilson, 17 Ohio St. 150. Con- cerning settlement of accounts of administrators and guardians, see also McDonald ». McDonald, 50 Ala. 26; Ashley v. Martin, ib. 537; Foust v. Chamblee, 51 Ala. 75; Grady »v. Porter, 53 Cal. 680. The fact that interested parties have witnessed to the correct- ness of such accounts and re- quested the Probate Court to pass them will not in Alabama preclude them from suing in equity to correct errors therein. Monin »v. Beroujon, 51 Ala. 196. See, how- ever, Bell v. Craig, 52 Ala. 215. SECT. v.] ESTOPPEL BY CONTRACT: LEGAL EFFECT. 601 In the same way a devisee for life will be estopped after taking possession under the will from saying that the testator had no sufficient estate to create such interest. It is laid down to be contrary to law for one who has obtained possession under and in furtherance of the title of a devisor to say that such title is defective or insufficient. In the case cited a devisee for life attempted to say that the testator was only tenant by the curtesy, and that the former had acquired a title to the premises by twenty years’ adverse possession; but the court refused to hear the claim.? 1 Board v. Board, L. R. 9 Q. B. to estates taken under instruments 48. In Dalton v. Fitzgerald, (1897) of whatever character. 2 Ch. 86, C. A. the doctrine of this 2 Anstee v. Nelms, 1 Hurl. & N. case is said not to be a part of the 232, was cited by the court. law of wills specially, but it applies 602 ESTOPPEL IN PAIS. [CHAP. XVIII. B. ESTOPPEL BY CONDUCT. CHAPTER XVIII. EQUITABLE ESTOPPEL. §1. Division of the Estoppel. We have now to consider cases in which one man has, other- wise than by contract, caused another to believe something which afterwards it would be unjust for the former to repudiate. There are two classes of cases of the kind, to wit, cases of rep- resentation and cases of silence, or, more fully, cases of false representation and cases of wrongful, misleading silence. Rep- resentation, as the term must here be understood, imports some word or act; silence, the entire absence, on the part of the per- son silent, of word or act. And wrongful, misleading silence is here, and for the present, to be understood as silence by a person aware of his rights, and of what is going on, while those rights are being disposed of by another. In cases of misrepre- sentation two persons only need be concerned, the person making the representation and the person to whom it is made; in cases of wrongful, misleading silence three are concerned, the silence being silence in regard to the action of a third person. In the first class of cases the representation, in the second class the silence, is the legal (i. e. proximate) cause of the es- toppel; in the case of silence the action of the third person being only the occasion whereby the estoppel arises. The action of such third person is usually misrepresentation, as where he represents, and sells, as his own the property of another — the one keeping silent; but it is not necessary that there should be any such misrepresentation, or indeed any representation at all, to bring about the estoppel. Selling unclaimed goods as SECT. I1.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 603 the property of persons unknown would furnish an illustra-_ tion. Here the seller makes no misrepresentation, or none except that the goods are unclaimed and that he has a right to sell them as such, which is true. The purchaser buys indeed at his own risk, but that means at the risk of claims of persons who do not know what is going on, not of persons keeping silent while they know that their own property is being offered for sale. The latter owe the duty to speak before an innocent purchaser buys, and their silence therefore is wrongful and mis- leading, and operates to estop them, after the purchase, from claiming the property. ‘He who keeps silent when duty com- mands him to speak shall not speak when duty commands hi to keep silent.’ § 2. General Principles. Estoppel by representation consists in holding for truth a representation acted upon when the person who made it, or his privies, seek to deny its truth and to deprive the party has acted upon it of the benefit obtained. The origin of the estoppel is probably to be found in the doctrine of equity ? that if a representation be made to another who deals upon the faith of it, the former must make the representation good if he knew or was bound to know it to be false.? Lord Eldon in the case just cited speaks of this as ‘a very old head of equity.’ ¢ 1 Quoted in Lamb v. Trowbridge, 71 Iowa, 396, 400. In an action against another than the person who made the false representation that person could probably give 10 Gray, 349; ante, p. 519, note. And see more at tee Bigelow’s Bills and Notes, 174.:175.--: - *See “Brewer 0. Boston & Ww.) R. Co., 5 Met. 478, 483. at evidence impeaching his represen- tation if there were no connection between the defendant and the wit- ness. Jordaine v. Lashbrooke, 7 T. R. 601 (overruling Walton v. Shelly, 1 T. R. 296); Townsend v. Bush, 1 Conn. 260; Williams »v. Walbridge, 3 Wend. 415; Haines v. Dennett, 11 N. H. 180. Contra, Freon 2. "Brown, 14 Ohio, 482. Concerning the special rule in Massachusetts, see Newell v. Holton, ~? Evans v. Bicknell, 6 Ves. 174, 182; Slim ». Croucher, 1 DeG. F. & J. 518; Lee v. Monroe, 7 Cranch, 366; Oliver v. Bank of England, (1902) 1 Ch. 610; Davis v. Wakelee, 156 U. S. 680, 15 Sup. Ct. 555, 389 L. Ed. 578. Text quoted in Elliott v. Keith, 102 Ga. 117, 29 es Phillips, 18 Ch. D. (560, ‘87; infra, p. 605, note 2. 604 ESTOPPEL IN PAIS. [cHAP. XVIII. But the principle had been fully adopted at law as ground for an action of deceit several years before this remark was made,! and though still called ‘ equitable estoppel ’ the estoppel is as fully available at law as in equity.” In order to justify the interposition of equity in the case men- tioned it is necessary to establish, not only the fact of misrep- resentation 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. 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 opinion or fact equally open to the knowledge of both parties, in regard to which neither could be presumed to trust the other; in these and the like cases equity will not grant relief.? We shall see in the course of the present chapter that the legal doctrine of estoppel by conduct is founded upon similar con- siderations. We now call attention to a few of the leading cases in which the general nature of this particular phase of estoppel by conduct is defined; and we shall then pass on to a pea examination of the subject. This estoppel, in both its aspects, representation and silence, received in England its distinctive expression in the well-known case of Pickard v. Sears; * a case which bears much the same showing an act made void by stat- ute. Tribble v. Anderson, 63 Ga. 41; Rosebrough ». Ansley, 35 Ohio St. 107; Bank of Cadiz ». Slemmons, 34 Ohio St. 142. See 1Pasley v. Freeman, 3 T. R. 51, 2 Drexel v. Berney, 122 U. 8. 241; Barnard v. German Semi- nary, 49 Mich. 444; Copper Mining Co. v. Ormsby, 47 Vt. 709; Wefel v. Stillman, 151 Ala. 249, 44 So. 203. Text quoted in Ming »v. Olster, 195 Mo. 460, 92S. W. 898. 31 Story, Eq. Jur. §191. In Drexel v. Berney, supra, it is held that, to justify resort to equity, in respect of this ‘ equitable estoppel,’ it is necessary that Shere should thea stoopelt in. n itself _is “pur ty e- gal.” There cannot be any estoppel according to some cases against McKnight v. Pittsburgh, 91 Penn. St. 273. Contra now in New York, but not perhaps formerly. Payne v. Burnham, 62 N. Y. 69; Mason v. Anthony, 3 Keyes, 609. Comp. Wilson v. Western Land Co., 77 N. Car. 445, where it is held that a deed will work estoppel though exe- cuted in violation of an injunction. See post, pp. 611, 614. 46 Ad. & E. 469. The case, as will be seen, fell just short of rep- resentation, but it is treated, in the tule laid down in it, as if it were as SECT. 0.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 605 relation to this part of our subject as that of the Duchess of Kingston does to estoppel by record. The doctrine had indeed been forestiadowed-gnd applied in a few of the earlier cases; ! bu Pickard v. Sears/was in which the doctrine of the. Gobet of Chance? was aly adopt r¥ was finally adopted. That case was an action of trover for machinery, to which the defendant pleaded not guilty, and that the plaintiff was not possessed, etc. Issue was taken upon the pleas. On the trial at nisi prius before Lord Denman it appeared that the plaintiff was the legal owner of the machinery under a mortgage from one Metcalf, and that the property had been levied upon, subsequently to the execution of the mortgage, as Metcalf’s, and sold by the sheriff to the defendants. Notice of this mortgage was given by the plain- tiffs to the defendants after the sale to them of the property. It further appeared that after the seizure the plaintiff had re- peatedly conversed about the same with the witness (who was the attorney of Hill, the plaintiff in the execution), sometimes in Metcalf’s 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 upon the best way of disposing of the property; that after 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, 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 defendants were about to purchase the prop- erty. It was not disputed that the mortgage had been made in good faith, or that the defendants had purchased bona fide and without notice of the mortgage. much a case of representation as of and not venturing to exercise an equi- i eee NTN .. table jurisdiction over the subject be- eane v. Rogers, 9 Barn. & re them, they did convert their own 8 C. 586; Graves v. Key, 3 Barn. & special pleading tactics into an in- Ad. 318, note; Mildway v. Smith, ment by which they could attain 2 Saund. 343. ee oan end which the Court of Chancery, “Phe-comimon-law doctrine of | without any foreign assistance, did estoppel was, as I havesaid,a device at all times, and I hope will at all which the common-law courts re- times, put into force in order to do sorted to at a very early period to justice.’ Bacon, V. C. in Keate v. strengthen and lengthen their arm, Phillips, 18 Ch. D. 560, 577. 606 ESTOPPEL IN PAIS. [CHAP. XVIII. A plea of leave and license having been refused, the defend- ants 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 plaintiff, a rule for a new trial was now argued before Lord Denman, C. J. and Williams and Coleridge, JJ. Counsel for the plaintiff argued that the articles were in Met- calf’s possession according to the intention of the mortgage deed, and that there was no badge of fraud. The property was in the plaintiff, and had never passed to the defendants. This was the only question open on the pleadings; no doubt being raised about the conversion, which alone could be disputed under the plea of not guilty. The jury should have been asked whether the plaintiff authorized the sale. Counsel for the de- fendants urged that the sale took place with the knowledge of the plaintiff, and virtually by his authority. He had full power to authorize a sale either generally or to a particular party; and his acts went far enough to give the authority. He could not then dispute that the sale was valid, and transferred the possession so as to support the second plea. His conduct in- duced the attorney of the execution creditor to change the situation of the parties; and the case resembled that of ad- missions made upon which the party to whom they were made cts so as to change his situation. In such a case the party making the admission was estopped from disputing the same.! The decision was given in favor of the defendants.2. And the 1 Referring to Graves v. Key, 3 Barn. & Ad. 318, note; Heane ». Rogers, 9 Barn. & C. 586. 2Lord Denman, C. J. in de- livering judgment, said: ‘Much doubt has been entertained whether these acts of the plaintiff, however culpable and injurious to the de- fendant and however much they might be evidence of the goods not being his in the sense that any persons, and amongst others the defendants, would be naturally induced thereby to believe that they were not, furnished any real proof that they were not his. His title having been once established, the property could only be di- vested by gift or sale; of which no specific act was even surmised. But the rule of law is clear that where_oné™ “by -his words or conduct __ wilfully, ‘causes “another t6~ be lieve” “the” “existence — of a certain state of thi tices hn act on that belief so as to alter his 7 SECT. II.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 607 rule was stated to be, that where one by his words or conduct wilfully ! causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his previous position, the former is concluded from aver- ring against the latter a different state of things as existing at the same time.” In accordance with this case it is now a well-established principle that where the true owner of property, for however short a time, holds out another, or, with knowledge of his own right, allows another to appear, as the owner of or as having full power of disposition over the property, the same being in ithe latter’s actual possession,’ and innocent third parties are thus led into dealing with such apparent owner, they will be pro- tected. Or where others are innocently induced to acquire rights in derogation of the secret or undisclosed claims of those who cause such action, the rights so acquired are secure whether contested at law or in equity. Such rights do not depend upon the actual title or right or authority of the party with whom they have directly dealt, but are derived from conduct of the i own previous position, the former / is concluded from averring against the latter a different state of 1 Word used passively, as it has been from early times. See’ Par- things as existing at the same ee and the plaintiff in this case might have parted with his interest in the property by verbal gift or /sale without any of those formal- ' ities that throw technical obstacles in the way of legal evidence. And we think his conduct in standing by and giving a kind of sanction to , the proceedings under the execution ' was a fact of such a nature that the opinion of the jury ought in conformity to Heane v. Rogers and Graves v. Key to have been taken whether he had not in point of fact ceased to be the owner.(a) That opinion, in the affirmative, would have decided the second ' issue in the defendant’s favor.’ doner’s Tale, Chaucer: “...trowye... That I wol live in povert wil- fully?’ 2See Doe d. Armstrong v. Bridges, 12 N. B. 493; Keith v. Garcia, (1904) 1 Ch. 774, C. A; Shedd v. Webb, 157 Ind. 585, 61 N. E, 233; Blodgett v. McMurtry, 34 Neb. 782, 52 N. W. 706; Sut- ton v. Apex Min. Co., 14 8. D. 33, 84 N. W. 211; Greer v. Mitchell, 42 W. Va. 494, 26 S. E. 302. 3 Howland v. Woodruff, 60 N. Y. 73,- two judges “dissenting. See Graybeal v. Davis, 95 N. Car. 508. ‘ ‘First Nat. Bank v. Kissare, 22 Okl. 545, 98 P. 483, 132 A. S. R. 644. (a) This does not mean agency, though the case was argued on both sides (see supra, p. 606) as if it were a question of that sort; at all events, the estoppel is not now supposed to rest on agency. 608 ESTOPPEL IN PAIS. [CHAP. XVIII. real owner which precludes him from disputing against them the existence of the title or right or power which he caused or allowed to appear to be vested in the party making the sale.! This rule applies to married women doing business for them- selves under the statutes; ? also to heirs who assent to and en- courage the sale of land by an executor who has no authority under the will to make such a sale.* It applies to a cestui que trust (not under disability) who allows and encourages the trustee to appear as absolute owner of the trust property, and thereby causes an innocent person to act upon that belief and to change his position; the rights of the latter will have priority over those of the cestui que trust.* It applies equally to the 1 Anderson v. Armstead, 69 IIl. 452; Stewart v. Munford, 91 II. 58; Mayer »v. Erhardt, 88 Ill. 452; Nichols v. Pool, 89 Ill. 491; Lewis v, Lanphere, 79 Ill. 187; Kinnear v. Mackey, 85 Ill. 96; Gridley v. Hopkins, 84 Ill. 528; Eldridge v. Walker, 80 Ill. 270; Colwell »v. Brower, 75 Ill. 516; Carter v. Fately, 67 Ind. 427; Bobbitt v. Shryer, 70 Ind. 513; Williams ». Niagara Ins. Co., 50 Towa, 561; Angell v. Johnson, 51 Iowa, 625; Foley v. Cooper, 43 Iowa, 376; Morris v. Shannon, 12 Bush, 89; Montague »v. Weil, 30 La. An. 50; Bevens v. Weill, ib. 185; Lippmins v. McCranie, ib. 1251; Chapman »v. Pingree, 67 Maine, 198; Sebright v. Moore, 33 Mich. 92; Ford ». Loomis, ib. 121; Hawkins ». Methodist Church, 23 Minn. 256; Pence »v. Arbuckle, 22 Minn. 417; Mayo v. Leggett, 96 N. Car. 237; Redman »v. Graham, 80 N. Car. 231; Simmons v. Camp, 71 Ga. BA: Kennedy v. Redwine, 59 Ga. 327; Jones »v. Hawkins, 60 Ga. 52; Allen v. Maury, 67 Ala. 10; Powers v. Harris, 68 Ala. 410; Rumball v. Metropolitan Bank, 2Q. B. D. 194; McNeil v. Tenth National Bank, 46 N. Y. 325; Winton ». Hart, 39 Conn. 16; Redd v. Muscogee R. Co., 48 Ga. 102; Moore v. Met- ropolitan Bank, 55 N. Y. 41; McStea v. Matthews, 50 N. Y. 166; Pickering v. Busk, 15 East, 38; Gregg v. Wells, 10 Ad. & E. 90; Saltus v. Everett, 20 Wend. 267, 284; Mowrey v. Walsh, 8 Cow. 238; Root »v. French, 13 Wend. 570; Horn »v. Cole, 51 N. H. 287; Jowers v. Phelps, 33 Ark. 465; Grace ». McKissack, 49 Ala. 163; Hardigree v. Mitchum, 51 Ala. 151; Rabitte v. Orr, 83 Ala. 185. Text quoted in Hill »v. Wand, 47 Kan. 340, 27 P. 988, 27 A. S. R. 288; Kempner v. . Huddleston, 90 Tex. 182, 37 8. W. 1066; Greer v. Mitchell, 40 W. Va. 494, 26S. E. 302. See Brocklesby v. Temperance Soc., (1895) A. C. 173; Rimmer v. Webster, (1902) 2 Ch. D. 163; Farquharson »v. King, (1902) A. C. 325, reversing (1901) 2 K. B. 697. ? Bodine v. Killeen, 53 N. Y. 93. See Sears v. Davis, 40 Or. 236, 66 P. 913; Horr v. Hollis, 20 Wash. 424, 55 P. 65; Hacketts- town Nat. Bank »v. Ming., 52 N. J. Eq. 156, 27 A. 920. > Favill ». Roberts, 50 N. Y. 222. ‘Regina v. Shropshire Union Co., L. R. 8 Q. B. 420, Ex. Ch. See Waldron v. Sloper, 1 Drew. 193; Rice v. Rice, 2 Drew. 73. If the maker of a trust deed permit the SECT. II.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 609 converse case of a trustee selling his own land as that of his cestui que trust, or land in which he has an interest as that of his cestui que trust, absolutely. But the rule, it is hardly necessary to say, has no application to one in possession of property who refuses to disclose the nature of his claim thereto; 2 for possession itself is notice of some kind of claim, and the purchaser buys subject to that notice.? It should rule in Pickard ». Sears finds.most frequent expression in transfers of property, it is not confined tosuch cases; it\nclidés all cases of false Tepresenta- tion Tee ee Wwhatever_the nature.of the trans._ action.* “Ekus, it is laid down of a person who permits himself to appear as one of several principal makers to a promissory note, thereby inducing another to sign the same instrument as surety, that he will be estopped towards this latter party to allege that his own real relation to the paper was that of surety;® trustee, with knowledge, to make sale of the property for the creditor usury included, he will be estopped from impeaching the sale for usury. Tyler v. Mass. Ins. Co., 108 II. 58; Perkins v. Conant, 29 Ill. 184. 1Smith »v. Hutchinson, 108 II. 662. It applies to the name which one adopts in executing an instru- ment, as e. g. a deed of land. Davis v, Callahan, 78 Maine, 313; Shel- ton v. Aultman, comp. 82 Ala. 315. It applies to an employee who permits employer to use an invention. Gill v. United States, 160 U. 8. 426, 16 Sup. Ct. 322, 40 L. Ed. 480. ? Cunningham ». Milner, 56 Ala. 522. It does not apply to one whose agent silently stands by and permits goods to be sold and paid for as the property of another. Stimpson v. Achorn, 158 Mass. 342, 33 N. E. 518. 3’ Hathaway v. Noble, 56 N. H. 508; 1 Bigelow, Law of Fraud, 390- 393. 4See Rabitte v. Orr, 83 Ala. 185; Colquitt v. Smith, 76 Ga. 709; Henderson v. Hartman, 65 Miss. 467, estoppel to allege usury; Beals v. Lewis, 43 Ohio St. 220, usury; Humphreys v. Finch, 97 N. Car. 303, suretyship; Dair v. United States, 16 Wall. 1, same; State v. Young, 23 Minn. 549; Union Savings Assoc. v. Kehlor, 7 Mo. App. 158; Farley v. Pettes, 5 Mo. App. 262; Miles v. Lefi, 60 Iowa, 168; Caswell v. Fuller, 77 Maine, 105; Larkin v. Mead, 77 Ala. 485; Philadelphia ». Matchett, 116 Penn. St. 103; Bain v. Wells, 107 Ala. 562, 19 So. 774; Gerlach v. Turner, 89 Cal. 446, 26 P. 870. One not a party to a probate pro- ceeding, but fully cognizant thereof, and taking benefit of decision on construction of a will for distribu- tion of a particular fund, may be concluded thereby as to another fund under the same will, in fresh action on claim in respect of different interest where circum- stances are identical. Wilkinson v. Blades, (1896) 2 Ch. 788. But see Young v. Holloway, (1895) P. 87. 5 Bobbitt v. Shryer, 70 Ind. 513; Melms v. Werdehoff, 14 Wis. 18. See Keith v. Goodwin, 31 Vt. 268. 610 ESTOPPEL IN PAIS. [cHAP. XVIII. though the case would be different if there was no ‘ inducing ’ to the mistake.! So, again, if a man purchase bona fide and for value an unnegotiable chose in action from one upon whom the owner has by assignment or otherwise conferred the ap- parently absolute ownership, he obtains a valid title against the real owner, supposing the act of purchase to have been induced by such act of the owner.? So one who dates a nego- tiable instrument upon a week day cannot after it has passed into the hands of an innocent holder for value say that it was executed on Sunday.® Again, membership of a corporation may be effected by estoppel. It is clear that one may become a stockholder in a corporation as well by acts and conduct affecting creditors and subscribers to the stock as by direct subscription.‘ Thus, a man may be estopped to deny his membership by causing or allowing stock in a corporation to be registered in his name, or otherwise holding himself out as a member of the corporation and so inducing others to join on that footing.’ So it is held that one who, though not a subscriber, has paid a call in such a case is estopped in an action of debt for calls to deny his mem- bership. It has been held too that, when a party represents himself to a corporation as owner of shares, and demands to be registered as such, in consequence of scrip certificates pur- chased by him and sent in to the company, for which he has had receipts and a notice that the scrip will be exchanged for sealed certificates on demand, he will be estopped to deny his - 1See McGee v. Prouty, 9 Met. 547. It is not clear whether the plaintiff in this case was induced at all to sign the note by the (blank) signature of the defendant; apparently he was not. 2 Moore v. Metropolitan Bank, 55 N. Y. 41; Hentz v. Miller, 94 N. Y. 64; Combes v. Chandler, 33 Ohio St. 178. 3 Knox v. Clifford, 38 Wis. 651. See State Bank v. Thompson, 42 N. H. 369; Nelson v. Cowing, 20 Wend. 336; Trieher v. Commer- cial Bank, 31 Ark. 128. ‘Merely subscribing one’s name to the subscription book does not estop one to deny that one is a sub- scriber. Lathrop v. Kneeland, 46 Barb. 432. 5See Pullman v. Upton, 96 U. 8. 328; National Bank v. Case, 99 U. S. 628, 631; Burgess »v. Seligman, 107 U. S. 20; Fisher ». Seligman, 75 Mo. 13; 8. c. 7 Mo. App. 383, 393; Erskine v. Loewen- stein, 82 Mo. 301; In re Recipro- city Bank, 22 N. Y. 17. 5 Railway Co. v. Graham, 2 Eng. Ry. Cas. 870; Griswold ». Seligman, 72 Mo. 110; Boggs ». Olcott, 40 Ill. 303. SECT.“ I1.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 611 liability for calls, though the provisions of the act necessary to make him proprietor have not been complied with by the registry of his name or of the entry of transfer made.’ Indeed, it has been broadly declared that the acceptance of stock from a corporation in one’s own name as owner on the face of the transaction, and then voting thereon, will estop the party from saying that he received the stock as collateral security from the corporation and thus claiming the benefit of a statute in favor of persons holding such stock as collateral.2 But these two propositions, while true where the rights of subsequent creditors and purchasers of the stock are concerned, have been clearly shown to be unfounded when applied to cases in which only the corporation and existing stockholders and creditors are concerned, — that is, where nobody has been misled or influenced to his hurt thereby.’ Further, there must have been a lawful creation of stock in the outset, to make one a stockholder. If the issue of the shares was illegal, if no sufficient steps were taken to authorize’ the creation of the capital stock, then though a person has acted and been treated as a stockholder in respect of shares which the company had thus no power to issue, and which therefore cannot legally exist, the person taking them cannot, by estoppel or otherwise, become a member in respect to them.? The doctrine has well been referred to estoppel by conduct that where one intentionally or negligently holds oneself out or permits another to hold one out as a partner of a firm, contrary to the fact, or perhaps where late partners continue to do busi- ness in the firm name after dissolution,® or where a firm after having sold out their business to another suffer the purchaser to continue the business in the firm name, without anything to indicate the change, and the representation has been innocently ' Railway Co. v. Daniel, 2 Eng. Ry. Cas. 728; Griswold v. Selig- man, 72 Mo.’ 110. 2 Griswold v. Seligman, supra. 5 Burgess v. Seligman, 107 U. S. 20. See Bank of Hindustan ». Alison, L. R. 6 C. P. 54; post, § 5. 4 American Tube Works v. Bos- ton Machine Co., 139 Mass. 5, 11, C. Allen, J. Further upon this subject see Thompson, Stockhold- ers, §§ 150 et seq. 5 Stimson v. Whitney, 180 Mass. 591. But see In re Fraser, (1892) 2 Q. B. 6383, C. A.; Newsom 2, Coles, 2 Camp. 617. 612 ESTOPPEL IN PAIS. [CHAP. XVIII. acted upon by others without knowledge or notice of the truth of the matter, such party or parties will be held liable to such persons,! and to such only. So too where one man permits another in his presence to make a contract for him,’ or where one man holds out another as possessed of authority to act for him in a particular transaction, or in a class of transactions of which the particular transaction is one, he will be estopped as against one who has been innocently induced to negotiate with the supposed agent’ as an agent from disputing the authority 1Among the many cases see Miles v. Furber, L. R. 8 Q. B. 77; Rabitte v. Orr, 83 Ala. 185; Adams v. Morrison, 1138 N. Y. 152; Newell v. Nixon, 4 Wall. 572; Partridge v. Kingman, 130 Mass. 475; Nichols v. James, ib. 589; Rice v. Barrett, 116 Mass. 312; Vibbard v. Roder- ick, 51 Barb. 616; Conklin »v. Barton, 43 Barb. 435; Sherrod »v. Langdon, 21 Iowa, 518; Uhl ». Harvey, 78 Ind. 26; Strecker ». Conn, 90 Ind. 469; Pepper »v. Zahnsinger, 94 Ind. 88; Over ». Schiffling, 102 Ind. 191, 196; Lochte v. Gélé, 1 McGloin (La.), 52; Brugman v. McGuire, 32 Ark. 733; Campbell v. Hastings, 29 Ark. 512; Flour City Bank v. Widener, 163 N. Y. 276, 57 N. E. 471; Bissell v. Warde, 129 Mo. 4389, 31 S. W. 928; Johnson »v. Williams, 111 Va. 95, 68 S. E. 410; Rainford v. Massengale, 5 Wyo. 1, 35 P. 774. See also Dyer v. Sutherland, 75 Ill. 583, concerning the effect of suing in a joint name as of part- ners. In Mitchell v. Ostrom, 2 Hill, 20, it was held that one who had signed a partnership name as a ‘late firm’ was not estopped to deny his joint liability on the note. Nor is it enough to raise the estoppel that goods were bought by a party in a firm name and that bills were made out and the goods shipped accordingly. Partridge v. Kingman, supra. See also Shirreff v. Wilks, 1 East, 48; Hawks v. Munger, 2 Hill, 200. A man who holds himself out as a member of a board of trade and induces others to deal with him as such will be estopped against them to deny his membership. Chicago Packing Co. v. Tilton, 87 Ill. 547. Text quoted in Homberger v. Alexander, 11 Utah, 363, 40 P. 260. 2Thompson v. First National Bank, 111 U. S. 535, 4 Sup. Ct. 689, 28 L. Ed. 507; Hahlo ». Mayer, 102 Mo. 98, 13 S. W. 804; Burrows v. Grover, 41 8. W. 822 (Texas). This is the true rule, though it has sometimes been sup- posed that all men may treat one as partner who holds oneself out as such. The distinction is without foundation. Upon this point, and upon the whole matter of ‘hold- ing out’ as partner, see the lucid and convincing exposition by Mr. James Parsons in his recent work on Partnership, § 69 (Boston, 1889). See also an article on Estoppel — Principal and Agent, in Harvard Law Review, January, 1903, by John 8. Ewart. Of course if there was an actual partnership, the liability would extend to all per- sons, whether there was a ‘ holding out’ or not; holding out has no significance except where the one held out was not, in point of fact, a partner. Parsons, ut supra. ae James v. Russell, 92 N. Car. SECT. II.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 613 of such person to act for him.! This rule applies, of course, to all persons held out as authorized to act for the one against whom the estoppel is alleged, as well as to those held out strictly as agents.? And one may equally be estopped by misleading a person to believe that another is a principal, and so prevented from asserting that the latter was one’s agent.’ In this con- nection too may be noticed the large class of cases of the fraud- ulent filling of blanks in mercantile paper and other instru- ments by persons intrusted with the same; * which, however, as has elsewhere been remarked, are not true cases of estoppel, but cases of agency,® or purchaser for value without notice.® The question is in such cases simply one of the right to dispute, not the agency altogether, but the extent of the agency, — that is, whether the act done was within the admitted agency. There lies the line between agency and estoppel. In the case of a limited agency or of constructive notice of 1 Martin v. Webb, 110 U. S. 7, 15; Traveller’s Ins. Co. v. Ed- wards, 122 U.S. 457, 468; Burton’s Appeal, 93 Penn. St. 214; Frick v. Trustees of Schools, 99 Ill. 167; Lochte v. Gélé, 1 McGloin (La.), 52. In the last case the question was of the application of this rule to a special state of facts, to wit, the permitting of one’s name to be kept over the place of business of another. The rule was considered to apply. See also White v. Mor- gan, 42 Iowa, 113. The rule ap- plies where one knowingly permits an agent to act in one’s behalf. Winsted Hosiery Co. v. Knitting Co., 69 Conn. 565, 38 A. 310; or suffers without objection an agent to act beyond his authority. Han- over Nat. Bank v. American Dock Co., 148 N. Y. 612, 43 N. E. 72, 51 A. S. R. 721; Keyes v. Union Pac. Tr. Co., 81 Vt. 420, 71 A. 201. But a bailee is not agent of a bailor so as to make him liable for tort by negligence of bailee in using the article bailed. Even though statute requires the name of the bailor to be on the article, and it is there. Smith v. Bailey, (1891) 1 Q. B. 403. Stables v. Eley, 1 C. & P. said to be misrepresented or else wrong. 2Lochte v. Gélé, supra; Frick v. Trustees of Schools, 99 Ill. 167, where trustees were held out for a long period of time as having certain powers. 3 Stebbins v. Walker, 46 Mich. 5. 4See Jewell v. Rock River Paper Co., 101 Ill. 57; Angle v. North- western Ins. Co., 92 U. 8S. 330; Whitmore v. Nickerson, 125 Mass. 496; Greenfield Bank v. Stowell, 123 Mass. 196, 199; Lloyds Bank ». Cooke, (1907) 1 K. B. 794; Bige- low’s Bills and Notes, 571-573. 5 Agency has sometimes been put upon the ground of estoppel in pais, as in Griswold v. Haven, 25 N. Y. 595. But that certainly is a mistake; there is only a mislead- ing resemblance between the two. 6 Ante, p. 493. Wright v. Lang, 66 Ala. 389, 395, on authority of Guild v. Thomas, 54 Ala. 414, seems to have been wrongly decided. 614 [CHAP. XVIII. ESTOPPEL IN PAIS. an agent’s want of authority, a principal cannot ordinarily be estopped to deny the authority of his agent to make a particular representation,' even though the agent has expressly declared that he has such authority.? Thus, in the first case cited (Cox ». Bruce) the master of a ship having, without authority, placed quality marks on certain bales of jute consigned by him, it was held that, as the master was an agent of limited powers, his want of authority in the matter could be shown, so as to prevent the existence of any estoppel against his employers, the ship- owners. In Sheffield ». London Joint Stock Bank an agent dealt with securities as his own which were his principal’s, the per- son with whom he dealt having notice, though not knowledge, that the property did not belong to the agent. The House of Lords, reversing the decision of the Court of Appeal, held that the principal was not estopped to deny the agent’s authority in the premises. But the case would be different, of course, if the principal in any way authorized the agent’s making of a repre- sentation of his authority: beyond its ordinary scope.* The estoppel is not confined to the bare existence of the facts in question; it extends to the natural and legal consequences directly resulting from them.* And it may apply to trans- actions which, apart from the estoppel, would be voidable or even void (if not actually illegal, or forbidden or controlled by statute), as e. g. to a void judicial sale.® One special case of title to property may be noticed here: in Dezell v. Odell ® it appeared that the plaintiff, a constable, having levied upon goods, delivered them to the defendant on his giving a receipt promising to redeliver them by a given day, and that when the day arrived he refused to comply with 1Cox v. Bruce, 18 Q. B. D. 147, C. A.; Barnett v. South London Tramways Co., ib. 815, C. A; Newlands v. National Employers’ Accident Assoc., 54 L. J. 428. 2 Sheffield ». London Joint Stock Bank, 13 App. Cas. 333. In Ja- cobs v. Morris, (1902) 1 Ch. 816, the agent showed a power of at- torney which defendants construed wrongly, and loaned on securities. Principal was allowed to recover securities, and respondent was es- topped from claiming for money had and received. 3 See Griswold v. Haven, 25 N. Y. 595. . 4Dodge v. Pope, 93 Ind. 480, 487; Irvine v. Scott, 85 Ky. 260. 5 Osborn v. Elder, 65 Ga. 360. Not to cases of usury. Ibid.; Tribble v. Anderson, 63 Ga. 31. See also p. 604, note. ®°3 Hill, 215 SECT. II.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 615 his promise, and claimed that the goods were his own at the time the levy was made. But the court held him estopped in trover for the goods to set up this defence,! on the ground that the officer had been induced to part with the possession, or to forbear taking actual possession by the defendant’s recognizing his right and agreeing to take or hold for him.? But a receiptor 1Dresbach v. Minnis, 45 Cal. 223; Bleven v. Freer, 10 Cal. 172; Gaff v. Harding, 66 Ill. 61; Dewey v. Field, 4 Met. 381; Horn v. Cole, 51 N. H. 287; The Struggle, 1 Gall. 476; George v. Tate, 102 U. 8. 564, 571; Roswald v. Hobbie, 85 Ala. 73, 77; Sponenbarger v. Lemert, 23 Kans. 55; Haxtun ». Sizer, ib. 310; Bursley ». Hamilton, 15 Pick. 40; Staples v. Fillmore, 43 Conn. 510; Dorr v. Clark, 7 Mich. 310; Williams v. Vail, 9 Mich. 162; Burk ». Webb, 32 Mich. 173; Lindner v. Brock, 40 Mich. 618, 621; Easton v. Good- win, 22 Minn. 426; Scanlan v. O’Brien, 21 Minn. 434. See Knights v. Wiffen, L. R. 4 Q. B. 660; Lewis v. Webber, 116 Mass. 450; Learned v. Bryant, 13 Mass. 224; Anthony v. Bartholomew, 69 Mo. 186; Diossy v. Morgan, 74 N. Y. 11; Harrison v. Wilkin, 78 N. Y. 390; Perry v. Williams, 39 Wis. 339; Bell v. Shafer, 58 Wis. 223; Hundley ». Filbert, 73 Mo. 34; Brown »v. Hamil, 76 Ala. 506, 509; Easly v. Walker, 10 Ala. 671; Adler v. Potter, 57 Ala. 571; Garrity ». Thompson, 64 Texas, 597; Adoue v. Seeligson, 54 Texas, 593; True- blood v. Knox, 73 Ind. 310. If a man claiming an interest in property attached as that of an- other join in a (statutory) re- plevin bond as surety, he thereby admits that the property belongs to the person against whom the attachment is made, and he cannot afterwards, especially after judg- ment in favor of the plaintiff in the attachment suit, assert his claim against that party. ‘Stat- utory replevin bond is not the form in which adversary claim to property can be asserted. It proceeds on the concession that the property seized belongs to the defendant, and the bond is given to save the expense of safe custody, and to secure its return to the pos- session of the defendant, to remain there until the suit is determined.’ Brown v. Hamil, 76 Ala. 506, 508, Stone, C. J. See Mead ». Figh, 4 Ala. 279; Dunlap v. Clements, 17 Ala. 778; Cooper v. Peck, 22 Ala. 406; Mitchell v. Ingram, 38 Ala. 395. 2Cowen, J. speaking for the court, said: ‘It may be conceded that had the- defendant’s claim been interposed at the time of the levy, and he had signed the receipt in terms without prejudice to his right, the question would have been open. ‘The creditor would thus have been put upon his guard and enabled to seek for other property, on finding that his debtor had no title to that in question. Indeed, here was a course of action on the part of the receiptor di- rectly calculated to influence the conduct of the creditor in a way prejudicial to his interests, unless we hold the receiptor. The officer being induced to part with the possession or to forbear taking actual possession by the receiptor recognizing his right and agreeing to take or hold for him, was itself an injury; if we now let the defend- ant go free, we then have a clear case of an admission by the defend- 616 ESTOPPEL IN PAIS. [CHAP. XVIII. is not in all cases estopped to assert his own title to the prop- erty. If the property has not been delivered back to him, he will not be estopped to claim it.} So if the admission con- sisted of mere formal statements which were deemed unim- portant at the time, and no one was deceived by them or induced to alter his position, the party is not bound.? Where, however, the defendant knowing all the facts relating to his own title gave ant, intended to influence the con- duct of the man with whom he was dealing and actually leading him into a line of conduct which must be prejudicial to his interests un- less the defendants be cut off from the power of retraction. This I understood to be the very definition of an estoppel in pais. For the prevention of fraud the law holds the admission to be conclusive. The principle is the same as that which prevails between landlord and tenant. The latter must surrender possession simply be- cause he has received it. The general doctrine is not denied. The argument is that it should not be applied in favor of an officer com- ing under pretence of legal authority and demanding the property. It is thought the receiptor should be taken to have been coerced into the giving of a receipt as the only expedient for retaining the pos- session. I think otherwise. If a man have a title, an officer is no more in respect to him than a mere stranger. He may either use the necessary force to retain posses- sion, or take the more usual and prudent course of an action at law for the wrongful seizure. In short, his remedies are in this respect the same as those of any other proprietor whose rights are improperly interfered with. The intendment against him is therefore the-same as it would be against a man in possession of land taking a demise from an adverse claimant. It is not enough for him afterwards to show that he had title. If he can show in addition that he was drawn into the admission of an adverse title by fraud, or perhaps by some gross mistake of fact, he may be able to defend himself. {See ante, pp. 566-578.) But by taking and holding he draws the onus of showing the fraud or mistake upon himself. The de- fendant below offered no proof of the kind; but, on the contrary, it is entirely apparent that the title which he proposed to set up at the trial was known to him at the time of the levy and receipt. The officer was, when he came to sell, for the first time apprised that the defendant had title. This was in general terms. At the trial he proposed to show that he had purchased it of a third person with his own funds. In short, his conduct may be summed up in this way: He had fraudulently deprived the creditor of possession through the officer, baffled him in his search for other property, and in the use of all means for collecting his debt, drawn him by equivocal conduct into the expense of an action, and at the trial claims the whole as constituting a legal de- fence. I think it was not so for the simple reason that the law uni- formly throws the consequence of such a course upon the party who leads in it, by applying the salutary doctrine of estoppel in pais.’ 1Case v. Shultz, 31 Kans. 96. ? Barron v. Cobleigh, 11 N. H. 559; Dewey v. Field, 4 Met. 381. SECT, II.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 617 an attaching officer a receipt therefor, promising to deliver the property on demand, and gave no notice that he claimed it as his own, and it appeared that when the attachment was made and the receipt given there was other property of the debtor which the officer would have attached if the defendant had then set up his claim and refused to give the receipt, it was held that the defendant was estopped to set up a title in himself to the property.! The doctrine of Pickard v. Sears had been declared and enforced several years earlier in America,’ though no distinct definition of the estoppel was given in the case first referred to. The plaintiff (Baird) in that case declared in trover for the conversion of certain lumber. It appeared that the lumber was the joint property of the defendant Stephens and one Benedict, one fifth of it belonging to Benedict and the rest to Stephens. The plaintiff had purchased the lumber under an execution sale against Benedict, which sale had taken place in this way: The execution creditor sent the officer to Stephens, told him he had an execution against Benedict, and asked him to point out to him the lumber which Benedict owned. Stephens then showed him a quantity, and told him that Benedict owned a fifth part of it. Such a part was then levied upon and receipted for, and sold to Baird without notice of any claim by Stephens. The latter now attempted to set up the defence that Benedict’s interest was under a special executory contract which he had not performed; but the court refused to hear the defence on the ground that it would be a violation of good faith to permit ~ Stephens now to set up any special agreement between him and Benedict to defeat the title of the plaintiff below, who was a bona fide purchaser at the constable’s sale.’ J Only parties and their privies are bound by the representa- tion, and only those whom the representation is made to or 1 Dewey »v. Field, 4 Met. 381. See also Ladrick v. Briggs, 105 Mass. 508; Heath v. Keyes, 35 Wis. 668. Ifthe condition of a delivery bond is that the property shall be delivered to the plaintiff in the suit if the delivery is adjudged to him, a surety in the bond may set up an interest in the property. Rathbone »v. Boyd, 30 Kans. 485. 2Stephens v. Baird, 9 Cowen, 274; Welland Canal Co. v. Hath way, 8 Wend. 480. 8 See Dewey v. Field, supra. 618 ESTOPPEL IN PAIS. [CHAP. XVIII. intended to influence and their privies may take advantage of the estoppel.! If the act was inter alios, there can be no es- toppel.? This is well shown by the case of Regina v. Ambergate Ry. Co. That was a mandamus to compel the defendants to proceed with the building of their railway. 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 estoppel that the defendants ought not to be ad- mitted 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 statute. But the court observed that this was res inter alios acta, and could not operate as an estoppel between the prosecutors and the defendants.® ‘The rule of estoppel between parties covers, of course, the misrepresentations of agents, even agents of corporations, ses EE, ghar ‘ 11t will be seen that this es- toppel is not mutual. The party to whom the misrepresentation was made has an estoppel; of course the other party, though bound, has nothing upon which to base an estoppel. See e. g. Shep- herd ». May, 115 U. 8S. 505; War- ren v. Spencer Water Co., 143 Mass. 9, 14; Equitable Loan Co. ‘vy. Lewman, 124 Ga. 190, 52 S. E. 599; text quoted in Falls Lumber Co. v. Walkins, 53 Or. 212, 99 P. 884. 2 Mowatt v. Castle Steel Co., 34 Ch. D. 58, C. A.; Regina ». Ambergate Ry. Co., 1 El. & B. 872; Myers v. Cronk, 113 N. Y. 608; Marine Bank »v. Fiske, 71 N. Y. 353; Monson v. Tripp, 81 Maine, 24, 26; Moore v. Boyd, 74 Cal. 167; Walker v. Walker, 9 Wall. 748; Caldwell v. Hart, 57 Miss. 596; Hopple v. Hipple, 33 Ohio St. 116; Sanders v. Robertson, 57 Ala. 465 (a suggestion only in this case); Townsend Bank ». Todd, 47 Conn. 190; Kinney ». Whiton, 44 Conn. 262; Mayenborg v. Haynes, 50 N. Y. 675; Morgan v. Spangler, 14 Ohio St. 102; Booth v. Lenox, 45 Fla. 191, 34 So. 566, quoting the text. The decision in Irvine v. Adams, 48 Wis. 468, may be doubted. The representa- tion may of course be made to or intended for more than one person. Pence v. Arbuckle, 22 Minn. 417. Recitals in a deed are not rep- resentations of fact on the faith of which a stranger to the deed is entitled to act without inquiry. Trinidad Asphalt Co. v. Coryat, (1896) A. C. 587. Comp. Bigelow, Fraud, 89, 90. 3On similar grounds the fraud- ulent acts of a company in the issuance of shares of its stock can- not bind those who had already bought shares, if they had nothing to do with the fraud. Mowatt v. Castle Steel Co., 34 Ch. D. 58, C. A. Cotton, L. J.: ‘A man cannot bind by his admission those who do not claim under him but who, before the admission, had acquired a right.’ 4 Brooke v. New York R. Co., SECT. I1.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 619 when made in the scope of their employment.!. Where an agency really exists, the principal is estopped to deny the truth of the agent’s statements, express or tacit, just as much as if he had himself made them,? subject to the same limitations that would prevail in that case. Thus a county? or a city 4 or other municipality may be estopped by conduct of its agents. But an agent or a servant is not himself estopped when acting by direction of his principal unless his own ‘conduct was such as to estop him.® Nor is a principal estopped to deny the authority of an agent having limited powers by any represen- tations of the agent, if the principal has not authorized the agent to declare the extent of his powers.® The misrepresentation of a trustee in respect of the trust 108 Penn. St. 529; Holden »v. Louis Dock Co., 84 Mo. 242, in Phelps, 141 Mass. 456; Alabama R. Co. v. South Alabama R. Co., 84 Ala. 570; Chicago v. Sexton, 115 Tl. 230; Bank of Batavia v. Lake Erie R. Co., 106 N. Y. 195; Taylor v. Nashville R. Co., 86 Tenn. 228, 250. 1Green v. Lycoming Ins. Co., 91 Penn. St. 387; Platter v. Elk- hart, 103 Ind. 360; Fouque ». Burgess, 71 Mo. 389; Security Bank v. National Bank, 67 N. Y. 458. Whether the state or any municipality can be estopped in pais by ‘its officers, quere. Reid »v. State, 74 Ind. 252. See also Sturgeon v. Hampton, 88 Mo. 203; Chope »v. Detroit Plank- road Co., 37 Mich. 195; Vardier v. Railroad Co., 15 8. Car. 477, 483. Comp. ante, pp. 371-372. Certainly not by their unauthorized acts. St. Louis R. Co. »v. Belle- ville, 122 Ill. 376; Pulaski v. State, 42 Ark. 118; Attorney-Gen. »v. Marr, 55 Mich. 445; State »v. Brewer, 64 Ala. 287, citing United States v. Kilpatrick, 9 Wheat. 735. Further, see Rush Co. »v. State, 103 Ind. 497, Union School Township v. First National Bank, 102 Ind. 494, and Moses », St. regard to the acts of public officers. The mere relation of husband and wife creates no agency in the husband, and his misrepresentations: concerning his wife’s property, not - authorized by her, create no estoppel against her. Hall v. Callahan, 66 Mo. 316; Caldwell v. Hart, 57 Miss. 596; Kirkman v. Bank of Greensboro, 77 N. Car. 394; Watson v. Hewitt, 45 Texas, 472; Taylor v. Riley, 37 Kans. 90; Green v. Walker, 73 Wis. 548. And a widow is not estopped by representations made in her absence by an administra- tor, in selling land of the intestate, that it is free from claim of dower. Coe v. Gerst, 105 Ill. 342. 2Sage v. McLaughlin, 34 Wis. 550. A state may be estopped. Slaughter v. State, 182 Ind. 465, 31 N. E. 1112. 3 Cook v. Harnes, 108 Ill. 151. 4 Sexton v. Chicago, 107 Ill. 323; Chicago v. Chicago R. Co., 105 IIl. 85; Chicago v. McGraw, 75 Ill. 570. 5St. Joseph Manuf. Co. ». Daggett, 84 Ill. 556. 8 Ante, pp. 542, 543, note. See Jacobs v. Morris, (1902) 1 Ch. 816; Biggs v. Evans, (1894) 1 Q. B. 88. [CHAP. XVIII. 620 ESTOPPEL IN PAIS. estate, to one having notice that it is such, will not work an estoppel upon an innocent cestui que trust. There is no case, it has recently been declared from the bench, in which a trustee, having made a fraudulent representation by which he was bound, or even a fraudulent conveyance after his legal title was confirmed, he still being a trustee only, has thereby deprived of their property the persons beneficially entitled to the estate.’ It is held that the acts and admissions of one of several ad- ministrators, which amount to an estoppel against him, will work an estoppel against all.? In the case cited one of three administrators had been present at a levy by an officer and did not object to it, and afterwards encouraged the sale of the property. Subsequently the administrators brought a joint action of trespass against the officer for making the levy; and the court held 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 court. Acts done by one of several executors or administrators relating to the de- livery, sale, or release of the testator’s or intestate’s goods, were the acts of all.2 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 acts of an executor, it may_be added, con- cerning land cannot estop the heir, though the executor be also the heir’s guardian.® It is laid down by some of the courts that the doctrine of estoppel in pais has no application, at common law,® to married women or infants.” A married woman. it was observed in 1Keate v. Phillips, 18 Ch. D. 560, 577, Bacon, V. C. 2Camp v. Moseley, 2 Fla. 171. 5 Wheeler v. Wheeler, 9 Cowen, 34, 4 Murray v. Blatchford, 1 Wend. 583. 5 Shamleffer v. Peerless Mill Co., 18 Kans, 24. ®It is clearly otherwise under recent statutes. Tracy v. Lincoln, 145 Mass. 357; Ward v. Berkshire Ins. Co., 108 Ind. 301, 303; Gray v. Crockett, 35 Kans. 66, 74; Noel v. Kinney, 106 N. Y. 74; Shirk v. North, 138 Ind. 210, 37 N. E. 590. 7 Lowell v. Daniels, 2 Gray, 161,- SECT. 11.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 621 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, that she was seised in her own right, and that she had full power to convey, such covenants 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 her husband and children. The strongest possible example of this, it was said, was presented in the case of Concord Bank ». 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 by acts in the country, by admission, by concealment, or by silence, that could be done in effect which could not be done by deed, would be practically to dispense with all the limi- tations the law had imposed upon the capacity of infants or married women to alienate their estates. Such was the reason- ing of the court.? Parties under disability, as infants and married women, certainly are not estopped unless their conduct has been inten- 168; Bemis v. Call, 10 Allen, 512, 517; Merriam v. Boston R. Co., 117 Mass. 241, 244; Powell’s Appeal, 98 Penn. St. 403, 413; Davidson’s Appeal, 95 Penn. St. 394; Innis v. Templeton, ib. 262; Grim’s Ap- peal, 105 Penn. St. 375, 385; Unfried v. Huberer, 63 Ind. 67, overruling Gatling v. Rodman, 6 Ind. 289, Scranton v. Stewart, 52 Ind. 68, and King v. Rea, 56 Ind. 1, 19. So in Delancey v. McKeen, 1 Wash. C. C. 354. But it did not appear in the last case that the feme knew the facts. See also Rannels v, Gerner, 80 Mo. 474; Burke v. Adams, ib. 504; Seeman v, Springate, 67 Ind. 115; Stevens v. Parish, 29 Ind. 260; Shumaker ». Johnson, 35 Ind. 33; Behler v. Weyburn, 59 Ind. 143; Bank of United States v. Lee, 13 Peters, 107; Drury v. Foster, 2 Wall. 24; Glidden »v. Strupler, 52 Penn. St. 400; Morrison v. Wilson, 13 Cal. 494; Rangeley v. Spring, 21 Maine, 130; Louisville R. Co. v. Stephens, 96 Ky. 401, 29S. W. 14; William- son v. Jones, 43 W. Va. 562, 27 8. E. 411. 110 Cush. 276. 2A married woman cannot even by fraud deprive herself of the pro- tection which the restraint on anti- cipation throws around her. Bate- man v. Faber, (1898) 1 Ch. 144, C. A. [cHAP. XVIII. 622 ESTOPPEL IN PAIS. tional and, in contemplation of law,! fraudulent.” In Schnell ‘v0. Chicago, just cited, a bill was filed to restrain the defendants from setting up their 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 land was offered for sale; and the purchaser before buying consulted both the mother and daughter upon 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 administrator. The court held that these facts were insufficient to work an estoppel upon the infant. 1 As to the meaning of the word ‘fraud,’ see Bigelow, Fraudulent Conveyances, Ch. 1; also Galbraith v. Lunsford, 87 Tenn. 89. 2Cupp v. Campbell, 103 Ind. 218, 220; Behlér v. Weyburn, 59 Ind. 143; MecMorris ». Webb, 17 8S. Car. 558, 563; Kane County »v. Herrington, 50 Ill. 232; Schnell v. Chicago, 38 Ill. 382; David- son v. Young, ib. 146; Rogers v. Higgins, 48 Ill. 211; Schwartz v. Saunders, 46 Ill. 18; Brown ». Coon, 36 Ul. 243; Miles v. Linger- man, 24 Ind. 385; McCoon ».- Smith, 3 Hill, 147; Schenck ». Stumpf, 6 Mo. App. 381; Steed v. Petty, 65 Texas, 490, 496; War- ren v. Hearne, 82 Ala. 554; Weath- ersbee v. Farrar, 97 N. Car. 106; Towles v. Fisher, 77 N. Car. 437; Hodges v. Powell, 96 N. Car. 64; Hobbs v. Nashville R. Co., 122 Ala. 602, 26 So. 139, 82 A. S. R. 103; Woodford v, Alexander, 35 Fla. 402, 17 So. 658; Newman v. Moore, 94 Ky. 147, 21 S. W. 759; Eng- holm v. Ekrem, 18 N. D. 185, 119 N. W. 35; Bruce v. Goodbar, 104 Tenn. 638, 58 S. W. 282; Williamson »v. Jones, 43 W. Va. 562, 27 S. E. 411; Wilbur »v. Jones, 21 N. B. 4. See Galbraith ». Luns- ford, supra, rejecting the need of fraud in the sense of intent to deceive. 8 Mr. Justice Lawrence, in de- livering judgment, said: ‘In the case at bar the infant made no false statement to the purchaser and perpetrated 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 mani- fested 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 Margaret [the minor} were certainly not greater than if she had made the sale herself and SECT. II.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 623 In a case in Indiana ! it appeared that an infant feme covert joined with her husband in conveying her land to a railroad company, by which it was afterwards conveyed without her knowledge to the defendant. About ten years after the feme’s attaining majority, 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 im- provements 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, that the deed of an infant could not be avoided in the hands of a subsequent grantee who had purchased without notice of the infancy of the original grantor. The position could only be sustained upon the doc- trine 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 maintained 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 interest 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 express fraud or act tending to mislead was committed? And the court held that these facts did not raise an estoppel against 1Miles v. Lingerman, 24 Ind. 385. 252 Penn. St. 400. See also Rumfelt v. Clemens, 46 Penn. St. 455. at the same time given her own deed for the land. Yet such a sale and conveyance unaccompanied by false representations would have given Newhall no legal or equitable ’ title which Margaret would 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 untenable.’ 3See McMorris v. Webb, 17 S. Car. 558, where mere silence on the part of a married woman while her husband was selling her land was held to raise no estoppel against her. 624 ESTOPPEL IN PAIS. [CHAP. XVIII. the feme to claim the land.! 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 mortgage 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. In cases of fraud separable from contract, however, whether by concealment or active conduct, the current of authority (in opposition to the doctrine in Massachusetts, above stated) is to the effect that a married woman may estop herself to deny the truth of her representation,’ or of misleading silence on her 1See Grim’s Appeal, 105 Penn. St. 375, 385; Keen v. Coleman, 39 Penn. St. 299; Klein v. Caldwell, 91 Penn. St. 140; Wilt v. Welsh, 6 Watts, 9; Penrose v. Curren, 3 Rawle, 351. 2 Drury v. Foster, 2 Wall. 24. 3 Carpenter v. Carpenter, 10 C. E. Green, 194; Weathersbee »v. Farrar, 97 N. Car. 106, 111; Towles vu. Fisher, 77 N. Car. 487; Patter- son v. Lawrence, 90 Ill. 174; Oglesby Coal Co. v. Pasco, 79 Ill. 164; Schwartz v. Saunders, 46 II. 18; Anderson v. Armstead, 69 IIl. 452; Smith v. Armstrong, 24 Wis. 446; O’Dell v. Little, 82 Ky. 146; Heck Fisher, 78 Ky. 643; Connolly . Branstler, 3 Bush, 702; Wright . Arnold, 14 B. Mon. 638; Davis . Tingle, 8 B. Mon. 539; Rusk v. Fenton, 14 Bush, 490; Davis »v. Zimmerman, 40 Mich. 24; Levy v. Gray, 56 Miss. 318; Read ». Hall, 57 N. H. 482; Dukes ». Spangler, 35 Ohio St. 119, 127; Meily ». Butler, 26 Ohio St. 535; Fitzgerald v. Turner, 43 Texas, 79; Ryan v. Maxey, ib. 192; Flannagin v. Hambleton, 54 Md. 222; Hender- shot v. Henry, 63 Iowa, 744; Cupp v. Campbell, 103 Ind. 218, 220; Powell’s Appeal, 98 Penn. St. 403; Wilder v. Wilder, 89 = eee Ala. 414, 7 So. 767, 18 A. S. R. 130; Jones v. Kearney, 1 Dru. & War; 134; Vaughan v. Vanderstegen, 2- Drew. 363; Wright v. Leonard, 8 Jur. n. s. 415; In re Lush, L. R. 4 Ch. 591. In Georgia the es- toppel is allowed in courts of equity. Dotterer v. Pike, 60 Ga. 29; Iverson v. Saulsbury, 65 Ga. 724. In Patterson v. Lawrence, supra (as in one or two other cases), a mar- ried woman was deemed estopped by her fraud even in a case of con- tract; and this is a legitimate result of the married women enabling acts of recent times. See also Nixon v. Halley, 78 Ill. 611; Reis »v. Lawrence, 63 Cal. 129; Rosenthal v. Mayhugh, 33 Ohio St. 155 (where it was held that a married woman whose husband has been absent for seven years and unheard from may bind herself by estoppel in pais). In regard to representa- tions concerning her equitable sep- arate estate it is clear that a mar- ried woman may estop herself. Noel v. Kinney, 106 N. Y. 74, 78; Saratoga Bank »v. Pruyn, 90 N. Y. 250, 255; Rannels v. Gemer, 80 Mo. 474. And generally under complete enabling acts. Levering v. Shockey, 100 Ind. 558. SECT. II.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 625 part.!’ In the 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, with her knowledge and approbation. Though knowing what was going on, she did not disclose her interest, or do anything 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 ? 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 purchase 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 defendant, 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 va- lidity. The court held the first charge correct, and the second incorrect; and it was 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 ». Wilson ® the wife joined the husband in procuring a third person to pur- | chase an invalid mortgage of the wife’s separate estate; and it was held that both parties were estopped to deny the validity of the morigage. It is clear that an action cannot be maintained at common law on a contract made with a married woman, for falsely representing herself to be sole at the time; the representation in such case not operating as an estoppel. Nor could an action 1 §mith v. Armstrong, 24 Wis. 446; Catherwood v. Watson, 65 Ind. 576; Gray v. Crockett, 35 Kans. 66, 74; Hoffman v. McFadden, 56 Ark. 217, 19 8. W. 753, 85 A.S. R. 101. For the effect of her silence in respect to a statement of her husband see Paul v. Keenz, 188 Pa. 504, 41 A. 610. 23 Bush, 702. 330 Ala. 382. , 4 Wilks v. Kilpatrick, 1 Humph. 54. 521 Penn. St. 436. 8 Liverpool Association v. Fair- hurst, 9 Ex. 422; Cannam ». Farmer, 3 Ex. 698; Wright ». Leonard,-11 C. B. n. s. 258; Keen v. Coleman, 39 Penn. St. 299; Keen v. Hartman, 48 Penn. St. 497, Klein v. Caldwell, 91 Penn. St. 140; Cupp v. Campbell, 103 Ind. 626 ex delicto be maintained in such a case.! ESTOPPEL IN PAIS. [CHAP. XVIII. And a similar doc- trine prevails, by the weight of authority, in regard to the false representations of a minor concerning his age, though another has been induced to contract with him on the faith of them.? It is clear also that an infant is not estopped by receiving during minority money from the sale of his lands from afterwards lay- ing claim to them, nor indeed by the act of his guardian in receiving the money unless acting under authority of law.? 213, 220. And see Reis v. Law- rence, 63 Cal. 129. In the case first cited, where a married woman had induced the plaintiffs to loan money to her upon a false repre- sentation that she was a single woman, and to recover which she and her husband were sued upon a promissory note given by her for the amount, the court by Pollock, C. B. said: ‘A feme covert is un- questionably incapable of binding herself by a contract; it is al- together void, and no action will lie against her husband or herself for the breach of it. But she is unquestionably responsible for all torts committed by her during coverture, and the husband must be joined as a defendant. They are liable, 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 wife, and is the means of effecting it and parcel of the same transaction, the wife cannot be responsible and the husband sued for it together with the wife. If this were allowed, it is obvious that the wife would lose the protec- tion which the law gives her against contracts made by her during coverture; for there is not a con- tract of any kind which a feme covert could make, whilst she knew her husband to be alive, that could not be treated asa fraud. For every such contract 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 during the argument (Cooper ». Witham, 1 Lev. 247; s. c. 1 Sid. 375) 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 represented 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 rea- son was that it sounded in contract.’ 1 Thid. ‘ 2 Johnson v. Pye, 1 Sid. 258; s. c. 1 Keb. 913; Bartlett v. Wells, 1 Best & 8. 836; Baker v. Stone, 186 Mass. 405 (silence of: infant); Merriam v. Cunningham, 11 Cush. 40; Alvey v. Reed, 114 Ind. 148; Buchanan v. Hubbard, 96 Ind. 1; Carpenter v. Carpenter, 45 Ind. 142; Price v. Jennings, 62 Ind. 111; Wie- land v. Kobick, 110 Ill. 16; Burley »v. Russell, 10 N. H. 184, explaining Fitts v. Hall, 9 N. H. 441; Conrad »v. Lane, 26 Minn. 389; Cobbey v. Bu- chanan, 48 Neb. 391, 67 N. W. 176. But see Kilgore v. Jordan, 17 Tex. 341. See Damon v. Commonwealth, 110 Ky. 268, 61S. W. 459, 96 A. S. R. 453; Schnell v. Chicago, 38 Ill. 382, dictum. 3 Gillespie ». Nabors, 59 Ala. 441, SECT. 11.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 627 Indeed, 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, just cited, was, how- ever, 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 ». 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 re- ferred to * is hardly an authority either for so broad a propo- sition; for there the court observed that the facts upon which the estoppel of the infant was based had not been proved. In Norris 2. Wait,‘ which is a direct authority against the estoppel, the court admits 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 dis- cretion knowing that he has 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.® It appears to 1Brown v. McCune, 5 Sandf. 6 Sugden, Vendors, 7438, 14th 224; Ackley v. Dygert, 33 Barb. 176, 198; Lackman ». Wood, 25 Cal. 147, 153; Norris v. Wait, 2 Rich. 148. See McCoon v. Smith, 3 Hill, 147; Montgomery v. Gordon, 51 Ala. 377 (in the absence of fraud); McBeth v. Trabue, 69 Mo. 642; Ferguson v. Bobo, 54 Miss. 121; Shivers v. Simmons, 54 Miss. 520; Upshaw v. Gibson, 53 Miss. 341; Sims v. Everhardt, 102 U.S. 300. See Campbell v. Laclede Gas Co., 84 Mo. 352, 368; Tobin v. Spann, 85 Ark. 556, 109 S. W. 534; Kirk- ham v. Wheeler-Osgood, 39 Wash. 415, 81 P. 869. 233 Barb. 176. 3 Lackman v. Wood, 25 Cal. 147. 42 Rich. 148. a5 5 Wood v. Vance, 1 Nott & McC. 197. Eng. ed.; Overton v. Banister, 3 Hare, 503; Esron v. Nicholas, 1 De G. & S. 118; Hall ». Timmons, 2 Rich. Eq. 120; Whittington »v. Wright, 9 Ga. 23; Irwin v. Merrill, Dud. 72; Thompson v. Simpson, 2 Jones & L. 110; Brantley v. Wolf, 60 Miss. 420, 431; Ferguson »v. Bobo, 54 Miss. 121; Barham v. Tu- berville, 1 Swan, 4387; Galbraith ». Lunsford, 87 Tenn. 89, modifying Barham v. Tuberville, and holding intent to deceive to be unneces- sary; on which, see 1 Bigelow, Law of Fraud, 538; 2 ib. 116. See also Stokeman v. Dawson, 1 De G. & S. 90; Wright v. Snow, 2 De G. & S. 321; Unity Joint Stock Assoc. »v. King, 3 De G. & J. 63; Telegraph Co. v. Davenport, 97 U. S. 369; Goodman v. Winter, 64 Ala. 410; 628 ESTOPPEL IN PAIS. JcHAP. XVIII. be the better doctrine with these authorities that both infants (of years of discretion) and married women may be estopped to set up a claim to their property against a purchaser. Both are liable when properly sued for their torts in an action which does not seek the enforcement of a contract or demand dam- ages for repudiating, or for fraudulently inducing the plaintiff to make, a contract; and in an action for a fraudulent repre- sentation of title whereby the plaintiff has been 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. Certainly 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 existence of an estoppel by conduct always depends upon the existence of a right of action for deceit; but we apprehend that while there may be an estoppel without this right of action in some cases,! the estoppel always arises where the action of deceit would be maintainable. It is not satisfactory to say that what an infant cannot directly do he cannot do indirectly. So long as that merely means that if an infant cannot bind himself by an express con- tract for the sale of his property, he cannot bind himself by any kind of contract, it is perfectly true; but in the case put contract with the infant, express or other, is out of the ques- tion. The only contract is with another, to wit, the person assuming to act as vendor. The situation of the infant is that of one committing fraud, not of one making a contract, at Merritt v. Horne, 5 Ohio St. 307; Commonwealth v. Sherman, 18 Penn. St. 348, 346; Fowler v. Ala- bama Iron Co., 164 Ala. 414, 51 S. W. 393; Grauman v. Krienitz, 142 Wis. 556, 126 N. W. 50; Ryan v. Growney, 125 Mo. 474, 28 S. W. 189; Wilbur v. Jones, 21 N. B. 4. The cases in chancery, it will be noticed, are more strongiy in favor of the estoppel than those at law. 1See Pickard v. Sears, 6 Ad. & E. 469; Gregg v. Wells, 10 Ad. & E. 90; Niven v. Belknap, 2 Johns. 578. Cases of mere silence would not ac- cording to high authority furnish ground for an action of deceit. Peek v. Gurney, L. R. 6 H. L. 377. SECT. II.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 629 least not necessarily of one making a contract. If there be a valid agency in fact (a rare thing in the case of an infant), then there is a contract through the vendor with the infant as prin- cipal; but it is taking liberty with the truth to say that there must be a legal agency. in the mere act of the infant permitting the sale.1 An infant’s conduct may result in what could not be done by any express attempt on the part of the infant to do by contract. He may, for example, commit a battery, and find his property levied upon and sold in consequence; and there is good sense in saying that an infant who in express fraud (without an agency in fact) permits another to sell his property as the property of the vendor should be equally accountable for his misconduct. If this is so, the simplest way to effect the object is to estop the infant from setting up his title to the property.” That the doctrine of privity prevails here was determined in Wood ». Seely. In this case one Shoemaker, under whom the plaintiff claimed, had been induced by the defendant to pur- chase and pay the full value of certain land upon a representa- tion that the defendant had no interest in the land. It was now contended on behalf of the latter in support of a claim of 1To talk of the existence of an agency and of conveying title in such cases is unnecessary to the fixing upon the infant an estoppel. Estoppel to assert title arises inde- pendently of agency and of trans- fer of title, if it be not inconsistent with them. The infant does not lose his title in the sense of having conveyed it away; he is only barred from asserting it. A purchaser from him without notice would probably get a good title. Comp. what has been said as to estoppel by deed, ante, pp. 449 et seq. See infra, p. 631. However, it is held, that a married woman may author- ize her husband to convey her real estate. Griffin v. Rusdell, 71 Ind. 440; Lichtenberger ». Graham, 50 Ind. 288. That being true, there é can‘be no good reason why she should not be able to estop herself by fraud. 2 An infant is not permitted in equity to enjoy the proceeds of a sale of his property, and then re- pudiate the sale as irregular or void, any more than an adult. Goodman v. Winter, 64 Ala. 410, 487; Com- monwealth y. Sherman, 18 Penn. St. 346; Hobbs v. Nashville, C. & St. L. R. Co., 122 Ala. 602, 26 So. 139, 82 A. S. R. 103. And this whether the sale is by act of the in- fant or by authority of law. Ibid. 332 N. Y. 105. See also Wort- ham v. Gurley, 75 Ala. 356; Mook- erjee v. Deb, L. R. 9 Ind. App. 147; Schultz v. Allyn, 5 Ariz. 152, 48 P. 960; Filipine ». Trobock, 134 Cal. 441, 66 P. 587; Brown v. Wilson, 21 Col. 309, 40 P. 688, 52 A. 8. R. 228. 630 ESTOPPEL IN PAIS. [CHAP. XVIII. 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 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 attach- ment, were privies in estate with him and bound by the same estoppel. ~ An illustration of estoppel by privity may also perhaps be seen in the case of Kinnear v. Mackey.? In this case an officer was induced to make a levy upon and sale of a tenant’s inter- est in a leasehold as free from all rights and claims of the land- lord upon representations of the landlord that it was thus free. It was decided that the purchaser was entitled to the benefit of the estoppel as privy of the sheriff.* 1 Denio, C. J. in delivering judg- ment, said: ‘I am of opinion, on the contrary, that the plaintiff, or the owner of the land under Shoe- maker’s title, holding under mesne conveyances from him, is equally entitled to avail himself of the equi- table bar. In some of the cases re- ferred to relief was given to the grantee of the party defrauded. Such was the case of Town v. Need- ham, 3 Paige, 545. In Jones »v. Powell, 6 Johns. Ch. 194, where a right of dower was relieved against on the ground that a collateral com- pensation had been made by the testamentary trustees of the hus- band, the party to whom the re- lief was adjudged was a grantee of the immediate purchaser. Estop- pels by record and by deed, as is well known, run in favor of and against the privies in estate of the immediate parties to the estoppel as well as for and against the parties personally; and I see no reason why estoppels in pais should not be within the rule as they clearly are within its principle. Cases of ded- ication often rest upon the princi- ple of estoppels in pais; it being considered fraudulent on the part of one dedicating his land to pub- lic uses to retract, to the prejudice ‘of parties who have purchased on the faith of such dedication. It has frequently been held that the estoppel attaches itself to the land, and can be asserted on behalf of the grantee of the immediate pur- chaser.’ Hills v. Miller, 3 Paige, 254; Watertown v. Cowen, 4 Paige, 510; Child v. Chappell, 9 N. Y. 246. 237 Conn. 148. Also in Inter- national Bank v. Bowen, 80 Ill. 541. 385 Ill. 96. ‘Perhaps it would have been quite as accurate to say that the representation was virtually in- tended for the purchaser; he takes Si the owner, not from the sher- iff, SECT. IIl.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 631 By analogy to the position heretofore taken concerning the relation 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 with his vendor so as to be affected by an estoppel in pais resting 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, the latter would be entitled to the goods against the first purchaser. The owner would simply be precluded from setting up title against the purchaser. It is not the office of an estoppel to pass a title. The title remains, but it cannot be asserted against the party who acted upon the false representation. With reference to others it may be asserted or conveyed; and a purchaser not being a privy would not be estopped to assert title to the goods. This is certainly true of a purchaser under an execution against the real owner. We shall now consider the particular constituents of this equitable estoppel, taking first for general examination the estoppel by representation (but including the estoppel by silence whenever it seems appropriate), and secondly estoppel by silence.” § 3. Representation. The term ‘representation’ imports a communication by one person to another, and as such includes both express and 1 Richards v. Johnston, 4 Hurl. Texas, 287, 291; Steed v. Petty, & N. 660; Bigelow’s L. C. Torts, 65 Texas, 490-495; Mason ». 438. Text quoted in Equitable Harper’s Ferry Bridge Co., 28 Loan Co. v. Lewman, 124 Ga. 190, 52 8. E. 599; and in Falls Lumber Co. v. Watkins, 53 Or. 212, 99 P. 884. 2 For the elements in general of this estoppel, see Blodgett v. Perry, ” 97 Mo. 263, 278; Kraft v. Baxter, 38 Kans. 351, 356; Taylor v. Nashville R. Co., 86 Tenn. 228, 244; Equitable Mortgage Co. v. Norton, 71 Texas, 683, 689; Bynum ». Preston, 69 W. Va. 639, 649; Stevens v. Den- nett, 51 N. H. 324; People »v. Brown, 67 Ill. 4385; Martin v. Zellerbach, 388 Cal. 300, 315; Turnipseed v. Hudson, 50 Miss. 429; May v. Gates, 187 Mass. 389, 392; Acton v. Dooley, 74 Mo. 63, 67; Hosford v. Johnson, 74 Ind. 479, 485; Griel v. Pollak, 105 Ala. 249, 16 So. 704; Troy v. Rogers, 113 Ala. 131, 20 So. 999; Smith »v. 632 ESTOPPEL IN PAIS. [CHAP. XVIII. implied statements.' It is not necessary that there should be an express statement; whatever word, action, or conduct con- veys a clear impression as of a fact is embraced in the term.? However representation includes everything which it naturally imports; a representation in the way of words stated may Brown, 4 Ariz. 358, 42 P. 949; Booth v. Lenox, 45 Fla. 191, 34 So. 566; Tinsley v. Rice, 105 Ga. 285, 31S. E. 174; Watts v. Julian, 122 Ind. 124, 23 N. E. 698; Roberts v. Abbott, 127 Ind. 83, 126 N. E. 565; Harrison v. McReynolds, 183 Mo. 533, 82 8. W. 120; Keeney ». MeVoy, 206 Mo. 42, 103 S. W. 946; Dye v. Crary, 13 N. Mex. 439, 85 P. 1038; Beaufort Lumber Co. v. Price, 144 N. C. 50, 56 8. E. 684; Boddie v. Bond, 154 N. C. 359, 70 S. E. 824; Bragdon ». McShea, 26 OklI. 35, 107 P. 916; Gaston v. Brandenburg, 42 S. C. 348, 20 S. E. 157; Graham ». Fire Ins. Co., 48 8. C. 195, 26 8. E. 323, 59 A. S. R. 707; Chambers v. Bookman, 67 S. C. 432, 46 S. E. 39; Milster v. Spartanburg, 68 S. C. 26, 46 S. E. 539; Eickelberg v. Soper, 18. D. 563, 47 N. W. 953; Nichols v. Crosby, 87 Tex. 443, 29 S. W. 380; Page v. Austin, 10 Can. 132; McManus ». Blakeney, 25 N. B. 216. 1 Peery v. Hall, 75 Mo. 503, 507. 2 This is well brought out in the four propositions of Mr. Justice Brett (afterwards Lord Esher) in the well-known case of Carr ». London Ry. Co., L. R. 10 C. P. 307, 316, 317, which for conve- nience may be here given in full. They were thus put: (1) If a man by his words or conduct wilfully endeavors to cause another to be- lieve in a certain state of things which the first knows to be false, and if the second believes in such State of things, and acts upon his belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things did not in fact exist. (2) If a man either in express terms or by conduct makes a representation to another of the existence of a certain state of facts which he intends to be acted upon in a certain way, and it be acted upon in that way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts. (8) If a man, whatever his real meaning may be, so conducts him- self that a reasonable man would take his conduct to mean a cer- tain representation of facts, and that it was a true representation, and that the latter was intended to act upon it in a particular way, and he with such belief does act in that way to his damage, the first is estopped from denying that the facts were as represented. (4) If, in the transaction which is in dis- pute, one has led another into the belief of a certain state of facts, by conduct of culpable negligence calculated to have that result, and such culpable negligence has been the proximate cause of leading and has led the other to act by mistake upon such belief to his prejudice, the second cannot be heard after- wards, as against the first, to show that the state of facts referred to did not exist. These propositions are intended to be severally exclusive of each other, and to constitute an epitome of the law of estoppel by misrep- resentation. Seton v. Lafone, 19 Q. B. D. 68, 70, Lord Esher. SECT. IIIl.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 633 therefore be wider than the words used. The words will in- clude whatever they naturally imply. To assert, for instance, without qualification to a purchaser of property that the prop- erty belongs to the seller naturally imports that the person making the assertion has no claim upon it, and the assertion therefore includes the latter idea.1_ Upon this principle it is that the courts hold that the witnessing of a deed to one’s own land, done with knowledge of the real state of the title, for a grantee ignorant of the rights of the witness, 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.” In regard to the efficacy of a representation, in creating, of itself, an equitable estoppel, it makes no difference whether the statement is oral or written, or even that it is under oath. Accordingly it is held that a representation in pais? in writing,‘ 1See Corbett v. Brown, 8 Bing. 33, a case of deceit. 2? Hale v. Skinner, 117 Mass. 474; Stevens v. Dennett, 51 N. H. 324; Stockton Sav. Bank v. Staples, 98 Cal. 189, 32 P..936. And pro- curing another to witness one’s deed estops one to deny the witness’s competency, at least if the facts were known. Hill v. Hill, 538 Vt. 578. See also Morse v. Byam, 55 Mich. 594. A fortiori, if A join with B in a deed, e. g. a lease, in which the property is represented to be- long to B, A will be estopped to deny the title of B’s devisee to the property, especially if for many years, down to the death of B, A made .no claim against the truth of the representation. v. Mitchell, 121 U. 8. 411. 3Sworn statements in plead- ings and depositions, and solemn admissions in judicio (but not the admissions of a witness on the stand. Wilkinson v. Wilson, 71 Ga. 497. Contra and had law, Folger v. Palmer, 35 a. An. 748), are ordinarily conclusive, though not if inconsiderate or without full knowledge. Allen v. West- Laughlin . brook, 16 Lea, 251, disclaimer of title to property; Smith v. Fowler, 12 Lea, 163, 171; Chilton ». Scrugge, 5 Lea, 308; Watterson v. Lyons, 9 Lea, 566, 571; McEwen v. Jenks, 6 Lea, 289; Stephenson ». Walker, 8 Baxter, 289; ‘Cooley ». State, 2 Head, 608; Stillman ». Stillman, 7 Baxter, 169; Hamilton v. Zimmerman, 5 Sneed, 39; Cook v. McCahill, 41 N. J. Eq. 69; Miller v. Wilkins, 79 Ga. 675; Cheney v. Selman, 71 Ga. 384; Clark v. Clark, 70 Ga. 362; Potter v. Hollister, 45 N. J. Eq. 508, 18 A. 204; Rogers v. Brown, 15 Okl. 524, 88 P. 443; Grier v. Canada, 119 Tenn. 17, 107 S. W. 970; Gresham v. Ware, 79 Ala. 192, admission in answer; Prentice v. Stefan, 72 Wis. 151, admission of service of process; Cornell Univ. v. Parkin- son, 59 Kans. 365, 53 P. 138, agreed statement of facts. 4Cummins v. Agricultural Ins. Co., 67 N. Y. 260. So in a pleading. Chatfield v. Simonson, 92 N. Y. 209; Russell v. Kierney, 1 Sandf. Ch. 34; Chicago R. R. v. Mashore, 21 Okl. 275, 96 P. 630. 634 ESTOPPEL IN PAIS. [CHAP. XVIII. when not part of a deed or made the subject of a contract, though on oath, is no more efficacious, so far as the question of estoppel is concerned, than a verbal statement.’ The representation in order to work an estoppel must be of a nature to lead naturally, i. e. to lead a man of prudence, to the action taken.? Hence, in the first place, it must generally be a material statement of fact. It can seldom happen that a state- ment of opinion or of a proposition of law * will conclude the party making it from denying its correctness; except where it is understood to mean nothing but a simple statement of fact.® Thus, if an indorser of a note were to say that he was liable thereon, and show the notice of dishonor, he could not after- wards allege against one who had thereby been induced to purchase the note that he had not received notice of dishonor; § or if by his conduct he were plainly to affirm that he had re- ceived notice of dishonor, he could not deny the fact.’ But if 1Connecticut Ins. Co. ». Schwenk, 94 U. S. 593, 596; Me- Masters v. Insurance Co., 55 N. Y. 222; Darke v. Bush, 57 Ga. 180; Savage v. Dowd, 54 Miss. 728, married woman. This, how- ever, is not to say that a state- ment or affidavit may be permitted to stand and the party who made it act inconsistently with it. Davis v. C. R. Co., 40 Iowa, 292. A man must act consistently so far as the rights of others dealing with him are concerned. Text quoted in Sturm v. Boker, 150 U. 8. 312, 14 Sup. Ct. 99, 37 L. Ed. 1093. °? Hefner v. Vandolah, 57 Ill. 520; Howe Machine Co. v. Farrington, &2 N. Y. 121. See First Evang. Church v. Walsh, ib. 363. Text quoted in Reutzer v. M’Kinney, 54 Ark. 465, 16 S. W. 265. 3 Hammerslough v. Kansas City Assoc., 79 Mo. 81; Phelps v. Illi- nois Cent. R. Co., 94 Ill. 548; Frame v. Badger, 79 Ill. 441; McGirr ». Sell, 60 Ind. 249; Mc- Keen v. Naughton, 88 Cal. 462, 26 P. 354. 4 See p. 635, notes 1, 2. There may arise an estoppel by repre- sentation to deny negotiability to an instrument, though, ordi- narily, the question of negotia- bility would be a question of law. See Goodwin v. Robarts, 1 App. Cas. 476, Lord Cairns; Fine Art Soc. v. Union Bank, 17 Q. B. D. 703, C. A.; Colonial Bank ». Hepworth, 36 Ch. D. 36, 53; Ross v. Banta, 140 Ind. 120, 34 N. E. 865; Colonial Bank v. Cady, 15 A. C. 267, affirming s. c. as Williams v. Colonial Bank, 38 Ch. D. 388, which latter has re- viewed 36 Ch. D. 659. Ante, p. 409, note. No notice was taken in thése cases of the fact that the . representation was one of law. 5Mason vv. Harper's Ferry Bridge Co., 28 W. Va. 689, 649, quoting the text; Whitwell ». Winslow, 134 Mass. 343. But see Mattoon v. Young, 5 N. Y. Su- preme Ct. 109; s. c. 45 N. Y. 696; Schoonover ». Osborn, 117 Iowa, 427, 90 N. W. 844. i ®St. John v. Roberts, 31 N. Y. 1. ~ 7 Libbey v. Pierce, 47 N. H. 309. SECT. Ill.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 635 the representation were that he was liable by reason of a de- mand made upon the maker before daylight or at midnight,} he would not be estopped to deny his liability; unless, indeed, he was reasonably understood as agreeing not to assert his rights. The rule we apprehend to be this; that where the statement or conduct is not resolvable into a statement of fact as distinguished from a statement of opinion or of law, and does not amount to a contract, the party making it is not bound, unless he was guilty of clear moral fraud, or unless he stood in a relation of confidence towards him to whom it was made. If the statement, not being contracted to be true, is understood to be opinion, or a conclusion of law from a comparison of facts, propositions, or the like, and a fortiori if it is the declaration of a supposed rule of law, the party may, with the qualification stated in the last sentence, allege its incorrectness.? If, how- ever, the conclusion were part of a contract, as for the set- tlement of disputed rights between the parties, it would be conclusive, at least after it had been acted upon, though the contract were not under seal; since the law would uphold the contract.’ ‘The rule in regard to statements of opinion and statements of law is, it seems, based upon the ground that the truth is un- certain, or that the person to whom the statement is made knows as much about the matter as the other. When this is not the case, when the person making the statement in the form 10r if one should represent a non-negotiable note to be nego- tiable. Whitwell v. Winslow, 134 Mass. 348. 2See Whitwell » Winslow, 134 Mass. 343; Chatfield v. Simonson, 92 N. Y. 209, 218; Brewster ». Striker, 2 Comst. 19; Norton v. Coons, 6 N. Y. 33; 1 Story’s Equity, pp. 206, 207, 13th ed., note by the present writer; Wise v. Fuller, 29 N. J. Eq. 262; Suessen- guth »v. Bingenheimer, 40 Wis. 370; Birdsey v. Butterfield, 34 Wis. 52; Pike v. Fay, 101 Mass. 134, 137; Soward »v. Johnston, 65 Mo. 102 (opinion of an attorney as to a title. But see Hart v. Bul- lion, 48 Texas, 278); Hammer- slough v. Kansas City Assoc., 79 Mo. 81; Tilton v. Nelson, 27 Barb. 595; Storrs v. Barker, 6 Johns. Ch. 166. Representation of another’s credit may be acted upon. Hender- shot v. Henry, 63 Iowa, 744; Pasley v. Freeman, 3 T. R. 51; s. c. Bigelow’s L. C. Torts, 1. 3 See 1 Story, Contracts, § 571, 5th ed. In Carpenter v. Buller, 8 Mees. & W. 209, 212, Parke, B. says that a recital in instruments not under seal may be such as to be conclusive. 4 Quoted in Sturm ». Boker, 150 U.S. 312, 14 Sup. Ct. 99, 37 L. Ed. 1093. 636 ESTOPPEL IN PAIS. (CHAP. XVIII. of an opinion, or perhaps of a rule of law, knows of facts which make the ‘ opinion’ a sham, or knows that his rule of law is false, he has really made a misrepresentation of fact in the one case, and of something in the nature of fact in the other (in that his statement amounts to an assertion that the law has been so laid down); and then if the rest of the elements required in ordinary cases of misrepresentation are present, the estoppel is made out. So too real opinion may probably come within the notice of the law, in certain cases of trust and con- fidence. An example may be given: — A representation of value, though, as resting on the ground of a statement of opinion, ordinarily unattended with any legal consequences,! — ‘ simplex commendatio non obligat,’ — may in practical operation sometimes acquire the standing of a statement of fact. This will be the case, and the law will take cognizance of it, it seems, where special trust and confidence is known to be reposed in the party making the representa- tion, and he actually or virtually claims the knowledge of an expert, or where he stands in a confidential relation towards the one to whom he makes the representation and with whom he is dealing on that footing.2 The same may also be true where the person dealing upon the faith of the representation has no means, or very inadequate means, of knowing the facts. Thus, if a shipper represents and agrees that the goods delivered to the carrier are of a certain value, and the carrier is thereby induced to grant him a particular rate for carriage, the shipper, on a loss of the goods, will be estopped to claim that they are worth more than represented.? But such a case, it must be admitted, approaches to a representation of fact; and the whole suggestion in regard to real opinion treads on delicate ground.’ The representation or concealment must, in the second place, like a recital,® in all ordinary cases have reference to a present or past state of things;® for if a party make a representation 1 Deming v. Darling, 148 Mass. made different by the fact that the 504. loss was caused by negligence. Ibid. 2See 1 Story’s Equity, pp. 4 Deming v. Darling, 148 Mass. 207, 208, 13th ed. 504. 3 Graves v. Lake Shore R. Co., 5 See ante, p. 399. 137 Mass. 33. The case is not 6A mother who in presence of SECT. III.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 637 concerning something in the future, it must generally be either a mere statement of intention or opinion, uncertain to the knowledge of both parties, or it will come to a contract, with the peculiar consequences of a contract,’ or to a waiver of some term of 4 contract or of the performance of some other kind of duty.? The point is well illustrated in Langdon v. Doud, just cited, where the plaintiff sued the defendant as maker of a promissory note; to which the Statute of Limitations was pleaded. The plaintiff introduced evidence to show that in March, 1855, the defendant, who then lived in Massachusetts, told the plaintiff that he was going to California in about a month from that time, never to return, and would within that month pay the note; and that he left for California the next day, and remained there till the autumn of 1858, when he returned to Massachusetts. The plaintiff also offered evidence son’s wife tells the son, on his death bed, that she will not claim any of the property is estopped from claiming it. McDowell ». McDowell, 141 Iowa, 286, 119 N. W. 702, 133 A. S. R. 170. See American Nat. Bank v. Smallhouse, 113 Ky. 147, 67 S. W. 260. 1Jackson v. Allen, 120 Mass. 64, 79; Langdon v. Doud, 10 Allen, 433; s.c.6 Allen, 423; Mad- dison v. Alderson, 8 App. Cas. 467, 473 (denying Loftus v. Maw, 3 Giff. 592); s. c. (Alderson v. Maddi- son) 5 Ex. D. 293; Jordan v. Money, 5 H. L. Cas. 185; Insurance Co. v. Mowry, 96 U.S. 544; Burgess ». Seligman, 107 U. S. 20, 32; Allen v. Rundle, 50 Conn. 9; White »v. Ashton, 51 N. Y. 280; Edwards v. Dickson, 66 Texas, 618, 617; Mason v. Harper’s Ferry Bridge Co., 28 W. Va. 639, 649; Turnipseed v. Hudson, 50 Miss. 429; Allen v. Hodge, 51 Vt. 436; Starry ». Korab, 65 Iowa, 267. See Lites v. Addison, 27 8. Car. 226, 282; Botts v. Fultz, 70 Ind. 396; Conk- lin v. Conklin, 54 Ind. 289; Troy v. Rogers, 113 Ala. 131, 20 So. 999, quoting the text; Stringfield v. Southern R. Co., 152 N. C. 125, 67 8S. E. 333; MoCormack ». Arizona Cent. Bank, 5 Ariz. 278, 52 P. 469; George Whitechurch »v. Cavanaugh, 1902, A. C. 117. Si- monton v. Liverpool Ins. Co., 51 Ga. 76, seems to assume the con- trary; but the representation or rather promise was not sufficiently acted upon. See also Brightman v. Hicks, 108 Mass. 246, where it was held that a promise within the Statute of Frauds could not be made binding by way of estoppel though it had been acted upon. So of a contract void on”grounds of public policy. Langan v. Sankey, 55 Iowa, 52. ‘The only case,’ it is said, ‘in which .a representation as to the future can be held to operate as an estoppel is where it relates to an intended abandonment of an ex- isting right.’ Elliot ». Whitmore, 23 Utah, 342, 65 P. 70, 90 A. S. R. 700; Richards v. Shepard, 159 Ala. 663, 49 So. 251, Banning v. Kreiter, 153 Cal. 33, 94 P. 246. 2 This waiver may be called an estoppel, but it will stand upon a ground of its own. See chapter 19 638 ESTOPPEL IN PAIS. [CHAP. XVIII. to prove that he was induced by the defendant’s statements to believe that the defendant never would return to Massachu- setts, and therefore did not bring any suit during his absence, believing that the defendant intended to reside in California, and that if he should happen to return, the time of his absence would be excluded; but the evidence was not received.! 1 Having stated the general rule in respect to misrepresentations which have been acted upon, Bige- low, C. J. speaking for the court, further observed: ‘Such a repre- sentation is sometimes, though not very accurately, said to operate as an estoppel; but its effect is rather to shut out a party from offering evidence in a court of justice con- trary to previous statements. How- ard v. Hudson, 2 El. & B. 1; Au- denried v. Betteley, 5 Allen, 382; Plumer v. Lord, 9 Allen, 455. With- out undertaking to define the na- ture or kind of representations which will thus operate to preclude a party, we think it very clear that the statement proved at the trial of this case, which the plain- tiff seeks to set up for the purpose of excluding the defence of the Statute of Limitations, does not come within the rule. In the first place, it does not appear that the representation made by the de- fendant of his intention to abandon his domicile in Massachusetts and to take up his residence in Cali- fornia was not perfectly true at the time it was made, and that he did not make it in entire good faith and with the purpose of carrying it into execution. This, however, may not be a decisive considera- tion. But in the next place, it was a representation only of a present intention or purpose. It was not a statement of a fact or state of things actually existing, or past and executed, on which a party might reasonahly rely as fixed and certain, and by which he might properly be guided in his conduct and induced to change his position in the manner alleged by the plaintiff. The in- tent of a party, however positive and fixed, is necessarily uncertain as to its fulfilment, and must depend on contingencies and be subject to be changed and modified by subsequent events and circum- stances. Especially is this true in regard to the place of one’s domicile. On a representation con- cerning’ such a matter no person would have a right to rely, or to regulate his action in relation to any subject in which his interest was involved as upon a fixed, cer- tain and definite fact or state of things, permanent in its nature and not liable to change. A _ per- son cannot be bound by any rule of morality or good faith not to change his intention, nor can he be precluded from showing such a change merely because he has previously represented that his intentions were once different from those which he eventually exe- cuted. ... The reason fof the doctrine of estoppel] wholly fails when the representation relates only to a present intention or pur- pose of a party, because being in its nature uncertain and lable to change it could not properly form & basis or inducement upon which a party could reasonably adopt any fixed and permanent course of action.’ See Jordan v. Money, 5 H. L. Cas. 185; Caton v. Caton, 34 Law J. Ch. 564; Maddison ». Alderson, 8 App. Cas. 467; see Chadwick ». Manning, (1896) A. C. SECT. 111.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 639 The difference between estoppel in pais and contract may be further illustrated: A consigns a cargo of freight by B from New York to New Orleans, and B assures A that the freight will arrive at New Orleans on a day named. A makes his prep- arations to receive it, and charters a steamer to take it on the day named and convey it up the Red River. The cargo is not delivered to A when due, and he brings trover against B, based on its arrival at New Orleans on the particular day and its conversion then and there. Will B be estopped to deny the arrival of the cargo on the day alleged by reason of his represen- tation that it should then arrive? Certainly not, if it was only a representation, however strongly made and however certain it may be that A acted upon it in good faith, for the reason that in the nature of things the event was uncertain; it was a mere expression of intention, and A should not have placed such implicit reliance upon the statement. The event was future, and whether it would transpire could not be known. Nor could B be estopped if the statement had gone further and become a contract that the goods should arrive on the particu- lar day. The case would then be simply a breach of contract, for which B would be liable in a proper form of action; but he could not be compelled to pay the value of the cargo on the ground that he was estopped to deny the arrival of the goods at the time agreed upon.! So too it may be broadly stated that a parol promise made in conjunction with and intended to constitute one of the terms of a written contract but not in- corporated into the written instrument cannot operate by es- toppel; ? though cases may arise where fraudulent promises of that kind would be entitled to the consideration of the courts, and justify an estoppel.* Situations may arise, indeed, in which a contract should be held an estoppel, as in certain cases where only an inadequate right of action would, if the estoppel were not allowed, exist in 231, upholding a contract of in- 2Tnsurance Co. v. Mowry, 96 demnity notwithstanding any rep- U.S. 544. resentation, express or implied, by 3 Insurance Co. v. Mowry, 96 the obligee of his. intention to U. S. 544; Shields v. Smith, 37 abandon it. Ark. 47; Kimball v. Aitna Ins. Co., 18ee also Starry v. Korab, 65 9 Allen, 540; Clanton v. Scruggs, Towa, 267. 95 Ala. 279, 10 So. 757. [cHAP. XVIII. 640 ESTOPPEL IN PAIS. favor of the injured party. In such a case the estoppel may sometimes be available to prevent fraud and a circuity of action. Thus, where a mortgagee of lands who had persuaded a son of the mortgagor, 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 should 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 cul- tivated the land and cared for the family, and the land had grown valuable under his tillage, from taking any steps to fore- close the mortgage.1 It has been held too that if A induce B to rent his land to C by promising not to interfere with the collection of rent, A will be estopped from so interfering.? So where a person divided a parcel of land and sold it in'town lots representing to the purchasers that streets were to be extended through it and bounding the lots accordingly, he was held estopped to deny a dedication to the public. Indeed, an intended contract, ineffectual as such by reason of the omission of some formal step required by law, may generate an estoppel when a manifest fraud would result from treating the whole transaction as wanting in validity. Thus, a grantee destroying his deed with intent thereby to reinvest the grantor with the title conveyed by him will be estopped to claim that his act was without effect (on account of the want of a new conveyance) if otherwise a fraud would be perpetrated 1 Faxton v. Faxon, 28 Mich. 159. See Lawrance v. Waid, 28 Utah, 129, 77 P. 229. 2Crime v. Davis, 68 Ga. 138. See Pausch v. Guerrard, 67 Ga. 319. Sed quere, if damages would suffice. § Mansur v. Haughey, 60 Ind. 364. See also Lomax v. Smyth, 50 Towa, 223; Southard v. Sutton, 68 Maine, 575. 4See the following proposition laid down in substance in White ». Walker, 31 Ill. 422, 487: Though a promise to forgive a debt or to for- bear its collection either temporarily or for an indefinite period, unsup- ported by any consideration, is ineffectual as a defence viewed merely as an agreement; yet if the surety has been induced by such an assurance to neglect any of the means which might have been used for his indemnity, the promise may have that effect as an estoppel which it wants as a con- tract, and amount to a defence against any subsequent action brought by the creditor. See Harris v. Brooks, 21 Pick. 195. SECT. Ill.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 641 upon the grantor.! But it is different if no fraud would result.? And it is enough in regard to all these cases of contract to say that they are not cases of estoppel by misrepresentation; they stand upon ground of their-own.? The representation, further, to justify a prudent man in acting upon it, must be plain, not doubtful,* or matter of questionable inference. Certainty is essential to all estoppels.® The courts will not readily suffer a man to be deprived of his property where he had no intention to part with it.’ Thus, in 1Dukes v. Spangler, 35 Ohio St. 119, 126; Farrar v. Farrar, 4 N. H. 191; Trull v. Skinner, 17 Pick. 213; post, p. 730, note. See Stanley v. Epperson, 45 Texas, 645; Herrick v. Malin, 22 Wend. 388; Morgan »v. Elam, 4 Yerg. 375. The result should be noticed that though there is an estoppel between the parties there is no conveyance; towards strangers without notice the title still remains in the grantee. Ibid. 2 Dukes v. Spangler, supra; Jef- fers v. Philo, 35 Ohio St. 178. 3 With these cases comp. the whole subject of Estoppel by Contract, shortly explained ante, p. 491. Comp. also cases of Waiver, post, chapter 19. 4Colonial Bank v. Cady, 15 A. C. 267, 280, affirming 38 Ch. D. 388, an instructive case on trans- fers of certificates of stock. See also Colonial Bank v. Hepworth, 36 Ch. D. 36. An ambiguous statement is apt to be doubtful and uncertain (Colonial Bank v. Cady, supra), but not necessarily so. Post, pp. 645, 646. 5 Townsend Bank v. Todd, 47 Conn. 190; Burgess v. Seligman, 107 U.S. 20, 32; Belle of the Sea, 20 Wall. 421; Johnson v. Owen, 33 Iowa, 512; Davenport R. Co. »v. Davenport Gas Co., 43 Iowa, 301; Bennett v. Dean, 41 Mich. 472; s. c. 35 Mich. 306; Maxwell »v. Bay City Bridge Co., 41 Mich. 453; Rust v. Bennett, 39 Mich. 521; Michigan Panelling Co. v. Parsell, 88 Mich. 475; Fredenburg ». Lyon Lake Church, 37 Mich. 476; Moors v. Albro, 129 Mass. 9, 13; Roach v. Brannon, 57 Miss. 490, 505; International Bank v. German Bank, 3 Mo. App. 361, 371; Turnip-- seed v. Hudson, 50 Miss. 429; Mo- jarrieta v. Saenz, 80 N. Y. 547; Keating v. Orne, 77 Penn. St. 89; Walker v. Carleton, 97 Ill. 582; Tillotson »v. Mitchell, 111 II. 518; Lawrence Univ. v. Smith, 32 Wis. 587; Smith v. Brown, 4 Ariz. 358, 42 P. 949; Claflin ». Boston & A. R. R., 157 Mass. 489, 32 N. E. 659. ® Coke, Litt. 352 b; German ». Clark, 71 N. Car. 417; Van Bibber v. Beirne, 6 W. Va. 168; Mason ». Harper’s Ferry Bridge Co., 28 W. Va. 639, 650;- Onward Bldg. Soc. v. Smithson, (1893) 1 Ch. 1, C. A. So of waiver; that to which the right is waived should be clearly described and _ identified. A waiver, e. g. of a particular right in all lands now owned or hereafter acquired is held of no force. Staf- ford v. Elliott, 59 Ga. 837. See also Merrill v. Welsher, 50 Iowa, 61, holding that for a party merely to advise that collecting taxes for - his benefit be suspended is not enough to estop him from after- wards requiring collection of them. 7Blodgett »v. Perry, 97 Mo. 263, 278; Preble v. Conger, 66 [cHAP. XVIII. 642 ESTOPPEL IN PAIS. the case of Townsend Bank v. Todd,! it appeared that a savings bank, in the hands of receivers, held a satisfied mortgage, the equitable title to which was in A; while T and wife were in possession claiming against him. A brought ejectment in the name and with the consent of the receivers. Meantime an undivided interest in the land had, contrary to law, been sold for taxes to J, who afterwards conveyed the same with war- ranty to the wife of T. Before J sold to her he was informed by one of the receivers of the bank, in the absence of A, that the bank had no claim upon the property. About the same time A, in reply to an inquiry, told J that he then had no title to the property, that he ought to have one, but had not been able to get any; and afterwards, before J sold the property, A met him, by appointment, on the premises, when it was agreed that upon A’s obtaining his title from the bank, J should release his tax title for a-reasonable consideration. J informed T, who was now about making the purchase for his wife, of what had been said; and this influenced T in buying, and also led J to give a warranty deed. J was now vouched in to warrant his deed and defend the cause, and appearing took the position that A was estopped to claim the land. The court held the contrary, one of the grounds taken being that A’s statements had not been certain and definite, so as to justify action upon them. On the other hand, a plain representation cannot be cut down from its natural and proper import in the particular situation or transaction.” A person who has made a representation can- not escape the consequences by showing that in a literal sense it is true, if in its natural sense it is untrue. A half truth too is Tl. 370; Seymour v. Page, 33 Conn. 61. See Flower v. Elwood, paid on a mail contract based on false and fraudulent sworn state- ib. 488; Glazier v. Streamer, 57 Tl. 91; Barron v. Cobleigh, 11 N. H. 559; Palmer v. Williams, 24 Mich. 328; Ripley v. Billings, 46 Vt. 542. 147 Conn. 190. 2This import, therefore, may be technical and peculiar; or popular, according to the business concerned, modified, of course, by any actual understanding of both parties. In a suit to recover sums ments as to horses and men re- quired to expedite service, it was held that ‘horses and men’ were within the meaning: of ‘stock and carriers’ under Rev. Stats. (U. S.) § 3691, and that the defendant was bound by his statements and estopped- from asserting that it was not intended thereby to bring the contract within the statute. United States v. Piatt, 157 U. S. 118, 15 Sup. Ct. 498, 39 L. Ed. 639. SECT. III] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 643 generally a whole lie in effect; 1 if the part suppressed would make the part stated false, there is a false representation,” that is, the representation is taken to consist of the part stated. and a denial of anything to the contrary. This assumes, of course, that the stated part is a clear, positive statement of fact. Thus, a representation that shares of stock are paid up must reasonably be understood, and so must be held, to mean that they are paid up in cash.* Indeed, the books abound with illustrations. : The case of Guthrie v. Quinn ‘ will illustrate the point. This was a bill in chancery by Quinn against Guthrie, Lewis, and others, in which the plaintiff alleged these facts; that Guthrie had purchased a horse from him for a certain sum, to be paid about two and a half months afterwards; that to secure pay- ment 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 advising 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 that he did not inform’Quinn that he had any claim to or interest in the crop. Guthrie afterwards absconded with the horse, and Lewis then 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.® 1See Peek v. Gurney, L. R. 6 they are not stated here. There H. L. 377; Tapp v. Lee, 3 Bos. & P. 367; Corbett v. Brown, 8 Bing. 33; 1 Story’s Equity, p. 208, 18th ed. 2 Peek v. Gurney, supra, at p. 403; Central Ry. Co. v. Kisch, L. R. 2 H. L. 99, 1138. The case of Corbett v. Brown, supra, contains a striking illustration. See 1 Story’s Equity, p, 208, 13th ed. But none of the cases cited in this note are cases of estoppel; hence can be no doubt, however, that they are applicable to the present subject. See Cochett v. Keswick, (1902) 2 Ch. 456. 3 Burkinshaw v. Nicolls, 3 App. Cas. 1004, 1021. 443 Ala. 561. 5Mr. Justice Peters, speaking for the court, now said: ‘Quinn applied to him [Lewis] for advice when he was about to sell his horse to Guthrie, and Lewis cau- 644 ESTOPPEL IN PAIS. [CHAP. XVIII. Another illustration may be added: If the maker of a note or bond, or mortgage or other contract, tell one proposing to take it, and desiring to know if there is any defence to it, that it is ‘all right,’ he must allow the words their full natural meaning, and will ordinarily be estopped to deny the truth of this admission (whether fraudulent or not !) when sued on the instrument by the person to whom it was made.? It would not 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 making on his (Lewis’s) land, and that “it would be all right.” This language could not have been reasonably 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 making 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 disclosed them. If he failed to do this, he waived his right. This is the doc- trine of this court as laid down in Steele v. Adams, 21 Ala. 534.’ ‘See also Simmons v. Camp, 71 Ga. 54; McAfee »v. Fisher, 64 Cal. 246. 1Simpson v. Moore, 5 Lea, 372. See Lites v. Addison, 27 S. Car. 226, 233. But see Allen v. Frazer, 85 Ind. 283; Koons v. Davis, 84 Ind. 387, 389. Is not the maker bound to know the facts in ordi- nary cases? See post, p. 582, note 6. Comp. ante, p. 666, note 5. ? Brooks v. Martin, 43 Ala. 360; Wilkinson v. Searcy, 74 Ala. 243; Muse ». Dantzler, 85 Ala. 359; Weyh v. Boylan, 85 N. Y. 394; Smith v. Munroe, 84 N. Y. 354, 359; Smith v. Knickerbocker Ins. Co., ib. 589; Fleischmann »v. Stern, 90 N. Y. 110; Union Sav. Inst. v. Wilmot, 94 N. Y. 221; Hoover v. Kilander, 83 Ind. 420; Plummer v. Farmers’ Bank, 90 Ind. 386; Preston v. Mann, 25 Conn. 118; Feltz v. Walker, 49 Conn. 93; Bates v. Leclair, 49 Vt. 229; Hefner ». Dawson, 63 Ill. 403; Plant ». Voeglin, 30 Ala. 160; McCabe v. Raney, 32 Ind. 309; Vanderpool v. Brake, 28 Ind. 180; Rose ». Hurley, 39 Ind. 77; Harrison »v. Luce, 64 Ark. 583, 43 S. W. 970. But see Jaqua v. Montgomery, 33 Ind. 36. Peters, J. in Brooks ». Martin, supra: ‘ 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 mislead and deceive if they turned out to be untrue. It is difficult to con- ceive 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 judgment against him. Now, by his words he puts in this plea before suit is brought, and the law will not per- SECT. III.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 645 do for the maker to say that he only meant that the signature was his. The words in their natural import mean, not merely that the instrument is genuine, but that it is a binding obliga- tion, for the answer here must be interpreted in connection with the question. The case is much like the certification of a check, already considered.! In like manner, however definite the representation, it cannot be enlarged or acted upon otherwise than according to its terms or natural import and clear meaning.? Thus, a representation of existing facts must be taken as limited to facts of that kind; it cannot be extended to events of the future.’ So if the maker of a note, in reply to the question, from one who was about to purchase it, whether he had any defence to it, should say ‘ no,’ or perhaps if he should say that the note was ‘all right,’ he would not be deemed to have affirmed his own solvency or ability to pay it in full. No question was asked leading ob- viously to disclosures that way.* Again, the whole represen- mit him to withdraw it after suit is brought. These words amount to an admission that Martin can- not take back without inflicting an injury upon Brooks who had acted upon it.’ But if a defence arise subsequently to the repre- sentation, the maker may set it up. Cloud v. Whiting, 38 Ala. 57; Maury v. Coleman, 24 Ala. 381; Koons v. Davis, 84 Ind. 387, 390; Plummer »v. Farmers’ Bank, 90 Ind. 386. So if the statement is made to one who has already taken the note, no estoppel is created. Crossan v. May, 68 Ind. 242. And it has been intimated that one may not be estopped to deny the genuineness of a signature to a note purporting to be his own, by merely declaring the note to be good, unless he knew that it was not genuine. Koons v. Davis, 84 Ind. 387, 389. But this may be doubted, unless perhaps the note was not exhibited to him at the time, and there was an excuse for his mistake. Post, p. 666, n. 6. 1Ante, pp. 539 et seq. But comp. Stubbs v. Johnson, 127 Mass. 219, in which it is considered that the statement may be only an ex- pression of opinion. 2 Seymour v. Page, 33 Conn. 61; McAfee v. Fisher, 64 Cal. 246; Starry v. Korab, 65 Iowa, 267; Swager v. Lehman, 63 Wis. 399; Planters’ Ins. Co. v. Selma Bank, 63 Ala. 585; Dunston v. Paterson, 2C. B. Nn. s. 495; Davis v. Bowmar, 55 Miss. 571; Barrett v. Joannes, 70 Mo. 439; Murray v. Jones, 50 Ga. 109; Tilton v. Nelson, 27 Barb. 595; Adams v. Popham, 76 N.Y. 410. — 3 Planters’ Ins. Co. ». Selma Bank, 63 Ala. 585; Williamson »v. Mimms, 49 Ark. 336, 347, 348. 4It would doubtless be too much to say that the answer must always be interpreted by the question, for the answer may have gone much further than the ques- tion, and so have come to be a distinct and separate representa- tion standing by itself. Or the 646 [CHAP. XVIII. ESTOPPEL IN PAIS. tation must be taken together. One part, though sufficient alone to create an estoppel, cannot be separated from another part connected with it, which takes away its effect, though only by making the other part uncertain.! If, however, the statement may reasonably be taken in two senses, in one sense being true and the other false, it will be necessary, it seems, for the party claiming that an estoppel has arisen, to show that he acted upon the statement in the sense in which it was false.” Again, to say that the representation must be such as would naturally lead a prudent man to act upon it is also to say that it must be material. That is equally essential to the estoppel? This, however, does not mean that the representation in ques- tion must have been the sole inducement to the change of posi- tion; if it were adequate to the result, — that is, if it might have governed the conduct of a prudent man, — and if it did in- fluence the result, that will be enough, though other induce- ments operated with it. And the law will not undertake, in favor of a wrongdoer, to separate the various inducements presented, and ascertain precisely how much weight was given to the representation in question. The representation must have been a free voluntary act; and if obtained by the party who has acted upon it, it must have been obtained without artifice. If it has been procured by duress * or 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; ® indeed, it is said that answer may have taken a wholly new direction from the outset, and - so have no relation at all to the inquiry. 1Trvin v. Nashville Ry. Co., 92 Ill. 103; Townsend Bank v. Todd, 47 Conn. 190, 216. 2See Central Ry. Co. v. Kisch, L. R. 2 H. L. 99; Smith ». Land and House Corporation, 28 Ch. D. 7; Arkwright v. Newbold, 17 Ch. D: 301. These are cases of. de- ceit. 3 Blodgett v. Perry, 97 Mo. 263, 273; Comp. Smith », Chad- wick, 20 Ch. D. 27; s. c. 9 App. Cas. 187; Slaughter v. Genson, 13 Wall. 379. 4McAleer v. Horsey, 35 Md. 439. Text quoted in Boles ». Bennington, 136 Mo. 522, 38 S. W. 306. 5 See Cicotte v. Wayne, 59 Mich. 509. § German Sav. Inst. v. Jacoby, 97 Mo. 617, 625; Gray v. Gray, 83 Mo. 106; Wilcox v. Howell, 44 N. Y. 398; s. c. 44 Barb. 396; Holden v. Putnam Ins. Co., 46 _N. Y. 1; Calhoun »v. Richardson, SECT. III.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 647 where the conduct supposed to have created an estoppel was brought about or directly encouraged by the party alleging the estoppel, no estoppel is created.1. But that must probably be understood of something in the way of artifice or other ques-. tionable endeavor.’ In Wilcox v. Howell, before 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.’ It appeared, however, 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 contrary, it was given with the understanding that he should not negotiate it. The court held the defendant entitled to deny the representation made in the certificate.” 30 Conn. 210; Coari v. Olsen, 91 Ill. 273; First National Bank »v Ricker, 71 Ill. 439; Sinnett ». Moles, 38 Iowa, 25; Stanford ». Lyon, 37 N. J. Eq. 94. In the recent case of Gray v. Gray, supra, a tax vote alleged to have raised an estoppel against the taxpayers had been obtained by fraudulent representations; and it was held that its validity might be disputed, though money had been expended under it. See Roe v. Jerome, 18 Conn. 1388; Holden v. Putnam Ins. Co. 46 N. Y.1; Burlington R. Co. ». Stewart, 39 Iowa, 267; Simpson ». Harris, 21 Nev. 352, 31 P. 1009; Lyndonville Nat. Bank v. Fletcher, 68 Vt. 81, 34 A. 38, 54 A.S. R. 874. 1 Gallagher v. People, 91 Ill. 582. 2 Estoppel should not be allowed to effect a fraud. Where will was probated by assistance of one who afterwards sought its revo- cation on the ground that it was a forgery, and that an earlier will, -not produced, had been suppressed by conspiracy, which facts were unknown to him at the time of previous action, he was held not to be bound by the result of the previous action, and dismissal of the second action by him as plain-~ tiff was refused. Young »v. Holloway, (1895) P. 87. See also Pierrepont v. Barnard, 5 Barb. 364; Pendleton ». ’ Richey, 32 Pa. St. 58. But where one of not much education signed a mort- gage not knowing what it was, but acting on advice of solicitor in whom he had implicit confidence, he was estopped from denying that the mortgage was valid or that the solicitor had authority to receive the money. He had not instructed solicitor to obtain a mortgage, yet the solicitor had negotiated the mortgage to trustees for advances which he kept and then absconded. King v. Smith, (1900) 2 Ch. 425. 648 ESTOPPEL IN PAIS. [CHAP. XVIII. § 4. Silence. As we have seen, from total but misleading silence with knowledge, or passive conduct joined with a duty to speak, an estoppel will arise.” The case must be such that it would be fair to equate the silence with a declaration of the party that 1McKenzie »v. British Linen Co., 6 App. Cas. 82; Leather Manuf. Bank v. Morgan, 117 U.S. 96. Brigham v. Fayerweather, 144 Mass. 48; Rector v. Board of Improvement, 50 Ark. 116; Gill v. Hardin, 48 Ark. 409; Vreeland v. Ellsworth, 71 Iowa, 347, a case going very far; O’Mulcahy ». Holley, 28 Minn. 31; Burdick »v. Michael, 32 Mich. 246; Anaheim Water Co. v. Semi-Tropic Water Co., 64 Cal. 185; Halleck »v. Bresnahen, 3 Wyo. 73, 2 P. 537, note; Wiser v. Lawler, 189 U. S. 260, 23 Sup. Ct. 624, 47 L. Ed. 802. Wheeler v. New Brunswick R. Co., 115 U. S. 29, 36. The last case is a striking instance of the diffi- culty of determining when silence is misleading, — when, that is to say, there is a duty to speak. Five judges thought there was not such a duty; four thought there was. Of course there can be no duty to speak in the absence of knowledge or notice of one’s rights. Frederick v. Missouri River R. Co., 82 Mo. 402. And the silence must not only have been of a misleading nature, — it must actually have misled. Maxwell ». Bay City Bridge Co., 46 Mich. 276; Canning v. Harlan, 50 Mich. 320. That is, like an ordinary representation, it must virtually have been acted upon. Ibid. 2 Rector v. Board of Improve- ment, 50 Ark. 116, 128, quoting the text; Swayze v. Carter, 41 N. J. Eq. 231; Wheeler v. New Brunswick R. Co., 115 U. S. 29, 36; Griffin », Nichols, 51 Mich. 575; Markland Co. v. Kimmel, 87 Ind. .560; Anderson v. Hubble, 93 Ind. 570, 573; Kingman »., Graham, 51 Wis. 232; Boynton ». Braley, 54 Vt. 92; Cady v. Owen, 34 Vt. 598; Bryan v. Pinney, 3 Ariz. 412, 31 P. 548; Crisman ». Lanterman, 149 Cal. 647, 87 P. 89, 117 A. 8. R. 167; Reiss v. Hanchett, 141 Ill. 419, 31 N. E. 165; Alex- ander v. Woodford, 90 Ky. 215, 14 S. W. 80; Trimble v. King, 131 Ky. 1, 114 S. W. 317; Leavitt v. Fairbanks, 92 Me. 521, 43 A. 115; Carmine v. Bowen, 104 Md. 198, 64 A. 932; Short v. Currier, 150 Mass. 372, 23 N. E. 106; Starkie v. Richmond, 155 Mass. 188, 29 N. E. 770; Miller v. Ross, 107 Mich. 538, 65 N. W. 562; Hol- comb »v. Indep. School Dist., 67 Minn. 321, 69 N. W. 1067; Farmers’ Bank v. Berchard, 32 Neb. 785, 49 N. W. 762; Ruckelschaus ». Borcherling, 54 N. J. Eq. 344, 34 A. 977; Shinew v. First Nat. Bank, 84 Ohio St. 297, 95 N. E. 881; Bragdon v. McShea, 26 OkI. 35, 107 P. 916; Logan v. Gardner, 136 Pa. St. 588, 20 A. 625, 20 A. S. R. 939; Marshal v. Foltz, 221 Pa. St. 570, 70 A. 802; Wampol v. Kountz, 14 S. D. 334, 85 N. W. 595, 86 A. 8. R. 765; McDonald v. Beatty, 10 N. D. 511, 88 N. W. 281; Murphy v. Ganey, 23 Utah, 633, 96 P. 190; Locklin v. Davis, 71 Vt. 321, 45 A. 224; Pettyjohn v. Nat. Exchange Bank, 101 Va. 111, 43S. E. 573; Cantley v. Morgan, 51 W. Va. 304, 418. E. 201; Wright Lumber Co. v. McCord, 145 Wis. 93, 128 N. W. 873; Cachett v. Keswick. SECT. IV.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 649 he has, e. g. no interest in the subject of the transaction. Tn deed, silence, when resulting in an estoppel, may not improperly be said to have left something like a rep ning o upon the mind; for the case is this: regtation 3 i going on, and the mind receives the facts brou ut, and“receives those facts only. Hence, everything inconsistent with them, relating to the rights of others present as well as to those of the party with whom the negotiation is going on, is excluded. The effect no doubt is negative, but the mind goes wrong because of that negative; and the silence certainly affects the matter of calculating the advantages of the proposal.? This subject of silence, so well illustrated by the case of Pickard v. Sears, heretofore stated,? 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 Durham, who thereupon became tenant of the house to third parties under an agreement made in the plaintiff’s pres- ence, 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 fittings 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 said that the doctrine of Pickard v. Sears might be statéd-eve an it was there laid down. party,’ said he, "Who 1 négligently Sor culpably stands by and allows another to contract-on the faith and understanding of a (1902) 2 Ch. 456; ante, pp. 605, 633; Ci Gregg 0 Wells, 10 Ad. & E. 90. infra, pp. 650, 651, 662. Leather Manuf. Bank v. Mor- 1It is only for the purpose of .supra; Morgan v. Railroad an estoppel that it could be said Co., 96 U.S. 720; Continental Bank that there ig a quasi representa- ». National Bank, 50 N. Y. 583; tion in such a case. An action Coventry v. Great Eastern Ry. Co., of deceit could hardly be main- 11 Q. B. D. 776, C. A.; Carr ». tained on the footing of a repre- London Ry. Co., L. R. 10 C. P. sentation created by pure silence. 307; Kingman v. Graham, 51 Wis, 2 Ante, p. 605. 232; Trenton Banking‘Co.v. Duncan, 650 ESTOPPEL IN PAIS. [CHAP. XVIII. fact which he can contradict, cannot afterwards dispute that fact in an action against the person whom he has himself assisted in deceiving.’ ! €é ~---A-somewhat similar point to the one before Lord Denman 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 informed 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 prop- erty. The defendant then went with the plaintiff to the mort- gagee, 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 conveyance in fee to the plaintiff, who afterwards took posses- sion as owner and made considerable improvements on the land. Subsequently the defendant, the mortgagor, made an absolute conveyance 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; the court declaring that if a man has been silent when he ought in conscience to-have spoken, he shall not bé permitted to speak when conscience requires him to keep silent,’ an expression often quoted.‘ 86 N. Y. 222; Anderson. v. Hubble, 93 Ind. 570; Phillips v. Brown, 20 R. I. 79, 37 A. 490; post, §§ 5 and 6. 1 Studdard v. Lemmond, 48 Ga. 100; Whitman v. Bolling, 47 Ga. 125; Jancson v. Janeson, 66 IIl. 259; Tucker v.Conwell, 67 Ill. 552; Basher v. Wolf, 59 Ill. 470; New Haven v. Fairhaven & W. R. Co., 38 Conn. 421. But the party cannot he estopped in cases of this kind unless he held the title at the time of the purchase or other act. Mar- quart v. Bradford, 43 Cal. 526; Tobias v. Morris, 126 Ala. 535, 28 So. 517; Wiser v. Lawlor, 189 U. 8. 260, 23 Sup. Ct. 624, 47 L. Ed. 802. A man may be estopped by standing by in a suit and letting others fight out his battle and then taking the benefit of the judg- ment. In re Lart, (1896) 2 Ch. 794. 22 Johns. 573. 3’ The opinion of the court was delivered by Thompson, J. who observed: ‘Though it does not 4 See e. g. Guffey v. O’Reiley, 88 Mo. 418, 425; Nicholas », Austin, 82 Va. 817, 825; Gray v. Crockett, 35 Kans. 66, 74; p. 651, note 2. SECT. IV.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 651 The principle has been broadly laid down by Mr. Chancellor Kent and often repeated, inte Following terms ir effects a man knowingly, though passively, by looking on, suffer another to purchase land for valuable consideration,’ under an erroné- ous impression itle, without making known his claim, he will not be permitted thereafter to exercise his legal right against __ such person’. In-some states this rule, so far as it applies to appear positively from this testi- mony that Belknap took any ac- tive agency in this negotiation, yet his presence and silence are equally efficacious and binding upon him, if the complainant was thereby misled and deceived. 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 for- bid the purchase, he and all claim- ing under him shal! be bound by such purchase. Fonbl. 161. It is very justly and forcibly observed by a writer on this subject (Rob- erts, Frauds, 130), that there is a negative fraud in imposing a false apprehension 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.’ “It is a very different case where one is expending money on one’s own land, in the sight of another who does not object. That cannot raise an estoppel in favor of the former. New York Rubber Co. v. Rothery, 107 N. Y. 310, 315, expending money for ing.a stream in one’s own 2 Wen ll v, Van Rensselaer, 1 , 344; Storrs v. Barker, "Ch. 166; Trenton Banking oe v. Duncan, 86 N. Y. 222, 228; Chapman ». Pingree, 67 Maine, 198, 202; Casey v. Inloes, 1 Gill, 502; Schaidt v. Blaul, 66 Md. 141, 148; Jowers v. Phelps, 33 Ark. 465, 468; Stone v. Tyree, 30 W. Va. 687, 702; Bradley v. Luce, 99 IIl. 234; Baird v. Jackson, 88 III. 78; Smith v. Hutchinson, 108 Ill. 662; Lindsay v. Cooper, 94 Ala. 170, 11 So. 325;° Remsden v. Dyson, L. R. 1 H. L. 129, 140; Proctor ». Bennis, 36 Ch. D. 740, Bowen, L. J. In the last case Cotton, L. J. seems to have thought it necessary that the party to be estopped should know that the other was acting in ignorance, but the rule is not commonly so stated. He will ordinarily know that the other is acting in mistake, but can it be necessary for the other to show that fact? See also of the rule that where a man has kept silent when he ought to have spoken, he will not be permitted to speak when he ought to keep silent, Morgan v. Railroad Co., 96 U. 8. 716, 720; Michigan Panelling Co. v. Parsell, 38 Mich. 475, 480; Gingrass v, Iron Cliffs Co., 48 Mich. 413; Slocumb ». Chicago R. Co., 57 Iowa, 675, 683; Ross v. Thompson, 78 Ind. 90, 96; Young v. Babilon, 91 Penn. St. 280; Chapman v. Chapman, 59 Penn. St. 214; Nass v. Vanswearingen, 10 Serg. & R. 146; Epley v. Witherow, 7 Watts, 165; Carr v. Wallace, ib. 400; Lewis v. Alexander, 51 Texas, 578; Hall v. Fisher, 9 Barb. 17, 31; Parkhurst v. Van Court- land, 14 Johns. 15, 438; Malin v. Malin, 1 Wend. 625, 666; Adams v. Rockwell, 16 Wend. 285, 317; 652 ESTOPPEL IN PAIS. [cHAP. XVIII. interests in land, is available only in equity, because of the Statute of Frauds; but in many states it is equally available at law.! And creditors who have been induced to give credit to a party in reliance upon his title to land on which another has a secret encumbrance, which, with knowledge of the credit- ors’ act, he fraudulently conceals, are within the rule.? The Otis v. Sill, 8 Barb. 102; Chau- tauque Bank v. White, 6 Barb. 589; Railroad Co. v. Dubois, 12 Wall. 47; Rubber Co. v. Goodyear, 9 Wall. 788; Gregg v. Von Phul, 1 Wall. 274; Harris v. Am. Building Ass’n., 122 Ala. 545, 25 So. 200; St. Paul’s Church v. Homer, 191 Pa. St. 306, 43 A. 221; Currens ». Lauderdale, 118 Tenn. 496, 101 8. W. 431; Orient Min. Co. ». Freckleton, 27 Utah, 125, 74 P. 652;, Abrams v. State, 45 Wash. 327, 88 P. 327, 122 A. S. R. 914; Leonard v. Presidential Ins. Co., 128 Wis. 348, 107 N. W. 646, 116 A. S. R. 50; Ewing ». Dominion Bank, 35 Can. 123. 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 dan- ger; 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 ex- pend money and make improve- ments upon his property without the timely warning he should have had to dispel his illusion, will be protected by estoppel against re- covery. Crest v. Jack, 3 Watts, 238; Keeler v. Vantuyle, 6 Barr, 250; Commonwealth v. Moltz, 10 Barr, 531; Woods v. Wilson, 37 Penn. St. 383; Miranville v. Silver- thorn, 48 Penn. St. 149.’ See also Lawrence v. Luhr, 65 Penn. St. 236; Miller’s Appeal, 84 Penn. St. 391; Wagner’s Appeal, 98 Penn. St. 77. A husband is not estopped to demand curtesy by having consented to his wife’s de- vising her land. Roach v. White, 94 Ind. 510. An owner of land who knows that a railroad company is con- structing its road over his land without having complied with a statute allowing condemnation, but remains inactive and permits it to go on and spend large sums in the work will be estopped from maintaining either trespass or eject- ment for the entry and will be restricted to suit fer damages for value of the land. Roberts »v. Northern Pac. R. Co., 158 U.S. 1, 17 Sup. Ct. 756, 39 L. Ed. 873. See also Lowry »v. Silver City Min. Co., 179 U. 8. 196, 21 Sup. Ct. 104, 45 L. Ed. 151. But see Wis- consin R. Co. v. Forsythe, 159 U.S. 46, 15 Sup. Ct. 1020, 40 L. Ed. 71. 1See chapter 22. In regard to licenses to use land, and other cases of waiver of rights known to both parties, see chapter 19. ? Trenton Banking Co. v. Dun- can, 86 N. Y. 222; Graham ». Thompson, 55 Ark. 296, 18 S. W. 58, 29 A. S. R. 40. SECT. Iv.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 653 principle upon which the rule rests is applied, as we have seen, to personalty, and that too in all its forms, as well as to land.! Further, an admission, by silence, of a representation made by the party claiming the estoppel may sometimes raise an estoppel. In Leather Manuf. Bank v. Morgan ? the plaintiff brought suit to recover a balance alleged to be due to him on deposit account with the defendant bank, including the amount paid by the bank on certain altered checks of the plaintiff. The bank had rendered an account in the plaintiff’s pass-book of deposit, and returned the same to him, charging him with payment of the altered checks. These checks had been drawn by the plaintiff, and after having been fraudulently altered had been paid by the bank. The alteration might have been dis- covered in time to enable the bank to take certain action had the plaintiff examined his pass-book in reasonable time after its return; if, in fact, this had not been done, it was held that he would be estopped to claim for the sums paid out on the altered checks. In such a case he would, by his negligent silence, have admitted the state of the account to be as made out by the bank.? But the jury had been directed by the court below, peremptorily, to bring in a verdict for the plaintiff; this was held error, and the cause was remanded with orders to submit to the jury the question of fault in the defendant and diligence on the part of the plaintiff.* 1Qne cannot be barred of the right to the period of limitation of actions by knowledge that acts of the kind here referred to are going on. Bartlett v. Kauder, 97 Mo. 356. 2117 U.S. 96. Mr. Justice Harlan, for the court, said: ‘There was evidence tending to show .. . that Cooper failed to exercise that degree of care which under all the circum- stances it was his duty to do. He knew of the cystom of the defend- ant to balance the pass-books of its depositors and return their checks as vouchers for payments; yet he did not examine his pass-book and vouchers to see whether there were any errors in the account, to his prejudice, and therefore he could give no notice of any. Of course if the defendant’s officers, before paying the altered checks, could by proper care and _ skill have detected the forgeries, then it cannot receive a credit for the amount of those checks, even if the depositor omitted all exami- nation of his account. But if by such care and skill they could not have discovered the forgeries, then the only person unconnected with the forgeries who had the means of detecting them was Cooper himself.’ See Tobias v. Morris, 126 Ala. 535, 28 So. 517. 4But see Barton v. London & 654 fe ~~ few cases in which silence has been held not to work an estoppel may now be referred to. In Owen ». Slatter! the 6 obtain an assignment of dower in cer- tain pieces of land which had been sold under an order of the Orphans’ Court on the application of the plaintiff as administra- trix, 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, on fént2--~-— Sibade nis TOE for Savage 2. Littlefield # the jin- dorseas~ -of-a-promissery—note-brought-an action -agaitist the maker, to which the defendant pleaded his discharge in bank- ruptcy. It appeared that before the note was transferred to the plaintiffs, one Wood applied to them for a loan of money, and 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 mortgage from Wood. The defendant was present during the transaction, and did not disclose the fact that he had been discharged in bankruptcy -~- BSPOPPEL IN PAIS. awe ee {CHAP. XVIII. i ee et N. W. Railway Co., L. R. 24 Q. B. D. 77. 126 Ala. 547. 2Chilton, C. J. in delivering the opinion of the court, said: ‘The widow’s right to dower is un- affected by the sale unless indeed she bars her right by some act which in a court of equity would constitute it a fraud in her to insist upon it. The facts of the case before us do not make out such a bar. True, the widow in this case is administratrix, but the law prescribes her duties, and so long as she acts within the scope of those duties it would be singu- lar, indeed, that she should forfeit her rights as an individual, merely by reason of her having properly complied with the requirements of the law in her fiduciary char- acter. Such sales when made by commissioners are judicial in their character, and like sales under ex- ecutions leave the widow’s right to dower unaffected. The purchaser is supposed to examine the record, and to know what he is buying, and to purchase with a knowledge that the dower is yet an encum- brance upon the land. The maxim caveat emptor applies; and if the purchaser blindly bids off the land without inquiring whether the widow has relinquished her dower or consented to a sale of it, electing to take a share of the pro- ceeds in lieu thereof, it is his folly, and he has no one to blame but himself. We are of opinion, there- fore, that there was no fraud on the part of Mrs. Owen in failing to announce at the sale that the land was sold subject to her dower.’ Comp. Wright v. De Groff, 14 Mich. 164; ante, p. 367. 36 Cush. 210. SECT. IV.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 655 from liability on the note. The plaintiffs now contended that the defendant was estopped to set up his discharge; but the court held the defence proper. It was, however, intimated that it might have been otherwise had this been the only security obtainied.*” n Watson v. Knight * the plaintiff brought an action of 1 Havine-remarked that it was essential to such an estoppel that one party has been induced by the conduct of the other to do or for- bear doing something which he would not or would have done, as the case might be, but for such conduct of the other party, Dewey, J. speaking 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 origi- nally stipulate for Littlefield’s per- sonal liability. When Littlefield’s note was offered as the basis of the mortgage, some objection was made to it, and thereupon Wood’s guaranty was given, and the mort- gage transferred to the plaintiffs and accepted by them. The plain- tiffs thus received Wood’s security and a valid mortgage of real estate, all equally valid whether Little- field’s personal liability had or had not been released by his discharge in bankruptcy. If it be said that the guaranty of Wood was not as good security as his promissory note, that objection equally exists whether the note of the defendant was valid or invalid as against the plaintiffs. The silence of the defendant at the time of making the loan to Wood did not change that part of the arrangement; and the guaranty of Wood is equally binding on. him whether the defendant is or is not liable. Had the plaintiffs received the note from the defendant as their sole security, or as that upon which they substantially relied, and parted with their money on the strength of it as security, the si- lence of the defendant as to his discharge from all liability for the payment of it might have been strongly urged against him upon his setting up such discharge as a bar. But independently of a personal liability of the defendant the plaintiffs received a valid and valuable security for their money. The note was a good instrument for the foundation of a mortgage, and equally so whether the personal liability of the defendant to pay the note existed or not. So too the guaranty of Wood was a legal and valid contract irrespective of the personal discharge of the defend- ant by his discharge in bankruptcy. The case is not therefore the bald case of a party standing by and silently permitting a chose in ac- tion to which he is a party to be taken as a valid debt, and money lent thereupon; he knowing at the same time that there is a secret taint as to the same that renders it wholly worthless, and leaves the party taking it without any se- curity for the repayment of the Ioan. On the contrary, the defend- ant might reasonably suppose that the plaintiffs relied principally upon the mortgage and the guaranty of Wood as their security for the money lent, and it has not been shown or suggested that the land mortgaged and the guaranty of Wood are not ample security for the loan.’ 244 Ala. 352. [cHap. XVIII. 656 ESTOPPEL IN PAIS. trespass against the defendant, a constable, for taking certain property of his under an execution against one Beason. To support the defence the constable offered to prove that on the day of sale Beason claimed the property as exempt from execu- tion, in the presence of the plaintiff, who said nothing. It had been previously shown that Beason formerly owned the prop- erty, 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. In Hopper v. McWhorter,! an action of trover for the con- version of slaves, it was contended that the plaintiff, admin- istrator of one Pratt, was estopped by reason of the following 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 was no estoppel.” In an action of debt on a guardianship bond against the guardian and surety * it appeared that the guardian had been removed by an order of court, and that he subsequently re- ceived money as guardian. The surety, Holcomb, knew at the 118 Ala. 229. 2 The court said: ‘We can per- ceive none of the qualities of an estoppel in this. Mrs. Pratt, who received the slaves to which her husband’s administrator was en- titled, gave nothing for them. The administrator made no rep- resentations which it would be in- equitable for him to disregard; nor, so far as we can see, did he say or do anything in reference to the division, but simply permitted the share, to which he, as administra- tor of Pratt, was entitled, to go into the possession of his widow.’ ne Merrells v. Phelps, 34 Conn. SECT. IV.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 657 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 removal. It was now contended that Holcomb was estopped to deny his liability; but it was held that he was not. It did not appear, the court observed, that» Holcomb did or said anything intended or calculated to deceive or mislead, or to induce any one to change his position; and the displacement of the guardian having been effected in a judicial proceeding, it could not be deemed incumbent 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 Taylor v. Ely ? 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 $1,500. 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 subse- quently 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 defend- ant 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.” . 125 Conn. 250. duct in suffering the plaintifis to go 2In delivering the opinion of on and expend their money in the court, Hinman, J. said: ‘The completing Withey’s contract un- plaintiffs’ claim is founded” upon _ der the false impression that when the idea that the defendants’ con- completed there would be enough ‘ 658 ESTOPPEL IN PAIS. [cHAP. XVIII. The estoppel contended for failed again in the. case of Cor- ning v. Troy Iron Factory.!_ The action was brought to restrain due upon it to reimburse them for such expenditures, and would also be enough to pay them for a por- tion of Withey’s indebtedness to them in connection with the dec- larations of the defendants, after they were informed that Withey had said that $1,500 would be due when the house was finished, and their refusal to give information in respect to their accounts with Withey, is tantamount to stand- ing by and suffering an honest pur- chaser to expend his money in the purchase of property to which the party thus consenting to its sale has a claim of which he gives no notice; and as the defendants not only omitted to give any informa- tion on the subject when first applied to for the purpose, but subsequently expressly refused to give any, on the ground that they might be blamed by Withey, it is asked whether the express re- fusal 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 purchaser; and whether it makes any difference in the case that a reason was given for such refusal. No one doubts that by refusing or neglecting to give no- tice of his rights to property, where it has the effect to mislead a pur- chaser, by inducing him to believe that no such rights exist, a party may preclude himself from after- wards asserting them. And the case, as we think, turns upon the ap- plication of this and other well- settled principles, rather than upon any difficult or doubtful principle itself. We do not assent, however, to the notion that a refusal to speak, with a reason given for it, ig the same thing as silent ac- quiescence in what another does or gays. 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 con-+ cealment is not wilfully fraud- ulent, or is not attended with such gross negligence of the rights of others as to be tantamount thereto, the party ought not td*be estopped. Parker v. Barker, 2 Met. 423; Cady v. Dyer, 20 Conn. 563. ... We know of no prin- ciple that requires 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 anything was ivtentionally, or at least by gross negligence, concealed which had the effect to mislead. Tested by these principles, we think the facts found by the com- mittee-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 evi- 140 N.Y. 191. SECT. IV.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 659 the defendants from diverting the water of a stream running along the land of the plaintiffs, and to compel the defendants to restore the water to its natural channel. It appeared that one Defreest, 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 dence going to show fraud, yet they are in themselves of an in- conclusive character, and in con- nection with other facts in the case are wholly insufficient to in- duce us to believe that the de fendants intended to mislead the plaintiffs. The circumstance on which the plaintiffs’ counsel appear to place the most reliance is the fact that the defendants stood by and saw the plaintiffs expend their money in the completion of the building without informing them that there would be nothing due on the contract when the house was finished. If this fact was unexplained, it might perhaps fairly be inferred from it that the defend- ants intended, by means of the plaintiffs’ materials and labor upon the building, to reimburse them- selves for their overpayments to Withey; and if such was their ob- ject, it would be a fraud which would subject them in this ap- plication. 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 defendants had any reason to disbelieve it, it entirely changes the character of the defendants’ acts, by showing that they, as well as the plaintiffs, were misled, and were acting under a mistaken impression induced by the unreliable statements of Withey, Besides, the defendants were not entirely silent in acquiescing in the plaintiffs’ work upon the house; and we think, under the circum- stances, that it can hardly be said that the plaintiffs in performing this work acted with the prudence and caution which most men would have exercised. They were prob- ably more easily misled than they otherwise would have been, in the -hope of obtaining payment of some portion of Withey’s indebtedness to them; and so far as they acted under any such inducement it is chargeable to their own imprudence, for which obviously the defendants are not responsible.’ — [cHap. XVIII. 660 ESTOPPEL IN PAIS. was that the defendants were in full possession and control of the creek and land under the lease, and that during the continu- ance of the lease Defreest had no right to object to any use of the stream by the defendants except such as worked an injury 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 in regard to the right of diversion by anything done by Defreest.! In like manner, it is beetle mes cont sm ee in silence registry ot other like offic, so iota as no wee is done Said the other party; there is no duty to speak in such _a_case.? Thus, a patentee is not bound to warn others whom he may see buying an article which is an infringement on his patent; and this even when he urges the persons to buy his own article in preference as something better.? And of course there can 1See Price v. Stratton, 45 Fla. 535, 33 So. 644. 2 Rector v. Board of Improve- ment, 50 Ark. 116, 128; Mason ». Philbrook, 70 Maine, 57; Rice v. Dewey, 54 Barb. 455; Mayo ». Cartwright, 30 Ark. 407; Sulphine v. Dunbar, 55 Miss. 255; Kingman v. Graham, 51 Wis. 232; Knouff v. Thompson, 16 Penn. ‘St. 857; Wiser v. Lawler, 189 U. S. 260, 23 Sup. Ct. 624, 47 L. Ed. 802; Porter v. Wheeler, 105 Ala. 451, 17 So. 221; Dimond v. Manheim, 61 Minn. 178, 63 N. W. 495; Sum- ner v. Seaton, 47 N. J. Eq. 103, 19 A. 884; Gardner v. Pierce, 22 Nev. 146, 36 P. 781, quoting the text; Markham »v. O’Connor, 52 Ga. 183. In the last case and in Kingman v. Graham it is suggested that there may be a duty to speak notwithstanding the record if the silent party. were apprised of the intended action; but that view, assuming that the case is one of pure silence, is inconsistent with the cases generally. But a grantor of unrecorded deed is estopped to set up title against a creditor of the grantor without notice of deed, because of constructive fraud. Smythe v. Sprague, 149 Mass. 310, 21 N. E. 383. 3 Proctor v. Bennis, 36 Ch. D. 740, C. A. Cotton, L. J.: ‘The right of the patentee does not depend on the defendant having notice [the case shows that this means warning from the patentee] that what he is doing is an in- fringement. If what he is doing is in fact an infringement, his having acted bona fide and hon- estly will not protect him from an injunction.’ The case, however, was not put by his lordship on the ground that the patentee’s title was on record, but on the ground that the defendants knew of the SECT. Iv.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 661 be no duty to speak without a knowledge of the existence of one’s own rights,! or of the action about to be taken.? Nor can pure silence (i.e. silence without fraud) operate as an estoppel to assert one’s rights over property when the party supposed to be estopped was at the time in possession, for possession is notice.? If it be a case of property sold, the person assuming the right to sell should ordinarily at least have the property in hand. These the ground, of course, that the silence of the party supposed to a, n be estopped to assert his rights was no breach-of-duty-te-the— person who asserted the estoppel. The latter had not_in contemplation of Taw been misled by the former’s silence. It follows that it is not enough to raise an estoppel nae there plaintiff's patent. ‘In my opin- ion,’ said he, ‘ it must be taken that they did know it, but if they did not, I cannot find anything from which we ought to draw the conclusion that the plaintiff had reason to suppose that they did not.’ But the last suggestion is dangerous. Can it be true that the person to be estopped must have known that the other was ignorant of the real state of things? Lord Justice Bowen put. the case this way: ‘There certainly was no representation made by Proctor to the effect that he would not enforce his rights or that he had got no rights as against th defendants; nor was there, my opinion, any conduct wh{ch amounted to such a representation.’ But an employee, on salary or wages, who .devises an improved method of doing work, using prop- erty and labor of his employer\to put the invention into practical form and assenting to use of th, improvement by his employer, can- not, by taking out patents, entitle himself to recover damages, such as royalty or other compensation for such use. Gill v. United States, 160 U. 8. 426, 16 Sup. Ct. 322, 40 L. Ed. 480. See also Solomons ». United States, 187 U. S. 342, 11 Sup. Ct. 88, 34 L. Ed. 667. 1Bringard v. Stellwagen, Mich. 54. 2 Hays v. Reger, 102 Ind. 524. 8 Scates v. King, 110 Ill. 456. See Bigelow, Fraud, 298. 4Howland v. Woodruff, 60 N. 41 Y. 73-(éwo judgés-dissenting). George v. Swafford; sore 491; Allen v. Shaw, 61 N aj New York Rubber Co. v. lier i 107 N. Y. 310, 316; Perry ». Dow, 59 Vt. 61; Rector v. Board of Improvement, 50 Ark. 116, 128, 131, in regard to such duty in case of assessments made for the im- provements to a person’s property. See Gardner v. Pierce, 22 Nev. 146, 36 P. 782, quoting the text; Clark v, Moore, 126 N. ©. 1, 358. Es ‘Carson v. Hayes, 39 Or. 97, 65 14, Te Ws 662 ESTOPPEL IN PAIS. (CHAP. XVIII. may act to his prejudice if the true state of things is not dis- closed. To use an apt illustration of one of the judges, a man may become apprised of the fact that his name has been forged to a negotiable instrument, and so become aware that some one may be led to purchase the paper by supposing the signature to be genuine, and yet he is not.bound to proceed against the forger or to take any steps to protect the interests of others whose claims he may know nothing of. So long as he is not brought into contact with the person about to act, and does not know who that person may be, he is under no obligation to seek him out, or to stop a transaction which is not due to his own conduct, as the natural and obvious result of it.? If the party is present at the time of the transaction, it may * be nec- essary for him to speak if speaking would probably prevent the action about to be taken; ‘ if absent, his silence (or other con- duct) must at least be of a nature to have an obvious and _. direct tendency to cause the omission or r the step taken.® Only thus can a » duty to speak arise.* 1 Viele 2 v. Judson, 82 N. Y. 32, Finch, J. See McKenzie v. British Linen Co., 6 App. Cas. 82; Leather Manuf. Bank v. Morgan, 117 U.S. 96; People ». Bank of North America, 75 N. Y. 548, 562; post, p. 690, note. 2 Bramble v. Kingsbury, 39 Ark. 131, holding that knowledge by an owner of land that one is about to buy it from another does not im- pose upon the owner the duty of seeking out that one and advising him not to buy. See Sullivan ». Davis, 29 Kans. 28, holding that a land-owner is not estopped, by knowing that a lithographed map showing subdivisions of his land into blocks is in circulation, to deny the validity of such subdivisions. Of course contract or presence of the party to be estopped is not necessary; there may still be a duty to speak. Anderson v. Hubble, 93 Ind. 570, 573. See McKenzie ». British Linen Co., 6 App. Cas. 82; post, p. 690, note. 3 But the mere fact of being present and hearing a conversation between others may not create the duty to speak. Perry v. Dow, 59 Vt. 61. Nor will the mere fact that a husband, to his wife’s know]l- edge, is dealing in articles as his own which belong to his wife, estop the wife to claim them against a purchaser who buys them inno- cently as the husband’s property. Green v. Walker, 73 Wis. 548. 4 Besides the examples already given see Watson v. McLaren, 19 Wend. 592, and Weyh »v. Boylan, 85 N. Y. 394, 397, where it is held that if an assignee take a chose in action by assignment with the debtor’s assent, though that be indicated merely by his standing by in silence, the debtor will be estopped to impeach the transac- tion. 5See Anderson v. Hubble, 93 Ind. 570. 6 Further, concerning the duty to speak, see Woodhull v. Rosen- . SECT. V.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 663 §5. Knowledge of Facts by him against whom the Estoppel is alleged. Estoppel arising in virtue of misrepresentation has often been treated as if it were the converse of an action of deceit. The property or interest claimed by reason of the estoppel corresponds to the damages sought in the action of deceit; and in order to make good the claim of estoppel, the same things, according to this view, are requisite that are necessary to the maintenance of the action mentioned.2? Now by the clear weight of authority, in which courts of equity, in recent times at least, agree with the courts of law, it is necessary to the recovery of damages in an action for misrepresentation, to show that the defendant made the representation (1) with actual knowledge of its falsity, or (2) recklessly, without know- ing whether it was true or false, or (3) under circumstances in which, from his peculiar relation to the facts, he was bound to know the true state of things.’ thal, 61 N. Y. 382; Campbell »v. Birch, 60 N. Y. 214; Hodges ». Spicer, 79 N. Car. 223; Parker v. Banks, ib. 480; Mihills Manuf. Co. v. Camp. 49 Wis. 1380. Cases of silence in the waiver of known rights will be considered in ch. 19. Such do not stand upon the ignorance of the party claiming the estoppel. Text quoted in Simpson v. Biffle, 63 Ark. 289, 38 S. W. 345; Ewing v. Dominion Bank, 35 Can. 133, dissenting opinion, Nesbitt, J. 1In previous editions the sub- ject of knowledge of the facts in all its phases, whether in regard to the party against whom the estoppel is alleged, or against the party alleging it, or in regard to the intention of the party alleg- ing the estoppel, has been treated in this section; but that has been thought to lead:to confusion (Low- -ell, Transfer of Stock, p. 126, note 3), and a change is now made. The present section treats only of knowledge of the falsity of the rep- resentation in the party to be es- topped; § 6 treats of the same sub- ject in relation to the opposite party; and §7 includes all that bears upon knowledge in the party to be estopped in regard to the in- tention of the other party, actual knowledge and presumptive. Note to the 4th ed. One cannot be barred of the right to allege the Statute of Lim- itations by knowledge of the facts and long inaction. Bartlett v. Kauder, 97 Mo. 356. 2 Freeman v. Cooke, 2 Ex. 654; Swan v. North British Co., 7 Hurl. & N. 603, Martin, B.; s. c. in error, 2 Hurl. & C. 175; Bank of Ireland v. Evans’ Charities, 5 H. L. Cas. 389, Parke, B.; Young Tr. Co. v. Wagner, 12 Utah, 1, 40 P. 764; Equitable Loan Co. ». Lewman 124 Ga. 190, 15 S. E. 599. 3 Among many other cases con- [CHAP. XVIII. 664 ESTOPPEL IN PAIS. The English and some of the American authorities in effect deny that estoppel depends upon any such requirements, de- claring it to be enough, so far as the present question is con- cerned, that the representation was false.1 The decision of the House of Lords in Derry v. Peek,? requiring, in a claim for damages for false representation, that the representation must have been made with knowledge of its falsity or in reckless disregard whether it was true or false, does not ‘in any way affect the law relating to estoppel when such law is applicable.’ ® sult the following: Derry v. Peek, 14 App. Cas., 337, rev’g 37 Ch. D. 541; Joliffe v. Baker, 11 Q. B. D. 255; Arkwright v. Newbold, 17 Ch. D. 301, 320; Reese Silver Mining Co. v. Smith, L. R. 4 H. L. 64; Redgrave v. Hurd, 20 Ch. D. 1; Mahurin v. Harding, 28 N. H. 128; Case v. Boughton, 11 Wend. 106, 108; Evertson v. Miles, 6 Johns. 138; Carley v. Wilkins, 6 Barb. 557; Bennett v. Judson, 21 N. Y. 138; Lobdell v. Baker, 1 Met. 193, 201; 1 Story’s Eq. p. 209, 13th ed., note by the present writer, where the subject is worked out in detail. See also id., § 1544; Smith’s Lead- ing Cases, iii, 2116, 9th Am. ed. In Oliver v. Bank of England, (1902) 1 Ch. 610, a stockholder innocently ‘demanded,’ under stat- ute, action by the bank upon a power of attorney to transfer consols, which proved a forgery. He was held liable to indemnify the bank. Derry v. Peek, supra; Col- lins v. Wright, (1857) 8 E. & B. 647, 657 considered. See also Low v. Bouverie, (1891) 3 Ch. 82, where misrepresentation was through forgetfulness. See also Bloomenthal ». Ford, (1897) A. C. 156; Balkis Consolidated Co. »v. Tomkinson, (1893) A. C. 396; s. c. (1891) 2 Q. B. 614, C. A.; Dixon ». Kennaway, (1900) 1 Ch. 833; Bank of England v. Cutler, (1907) 1 K. B. 889; s. c. (1908) 2 K. B. 208. Can it be necessary to an es- toppel, under the law of the scienter, that the party to be estopped should also know that the other party is acting in ignorance? So it appears to have been supposed. by Lord Justice Cotton in Proctor v. Bennis, 36 Ch. D. 740, 760, citing Ramsden »v. Dyson, L. R. 1 H. L. 129, 140. But it may be doubted whether the passage quoted means that any such knowl- edge is necessary. An auctioneer makes a false representation scien- ter; must a buyer show that the auctioneer knew that the buyer was ignorant of the facts? 1 Jordan v. Money, 5 H. L. Cas. 185, 210, 212; Low v. Bouverie, (1891) 3 Ch. 82, 100, 101; Balkis Consolidated Co. ». Tomkinson, (1893) A. C. 396, 410; Putnam ». Tyler, 117 Pa. St. 570, 586; Chap- man v. Chapman, 59 Pa. St. 214; Miller’s Appeal, 84 Pa. St. 391; Woodward v. Tudor, 81* Pa. St. 382; St. Louis & Iron Mountain R. Co. v. Larned, 103 Ill. 293; Prickett v. Sibert, 75 Ala. 315, 319; Hendricks v. Kelly, 64 Ala. 388, 391; Rice v. Bunce,”49 Mo. 231, 8 Am. Rep. 129; Hart »v. Giles, 67 Mo. 175; Stiff v. Ashton, 155 Mass. 130, 29 N. E. 203 (in- structions to jury); Pitcher v. Dorr, 99 Ind. 175; Brookhaven v. Smith, 118 N. Y. 634, 641. 214 A.C. 337. 3 Low v. Bouverie, ut supra. SECT. V.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 665 i That is to say, the English law of estoppel did not before Derty v. Peek was decided, and does not since, require anything more, for the purpose of an estoppel, than proof that the representa- . tion was false, so far as knowledge of falsity or its legal equiva- lent is concerned. Whatever may be the sound rule in regard to actions for damages caused by misrepresentation, it is con- ceived that the better rule in regard to estoppel is the one just stated. For one man to induce another to buy property or ac- quire other rights by declaring that the latter may safely do so so far as the former is concerned, is a serious matter, and may well be treated as putting a duty upon the former to satisfy himself in regard to his rights before disclaiming.t To dis- claim rights is a different thing from making a representation of fact in which the party making it has no interest, as often is the case in actions for deceit,” so often perhaps as to account for the rule of the scienter there. The tendency of authority is in favor of this view of the estoppel. Returning to the other view and taking the three phases of the scienter from the action of deceit, and transferring them ‘to the subject of estoppel, attention for the present need be drawn particularly only to the third. The first of the three — actual knowledge of the falsity of the representation — is of course a perfectly clear and unquestioned case for an estoppel; for there is the ‘ scienter ’ pure and simple. And much the same may be said of the second; reckless misrepresentation has always been put upon the same footing as misrepresentation made with knowledge of its falsity, in point of wrongfulness.? The third of the phases of the scienter (where the represen- tation, though believed to be true by the party who made it, was made under circumstances showing that he ought to have known that it was false), though sufficient in regard to knowl- edge,‘ is more difficult to handle; for the circumstances which 1 See for instance St. Louis& Iron R&R. Ir. 160, 170; Morse v. Dearborn, Mountain R. Co. v. Larned, 103 Ill. 109 Mass. 598, 595; Twitchell v. 293. Bridge, 42 Vt. 68; Beebe v. Knapp, 2 See for instance the leading and 28 Mich. 53; Stone v. Covell, 29 famous case of Pasley v. Freeman, Mich. 359; Preston v. Mann, 25 3 T. R. 1, a case of that kind. Conn. 118. 3 Evans v. Edmonds, 13 C. B. 4See Leather Manuf. Bank 777, 786; Phelps v. White, 7 L. v. Morgan, 117 U.S. 96; Weinstein 666 ESTOPPEL IN PAIS. [CHAP. XVIII. should fix knowledge must be peculiar, special, and strong, and may be influenced towards strengthening or taking away the grounds of the estoppel in many ways. Generally speaking, it is often said that a man is presumed to know the truth in regard to facts within his own special means of knowledge.1 More definitely, the rule has been thus stated: What a person is bound to know has regard to his particular means of knowl- edge and to the nature of the representation, and is then sub- ject to the test of the knowledge which a man, paying that at- tention which every man owes to his neighbor in making a representation, would have acquired in the particular case by the use of such means.? That is perhaps as definite as any general proposition covering the subject can be made. In ac- cordance with it, or something like it, directors of a corpora- tion are held to be bound to know the proceedings of the body in ordinary cases. The general proposition may also prob- ably be deemed sufficient to cover cases of implied warranties, e. g. the certification of checks and the like cases considered in the chapter on Commercial Paper,‘ and also in sales; ° for these too seem to rest upon the ground of presumed knowl- edge in the warrantor.® v. National Bank, 69 Texas, 38; ¥». Traders’ Ins. Co., 54 Mich. Harlow v. Marquette R. Co., 41 Mich. 336; Payment v. Church, 38 Mich. 776; Coleman v. Pearce, 26 Minn. 123; Madison Co. v. Pax- ton, 57 Miss. 701; Mutual Ins. Co. v. Norris, 31 N. J. Eq. 583, 585; Davenport R. Co. v. Davenport Gas Co., 43 Iowa, 301; Wright v. Newton, 130 Mass. 552; Stone ». Great. Western Oil Co., 41 Ill. 85; Greene v. Smith, 57 Vt. 268; Louks v. Kenniston, 50 Vt. 116. 1 Jarrett v. Kennedy, 6 C. B. 319, 322; Doyle v. Hort, 4 L. R. Ir. Ex. D. 661, 670; Morse »v. Dearborn, 109 Mass. 593; Mid- land R. Co. v. Hitchcock, 37 N. J. Eq. 549; Leather Manuf. Bank v. Morgan, 117 U.S. 96; Stone »v. Great Western Oil Co., 41 Ill. 85; Simpson v. Moore, 5 Lea, 372; Mc- Intire v. Yates, 104 Ill. 49; Hillock 531. 2 Palles, C. B. in Doyle v. Hort, 4L. R. Ir. Ex. D. 661, 670. 3 Stone v. Great Western Oil Co., 41 Ill. 85; Bloomenthal v. Ford, (1897) A. C. 156. But prospectus issued by a corporation is not satisfactory proof of existence of agreement binding company to allot and directors to accept ordi- nary shares not taken by others. In re Moore Brothers, (1899) 1 Ch. 627. 4 Ante, p. 539. 5 See McIntire v. Yates, 104 Ill. 49. 6 Price v. Neal, 3 Burr. 1354; ante, p. 520; 1 Story’s Equity, pp. 210, 390, notes, 18th ed. It would seem to cover ordinary cases of attempts to set up defences to notes and other contracts which siebed (ey Sue 2 5 haart ee oe Reg SECT. v.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 667 ag TT Again, the question often arises whethér negligence ih gen- eral, touching the matter of ae re- quirement of the rule ele? Of knowledge, we say, for it is to be noticed that-questions of the effect of negligence may arise in other relations of estoppel by conduct,! as in re- gard to the party’s intention that his representation shall be acted upon,? and in regard to the injury to be sustained by acting upon it.2 Rut in regard to the connection of negligence with a.party’ 8 nc alade as Sot goiter deat Whoa gence, apart fr TroicaUReaseeas Knowledge implied_by reason. of the he special relation of the party to the facts, will take ae place. of’ f knowledge:—It-has been suggested by a learn that where the Reale ignorance involv there should be a limit to the facility with wht words or conduct have misled another to the latter’s injury, should be permitted to qualify his responsibility by pleading his own fault. But the learned judge did not undertake to define the principle, contenting himself with saying that, “suitably restricted, the principle of which we have given an intimation unquestionably exists.’° It should be added that cases of this kind should not be confused with the-question.of estoppel by negligence where there’ is no communication be- the maker has represented to be 2Tracy v. Lincoln, 145 Mass. good to one purchasing in reli- 357. ance thereon. See Simpson »v. 3 See epost, pp. 686 et seq. 5 Moore, 5 Lea, 372. But see Allen (38 Conn, J. in Preston v. Mann, , v. Frazer, 85 Ind. 283; Koons », 25 Conn. 118,129. Davis, 84 Ind. 387, 389; Tichernon™—---- -.5 Whitaker v- Williams, 20 Cann. v. Ownesboro Bank, 113 Ky. 275, 98, 104, was referred to. See also 68 S. W. 127. Bling #, Croucher, 1 De G. F. & J. 1 To speak of a representation as made ‘negligently’ is not a com- mendable use of language. The meaning is not clear; ‘ negligently ’ in what respect is the question, — in regard to knowledge of the facts, in regard to the effect of the representation upon the mind, in regard to the person who may act upon it, or in what regard? The question is often important. See Barton v. Ry. Co., L. R. 24 Q. B. D. 77; Low v. Bouverie, (1891) 3 Ch, 82. 518; s. c. 2 Giff. 37; Coventry v. Great Eastern Ry. Co., 11 Q. B. D. 776, C. A.; Boynton v. Braley, 54 Vt. 92; Sutton v. Wood, 27 Minn. 362; Barstow v. Savage Mining Co., 64 Cal. 388; Anderson »v. Hubble, 93 Ind. 570; 1 Story’s Equity, p. 390, note, 13th ed.; Leather Manuf. Bank v. Morgan, 117 U. 8. 96; post, p. 687, note; Mercantile Co-operative Bank v. Brown, 96 Va. 614, 32 S. E. 64; Globe Nav. Co. v. Maryland Co., 39 Wash. 299, 81 P. 826. , 668 ESTOPPEL IN PAIS. [CHAP. XVIII. { / tween the parties. As has been intimated already, that is a i~very different matter.! A few cases touching negligence in regard to knowledge of facts misrepresented will serve to throw some light upon this obscure subject. In a case ? in the English Court of Chancery which has been cited many times as an authority, it appeared that one Hudson, a builder, having finished several houses at Bromley, applied to the plaintiff’s solicitors to know if any client.of theirs would lend him money on a mortgage of the houses, informing them that the defendant Croucher, to whom the land belonged on which the houses had been erected, had agreed to grant him (Hudson) a 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 agree- ment. 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 solicitors in which he said that he was ‘ quite agreeable ’ to grant the lease. The plaintiff then by his solicitors proceeded to prepare the same, and having done so notified Croucher and Hudson and requested them to call and examine it. They did so and approved of it in writing. The lease was afterwards engrossed, and a counter- part executed, which was handed over to Croucher, the solici- tors retaining the lease on behalf of the plaintiff. The plaintiff 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 subsequently 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 all the premises com- prised in the plaintiff’s security, and that this lease had been assigned by Hudson for value to a stranger and was still sub- sisting. Croucher thus had no right to grant the second lease, and the mortgage was worthless. The plaintiff now filed a bill against Croucher and Hudson charging fraud, misrepresen- 1See § 10. 2Slim v. Croucher, 1 De G. F. & J. 518; s. c. 2 Giff. 37. } SECT. V.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 669 tation, 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, misrepresentation, and concealment, and stated in defence to the suit that at the time of granting the lease comprised in the plaintiff’s 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.!_ But this much cited 12 Giff. 37. The Lord Chan- cellor said: ‘There has been a misrepresentation; and if there had been moral fraud in the case, it could hardly have been disputed that a court of equity would have had jurisdiction to inquire into it and to call upon the defendant to disclose all that he knew, and give relief from the consequences of the fraud. Now, although there may not be moral fraud here, yet I think that the party who has been injured has a right to relief. Mr. Lewis, in a very able argument, has cited a number of cases (Sainsbury v. Jones, 5 Mylne & C. 1; Denton v. Stewart, 1 Cox, 258; Greenaway v. Adams, 12 Ves. 395; Todd »v. Gee, 17 Ves. 273, and other cases), in which he says that a contrary doctrine has been laid down in this court, but he has not cited one single case similar to this, where it is held that equity will not give relief. I think that his authorities may be divided into two classes, — one where there was only a general claim to damages which a court of equity at that time could not have properly assessed; and the other class where there was a breach of promise, not the misrepresentation of a fact. But here there is the misrepresentation of a fact, and there is no difficulty at all in assess- ing 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 defend- ant are in this case; but the trustees 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 believe 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 dam- ages; also that this was not a wil- ful 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. R. 51, and all others of that class, were more fit for a court of equity than a court of law; but his lord- ship was clearly of opinion that at least there is a concurrent juris- diction, and says: ‘ It has occurred 670 ESTOPPEL IN PAIS. (CHAP. XVIII. case is now considered! to have been overruled by Derry ». Peek.? to me that that case upon the principles of many decisions in this court might have been main- tained here; for it is a very old head of equity that if a represen- tation is made to another person, going to deal in a matter of inter- est upon the faith of that represen- tation, the former shall make that representation good if he knows it to be false.’’”’ That is, you may undo the transaction, and you may replace the person to whom the representation is made as far as possible in the same situation in which he was before the representa- tion was made. Lord Eldon cer- tainly does say, ‘‘if he knows it to be false.” But the meaning of that qualification of the propo- sition is, as I understand the words, if he makes a misrepresentation 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 representation he had for- gotten it.’ It so happens that in the case of Burrowes v. Lock, supra, the person who made the represen- tation 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: ‘In this case the plaintiff was going to deal with Cartwright 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, knowing 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 though he had re- ceived information of the 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 rep- resented is false; secondly, that the person making the representa- tion had a knowledge of a fact contrary to it?’ The Lord Chan- cellor 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 and in Missouri. See Bullis v. Noble, 36 Towa, 518, 521; Raley v. Williams, 73 Mo. 310. And see the language of Deady, J. in Oregonian Ry. Co. v. Oregon Ry. Co., 10 Sawy. 464, 469, intimating that a person should inform himself in regard to facts he once knew, but which by lapse of time or other circumstances have become dim and confused in his mind. , ‘Low v. Bouverie, (1891) 3 Ch. 82, 100, 101. 214 A. C. 337. According to this decision of the House of Lords damages cannot be recovered, either by the common law or in equity, without proof of fraud in some one of the senses of the term. Nor, according to Low v. Bouverie, su- pra, can the case be sustained on grounds of estoppel. But Slim v. Croucher has been before the courts so much that it is deemed best to retain the statement of it and the quotation from the opinion. Sa eee a a SECT. V.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 671 In the late case of Coventry v. Great Eastern Ry. Co.! the defendants had negligently issued two delivery orders, at different times, in respect of the same consignment, but in such a way as to indicate that they related to different consign- ments. On both orders the party to whom they were given obtained advances from the plaintiffs. That party became insolvent, and suit was now brought to recover from the defendants the amount of such advances; and the suit was upheld.” Forgetfulness was allowed as a defence in the case of an infant in the Court of Appeals of New York.’ In this case the parents of the defendant, Henrietta Carr, an infant, conveyed to her the premises in controversy. Ten or eleven years after- wards 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 advances 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. Aside from cases falling under one of the three phases of knowledge above mentioned, and the possible case of a man’s attempting to take advantage of an innocent misrepresenta- tion of his after notice of its falsity, it will, according to ‘many of the American courts, be fatal to the supposed estoppel claimed that the representation was made in igno- rance, under mistake; * sometimes even though this mis- 111 Q. B. D. 776, C. A. 2See also Seton v. Lafone, 19 Q. B. D. 68, C. A., affirming 18 Q. B. D. 189; post, § 10. But see Second National Bank »v. Walbridge, 19 Ohio St. 419; On- ward Bldg. Soc. v. Smithson, (1893) 1 Ch. 1; Low »v. Bouverie, (1891) 3 Ch. 82. 3 Spencer v. Carr, 45 N. Y. 406. 4For various illustrations see Blake Crusher Co. ». New Haven, 46 Conn. 473; Clinton v. Haddam, 50 Conn. 84; Gray ». Agnew, 95 Tl. 315; Follansbee v. Parker, 70 Ill. 11; Marion Road Co. v. McClure, 66 Ind. 468; Van Horn »v. Over- man, 75 Iowa, 421; Decorah Mill Co. v. Greer, 49 Iowa, 490; Hager v. Burlington, 42 Iowa, 661; Can- non v. Home Ins. Co., 53 Wis. 585, 597; Taylor v. Nashville R. 672 ESTOPPEL IN PAIS. [cCHAP. XVIII. take be one of law,.as in regard to property exempt from taxation.! The subject may be illustrated by cases relating to mistake in the supposed settlement of boundaries between estates. In the case of Liverpool Wharf v. Prescott ? the plaintiffs brought a writ of entry to recover a narrow strip of land in Boston. It appeared that a line had been agreed upon between the plain- tiffs 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 acquies- cence of the demandants, until some time in the years 1858 or 1860, when they claimed that the defendants’ building was over their line, and notified them in writing, but made no other interruption of the defendants’ 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 erections and outlays con- templated, the demandants seeing and knowing it and standing by without making any objection or giving notice, they would now be bound by that line and estopped to deny that it was the true boundary. But the court declined to give this in- struction, and told the jury that the facts were not sufficient to estop the demandants; and the judgment was affirmed Co., 86 Tenn. 228, 245; Boynton v. Braley, 54 Vt. 92; Acton »v. Dooley, 74 Mo. 63; Burke ». Adams, 80 Mo. 504; Chicago Ry. Co. v. Auditor-Gen., 53 Mich. 79; Van Ness v. Hadsell, 54 Mich. 560; Buck v. Milford, 90 Ind. 291, 293; Pitcher v. Dove, 99 Ind. 175; Til- lotson v. Mitchell, 111 II. 518; Bull v. Rowe, 13 8. Car. 355; Douglass v. Craig, ib. 8371; Wright v. Newton, 130 Mass. 552; Breeze v. Brooks, 71 Cal. 169, 182; Boone v. Graham, 215 Ill. 511, 74 N. E. 559; Kenny v. McKenzie, 23 S. E. 111, 120 N. W. 781; Thomas ». Romano, 82 Miss. 256, 33 So. 969. 1Charlestown v. County Com- missioners, 109 Mass. 270. See Chicago Ry. Co. v. Auditor-Gen., 53 Mich. 79, where an assessment was based upon the party’s own public report. It was held that it could be shown that the report was made in mistake. See also Van Ness v. Hadsell, 54 Mich. 560. But see Longworth v. Aslin, 106 Mo. 155, 17 S. W. 294. 27 Allen, 494; s. c. 4 Allen, 22. SECT. V.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 673 on appeal. The case was one of pure mistake, without knowl- edge of the true boundary.” In another case * it appeared that certain parties, intending to establish the true line between their lands, agreed upon a boundary by parol, which was not in fact the true line. But they held possession in accordance with the conventional line; and one of 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 conven- tional 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.* ‘IMr. Justice Hoar now said: ‘We are of opinion that it was rightly held at the trial that there is no estoppel under such circum- stances. There is nothing in the case to show that there was any “standing by” and _ permitting the expenses to be incurred with- out notice, which was the case put in Thayer v. Bacon, 3 Allen, 163. The parties did not even undertake to fix a doubtful line by agreement, but only to point the true bound- ary as fixed by the deed. The au- thority of Tolman v. Sparhawk, 5 Met. 469, is therefore direct and decisive. The case relied on by the tenants (Kellogg ». Smith, 7 Cush. 375) is wholly different. There the line in question had been referred to as a fixed bound- ary and adopted as such for more than a hundred years; and the de- cision did not rest on the point of estoppel.’ 2Proctor v. Putnam Machine Co., 1387 Mass. 159; Schraeder Mining Co. ». Packer, 129 U. S. 688; Perkins v. Gay, 3 Serg. & R. 327, 331. 3 Brewer v. Boston & W. R. Co., 5 Met. 478. See Cantley v. Mor- gan, 51 W. Va. 304, 41 S. E. 201. 4¢We must,’ said Wilde, J. in delivering judgment, ‘ consider the declarations and admissions of the demandant as having 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 ten- ants’ agent with a view to influence their conduct, or that he had knowl- edge 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 indemnified. We do not, however, decide the case on these considerations, but on the ground that the demandant has acted fairly under a mistake and that he has made no declaration contrary to his honest belief at the time or with any intention to de- ceive the tenants. And we think it clear that declarations thus made do not operate in the nature of an estoppel. A party is not to 674 ESTOPPEL IN PAIS. [CHAP. XVIII. The principle upon which these cases proceed is that there must have been, when the incorrect line was acted upon, knowledge of the true boundary by the one party and igno- - rance of it by the other, in order to estop the party from as- serting it within the period of limitation; and this though it may have been intended that the incorrect line should be fixed upon as the true one and acted on accordingly.! This is true, it is held, though the admission was in writing, provided the instrument did not operate as a conveyance.? And the doc- trine of estoppel by standing by and permitting one’s prop- erty to be sold, or of witnessing a deed to it made by another, be estopped to prove a legal title to his estate by any misrepresenta- tion of its locality made by mis- take without fraud or intentional deception although another party may be induced thereby to pur- chase 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.’ 1 Tllustrations are numerous. See Ramsden v. Dyson, L. R. 1 H. L. 129, 140; Sheridan v. Barrett, 41. R. Iv. 223; Perkins v. Gay, 3 Serg. & R. 327, 331; Schraeder Mining Co. v. Packer, 129 U. 8S. 688, 699; Hass v. Plautz, 56 Wis. 105, 111; Gove v. White, 20 Wis. 425; s. c. 23 Wis. 282; Corkhill v. Landers, 44 Barb. 218; Laverty v. Moore, 32 Barb. 347; s. c. 33 N. Y. 658; Raynor v. Timerson, 51 Barb. 517; Smith v. McNamara, 4 Lans. 169; Reed v. McCourt, 41 N. Y. 435; Reed v. Farr, 35 N. Y. 113; Rutherford v. Tracy, 48 Mo. 325; Lemmon v. Hartsook, 80 Mo. 13; Acton v. Dooley, 74 Mo. 63; Kirch- ner v. Miller, 39 N. J. Eq. 355; McKelway v. Armour, 2 Stockt-: 115; Pitcher v. Dove, 99 Ind. 175; Davenport v. Tarpin, 43 Cal. 598; People v. Plumpke, 41 Cal. 263; Kincaid v. Donnell, 51 Mo. 552; Evans v. Miller, 58 Miss. 120; Stubbs v. Pratt, 85 Me. 429, 27 A. 341; Brown v. Patterson, 224 Mo. 639, 124 S. W. 1; Clark ». Hindman, 46 Or. 67, 79 P. 56; Grasett v. Carter, 10 Can. 105. In Halloran v. Whitcomb, 43 Vt. 306, 312, and again in Louks v. Kenniston, 50 Vt. 116, the court quotes the following language from Hicks -v. Cram, 17 Vt. 449: ‘If one man has made a representation 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 representa- tion.’ But if by this it was intended to lay down an accurate formula (which was probably not the case), it should be noticed that it omits the element of knowledge in the party against whom the estoppel is claimed. The same is to be said of Hughes v. Wheeler, 76 Cal. 230. See Thompson v. Borg, 90 Minn. 209, 95 N. W. 896. The cases are exceptional and rest on peculiar grounds where this element may be dispensed with. See Greene v. Smith, 57 Vt. 268; Louks »v. Kenniston, 50 Vt. 116; cases of boundaries in which it was consid- ered that the party estopped ought to have known where the line was. 4 ? Bradbury v. Cony, 59 Maine, 94, SECT. V.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 675 supposes the like state of facts.1_ But it would probably be admitted everywhere that a verbal agreement fully acted upon with knowledge would create an estoppel to dispute the bounds fixed upon.? In many of the states, however, long acquiescence is accepted as a substitute for knowledge of the facts at the outset; * and it is accordingly held of such cases that an estoppel may arise in cases even of mistake after lapse of time, in connection with a change of situation.‘ In McCormick v. Barnum acquies- cence for twenty-two years was held sufficient. In Chicago Ry. Co. v. People acquiescence for nineteen years was deemed enough. 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. 1 Brown v. Tucker, 47 Ga. 485; Hale v. Skinner, 117 Mass. 474; Greene v. Smith, 57 Vt. 268. The mere fact that during a controversy about boundaries one of the parties located a fence on the supposed line will not estop him to say that it was not on the line. Noble ». Chrisman, 88 III. 186. 2 Keer v. Hitt, 75 Ill. 51, 60; Bauer v. Gottmanhausen, 65 Il. 499; Lonstalot v. McKeel, 157 Cal. 634, 108 P. 707; Steidl ». Link, 246 IIl. 345, 92 N. E. 874; Rowell .v. Weinemann, 119 Iowa, 256, 93 N. W. 279, 97 A. 8. R. 310; and the Massachusetts cases, supra. In Wisconsin the estoppel can only arise where there is an un- certainty in fact in regard to the boundary at the time; and if the true line can be made out by a sur- vey, or by the calls and monuments of the deed, the boundary is cer- tain. Hartung v. Witte, 59 Wis. 285; Haas v. Plautz, 56 Wis. 105, 111; Pickett v. Nelson, 79 Wis. 9, 47 N. W. 936. 2 See ante, p. 493. 4McCormick »v. Barnum, 10 Wend. 104; Chicago Ry. Co. ». In Hagey »v. Detweiler the period of acquiescence People, 91 Ill. 251; Diehl v. Zanger, 39 Mich. 601; Stewart v. Carleton, 81 Mich. 270; Adams v. Rockwell, 16 Wend, 285, 302; Perkins ». Gay, 3 Serg. & R. 327; Hagey »v. Detweiler, 35 Penn. St. 409; Sneed v. Osborn, 25 Cal. 619; Columbet v. Pacheco, 48 Cal. 395; Joyce v. Williams, 27 Mich. 332; Acton v. Dooley, 74 Mo. 63; Dolde »v. Vodicka, 49 Mo. 98; Major ». Rice, 57 Mo. 384; Thomas v. Pullis, 56 Mo. 211; State v. Wertzel, 62 Wis. 184; Strosser v. Fort Wayne, 100 Ind. 443, 447 (knowledge pre- sumed); Brackenridge v. Howth, 64 Texas, 190. See Bazemore v. Freeman, 58 Ga. 276; Greene »v. Smith, 57 Vt. 268; Cavanaugh v. Jackson, 91 Cal. 580, 27 P. 931; La Mont v. Dickinson, 189 II. 628, 60 N. E. 40; Cleveland Iron Co. v. Gauthier, 143 Mich. 296, 106 N. W. 862; O’Donnell v. Penney, 17 R. I. 164, 20 A. 305; Switzgable v. Worseldine, 5 Utah, 315, 15 P. 144; Doe d. Carr v. M’Cullough, 3 N. B. 460. And concerning mis- - take in an arbitration to settle - boundaries, see Davis v. Henry, 121 Mass. 150. 676 ESTOPPEL IN PAIS. [cHAP. XVIII. was fifteen years, and that was held long enough. And the same period was in Columbet v. Pacheco held to raise an es- toppel to dispute the assumed boundary. So far as this doc- trine disregards entirely the question of the knowledge, pre- sumptive as well as actual,’ of the party against whom the estoppel is claimed, it is not in accord with the general prin- ciples of equitable estoppels. But whatever the better rule in cases of acquiescence, the party acting upon the representa- tion, if innocent, should not in any case be deprived of the improvements made by him, where compelled to give up the land.? Under either doctrine, and 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 ac- quired from a third person.’ The estoppel is not like that which arises under a conveyance with warranty. And the estoppel in any case arises only where there has been an honest agreement actual or implied for the settlement of the bound- ary.‘ Mere survey had by adjoining owners works no estoppel, unless the surveyor or some one acting upon his report were an arbitrator; * though it is held that the grantee of lands 1 Long acquiescence may perhaps make knowledge a presumption of fact in some cases. See Strosser v. Fort Wayne, 100 Ind. 443, 447. 2Dolde v. Vodicka, 49 Mo. 98. See, however, Stockman »v. River- side Co., 64 Cal. 57. *McLain »v. Buliner, 49 Ark. 218, 225, quoting the text; Don- aldson »v. Hibner, 55 Mo. 492; Dillett v. Kemble, t0 C. E. Green, 66. 4Spring v. Hewston, 52 Cal. 442; Chapman »v. Crooks, 41 -Mich. 595. See also Cronin »v. Gore, 38 Mich. 381; Smith v. Hamilton, 20 Mich. 433; Joyce v. Williams, 26 Mich. 332; ‘Stewart v. Carleton, 31 Mich, 270; Bobo v. Richmond, 25 Ohio St. 115. It is said, however, that agreement may be shown by long acquiescence as well as by express contract; and the decisions in regard to ac-. quiescence are not, it seems, in conflict with the proposition of the text. Betts v. Brown, 3 Mo. App. 20; Lindell v. McLaughlin, 30 Mo. 28. It may be added in ex- planation of the objection of the Statute of Frauds in such cases that the agreement is not deemed to amount to conveyance, but only to the fixing of limits to what has already been conveyed. Betts v. Brown, supra; Houston ». Matthews, 1 Yerg. 118; Bobo v. Richmond, 25 Ohio St. 115. 5Spring v. Hewston 52 -Cal. 442, SECT. V.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 677 who himself has had them surveyed and the lines marked will be estopped by his own survey.’ Nor will the mere joining of the adjacent owners in building a division fence establish the boundary conclusively, though followed by occupation for several years.” Many other cases might be adduced in illustration of the rule under consideration; a few may be added from widely different relations. Some courts, in a class of cases already considered, of warehouse receipts and bills of lading, have gone a doubtful length. In a recent case in Ohio * it appeared that the defendant, 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 on the second receipt the court allowed the de- fendant to show that it had been given by mistake.* But this, while not without support,® is contrary to many other authori- ties.© If from the nature or situation of the property the case were such that the party making the admission might not be bound to know the facts, it might be right to hold that there was no estoppel.’ In the case of the Bank of Hindustan ». Alison ® the question was whether the defendant had by his conduct estopped him- self from denying that he was a shareholder in the Bank of Hindustan. It appeared that two banking companies, the 1 Singleton v. Whiteside, 5 Yerg. 36; Caruthers v. Crockett, 7 Lea, 91, 96. The same case decides that the grantor will also be estopped by agreeing to such survey, assuming that the grantee has conformed reasonably to the calls of the grant. And if the grantor has made no objection, it seems that the survey is to be taken to be in reasonable conformity to the calls, against subsequent owners. Caruthers v. Crockett, 7 Lea, 91, 96. 2 Chapman v. Crooks, supra. 3 Second National Bank v, Wal- bridge, 19 Ohio St. 419. 4See also Blanchet v. Powell, Co., L. R. 9 Ex. 74; Ferguson ». Northern Bank, 14 Bush, 555; ante, pp. 518, 514. 5 Williams v. “Wilmington R. Co., 98 N. C. 42; Solomon ». Bushnell, 11 Oreg. 277. 6 Coventry v. Great Eastern Ry. Co., 11 Q. B. D. 776, C. A.; ante, p. 671; Armour v. Michigan Cen- tral R. Co., 65 N. Y. 111, and other cases, ante, pp. 513, 514. 7See Hale v. Milwaukee Dock Co., 29 Wis. 482. 8L, R.6C. P. 54. 678 ESTOPPEL IN PAIS. (CHAP. XVIII. Bank of Hindustan and the Imperial Bank of China, had agreed to amalgamate, the business of the latter company to be 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 sharehold- ers 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. 1In 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. ». Wellesley, 6 Hurl. & N. 38, and Sewell’s Case, L. R. 3 Ch. 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 au- thorized the creation of the shares, and secondly, because he had for five years constantly received a dividend on the shares which he held. Under these circumstances, having bound himself by his execu- tion of the deed and having accepted a benefit, it was properly held that he had estopped himself from de- nying that he was a holder of valid shares. That, therefore, is a very different case from the present. In the case of Re New Zealand Bank- ing Corporation, Sewell’s Case [su- pra], the directors of a company whose capital was £300,000, di- vided into 3,000 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 increase the capital to £600,000, to be divided into 60,000 shares of £10 each; and it was held that the issue of the 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 de- cision proceeded was that Mr. Sewell and the other shareholders were parties to the resolutions ratifying what had been done. I find nothing of the kind in the present case. There was another case referred to at the conclusion SECT. v.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 679 The case of Calhoun v. Richardson was trover by the trustee in insolvency of an insurance company for certain bonds in the of the argument, namely, Re Lon- don and Northern Insurance Co., Stace and Worth’s Case, L. R. 4 Ch. 682, which strongly confirms 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 di- rectors under an attempted amal- gamation which turned out not to be valid had attended meetings and acted as if they were shareholders. The court held that, the amalgama- tion being void and there being no separate agreement by the de- fendants to become shareholders independently of the amalgama- tion, there was nothing to fix them with liability as shareholders.’ The 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 plaintiffs had not been misled by the defendant. Mr. Justice Willes forcibly stated these points. ‘ Has the defendant ... chosen,’ said ‘he, ‘to become a shareholder in the bank of Hindustan? 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 represented in the circular to which I have already drawn attention. I will assume that there was no fraud. The other alternative is that both parties were’ mistaken 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 there- fore 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 defendant 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 defendant and others having become shareholders have entered into large engagements 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 80, 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 plain- tiffs are the wolf and the defendant 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 in- timating to the défendant that he might get shares on the advantage- ous terms they represented.’ The case was now carried to the Excheq- 680 ESTOPPEL IN PAIS. [CHAP. XVIII. possession of the defendant. It appeared that the defendant, who had been a 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 declared that all the statements made in the affidavit were true so far as the defend- ant 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 had 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 certificate 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 ‘suggests that the case would have been differ- uer Chamber, where the judgment irregularity a party has agreed to of the Common Pleas was affirmed. become a shareholder, or after L. 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 ac- quiesced in an assumed state of things, and by such acquiescence the situation -of the other party has been altered to his prejudice. For example, where the directors of @ company have been guilty of some irregularity in the issuing of shares, and with knowledge of the 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 situa- tion of the directors has been al- tered to their prejudice, they have a right to treat him as a share- holder, and he is estopped from setting up the irregularity by way of defence.’ 1See Wilcox ». Howell, 44 N. Y. 398. Further, ante, pp. 646, 647. SECT. VI.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 681 ent had the defendant been guilty of misconduct or gross negligence.! §6. Ignorance of Facts by him who claims the Estoppel. The person, further, who claims the benefit of this estoppel must_show that he was ignorant of the truth in regard to > the Representations and ne? must have been permissibly ignorant ee 1Upon this last een Mr. Justice Ellsworth, speaking for the court, said: ‘Now the plain- tiff insisted that as the defendant was a director of the company at that time [when the return was made], as well as before and after, and regularly attended the direct- ors’ meetings, he must be held to have known the contents of this annual return, and to have assented to it as exhibiting the true situa- tion and condition of the com- pany’s assets, and that under all the circumstances of the case the defendant was guilty of fraudulent misconduct ‘or gross negligence in permitting the return, if it was false, to be made and published, and the company to transact business on the credit of it. . . . This claim as presenting a principle of law we think unobjectionable, and so we presume the judge himself con- sidered it; for he proceeded to instruct the jury as to the nature and effect of an estoppel, and cor- rectly enough told them that to estop the defendant his action must have been understandingly and intelligently had, and his ad- missions understandingly and in- telligently made, which is well enough as to the point of knowl- edge; but the judge says nothing about the effect of fraudulent conduct and gross negligence as estopping the defendant and sub- jecting him to damages. We think the defendant might have been ee with the contents of the return to the comptroller, and yet possibly be liable on the ground claimed by the plaintiff. The plaintiff insisted that the de- fendant ought to have informed himself, and not to have given his sanction, either directly or in- directly, to the return, and after- wards 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 should pass upon the question whether the defendant had been guilty of misconduct or gross negligence so that he should not be allowed to 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 de- gree of neglect and inattention in the directors and officers of incor- porated companies, in the duties for which they are appointed and which they are understood to engage to perform to some reason- able extent towards the stock- holders 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 prevail too generally among certain classes in the community.’ 682 ESTOPPEL IN PAIS. “[CHAP. XVIII. _thereof.1—He may, like the party against whom the estoppel is alleged, have been so situated as to be bound to know the facts and apart from the making of the representation he will be subject to the same sort of presumptions which we have seen applicable to the opposite party.? If he knew or under all the circumstances ought to have known the facts, the estoppel, even if the representation was made on oath, falls to the ground.’ But the situation of the party to whom the rep- resentation is made is not wholly like that of the one who makes it; for the very representation may well have put him off his guard and prevented him from availing himself of sources of information open to him. And it is well settled that a clear and positive representation of fact may be acted upon, though the person to whom it was made had ample means of knowing the fact,> — indeed, though he had legal notice thereof, as 1Steel v. Smelting Co., 106 U. S. 447; Fitzpatrick v. Flannagan, ib. 648; Shipley v. Fox, 69 Md. 572, 579; Elliott v. Keith, 102 Ga. 117, 26 S. E. 271; Jordan v. Buena Vista, 95 Va. 285, 28 S. E. 321; Bettman v. Harness, 42 W. Va. 433, 26 S. E. 271; Young Trust Co. ». Wagener, 12 Utah, 1, 40 P. 764. 2 As where, in the absence of any representation, the parties stand in the same relation towards the fact. Bales v. Perry, 51 Mo. 449; Kingman v. Graham, 51 Wis. 232; Knouff v. Thompson, 16 Penn. St. 357, 364. E. g. in regard to a recorded deed of land, or in regard to possession. Shipley v. Fox, 69 Md. 572; Scates v. King, 110 Ill. 456; ante, pp. 637, 638. 3 Smith v. Kremer, 71 Il. 185; Dorlargue v. Cress, ib.; Robbins v. Potter, 98 Mass. 5382; s. c. 11 Allen, 588; Buck v. Milford, 90 Ind. 291, 293; Logansport v. La Rose, 99 Ind. 117, 181; Mayer v. Ramsey, 46 Texas, 371; Shillock v. Gilbert, 23 Minn. 373; Plummer ». Mold, 22 Minn. 15; St. Louis v. St. Louis Gas Co., 5 Mo. App. 484; s. c. 70 Mo. 69; Phinney v. Johnson, 13 S. Car. 25; Kingman v. Graham, 51 Wis. 232; Brant v. Virginia Coal Co., 93 U. 8. 326; Andreae v. Red- field, 98 U. S. 225; Davidson »v. Jennings, 27 Col. 187, 60 P. 354, 83 A. S. R. 49; Wilkins v. Mc- Gehee, 86 Ga. 764, 13 S. E. 84; Franklin Nat. Bank v. Whithead, 149 Ind. 560, 49 N. E. 592, 63 A. S. R. 302; Breaux v. Albert Co., 125 La. 421, 51 So. 444; Estis v. Jackson, 111 N. C. 145, 16 S. E. 7, 32 A. 8. R. 784; Jacobs ». Morris, (1902) 1 Ch. 816; Crary v. Dye, 208 U.S. 515, 521, 28 Sup. Ct. 360, 52 L. Ed. 595; Hilton ». Sloane, 37 Utah, 359, 108 P. 689. In the case of a deed a recital known by both parties to be untrue will, in the ab- sence of fraud, create an estoppel. Blackburn v. Bell, 91 Ill. 484. Prob- ably the same would be true of a parol statement agreed upon by the parties as ground of a contract. See Stewart v. Metcalf, 68 Ill. 109; ante, pp. 360, 495. ‘Graham v. Thompson, 55 Ark. 299, 18 S. W. 58, 29 A. S. R. 40. 5 Bloomenthal v. Ford, (1897) A. C. 156; Redgrave v. Hurd, 20 Ch. D. 1, 18; Nelson v. Kelly, SECT. VI.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 683 distinguished from knowledge, as e. g. by the due registration of an instrument.! One or two illustrations of the foregoing rule will now be given. In a suit upon a promissory note given for the pur- chase of certain stock, in which suit it appeared that the de- fendant purchased the stock from the president of the com- pany, who represented that it was at par and that the business was of great value and that the corporation was solvent, all of which was false, it was held that though the defendant had ample opportunity, before his purchase, of learning the true state of affairs, he had a right to presume that the vendor was fully informed upon the subject and to rely upon his statements.” In a case in Ohio ® the plaintiffs sought to recover of ‘ Adams & Co.’ a sum of money placed in their hands for investment . 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 West- ern Express.’ It appeared that there were in fact two express companies composed largely of the same members, having a branch office in the place, kept by a common agent. One of these companies was the original firm of Adams & Co.; the other was the one which answered to the suit. The name of the latter company alone was upon the sign of the branch 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; the plaintifi’s ignorance of the facts being deemed excusable. 91 Ala. 569, 8 So. 690; Graham »v. Thompson, 55 Ark, 296, 18 8S. W. 58, 29 A. S. R. 40; EHichelberg v. Soper, 1 8. D. 563, 47 N. W. 953, quoting the text; Dodge v. Pope, 93 Ind. 480; Campbell v. Frankem, 65 Ind. 591; Redgrave v. Hurd, 20 Ch. D. 1, 18; David v. Park, 103 Mass. 501; Keller v. Equitable Ins. Co., 28 Ind. 170; Parham »v. Randolph, 4 How. (Miss.) 435; Kiefer ». Rogers, 19 Minn. 32; “Holland v. Anderson, 38 Mo. 55; Wannell »v. Kem, 57 Mo. 478; Mead v. Bunn, 32 N. Y. 275, 280; Webster v. Bailey, 31 Mich. 36; 1 Story, Equity, p. 215, 13th ed., note. 1 David v. Park, 103 Mass. 501; Evans »v. Forstall, 58- Miss. 30; Sul- phine v. Dunbar, 55 Miss. 255; Parham »v. Randolph, 4 How. (Miss.) 435; Kiefer v. Rogers, 19 Minn. 32; Holland v. Anderson, 38 Mo. 55; Rollins v. Quimby, 250 Mass. 162, 86 N. E. 350. 2 Wannell v. Kem, 57 Mo. 478. 8 Adams v. Brown, 16 Ohio St. 75. 4‘Had Miss Pollock,’ said the 684 ESTOPPEL IN PAIS. [CHAP. XVIII. §7. The Intention. The next | Tequirement to_this estoppel ds that the_repre- sentation must have been may made_wi actual or reasonably to be inferred ! by the person to whom it caer Maen nt PORE Aeterna ator en mom NR oe court, referring to one of the plain- tiffs, ‘known the distinctive busi- ness of these two companies, or had her ignorance been the result of her own fault or folly’ — but that seems rather too strong — ‘or free from fault on the part of defendants, the case would have been different. But such were not the facts. In her eyes both com- panies were one and the same. To her understanding the name of one was the name of each, and the business of either was that of both. If this was a misunderstanding, it was a misunderstanding induced by the acts of the defendants, and probably shared in by the public generally. The companies being composed in part of the same indi- viduals, each is presumed to be cognizant of the business and name of the other. If the new com- pany did not intend to deceive and mislead the public, such was at least the effect of their acts. They cannot act in the name of one com- pany and do the business of that company, and then fall back upon the rights and immunities of the other.’ Ingram v. United States, 155 U. 8. 4384, 15 Sup. Ct. 148, 39 L. Ed. 213, held that one who had presented what purported to be an affidavit in support of a claim against the government was not estopped to deny that the docu- ment was an affidavit. 1¥For illustrations other than those of the text see Tracy v. Lin- coln, 145 Mass. 357; Kinney ». Whiton, 44 Conn. 262, 269; Leather Manuf. Bank v. Morgan, 117 U. S. 96, 108; Freeman v. Cooke, 2 Ex. 654; Carr v. London Ry. Co., L. R. 10 C. P. 307; Arnold ». Cheque Bank, 1 C. P. D. 578; Smith v. Hughes, L. R. 6 Q. B. 597; Hardy v. Chesapeake Bank, 51 Md. 562; Plumer v. Lord, 9 Allen, 455; Kingman v. Graham, 51 Wis. 232; Sessions v. Rice, 70 Iowa, 306; Tiffany v. Anderson, 55 Iowa, 405; Vanneter v. Crossman, 42 Mich. 465; Peake v. Thomas, 39 Mich. 584; McMaster v. Insurance Co., 55 N. Y. 222; Phillips v. Gallant, 62 N. Y. 256; Blair v. Wait, 69 N. Y. 113; Pence v. Arbuckle, 22 Minn. 417; Staton v. Bryant, 55 Miss. 261; Davis v. Bowmar, ib. 671, 749; Mutual Ins. Co. »v. Norris, 31 N. J. Eq. 588, 585; Kuhl »v. Jersey City, 8 C. E. Green, 84; Rosenthal v. Mayhugh, 33 Ohio St. 155; Kinnear v. Mackey, 85 IIl. 96; Leeper v. Hersman, 58 IIl. 218; Horn v. Cole, 51 N. H. 287; Chellis v. Coble, 87 Kans. 558; Brant v. Virginia Coal Co., 93 U. S. 327; Casey v. Galli, 94 U.S. 674; infra, pp. 687 et seq. As there need not be any actual design that ‘the representation should be acted upon, there need be no design to defraud. Pitcher v. Dove, 99 Ind. 175, 178; Anderson v. Hubble, 93 Ind. 570; Continental Bank ». National Bank, 50 N. Y. 575; Blair v. Wait, 69 N. Y. 113; Stevens v. Dennett, 51 N. H. 324. See Foster v. Charles, 6 Bing. 396; s. c. 7 Bing. 105; Pasley v. Free- man, 3 T. R. 51; Gardner »v. Pierce, 22 Nev. 146, 36 P. 782; Bullene v. Garrison, 1 Wash. Ter. 588. tion, either .--. SECT. VII.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 685 was made, that it should be acted upon.’ A man is respon- is bo to give attention to the rights of others with whom he comes in contact. In géiiéral, However, where theré ts nothing reasonably indicating that the representation .was intended to be acted upon as a statement of the truth, or that it was tantamount to a promise or agreement that the declara- tion made is true so as to amount to an undertaking to respond in case of its falsity, the party making it is not estopped from proving the truth.2 Thus, in Kuhl »v. Jersey City it was held that a receipt for taxes on land given by a tax-collector on receiving a check would 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 1Clearly there need be no real intention to deceive. Galbraith v. Lunsford, 87 Tenn. 89. Any alleged intention may be found if the party ‘spoke or acted falsely, knowing or having cause to be- lieve that his words or conduct reasonably might influence’ ac- tion. ‘The more modern state- ment, that one is responsible for the word or act which he knows, or ought to know, will be acted upon by another, includes the older statement that the estoppel comes from an intention to deceive.’ Stiff v. Ashton, 155 Mass. 130, 29 N. E. 203. It is not necessary that there should be actual intention to mis- lead or deceive. Rogers v. Port- land & B. St. Ry., 100 Me. 86, 60 A. 713. Nor intentional moral wrong. Stubbs v. Franklin Ry. Co., 101 Me. 355, 64 A. 625. It has been said that there must be some intended deception or such gross negligence as to amount to constructive fraud. Crary v. Dye, 208 U. S. 515, 28 Sup. Ct. 360, 52 L. Ed. 595. See also Jordan v. Buena Vista, 95 Va. 285, 28 S. E. 321. 2 For illustrations see Tyler v. Odd Fellows Assoc., 145 Mass. 134, 138; Moore v. Spiegel, 143 Mass. 413, 417; ‘Stebbins v. Bruce, 80 Va. 389, 392; Durant v. Pratt, 55 Vt. 270; Parker v. Moore, 59 N. H. 454; Robb v. Shephard, 50 Mich. 189; McCann v. Atherton, 106 Til. 31 (casual remarks); Fawcett v. New Haven Organ Co., 47 Conn. 224; Danforth ». Adams, 29 Conn. 107; Farist’s Appeal, 39 Conn. 150; McAdams v. Hawes, 9 Bush, 15; Zuchtmann v. Roberts, 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; Planters’ Ins. Co. »v. Selma Bank, 63 Ala. 585; Townsend v. Cowles, 31 Ala. 428; Cravens »v. Kitts, 64 Ins. 581; Williams »v. Jackson, 28 Ind. 334; Long ». Anderson, 62 Ind. 537; Allum »v. Perry, 68 Maine, 232; Pierce ». Andrews, 6 Cush. 4; Hall v. Cav- anaugh, 6 Mo. App. 148; Chand- ler v. White, 84 Ill. 435; Davidson v. Young, 38 Ill. 152; Flower »v. Elwood, 66 Ill. 447. Comp. also the language of Holmes, J. in O’Donnell v. Clinton, 145 Mass. 461, 463, in regard to assent. 686° ESTOPPEL IN PAIS. f[CHAP. XVIII. 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. So a third person to whom the representation was not made cannot claim the estoppel unless it was intended or apparently intended that he should act upon it.' The most important case upon this subject after Pickard ». Sears is perhaps Freeman v. Cooke,? which was decided by. the Court of Exchequer in the year 1848, and led the court to explain the term ‘ wilfully ’ (‘ where one by his words or con- duct wilfully causes another to believe,’ etc.) as used in the case of Pickard v. Sears.2 It was an action of trover by the assignees of William Broadbent against the sheriff of York- shire, 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 a 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 Josep. It was contended that 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 repre- sentation 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 court declar- ing, however, in effect that intention to have the representa- tion acted upon might be presumable as well as actual, so that a man would be bound as well when his conduct or the circum- stances of the case justified the inference of intention as when ‘ Mayenborg v. Haynes, 50 N. Y. 22 Ex. 654. 675; Farquharson v. King, (1902) A. 8 Ante, p. 604. C. 325; Stark, Ex parte, (1897) 1 Ch. 575. SECT. VII.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 687 he actually intended the result.1_ Negligence when naturally and directly ? tending to indicate intention will therefore have the same effect in creating the estoppel as actual intention. The point is well settled.? But mere want of care towards pre- 1The judgment of the court was delivered 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. & Ald. 313, and Heane »v. Rogers, 9 Barn. & C. 586, and has been acted upon in some cases since... . Whether that rule has been cor- rectly acted upon by the jury in all the reported cases in which it has been applied is not now the ques- tion; but the proposition con- tained in the rule itself as above laid down in the case of Pickard v. Sears must be considered as established. By the term “ wil- fully,” 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 rep- resentation to be acted upon and that it is acted upon accordingly; and if whatever a man’s real in- tention may be he so conducts him- self 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 contesting its truth; and conduct by negligence or omis- sion 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 instance, 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 au- thorized. But if we apply this tule 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 that any reasonable man would have seized the goods on the faith of the bank- rupt’s representation taken alto- gether. In truth, in most cases to which the doctrine in Pickard v. Sears is to be applied the rep- resentation is such as to amount to the contract or license of the party making it. Here there is no pre- tence for saying it amounted to a license, and a contract is out of the question.’ See Crocker v. Hutchin- son, 10 N. B. 139. 2Tracy v. Lincoln, 145 Mass. 357, 360; Carr v. London Ry. Co., L. R. 10 C. P. 307; Amold v. Cheque Bank, 1 C. P. D. 578; Vagliano v. Bank of England, 23 Q. B. D. 248, C. A. affirming 22 Q. B. D. 103. : 3 Besides the cases just cited, see Griffeth v. Brown, 76 Cal. 260; Montgomery v. Keppel, 75 Cal. 128; Hardy v. Chesapeake Bank, 51 Md. 562; Manufacturers’ Bank v. Hazard, 30 N. Y. 226; Horn ». Cole, 51 N. H. 227; Pence v. Ar- buckle, 22 Minn. 417; Kingman ». . Graham, 51 Wis. 232; Brant », Virginia Coal Co., 93 U. 8. 326; 688 ESTOPPEL IN PAIS. [CHAP, XVIII. venting an unauthorized transfer of one’s property or the like act creates no estoppel; otherwise a man might be precluded from alleging that his signature had been forged, on the ground that he had negligently employed a dishonest clerk. It is only where the negligence is a breach of duty to the party claiming the estoppel, as e. g. where it has amounted to permitting another to clothe himself with an apparent authority to act for the party against whom the estoppel is alleged, that the rule of intention is satisfied.! The language of Lord Denman in Pickard »v. Sears is also examined and explained in the recent case of Cornish v. Abing- ton.? 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 lithographic printer, took into his employment one Gover to superintend the printing and ante, p. 684, note 1. And see Breeze v. Brooks, 71 Cal. 169, 182; Gillett v. Wiley, 126 Ill. 310, 324; Brothers v. Bank of Kaukauna, 84 Wis. 381, 54 N. W. 786; Nicker- son v. Mass. Title Ins. Co., 178 Mass. 308, 59 N. E. 814. 1See ante, p. 662; Swan ». North British Co., 7 Hurl. & N. 603; s. c. 2 Hurl. & C. 175; Holmes v. Frumper, 22 Mich. 427; Green- field Bank v. Stowell, 123 Mass. 196; People v. Bank of North America, 75 N. Y. 548. The learned judge in the last case (at p. 562) asserts that ‘a party may also be estopped by his negligence when his name has been forged, and for an unreasonable time he neglects, not to discover the forgery, but to give notice thereof after discovery to the party imposed on. Canal Bank v. Bank of Albany, 1 Hill, 287.’ It is certainly good morals and it may be good law to require a man to give notice of a forgery of his signature, if he has notice that the party holding the paper is in a position to save his own rights against others. Viele v. Judson, 82 N. Y. 32; Leather Manuf. Bank v. Morgan, 117 U.S. 96; ante, p. 662; McKenzie v. British Linen Co., 6 App. Cas. 82; Palmer ». McNatt, 97 Ga. 435, 25 S. E. 406; Scott v. Bank of New Brunswick, 31 N. B. 21. A person who knows that a bank is relying upon his forged signature to a bill cannot lie by and not divulge the fact until he sees that the position of the bank is altered for the worse. But mere silence for a fortnight from the time when he first knew of the forgery, during which the position of the bank was in no way altered or prejudiced, cannot be held an estoppel against asserting the forgery. McKenzie v. British Linen Co., supra. To the same effect with the last sentence, see Zell’s Appeal, 103 Penn. St. 344. In Barton v. Ry. Co. 24 Q B. D. 77, there appeared to be a forged transfer of stock. The company wrote the plaintiff that unless it heard from her to the contrary the stock would be trans- ferred. No answer being received, the stock was transferred. The plaintiff was not estopped. 24 Hurl. & N. 549. SECT. VII.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 689 take orders for printing, at a salary of 35s. a week. The de- fendant was a publisher. The plaintiff stated that the first order on the defendant’s account came from Gover. In Sep- tember, 1857, the plaintiff made out an account against the defendant, charging him with £108 for printing maps, and gave it to Gover, who handed the account to the defendant, and the defendant paid it. Afterwards further printing was done by the plaintiff, and paper supplied by him. The plain- tiff 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 ser- vice in the year 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 plaintiff, — 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 com- mission, 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 sub- ject; 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 plaintiff. It was not disputed that as between Gover and the defendant the account was settled. The jury found that the defendant 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 defendant had signed the receipts was such as to induce the plaintiff to think that he was buying the goods on his own account. 690 ESTOPPEL IN PAIS. [CHAP. XVIII. Judgment was given for the plaintiff; the ground being that the jury had found that the defendant, whether inten- tionally or not, had 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 de- clared 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 under- standing it, has acted uponit. If any person by a course of conduct or by actual expressions so conducts himself that an- other 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 him- self, cannot 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. 1‘ The sending of the invoice was equivalent to notice that the de- fendant was not dealing with Gover, but with the plaintiff. If after that the defendant chose to accept the explanation of Gover, when he ought not to have been satisfied without communication with the plaintiff, he must take the consequences. Lord Wensleydale, formerly Baron Parke, in Free- man v. Cooke, 2 Ex. 654 [ante, p. 687, note], commenting on the earlier case of Pickard ». Sears, pointed out a limitation of the application of the rule, viz. that “in most cases to which the doc- trine of Pickard v. Sears is to be applied the representation is such as to amount to the contract or li- cense of the party making it.” No doubt unless the representation amounts to an agreement or li- cense, or is understood by the party to whom it is made as amount- ing to that, the rule would not apply; but although the case of Freeman v. Cooke limited the ap- plication of the rule to this extent, the court point out that the word “wilfully,” in the rule as laid down in Pickard v. Sears, means nothing more than “ voluntarily.” Lord Wensleydale perceiving that the word “wilfully” might be read as opposed, not merely to “ in- voluntarily,” but to “ unintention- ally,”’ showed that if the representa- tion was made voluntarily, though the effect on the mind of the hearer was produced unintentionally, the same result would follow.’ 2?Qne who has requested the recall of a note which has been sent forward for protest is es- topped to deny a demand and notice. Hallowell Nat. Bank »v. Marston, 85 Me. 488, 27 A. 529. SECT. VII] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 691 It 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 supposed 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 afterwards be estopped from denying it. Mr. Baron Martin, though agreeing in the general conclu- sion, doubted whether there could be an estoppel without in- tention; and this and the like cases which proceed upon the ground of presumable intention, though enunciating a per- fectly sound doctrine, should be followed only when there is clear justification for the act of the party who supposed an intention.? The necessity of evidence of intention to make a dedication to the public (which may be done in pais, and by conduct, as well as by deed ?) may be noticed here. In a case? in which 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 dedication on the 1See Zuchtman v. Roberts, 109 v. Bandy, 93 Ind. 246; Beatty v. Mass. 53; Wright v. Willis, 2 Kurtz, 2 Peters, 566; Hunter »v. Allen, 191. Sandy Hill, 6 Hill, 407. 2McCormick ». Baltimore, 45 3 Holdane v. Cold Spring, 21 Ind. 512; Shane v. Moberly, 79 N. Y. 474. Mo. 41; Redwood Cemetery Assoc. 692 ESTOPPEL IN PAIS. [CHAP. XVIII. ground that there was no evidence of a positive intention.* But one who fences off a strip of land as a street, and without 1The law was thus stated by Wright, J. in delivering the opinion of the court: ‘Undoubtedly the owner of land may dedicate or set apart a street or highway through it to the public use, and if the dedi- cation be accepted, it will work an estoppel in pais, precluding the owner from asserting any right inconsistent with such use. The dedication and acceptance are to be proved or disproved by the acts of the owner and the circumstances under which the land has been used. Both are questions of in- tention. The owner’s acts and declarations should be deliberate, unequivocal, and decisive, mani- festing a positive and unmistakable intention to permanently abandon his property to the specific public use. If they be equivocal or do not clearly and plainly indicate the intention to permanently aban- don the property to the use of the public, they are insufficient to establish a case of dedication. In the case of a highway the public must accept the dedication, and before it is accepted the owner is not precluded from revoking it. It is not necessary that there should be any formal act of acceptance by the public authorities, but it may be indicated by common user under circumstances showing a clear in- tent to accept and enjoy as such the easement proposed to be dedi- cated. Throwing open land in a village and fencing it on each side, and causing the way or avenue to be designated as public on a map of the village, are acts tending strongly to show a design pres- ently or at some future period to dedicate and devote it to the pub- lic use. But these acts are not conclusive to establish a present dedication binding on the owner of the land. One may fence off a strip of his own land for the pur- pose 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, intending upon the sale of such lots to dedi- cate 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 en- closure of an adjoining proprietor, it could scarcely be pretended that the land had thereby become bur- dened with an irrevocable public servitude.’ In a subsequent por- tion of his opinion the learned judge says that the doctrine of es- toppel is at the basis of the law con- cerning dedication. ‘The referee,’ he observes, ‘ did not find the fact of dedication; and the facts that are specifically found do not in my judg- ment show that the public ac- quired 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 dedica- tion of the land, I think they still had a right to revoke it. The law of dedication is somewhat anoma- lous; 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 intention 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 re- sumption of the possession unless the public accommodation and _pri- ° SECT. VII.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 693 objecting sees others build with reference to it as such, will be estopped to deny that he had made a dedication.! Where an inquiry has been made which has resulted in the representation in question, it is necessary that the purport of the inquiry should be made clear; ? if that be not the case, there cannot be said to be any intention, whether actual or presumptive, that the representation should be acted upon. vate rights are to be materially affected by an interruption of the enjoyment. Cincinnati v. White, 6 Peters, 431; Haynes v. Thomas, 7 Ind. 38. See also Rutherford v. Taylor, 88 Mo. 315; Price »v, Thompson, 48 Mo. 361. If, how- ever, private rights have been ac- quired with reference to such dedication, and such an interest secured with the assent and con- currence of the owner as would render it fraudulent in him to re- sume his rights, the dedication be- comes irrevocable. 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 permanently devoted to public use, or perhaps if the public accommoda- tion were to be seriously impaired or affected by an interruption of the use or enjoyment of the subject of the dedication, the owner would be precluded from reclaiming his land.’ See Eisendiath v. Chicago, 192 IIl. 320, 61 N. E. 419; Alden Coal Co. v. Challis, 200 Ill. 222, 65 N. E. 665; Schettler ». Lynch, 23 Utah, 305, 64 P. 955; Norfolk v. Notting- ham, 96 Va. 34, 308. E. 444. 1Chicago v. Wright, 69 II. 318. See also Mansur v. Haughey, 60 Ind. 364; Wilder v. St. Paul, 12 Minn. 192; Columbus v. Dahue, 36 Ind. 330; Hiss v. Baltimore Ry. Co., 52 Md. 242; Boyce v. Kal- baugh, 47 Md. 334; Neff v. Bates, 25 Ohio St. 169; Morgan v. Rail- road Co., 96 U.S. 716; Davis ». Mor- ris, 182 N. C. 485, 43 S. E. 950; Earl © v. Stevens, 57 Vt. 474; Stevenson ». Lewis, 244 Ill. 147, 91 N. E. 56. 2A party to a mortgage being inquired of by one to his knowledge about to buy it, concerning his liability upon it, said that he had ‘assumed and agreed to pay the debt, as his deed would show.’ It was held that he was estopped thereby after purchase to deny his liability. Bassett v. Bradley, 48 Conn. 224. See also Stebbins ». Bruce, 80 Va. 389, 392. 3 Pierce v. Andrews, 6 Cush. 4; Andrews v. Lyon, 11 Allen, 349; Kinney v. Whiton, 44 Conn. 262, 269; Durant v. Pratt, 55 Vt. 270; Hackett v. Callender, 32 Vt. 97; Fountain v. Whelpley, 77 Maine, 182; Morton »v. Hodgdon, 32 Maine, 127; Tillotson v. Mitchell, 111 Ill. 518; Feeny v. Hall, 93 Ga. 706, 21 8. E. 163, quoting the text; Near v. Green, 113 Iowa, 647, 85 N. W. 799; First Nat. Bank v. Marshall Bank, 108 Mich. 114, 65 N. W. 604. The party sup- posed to be estopped should make known his rights within a reason- able time after the action taken has come to his knowledge, or he will make the alleged estoppel good by ratification. Fountain 7. Whelp- ley, supra, and cases cited. See Robb v. Vos, 155 U. 8. 1, 15 Sup. Ct. 4, 39 L. Ed. 52. 694 ESTOPPEL IN PAIS. [CHAP. XVIII. 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 plaintifi’s father, sent his agent to the plaintiff, in whose possession the horse was, to inquire whose property it was; and the agent, without disclosing his agency or informing the plaintiff of the object of his inquiry, asked who was owner of the horse. The plaintiff replied that the horse belonged to his father. Brooks now sent the defendant to levy upon the horse in accordance with the execution, when the plaintiff claimed the property and forbade the sale. The court held that the plaintiff was not estopped by the representation to maintain the action; but it was said that the case might have been different had the plaintiff known the object of the inquiry and permitted the sale to take place without objection.1_ No one, however, could be estopped, it was declared, by a deceptive answer to a question which he ‘might rightly deem impertinent. Tn the case of Andrews »v. Lyon, above cited, the plaintiff, as indorsee, 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 bar- gain, showed it to the defendant 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 statement made by him; there was nothing in the evidence inconsistent with a belief on the part of the defendant, at the time he made the statement, that the plaintiff was then owner of the note. $8. The Representation must have been acted upon. The rule is fundamental that unless the representation of the party_to be estopped_has also been really acted upon, —the other party acting differently, that is to say, from the way he would otherwise have acted, so that to deny the representa- 1 Stephens v. Baird, 9 Cowen, 274. SECT. VIII.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 695 tion would prejudice him,!— no estoppel arises.2. Neither a statement of any kind nor an admission in pais* can amount of itself to conclusive evidence. 1 Organ v. Stewart, 60 N. Y. 413; Gulf R. Co. v. Gordon, 70 Texas, 80. 2For various illustrations see Cropper v. Smith, 28 Ch. D. 700 (reversed on other points in 9 App. Cas. 249, as Smith v. Cropper); Howard v. Hudson, 2 El. & B. 1; McCance v. London & Northwest- em Ry. Co., 7 Hurl. & N. 477; Stimson v. Farnham, L. R. 7 Q. B. 175; Townsend Bank »v. Todd, 47 Conn. 190; Daniels v. Equitable Ins. Co., 48 Conn. 101; Hull »v. Hull, ib. 250; Tyler v. Odd Fellows Assoc., 145 Mass. 134, 138; Birch v. Hutchings, 144 Mass. 561, 564; Butchers’ Assoc. v. Boston, 139 Mass. 290, 293; Earle v. Stevens, 57 Vt. 474; Askins v. Coe, 12 Lea, 672; Lawrence v. Towle, 59 N. H. 28; Barney v. Keniston, 58 N. H. 168; Maxwell v. Bay City Bridge Co., 46 Mich. 278; Canning v. Brown, 50 Mich. 486; Union Ins. Co. v. Slee, 123 Ill. 57; Powell v. Rodgers, 105 Ill. 318; Davidson v. Young, 38 Il. 146; Golconda v. Field, 108 Ill. 419; Illinois Ma- sons’ Soc. v. Baldwin, 86 Ill. 479; Ball v. Hooton, 85 Ill. 159; Hefner v. Vandolah, 57 Ill. 520; Hall vo. Jackson Co., 95 Tl. 353; Palmer v. Meiners, 17 Kans. 478; Mar- queze v. Fernhadez, 30 La. An. 195; Chaffe v. Morgan, ib. 1307; McClure v. Livermore, 78 Maine, 391; Groves v. Blondell, 70 Maine, 190; Michigan Panelling Co. »v. Parsell, 38 Mich. 475; Van Horn v. Overman, 75 Iowa, 421; Guest v. Burlington Opera House Co., 74 Iowa, 457; Laub v. Trowbridge, 71 Iowa, 396; Hikenberry ». Ed- wards, 67 Iowa, 14, 21; Northern Packet Co. v. Platt, 22 Minn. 413; McAbe v. Thompson, 27 Minn. 134; Sulphine v. Dunbar, 55 Miss. But if, on the other hand, the 255; Davis v. Bowmar, ib. 671; Eitel- george v. Mutual Building Assoc., 69 Mo. 52; Spurlock v. Sproule, 72 Mo. 503; Wright v. McPike, 70 Mo. 175; Rogers v. Marsh, 73 Mo. 64; Burke v. Adams, 80 Mo. 504, 514; Monks v. Belden, ib. 639; Murphy »v. People’s Ins. Co., 7 Allen, 239; Colonius v. Hibernia Ins. Co., 3 Mo. App. 56 (the last two cases deciding that adjustment of loss not made final and accepted does not estop an insurance com- pany to withdraw it and allege breach of condition); Stryker v. Cassidy, 76 N. Y. 50 (that an ac- count rendered but not assented to does not estop the party to claim a larger sum, see Williams v. Glenny, 16 N. Y. 389); Winegar v. Fowler, 82 N. Y. 315; McMaster v. Insurance Co., 55 N. Y. 222; Probate Court v. St. Clair, 52 Vt. 24; Clark v. Hayward, 51 Vt. 14; Lorentz v. Lorentz, 14 W. Va. 809; Warder v. Baldwin, 51 Wis. 450; Guichard v. Brande, 57 Wis. 534; Conkey v. Hawthorne, 69 Wis. 199; Ketchum ». Duncan, 96 U. 8. 659; Harris v. Kirkpatrick, 6 Vroom, 392; Stringer v. Northwest- ern Ins. Co., 82 Ind. 100; Colter v. Calloway, 68 Ind. 219; Garner v. Hall, 122 Ala. 221, 25 So. 187; Palmer v. McNatt, 97 Ga. 485, 25 8S. E. 406; Boyden »v. Clark, 109 N. C. 664, 14S. E. 52; Falls Lum- ber Co. ». Watkins, 53 Or. 212, 99 P. 884; Repass v. Richmond, 99 Va. 508, 36 S. E. 160; Bisbee v. Carey, 17 Wash. 224, 49 P. 220; Waxahachie Bank v. Bictharz, 94 Tex. 493, 62 S. W. 743; McManus v. Blakeney, 25 N. B. 216. 3 Hunter v. Heath, 67 Maine, 507; Robbins v. Blodgett, 121 Mass. 584; Sullivan v. Conway, 81 Ala. 696 [CHAP. XVIII. ESTOPPEL IN PAIS. representation has been acted upon promptly,! under circum- stances such as those already detailed, the party making the statement or guilty of the conduct 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 was justified in so doing, how he has changed his position, whether by the purchase of property, the surrender of possession, the erection of improve- ments or other outlay upon land or goods about which the estoppel is claimed, or the expenditure of money in litigation,® or, it is held, even by being induced to refrain from steps which would otherwise probably have been taken.* But unless the representation is in some way acted upon, unequivocally, as tested by the first step taken,’ the estoppel cannot arise,® nor 153. Thus, the official reports of municipal officers charging them- selves with indebtedness may be shown by them to have been er- roneous. State v. Hauser, 63 Ind. 155, limiting State v. Grammer, 29 Ind. 530; Wilmer v. State, 44 Ind. 223; State v. Prather, ib. 287; Van Ness v. Hadsell, 54 Mich. 561. See also Almy v. Thur- ber, 99 N. Y. 407. As to solemn admissions in court, see ante, p. 633, note 3. + Andrews v. Aitna Ins. Co., 85 N. Y. 334. 2 Quoted in Greer v. Mitchell, 42 W. Va. 494, 26 S. E. 302. 3As to estoppel arising by. expenditures in litigation, see Meis- ter v. Birney, 24 Mich. 435; My- ers v. Byas, 99 Ala. 484, 12 So. 430; McConnell v. Worms, 102 Ala. 587, 14 So. 849; Warner Glove Co. v. Jennings, 58 Conn. 74, 19 A. 239; Dowling v. Wood, 125 Towa, 244, 101 N. W. 113; McCon- nell v. Ory, 46 La. Ann. 564, 15 So. 424, 4Leather Manuf. Bank v. Mor- gan, 117 U. S. 95; Continental Bank v. National Bank, 50 N. Y. 575; Davis v. Dyer, 56 N. H. 148; Steele v. St. Louis Ins. Co., 8 Mo. App. 207; Tobin v. Allen, 53 Miss. 563; Voorhis v. Olmstead, 66 N. Y. 113; Knights v. Wiffen, L. R. 5 Q. B. 660; Hambleton v. Central Ohio R. Co., 44 Md. 551; Allen ». Goodnow, 72 Maine, 420. See Hawkins v. Methodist Church, 23 Minn. 256; ante, p. 653; post, p. 703; Halloran v. Halloran, 137 Ill. 100, 27 N. E. 82; Shepard Lum- ber Co. v. Eldridge, 171 Mass. 516, 51 N. E. 9, 68 A. S. BR. 446; Mc- Dowell v. McDowell, 141 Iowa, 286, 119 N. W. 702, 133 A.S. R. 170. 5 Andrews v. Aitna Ins. Co., 85 N. Y. 334. 6 Hence a representation made after the change of position will not work an estoppel. Townsend Bank v. Todd, 47 Conn. 190; Gee v. Moss, 68 Iowa, 318; Behrens v. Germania Ins. Co., 64 Iowa, 19, 23; McCall v. Powell, 64 Ala. 254; Straus v. Minzesheimer, 78 Ill. 492; Crossan v. May, 68 Ind. 242; Reagan v. Hadley, 57 Ind. 509; Jones v. Dorr, 19 Ind. 384; Ray v. McMurtry, 20 Ind. 307; Patrick v. Jones, 21 Ind. 249; Stutsman v. Thomas, 39 Ind. 384; Garlinghouse v. Whitwell, 51 SECT. VIII.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 697 will any estoppel arise when the party acting upon the repre- sentation has done only what he was legally bound to do.! And though, as we have seen,” it need not be exclusively acted upon, there can be no estoppel where the party claiming one is obliged, before changing his position, to inquire for the exist- ence of other facts to make the inducement sufficient, and to rely upon them also in acting.’ In other words, though the party may no doubt act upon any one of several representa- tions or inducements from different sources, it will not answer for him to put together two severally insufficient inducements from different and independent sources. 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 imprisonment. 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.® Barb. 208. But though a con- tract, e. g. of sale, has been made before the misrepresentation, still, if it has not yet been performed, an estoppel will arise if performance was induced by the misrepresenta- tion. Goeing v. Outhouse, 95 II. 346. See also Roberts v. Davis, 72 Ga. 819. A representation may be withdrawn, with notice, before it has been acted upon. Union Ins. Co. v. Slee, 123 Ill. 57. 1Qrgan v. Stewart, 60 N. Y. 413, reversing 1 Hun, 411; Gulf R. Co. v. Gordon, 70 Texas, 80. 2 Ante, p. 646. 3 McMaster v. Insurance Co. of N. A., 55 N. Y. 222. See St. Jo- seph Manuf. Co. v. Daggett, 84 Ill. 556; Mutual Ins. Co. v. Norris, 31 N. J. Eq. 583; Baldwin v. Rich- man, 1 Stockt. 399; Richman »v. Baldwin, 1 Zabr. 403; People v. Bank of North America, 75 N. Y. 548. 42 El. & B. 1. 5 ‘Did the defendant,’ said Mr. Justice Erle, ‘make a misrepresen- tation to the plaintiff with intent that the plaintiff should act upon it, and did the plaintiff in conse- quence so act upon it to his prej- udice? 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 representation. But did the plaintiff alter his position for the worse in consequence of that rep- resentation? 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 re- mand ward would equally be justi- fied. But the ground mainly re- lied on seems to be that the plain- tiff supposed that the defendant had the original, and therefore lost 698 [cHAP. XVIII. ESTOPPEL IN PAIS. There is another English case on this point which is in- structive! It was an action against a railway company for failing to carry horses safely. It appeared that when the plaintiff delivered 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 de- fect 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 rep- resented; 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.” 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 applica- tions was that the warrant was not a sufficient authority for the plain- tiff’s discharge. tention before the judge and the Court for the Relief of Insolvent Debtors; so that it is clear that he did not make these applications in consequence of believing the representation that the defendant had the warrant, but notwithstand- ing that he believed that represen- tation.’ ‘I think,’ observed Cromp- ton, J. ‘that every case in which we are to act upon it [the doctrine of estoppel] must be brought within .the principles so accurately laid down in the elaborate judgment 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 in- tended that the plaintiff should act on the faith of the representation, nor that the plaintiff did so act. The word “wilfully,” which is used in the judgment in Pickard That was his con-, v. Sears, 6 Ad. & E. 469, has been well commented upon in the judg- ment in Freeman v. Cooke. As the rule is there expressed it takes in all the important commercial cases in which a representation is made, not wilfully in any bad sense of the word, not malo animo or with the intent to defraud or deceive, but so far wilfully that the party making the representa- tion on which the other acts means it to be acted upon in that way. That is the true criterion.’ 1McCance v. London & North- western Ry. Co., 7 Hurl. & N. 477. 2‘There is,’ said Bramwell, B. ‘a -stipulation or statement, whether a representation or con- tract is immaterial, by which the plaintiff with a view to induce the defendants to act (and they have acted) upon it has said that the value of each horse did not exceed £10, and he now professes to say, True it is I did make that state- ment in order that the defendants might act upon it; and true it is they have acted upon it; but the statement was untrue, and now I want four times as much as the de- SECT. VIII.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 699 The following facts afford another illustration of the rule requiring the representation to be acted upon: A owns stock in a company which B by forgery assumes to convey to C. C takes the evidence of his supposed title to the company and has the company register the stock in favor of D, an innocent purchaser for value. There is no estoppel upon the company to show that the transfer of title to D was void, since D was not induced by the company to act.! In like manner, a person who has accepted stock from a corporation and voted upon it may, to bring himself within a statutory protection, show that he holds the same from the company merely as collateral security, though it is registered to him in his own name, if no one has been induced thereby to believe the party an absolute owner, and so to subscribe to the stock or give credit to the corpora- tion.? A sheriff’s or other officer’s return also, if 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. Farnham an action was clared value of one of the horses. (a) This is in effect what he is doing. I think that according to every principle of law he cannot be al- lowed to do so. If there be one principle of law more clear than another, it is this, that when a per- son has made a deliberate state- ment with the view to induce an- other to act, and he has acted upon it, the former is not at liberty to deny the truth of the statement so made. I think it would be most mischievous if he could.’ 1Simm v. Anglo-American Tel. Co., 5 Q. B. D. 188, C. A. Dis- tinguished from this is Dixon ». Kennaway Co., (1900) 1 Ch. 833, following Knights v. Wiffen, L. R. 5 Q. B. 660, and later cases like Balkis Con. Co. »v. Tomkinson, (1898) A. C. 396. See also, for other phases of representation, Bishop v. Balkis Con. Co., L. R. 25 Q. B. D. 77, 512; Tomkinson v. Balkis Con. Co., (1891) 2 Q. B. 614, C. A.; Henderson v. Williams, (1895) 1 Q. B. 521; Bloomenthal ». Ford, (1897) A. C. 156. ? Burgess v. Seligman, 107 U. S. 20, denying Griswold v. Seligman, 72 Mo. 110, and Fisher v. Seligman, 75 Mo. 13. 3 Stimson v. Farnham, L. R. 7 Q. B. 175; Harris v. Kirkpatrick, 6 Vroom, 392; State ». Ogle, 2 Houst. 371; Rogers v. Cromack, 123 Mass. 582; Denny »v. Willard, 11 Pick. 519, 526; Roberts v. Went- worth, 5 Cush. 192; Pate v. Harper, 94 N. Car. 23. And conversely it is not binding on the party to the writ. Ogle ». Smith, 2 Houst. 174. But see contra, Dunklin v. Wilson, 64 Ala. 162, on the ground that it is part of the record. And see State v. Penner, 27 Minn. 269, holding a return under oath as conclusive upon the parties to the record and upon the sheriff, citing (a) £40 in addition to the sum paid into court. 700 ESTOPPEL IN PAIS. [cHAP. XVIII. brought against a sheriff for not levying under a writ of 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 that after seizure of the goods by the defendant 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 claim- ant under a bill of sale. The sheriff’s officer at the plaintiff’s request remained upon the premises until dismissed 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 the withdrawal 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.? Brown v. Davis, 9 N. H. 76; Baker v. McDuffie, 23 Wend. 289; Brown- ing v. Hanford, 7 Hill, 120. — 1‘ An action against a sheriff,’ said Blackburn, J. ‘for a false return will not lie unless actual damage has been caused to the plaintiffs; and in the present case on the finding of the jury that the goods seized were not the debtor’s goods there was no damage, and the action 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 1s not permitted to contradict his assertions, and in which he is pre- cluded or in technical language estopped from doing so; as in the eases of Pickard v. Sears, 6 Ad. & E. 469, and Freeman v. Cooke, 2 Ex. 654. But I do not see anything to bring this return of the sheriff that the goods seized were goods of the debtor —a mere averment preliminary to his answer — within the principle of estoppel, and I do not understand why the fact of his being sheriff should make it operate as an estoppel. Where the’ ‘sheriff has made a return by which he shows a state of things, such as that the plaintiff is entitled to re- ceive 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. SECT. VIII.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 701 This rule 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. That 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 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 entitled to have execution against him for the value of the goods, as he should have been prepared with sufficient force to resist those people who came to the rescue. Then error was brought, and it could not be denied that the return was bad, but an attempt was made to impugn the judgment of the court below because credit had been given for the value of the goods as returned by the sheriff; 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 sheriffs hands. And so, on those proceedings, the sheriff was estopped. That seems reasonable enough. Again, the case of Clerk v. Withers, 2 Ld. Raym. 1075, re- lated 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 pro- ceed 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 is authority for saying that the present de- fendant was estopped by his return. Then in Remmett v. Lawrence, 15 Q. B. 1004, is a passage which is the only authority supporting the argument of the plaintiff. Lord Campbell, C. J. is reported 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 for- getfulness used inaccurate lan- guage. The dictum was cited in the case of Levy v. Hale, 29 L. J. C. P. 130, by Williams, J. whose observations merely show that he 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, Barker v. Benninger, 14 N. Y. 270; Rivard ». Gardner, 39 IIl. 125. See Everett v. Lynds, 20 N. B. 384. 116 Q. B. 655. 702 [CHAP. XVIII. ESTOPPEL IN PAIS. 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, with- out mentioning the character of the plaintiff as agent and without any reference to the concluding clause; thereby treat- ing 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 concluded by the terms of the charter-party and fixed with the character of agent so that he could sue only in that character. The case having gone to the Queen’s Bench, the court overruled the objection.? It is not enough that the representation has been barely acted upon; if still no substantial prejudice would result by admitting the party who made it to contradict it, he will not be estopped.? Thus, it is not enough that the representation has caused an administrator to have property appraised and included in his inventory, so as to create a duty on his part to account,’ or, it seems, that it has induced one to bring a suit.* Iowa, 14; Townsend Bank », Todd, 47 Conn. 190; Jamison ». Miller, 64 Iowa, 402; Warner Glove Co. v. Jennings, 58 Conn. 1In the course of his opinion Patteson, J. speaking for the court,‘ said: ‘In the present case the names of the supposed freight- ers not being inserted, no induce- ment to enter into the contract from the supposed solvency of the freighters can be surmised. Any one who could prove himself to have been the real freighter and prin- cipal, whether solvent or not, might most unquestionably have sued on this charter-party. The defend- ant cannot have been in any way prejudiced in respect to any sup- posed reliance on the solvency of the freighter, since the freighter is adinitted to have been unknown to him, and he did not think it neces- sary to inquire who he was.’ 2 Kast v. Dolihite, 72 N. Car. 562; Adler v. Pin, 80 Ala. 351, 354, 355; Laub v. Trowbridge, 71 Iowa, 396, 399; Eikenberry v. Edwards, 67 74, 19 A. 239; Western Land Ass’n v. Banks, 80 Minn. 317, 83 N. W. 192; Gijerstadenger v. Hart- zell, 9 N. D. 268, 88 N. W. 230, 81 A. S. R. 575. Text quoted in Rainey v. Hines, 120 N. C. 376, ’ 27. E. 92; and in Boddie v. Bond, 154 N. C. 359, 70 8S. E. 824. 3 Adler v. Pin, 80 Ala. 351. 4 Kikenberry v. Edwards, 67 Iowa, 14; and see Conkey v. Hawthorne, 69 Wis. 199, 202. See, however, Heyn v. O’Hagen, 60 Mich. 150, 155, where it is said, quoting Meister ». Birney, 24 Mich. 435, that ‘ expendi- tures in litigation may as reasonably constitute the basis of an estoppel as. any other expenditure.’ And that is doubtless true; but would the mere bringing suit be enough? SECT. -VIII.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 703 Thus, again, though an officer has been induced by A to levy on his goods as those of B, still, if A before sale tell him they are his, A will not be estopped to claim them and have them returned unless B would be prejudiced thereby.1. But the damage need not be shown to be a positive step taken to one’s prejudice; it is enough, as has already been stated, to show that the party claiming the estoppel was induced by the other party to refrain from obtaining a particular benefit which he would otherwise have been reasonably sure of acquiring.” Indeed, it appears to be enough to show, if shown strongly, presumptive loss. Thus: In the recent case of Knights v. Wiffen the defendant Wiffen was sued for the conversion of sixty quarters of barley. The facts as stated by Mr. Justice Blackburn were that the defend- ant had in his warehouse a large quantity of barley, and sold to one Maris eighty quarters, which on the contract between him and Maris remained in his possession as unpaid vendor. No particular 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 plaintiff 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 form of a de- 1Warder v. Baldwin, 51 Wis. in his possession and _ control, 450. -2 Ante,-p. 696; Knights »v. Wiffen, L. R. 5 Q. B. 660; Leather Manuf. Co. v. Morgan, 117 U. S. 96; Voorhis v. Olmstead, 66 N. Y. 113; Bassett ». Holbrook, 24 Conn. 453; Page v. Austin, 10 Can. 132, 164, Comp. Digest, 9, 2, 23, §1; Grueber, Lex Aquilia, pp. 62, 268, a similar principle of the Ro- man law. Still, it has been held that a defendant in trover, dis- claiming ownership, who has rep- resented to the plaintiff when de- manding the property that it was is not estopped to prove the con- trary though the plaintiff has been induced to sue by reason of the representation. Jackson v. Pixley, 9 Cush: 490. But compare Finne- gan v. Carraher, 47 N. Y. 493. It has also been held that a party will not be estopped by having disclaimed the ownership of prop- erty to an administrator and in- ducing him to proceed to an inven- tory and appraisal of the property; the administrator having done nothing more than his duty. Tur- ner v. Waldo, 40 Vt. 51. 704 ESTOPPEL IN PAIS. [CHAP. XVIII. livery 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 for- warded 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 letters, and Wiffen said, ‘ All right; when you receive the forwarding note I will place the barley on the line.’ Maris became bank- rupt, 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.+ 1This case has been somewhat criticised (Langdell, Sales, 1028) on the ground that the statement of Wiffen to Knights that he would hold the barley for him was a promise, while an estoppel of this kind can only rest upon facts. But the promise of Wiffen clearly implied a disclaimer of title in him- self, —as clearly as if he had stated that the barley did not belong to him. Any other ruling than that of the Queen’s Bench would enable the original owner to repudiate the claim of the per- son holding the receipt (from a third person) on any rise of the market. The language must, however, be interpreted in connection with the whole transaction and with any custom properly connected with it. The decision is borne out by Dezell v. Odell, 3 Hill, 215. And this case sustains Knights v. Wiffen also upon the point of prejudice to the plaintiff. See also Leather Manuf. Bank v. Morgan, 117 U. 8. 96; Dresbach ». Minnis, 45 Cal. 223; Gaff v. Harding, 66 Ill. 61; Dewey »v. Field, 4 Met. 381; Chap- man v. Shepard, 39 Conn. 413; Warren v. Milliken, 57 Maine, 97. Mr. Justice Blackburn, having stated the facts as above given, down to the reply of Wiffen to the station-master that he would place the barley on the line when the forwarding note arrived, said: ‘What does that mean? It amounts to this, that Maris having given the order to enable Knights to obtain the barley, Wiffen recog- nized Knights as the person en- titled to the possession 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 Maris’s order; I will hold it for you, and when the for- warding note comes, I will put it on the railway for you. Upon that statement Knights rested assured; and Wiffen by accepting the trans- fer which had been informally addressed to the station-master bound himself to Knights. The SECT. VIII.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 705 In the case of Woodley v. Coventry,! cited by the learned judge, the change of position had been actual, not merely pre- latter accordingly, when he -did not get the goods, brought an ac- tion 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 bea conversion. And Wiffen now says, It i$ true, but I do refuse to deliver the barley. Granted that I pre- viously said I would hold sixty quarters of barley for you, yet I had none to hold for you. I had no quarters belonging 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 ap- propriation from a bulk is made, so that the vendor has said what portion belongs to him and what portion belongs to the buyer, the goods remain in solido, and no property passes. But can Wiffen here be permitted to say, I never set aside any quarters? As to that Woodley v. Coventry, 2 Hurl. & C. 164, is very much in point; with this difference, that there the plaintiff acted on the statement of the warehousemen, and altered his position by paying the vendee a part of the price, and so the doc-- trine 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 position, then the person to whom the statement is made is entitled to hold the other bound, and the matter is regulated by the state of facts imported by the statement. Wood- 12 Hurl ley had altered his position by pay- ing part of the price, but Coventry did not know it. In Stonard ». 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 defendant did not know of it, al- though as a reasonable 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 presentation of the delivery order; but I think, nevertheless, that the position of the plaintiff was altered through the defendant’s conduct. The defendant knew that when he assented to the de- livery order, the plaintiff as a reasonable man would rest satis- fied. 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 plaintiff's posi- tion is altered by relying on the statement and taking no steps fur- ther, the case becomes identical with Woodley v. Coventry and Hawes ». Watson. It is to be observed, more- over, that the judgment of the court in Woodley v. Coventry did not rest on the fact of the payment of the price. It will be noticed there that although the fact did exist of payment of price, Martin, B. seems to found . & C. 164, 706 ESTOPPEL IN PAIS. [CHAP. XVIII. sumptive. The plaintiffs brought trover for a quantity of flour in the possession 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 gave to them a delivery order on the defendants for a portion of the flour which he had pur- chased. The plaintiffs before consenting to make any.advance on this order sent it to the warehouse 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 ». Dunkin,! also cited by Mr. Justice Blackburn, was put on the ground of tenancy. In this case a warehouseman on receiving an order from a dealer in malt to hold it on account of the plaintiff gave a written acknowledg- ment that he so held it. It was contended for the defendants, assignees of the dealer, that by the custom of the trade a re- measuring of the malt was necessary to a transfer of the prop- erty, and that the dealer’s bankruptcy intervened before this had been done; on this ground the assignees claimed the malt. But Lord Ellenborough said: ‘ Whatever the rule may be be- tween 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 his decision on the assenting to hold, and the fact that when that assent was communicated to the plaintiffs they altered their position. In Gillett v. Hill, 2 Cromp. & M. 530, there was no payment of the price, and the Court of Exchequer gave judgment against the wharfingers on the ground that they were estopped from denying the facts after the other party had altered his position, relying on their con- duct when the delivery order was presented. In the present case the plaintiff altered his position, re- lying on the defendant’s conduct when the delivery order was pre- sented. The plaintiff may well say, I abstained from active measures in consequence of your statement, and I am entitled to hold you pre- cluded from denying that what you stated was true.’ 12 Camp. 344, SECT. VIII.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 707 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 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 put on the ground of attornment. This position, how- ever, is entirely consistent with the presumption of damage. The plaintiff 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 meas- ures to place himself in statu quo with the seller.2 But this, though not untenable, is dangerous ground. These cases suggest a question already adverted to, of the true ground on which to rest the right of one who has taken by purchase or assignment a bill of lading, warehouse receipt, or the like instrument. It has sometimes been considered that this is a phase of purchase for value.t That, however, appears to be straining a very characteristically marked doctrine, that . purchase for value without notice cuts off equities; here there is no equity to cut off, except perhaps in the very broad sense of the law of bills and notes, in which mistake in regard to consideration is so treated. The safer ground to take is that the representation in question operates by estoppel; and then we have the question whether the estoppel is made out when the bill of lading or warehouse receipt is taken merely as collateral security for debt, without the surrender of any right. In New York, it seems, it would not be;* but the general tendency is towards the right of the creditor to the benefit of the acknowledgment. It is an exceptional case, however, to be justified only on the requirements of trade. Acting upon the representation should, in general, be more substantial. Where it is plain that the representation has been substan- tially acted upon, there is of course no question (supposing the existence of other elements) that an estoppel arises. Thus, where an adjustment of losses between several insurance com- 12 Barn. & C. 540. 4 Ante, p. 514, note 2. 27 Bing. 339. 51 Bigelow, Law of Fraud, 405, '3See also ante, p. 696. 406. 708 ESTOPPEL IN PAIS. [cHAP. XVIII. panies is agreed upon, and the insured makes settlement accordingly with one or more of the companies, the rest will be estopped in the absence of fraud to dispute their liability as adjusted.} It is clear too that what may not under the circumstances have amounted to an estoppel for want of justifiable action upon the representation may become an estoppel by ratifica- tion or misleading acquiescence. Thus, it is laid down that if a party having an interest to prevent an act being done, as e. g. acting upon a mistaken statement of his, has full notice of its having been done, and acquiesces in it, so as to induce a reasonable belief that he consents to it and to the posi- tion of others as altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license.” Only the person to whom the representation was made or for whom it was designed can act upon and avail himself of it* There has been some drifting, indeed, from the safe anchorage of the rule, in regard to the point stated; * but the better cases hold well to the position. An illustration may be seén in the case of Townsend Bank v. Todd, the facts of which have been stated on a preceding page.’ One of the grounds why the defendant could not make out an estoppel against the plaintiff was that the statements in question had been communicated to her (the defendant) without authority from the plaintiff. 1 Fishbeck »v. Phoenix Ins. Co., 54 Cal. 422. 2 Lord Campbell in Cairncross v. Lorimer, 3 Macq. 827, 830, quoted by Harlan, J. in Leather Manuf. Bank v. Morgan, 117 U. 8. 96, 113. See also Fountain v. Whelpley, 77 Maine, 132 and cases cited, in regard to making known one’s rights after notice that a representation not in- tended to be binding has beén acted upon. Ante, p. 693, note 3. See Robb v. Vos, 155 U. S. 1, 15 Sup. Ct. 4, 39 L. Ed. 52; Goetler v. Norman, 107 Ala. 585, 19 So. 56; Crocker v. Hutchinson, 10 N. B. 189. 2 Durant v. Pratt, 55 Vt. 270; Townsend Bank v. Todd, 47 Conn. 190; Kinney v. Whiton, 44 Conn. 262; Peek v. Gurney, L. R. 6 H. L. 377; Swift v. Winterbotham, L. R. 8 Q. B. 244; Farquharson v. King, (1902) A. C. 325; Brickley v. Edwards, 131 Ind. 3, 30 N. E. 708. 4See Mitchell v. Reed, 9 Cal. 204; Horn »v. Cole, 51 N. H. 287. Both cases are justly criticised in Kinney v. Whiton, 44 Conn. 262. 5 Ante, pp. 641, 642. SECT. VIII.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 709 A person who receives statements at second-hand, not in- tended for him, clearly has no right to act upon them.! In- deed, it is equally clear that a mere bystander who has over- heard a statement made to and for another has no better right to act upon it than if it had been communicated without authority to him; and so it has been decided.? If, however, the declaration was intended to be general, then it seems that one who did not hear it, but to whom it was made known directly afterwards, or within the time to be allowed for acting upon it, may act upon it. This should be the limit of the law; + more than this would be to make a man responsible for an act not his own or that of his agent. But some cases have gone, and some have been inclined to go, further.’ It may make a difference too whether the action taken upon the representa- tion be taken as the representation of the party who started it, or as the representation of him who has repeated it. In the latter case he who repeated the statement, if not an agent of the one who started it, is, it seems, alone liable if he repeated it as his own, though the party who started it may have intended it for any one to act upon, who would deal with him. Kinney v. Whiton, 44 Conn. 262; Mayenberg v. Haynes, 50 N. Y. 675; Morgan v. Spangler, 14 Ohio St. 102. 2 Kinney ». Whiton, 44 Conn. 262, 270. 3 Kinney v. Whiton, supra; Quirk v. Thomas, 6 Mich. 78. 4 Kinney v. Whiton, supra. 5 Mitchell v. Reed, 9 Cal. 204; Horn v. Cole, 51 N. H. 287. The sufficient answer is to be found in Kinney v. Whiton. See also Peek v..Gurney, L. R. 6 H. L. 377, and Swift »v. Winterbotham, L. R. 8 Q. B. 244, by inference equally strong answers. ‘It seems to us to be an unsafe doctrine to adopt, that a person who gets at second- hand a declaration not intended for the public and not intended for him, may act upon it as safely as the person to whom the declara- tion was addressed and for whom alone it was intended. Where the declaration was intended only for the person to whom it was ad- dressed, the party making it has assumed no obligation to any other person. A bystander who casually overhears a conversation has no right to appropriate to himself, without further inquiry, what was intended for another.’ Granger, J. in Kinney v. Whiton, a case of a bystander. Analogy might be found, if needed,-in the familiar rule in slander and libel, that the first publisher is not liable for unauthorized repetitions. 6 Peek v. Gurney, L. R. 6 H. L. 377; Swift v. Winterbotham, L. R. 8 Q. B. 244. These are cases of actions for deceit. 710 ESTOPPEL IN PAIS. [CHAP. XVIII. § 9. Consequences of this Estoppel. The fact should be remembered that this estoppel by con- duct, when fully made out; operates by nature (i. e. whenever it can so operate);—like-all-other—esteppels,—specifically; it gives to the party entitled the rights he would have against __ the one estopped supposing t jon irue.*_” Hence if) by-reason of the better title of a third person, the party misled by the false representation has to lose what he would have obtained under that representation, he will stand upon a footing represented by the specific right of the estoppel. Thus, if the false representation is made on the sale of a security which the seller did not own, the buyer’s rights are what they would have been had there been no misconduct. They are not limited to a recovery of the consideration paid, but the purchaser will be entitled to recover what he would have received had the representation been true.” : Finally, this estoppel, arising as it does site ian not mutual, like other estoppels, and cannot be used against the party in whose favor it has arisen. It is held that @ mort- gagee is not estopped to deny that his mortgage debt has been paid by receiving from the mortgagor a security upon the representation that that is sufficient to meet the debt, but may show that it turned out insufficient. Such a case would be an estoppel upon the mortgagor if he had represented the security to be good, whereas it turned out bad. § 10. Estoppel by Silence: Negligence. What has gone before has shown that wherever a man, aware of his own rights in property, ‘stands by’ and, without objection by him, permits another to dispose of them to a 1 Grissler v. Powers, 81 N. Y. 57. 15 Sup. Ct. 577, 39 L. Ed. 677, ?Grissler v. Powers, 81 N. Y. a case of limited estoppel; Lind- - 57, explaining Payne v. Burnham, say v. Cooper, 94 Ala. 170, 11 So. 62 N. Y. 69. See also Fall River 325, 33 A.S.R. 105. Bank v. Buffinton, 97 Mass. 498; 3 Shepherd v. May, 115 U. S. Baker v. Wood, 157 U. 8S. 212, 505. SECT. X.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 711 purchaser for value without notice of such rights, he will be estopped thereafter to make claim to them. Knowledge by the person whose rights are being disposed of — knowledge of the existence of his own rights and of what is going on — makes a perfectly clear case. But what is to be said of a case in which the silence was due merely to negligence? The silent party did not know that his rights were being disposed of because, though having constructive notice, he had no knowledge that he had the rights, or, having knowledge of the rights, had no more than constructive notice, that is, he had no knowledge, that his rights were being disposed of — will an estoppel arise in such a case? oo That is not clear. The authorities, as will be seen in the ‘, preceding pages, appear always to speak of acts or conduct creating the estoppel—something, that is to say, on the part of the one estopped, which itself substantially conduces to the change of position or is otherwise, as in the ordinary case of ‘standing by’ with knowledge, a breach of duty. But that may be because the cases themselves have always been cases of that kind. The authorities which put estoppel by conduct on grounds of fraud would of course refuse to consider the ques- tion; but we have seen the tendency to break away from that doctrine, and with authorities following that tendency’ there may be an open question on the point. In regard to this question it need hardly be said that no question can arise in cases in which the one party really in- tended that the other should act as he has done; enough if the intention has been acted upon while it is still living, by the person actually or presumably meant; enough that the in- tention has been accomplished. The result has been directly effected by the party who practised the deception. But if, instead of intention, there is only negligence, then it must be seen, by close scrutiny, whether the result has been thus directly effected, for negligence in itself does not point to any particular result. The principle in regard to negligence having legal conse- quences appears to be this: 1. There must have been a failure to exercise that care, prudence, or diligence which a man might reasonably be expected to exercise in the situation. [CHAP. XVIII. 712 ESTOPPEL IN PAIS. 2. And that general proposition means specifically, (a) that the negligent person must at the time owe some duty either to the person affected by the alleged negligence or to the public of which he is one; ! and (6) that the result, at least in the law of estoppel, has come about in or in immediate connection with the negligent act or omission.? Of the general proposition it is not necessary to speak; it would not now be questioned. Of the specific propositions something must be said, by way of confirmation and example. The cases just cited will serve the purpose, at least for the second specific proposition, which is the one calling particu- larly for consideration. The first one is fairly obvious. No liability is incurred by A towards B if A is under no duty to B to refrain from negligence; negligence in itself, though followed by damage, is not a wrong. The negligent party must owe a duty to the person who suffers the damage.? B and C may suffer damage in the same way, and on the same occasion, from the negligence of A, yet A may be liable to the one and not to the other, and that though no contract enters into either’s case. Thus, A owes a duty to keep his premises in order, in favor of a customer, e. g. B; he owes no duty to keep them in order towards a trespasser, e. g. C. That is, B would have a right of action against A for negligence in a state of things in which C would not. The principle is equally appli- cable to cases of estoppel. Then we have to deal with the second of the two specific 1$wan v. North British Co., 2 Hurl. & E. 175, 182, Blackburn, J. in Exch. Ch.; Arnold v. Cheque Bank, 1 C. P. D. 578. 2Tbid.; Bank of Ireland’v. Evans Charities, 5 H. L. Cas. 389; Coventry v. Great Eastern Ry. Co., 11Q. B. D. 776, C. A.; Merchants of the Staple v. Bank of England, 21 Q. B. D. 160, C. A.; Vagliano v. Bank of.-England, 22 Q. B. D. 103, 117; s. c. 23 Q. B. D. 243, C. A. Colonial Bank v. Cady, L. R. 15 A. C. 267. 3 A surveyor issued a certificate as to the progress of a building, which, by his own negligence, con- tained untrue statements as to that progress. There was no fraud. Mortgagees advanced money to the builder on faith of the certificate. The surveyor was not appointed’ by them, and had no contract with them. He had no duty to- wards them to exercise care in giving the certificate and no ac- tion could be maintained by them against him. Le Lievre v. Gould, (1893) 1 Q. B. 491, C. A.; Derry v. Peek, 14 A. C. 337, considered; Heaven v. Pender, 11 Q. B. D. 503, distinguished; Cann v. Willson, 39 Ch. D. 39, overruled. SECT. X.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 713 propositions; this requires the result to have come about in or in immediate connection with the negligence,! thereby defining, for the purpose of this estoppel, the term ‘ proxi- mate cause.’? It must be conceded that the rule has not always been so stated even by judges of high reputation. Thus, in Swan »v. North British Co.,? a case which has been much cited, Mr. Baron Wilde in the Court of Exchequer laid down the rule in substantially the following terms: If A has led B into the belief of a certain state of facts by conduct of culpable neglect calculated to have that result, and B has acted upon that belief to his prejudice, A shall not be heard against B to show that that state of facts did not exist. This, it will be noticed, is a sweeping proposition of law, fixing an estoppel upon A even where his negligence was made productive of mischief by a third person, if only it was ‘ calculated’ to effect the result. And this the Exchequer Chamber, in the same case, held not to be good law, and qualified the proposi- tion by declaring that the neglect must be in the transaction itself and the proximate cause of leading to the change of position. * The case itself should be stated, to make clear the rule finally declared. The facts in substance were these: The plaintiff, wishing to sell shares of his in the A Company, and also owning but not intending to sell shares in the B Company, was in- duced by his. broker to give to him, for the purposes of the sale, ten blank transfers signed and sealed by himself the plaintiff. The broker used eight of the transfers as desired, but then fraudulently filled out and forged attestations to the - other two, as transfers of stock in the B Company, and having stolen the certificates delivered both the transfers and the 1The proposition was first laid down by Mr. Baron Parke in Bank of Ireland v. Evans Charities, su- pra, and has since become classic. The language there used was this: ‘The negligence which would de- prive the plaintiff of his right to insist that the transfer was invalid must be negligence in or immedi- ately connected with the transfer itself.’ 2On that term see especially Seton v. Lafone, 19 Q. B. D. 68, C. A., affirming 18 Q. B. D. 139; infra, p. 715. 37H. & N. 603; 2H. &C. 175. 42 Hurl. & C. 175, 182. See Farquharson v. King, (1902) A. C. 325; Brocklesby v. Temperance Soc., (1895) A. C. 178, following Parry-Herrick v. Atwood, 2 De Gex & J. 21. 714 ESTOPPEL IN PAIS. [cHAP. XVIIL certificates to bona fide purchasers for value. These purchasers were now registered in place of the plaintiff; and the question was whether the plaintiff, by reason of giving the blank trans- fers to the broker, and so facilitating the fraud committed, had estopped himself from claiming the stock. The Exchequer Chamber held that he had not, on the ground that his negli- gence was not the proximate cause of the change of position; it was not in the transaction itself or in immediate connection with it. In Arnold v. Cheque Bank! it appeared that the plaintiffs in New York, wishing to send money to A in London, bought a draft on London payable to themselves, which they indorsed specially to A’s order, and enclosed it in a letter to be posted in the usual way from their house. The letter was stolen by one of their servants and the indorsement of A forged by the thief, who now procured the defendants to present the draft and obtain for him the money in London. The plaintiffs sued for money had and received, and recovered, against the attempt of the defendants to maintain that the plaintiffs were estopped because apart from facilitating the theft they had not con- formed to an alleged invariable custom to advise the drawees of the draft by the same or the next mail. The ground taken by the court was the same as that above mentioned; the negli- gence was not in or immediately connected with the transaction in question, and hence was not the proximate cause of the change of position. In Merchants of the Staple ». Bank of England,? a case decided by the Court of Appeal, the plaintiffs claimed the value of certain stock. The stock had been transferred by the fraudulent act of their clerk, in whom they had long reposed unlimited confidence. They had always left their seal with him; and on this occasion he had affixed it to powers of attor- ney under which the stock had been sold by the defendants, the clerk appropriating the proceeds. It was held that, assum- ing the plaintiffs to have been negligent,’ their negligence was 11 C. P. D. 578. Comp. Fine Art Soc. v. Union Bank, 221 Q. B. D. 160. 17 Q. B. D. 705, C. A., where it is 3Clearly such conduct could held that there can be no negli- not be negligence as matter of law. gence in allowing one’s clerk to SECT. X.] ESTOPPEL BY CONDUCT: EQUITABLE ESTOPPEL. 715 not the proximate cause of the defendants’ act; the negligence was not in the transfer or in immediate connection with it. ‘The proximate cause,’ said Lord Justice Bowen, ‘was the felony and crime ’ of the clerk, ‘ and it cannot be said that the felony was either the natural or likely or necessary or direct consequence of the carelessness of the plaintiffs.’ The same principle is laid down again in and illustrated by a case in which there was a representation, — the case of Seton . v. Lafone,! in which the Court of Appeal affirmed the ruling of Mr. Justice Denman.” In 1875 goods were stored by brokers with wharfingers, for which a delivery warrant was issued. Ten years afterwards the goods were delivered by negligent mistake, by servants of the defendant who had bought the wharf and business, to persons entitled to other goods; of which mistake the defendant did not become informed till later. In January, 1886, the warrant which had been nego- tiated was in the hands of a third person. The defendant during that month wrote letters to the plaintiff, who had bought the business of the brokers and carried it on in their names, informing him as presumably interested in the goods that the goods were in the warehouse, that no rent had been paid upon them for several years, and that if the rent due was not paid, the goods would be sold. Thereupon the plaintiff, without replying, bought the warrant and called for the goods, when the mistake was discovered. The action was for conversion, and the court held that the defendant was estopped, by reason of his negligent representa- tion, to deny that he had the goods, on the ground that his negligence was the proximate cause of the plaintiff’s buying the warrant, within the meaning of the rule under considera- tion; it was deemed to be in or in immediate connection with the transaction. It was held to be unnecessary that the person making the representation should intend that the other should act upon it in any particular way.’ take to the bank for deposit money and probably without any such orders (which he there deposits qualification. to his own credit), at least if the 119 Q. B. D. 68. employer has no knowledge that 218 Q. B. D. 139. y his clerk has an account there; 3Lord Justice Fry: ‘The in- 716 quiry whether the statement was the proximate cause does not de- pend on the intention of the party making it. In order to ascertain whether the statement by one person has brought about the action of the other, you must look at the ESTOPPEL IN PAIS. [CHAP. XVI, condition of mind and circum- stances of the person to whom the statement was made, not of the person who made the statement.’ But his lordship admitted that the case had given him trouble. CHAP. XIX.] ESTOPPEL BY CONDUCT: WAIVER. 717 CHAPTER XIX. . WAIVER. Besipes the cases of negligence just considered, there are other similar results growing out of conduct that cannot be considered cases of representation in any strict sense of that term; the ‘ estoppel ’ for one thing not being a necessary con- clusion from the facts upon which it is supposed to be founded, but a matter of inference which might as well have been found the other way.1. The cases now referred to are cases of the waiver of rights, causing a change of position.?, The waiver, if valid and complete, is sometimes said to ‘ estop’ the owner of the right to assert it.2 Thus, where by the course of conduct of one party to a contract, entitled to the performance of certain terms or conditions thereof, the other party has been led to believe, as a man of average intelligence, that such per- formance will not be required, until it has become too late to perform, or until to insist upon performance would work ma- terial injustice, the person who has so conducted himself is barred from asserting the right he had.* It appears to be little 1 Ante, p. 3. 2That kind of waiver which consists merely in renouncing some right, or in ratifying what one might repudiate, is, certainly, no estoppel, though it has been called such, as in Eagan Co. v. Johnson, 82 Ala. 233, in the headnote to Wal- lace v. Minneapolis Elevator Co., 37 Minn. 464, and in other cases. The kind of waiver capable of being described as an _ estoppel should have the marks of an es- toppel, by causing the innocent party to forego some right or otherwise to, change his position. Other waivers are more properly cases of election; as to which, see chapter 20. 3 See e. g. Ganong v. Green, 64 Mich. 488, 493; Insurance Co. v. Eggleston, 96 U. S. 572, 577, infra. ‘Central P. R. Co. ». United States, 164 U.S. 93, 17 Sup. Ct. 35, 41 L. Ed. 362, waiver of additional pay for transporting inspectors, in addition to mail, by asking and receiving pay for mail only, through several years in succession. [cHap. XIX. 718 ESTOPPEL IN PAIS. if anything more than giving to such cases a new name to call them estoppels.! The estoppel, unlike that by misrepresenta- tion, does not rest upon ignorance of the facts by the party entitled to the benefit of it. Frequent illustrations of the estoppel in question are to be found in cases of actions upon insurance policies, where the conduct of the underwriter has been such as reasonably to lead the assured to believe, until too late, that a requirement of the policy, as e. g. in regard to the proofs of loss or the prompt payment of the premium or of a premium note, will not be required. If the assured as a-sensible man has really been misled, it would be unjust to insist upon the term or con- dition forborne. The Supreme Court of the United States has expressed the law of the subject in a formal rule, as follows: Any agreement, declaration, or course of action on the part of an insurance company, which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, _ will estop the company from insisting upon a forfeiture which by the express terms of the contract might be claimed.? And the rule may be extended to cases generally of agreements, actual or virtual, for the waiver by one party to an obligation elder v. Queen Ins. Co., 185 Mass. 449; Thomas v. Commercial Assur. 1See Draper v. Oswego Ass’n., 190 N. Y. 12, 82 N. E. 755; Tilley v. Cottrell, 21 R. I. 309, 43 A. 369; Webster v. St. Mut. Fire Ins. Co., 81 Vt. 75, 69 A. 319. 2 Insurance Co. v. Eggleston, 96 U. 8. 572; Insurance Co. v. Norton, ib. 234; Phoenix Ins. Co. v. Doster, 106 U.S. 30, 35; Insurance Co. ». Wolff, 95 U.S. 326. See Travellers’ Ins. Co. v. Edwards, 122 U.S. 457, that conduct of an insurance com- pany may supersede terms of the policy. On that point, however, in the case of a supposed waiver, if the waiver is of the time of issuing the policy, there is a conflict of authority, some of the courts ap- plying the broad evidence rule to the case. See Barrett v. Union Fire Ins. Co., 7 Cush. 175; Batch- Co., 162 Mass. 29, 37 N. E. 672, 44 A.8. R. 323; Dewels v. Man- hattan Ins. Co., 35 N. J. L. 366; Franklin Ins. Co. v. Martin, 40 N. J. L. 568, 29 Am. Rep. 271. These and other cases refuse to allow the waiver. See the cases in Wambaugh’s Cases on In- surance, 1071 et seq. If, upon an offer to waive a condition, there has been no acting upon the same, there will be no estoppel. Henry v. Gilliland, 103 Ind. 177, 180. But an election to treat a contract as binding after a condition in it has been broken is valid in itself, if the fact was known. Oakes ». Manufactures Ins. Co., 135 Mass. 248, CHAP. XIX.] ESTOPPEL BY CONDUCT: WAIVER. 719 or engagement of the stipulated terms of performance by the other.! Such agreement, declaration, or course of action, if in parol, must according to many cases, in regard to a written contract, be after the execution of the writing, otherwise it would be subject to the rule excluding parol evidence to vary a written contract; ? though there may he a waiver of preliminary facts, such as irregularities pertaining to the making of the contract, contemporaneous with thé execution of the same. Thus, if an execution debtor induce one to purchase his land at the sale, it is held that he will be estopped to allege irregularities therein to defeat the purchaser’s title.3 Moreover, in order to be effectual against the other party the agreement or course of action must have been made with knowledge, actual or pre- sumptive, of the essential facts upon which it is founded. Thus, in the case of a life insurance contract, if the underwriter has waived even expressly a stipulation against residence in certain regions, the waiver presupposes that the assured has not already died there,* and indeed that he has not already been there, unless the waiver was retroactive.® A single case out of many that might be referred to may be presented in illustration of the foregoing rule as applied to waivers of defects in the preliminary proofs of loss under an insurance policy. The defendants being sued for a loss under a fire insurance policy issued by them, raised the objection of the insufficiency of the proofs of loss. The judge instructed 1See Longfellow v. Moore, 102 Ill. 289; Hooker v. Hubbard, 102 Mass. 239, 241; Giddens ». Cren- shaw, 74 Ala. 471; Daniels ». Ed- wards, 72 Ga. 196 (construction put upon a lease by one party and acted upon with consent of the other), Keyes v. Scanlan, 63 Wis. 345 (abandonment of homestead right). 2Thompson v. Insurance Co., 104 U. S. 252; Insurance Co. v. Mowry, 106 U.S. 544. See also Martin »v. Jersey City Ins. Co., 44 N. J. 273; Castner v. Farmers’ Ins. Co., 50 Mich. 273; Long- fellow v. Moore, 102 Ill. 289. But see note, supra. Youngblood v. Cunningham, 38 Ark. 571. 4Bennecke v. Insurance Co., 105 U. S. 355. 5 Insurance Co. v. Wolff, 95 U. 8. 326. ‘A life insurance company may by its conduct waive proof of death of insured, and estop itself from setting up the provisions of the policy requiring such proof. Iowa L. Ins. Co. ». Lewis, 187 U. 8S. 335, 23 Sup. Ct. 126, 47 L. Ed. 204. 720 ESTOPPEL IN PAIS. [CHAP. XIX. the jury that though the defendants’ by-laws and the condi- tions of the policy required certain preliminary proofs and notices, to be given in a certain manner, and with certain par- ticulars and details, and certain preliminary proofs and notices were given not containing all the requisites, still, if after re- ceiving the same the defendants’ officers examined the prem- ises, and had interviews with the plaintiff before the expiration of the time for giving such notices, and neither then nor after- wards made objection to the form or sufficiency of the proofs and notices, but put their refusal to pay on other grounds, such conduct would now estop the defendants to set up the insufficiency of the same. And this instruction was sustained on appeal. Indeed, it appears to be true that if an under- writer put his objection to paying on some particular ground, such as the defectiveness of the proofs in some particular men- tioned by him, he will be estopped thereafter to raise other objections of the same nature, open to him before.” Whether this can be considered as a special example of a. wide rule is not clear; probably it is not. It would not be ‘safe to affirm that if a party to a contract which had not as yet been fully performed by the other party in two or more particulars should, with knowledge of such fact, object to the non-performance of one, he might be considered as having waived the non-performance of the rest. He might have special reason for raising the particular objection without having it supposed that he did not intend to require performance of the other terms of the contract. A man does not lose his rights without intention or facts fairly equivalent to intention. Thus, it is held that an underwriter is not estopped to assert a breach of warranty in the policy by stating another particular ground of defence, unless the act, done with knowledge of such breach, conveyed a reasonable belief that the breach of war- 1 Blake v. Exchange Ins. Co.,12 Co., 2 E. D. Smith, 268; Ripley v. Gray, 265. See Railway Ass’n. v. tna Ins. Co. 30 N. Y. 136; Beddow, 112 Ky. 184, 658. W. 362. Clark ». New England Ins. Co., 6 ?Germania Fire Ins. Co. v. Cush. 342; Heath v. Franklin Pitcher, 160 Ind. 392, 64 N. E. Ins. Co., 1 Cush. 257; Wolf ». 921; Cannon v. Home Ins. Co., 53 Dis’t. Lodge, 102 Mich. 23, 60 Wis. 585; Adtna Ins. Co. v. Tyler, N.W.445. See Harvard Law Rev. 16 Wend. 401; Miller v. Eagle Ins. January, 1902, pp. 217, 218. CHAP. XIX.] ESTOPPEL BY CONDUCT: WAIVER. 721 ranty would not be alleged, and so actually misled the as- sured.} In the case of Tufts ». McClure? it appeared that goods had been bought upon condition that they should be delivered within a reasonable time. Upon tender by the seller the buyer objected to them for poor quality. The seller now sued for breach of the contract of purchase, and it was held that the ‘buyer might show that the goods were not tendered within reasonable time. But in that case it is obvious that the ob- jection first made had nothing to do with the delay of tender. The estoppel, it is certain, cannot arise in the absence of statute ? unless the party against whom it is alleged caused the omission of performance. : The rule of estoppel has been applied to the case of a dis- continuance by an underwriter of an agency at a particular place, where the assured had previously made payments of premium, followed by notice of different places where payment was to be made and was made in subsequent years, and then by an omission of such notice, without knowledge on the part of the assured where to pay, and consequent failure to pay at the stipulated time. It was held under these circumstances that the assured had reasonable ground to expect the custom- ary notice, and that the underwriter was estopped to deny liability on the policy.* Giving notice a single time, however, 1 Devens v. Mechanics’ Ins. Co., 83 N. Y. 168. See Schmidt ». Mutual Ins. Co., 55 Mich. 432; Lyon v. Supreme Assembly, 153 Mass. 83, 26 N. E. 236; Broclen- brough v. Mut. Life Ins. Co., 145 N. C. 354, 95 S. E. 118. 240 Iowa, 317. 3See Easton ». Wareham, 131 Mass. 10, 12; infra, note 4, under statute. ‘Insurance Co. v. Eggleston, 96 U.S. 572. See also McGraw »v. Old North Ins. Co., 78 N. Car. 149; Chicago Ins. Co. v. Warner, 80 Ill. 410; Aurora Ins. Co. v. Kranich, 36 Mich. 289; Browning v. Crouse, 40 Mich. 339; Lyon v. Travellers’ Ins. Co., 55 Mich. 141. But repeated payments by one town to another, even without denial of liability, for the support of a pauper, are only evidence of the pauper’s settlement; they do not make an estoppel. Norridge- wock v. Madison, 70 Maine, 174. See Ellsworth v. Houlton, 48 Maine, 417; Weld v. Farrington, 68 Maine, 301. It is, however, held under statutes of Massachusetts, that if a town notified by another town that A is one of its necessitous poor make no answer whatever, it will be estopped to deny the set- tlement, though not to deny that A is in need of relief. Easton ». 722 ESTOPPEL IN PAIS. [cHAP. XIX. would not of itself bind the underwriter to continue to give notice.!_ Unless there is a valid agreement or duty to do so, nothing short of a settled practice of notifying the plaintiff would have that effect; ? though if an underwriter should put an end to an agency where the assured has dealt, or if the agency for any reason should cease, except by reason of war or the like, it would probably be necessary to notify the assured where to pay.? The rule that acts of an underwriter’s agent in writing down statements of his own, made for the assured, bind the underwriter in the absence of fraud on the part of the assured, preventing the underwriter from alleging a breach of warranty, has also been referred to estoppel in pais.* The question to be considered in such cases, it will be seen, is whether the conduct of the one party has had a natural tendency to prevent the other from doing what he has under- taken to do and has not done. Where the conduct in question consists in some act done by the party to be estopped, it is often difficult enough to determine whether there has been a misleading; where that conduct consists only in silence, the case is so very difficult that courts continually disagree in regard to its effect. Some courts say in regard to insurance cases that for an underwriter to keep silent when proofs of loss are furnished him which are not in accord with the re- quirements of the contract of insurance is not misleading; ® for, assuming that the terms of the requirement are clear, the assured knows what he must do: The underwriter, accord- ing to this view, has the right to say, ‘Do what you have Wareham, 131 Mass. 10, 12; New Bedford v. Hingham, 117 Mass. 445. 1Jnsurance Co. v. Mowry, 96 U. 8. 544. See Plott v. Chicago R. Co., 63 Wis. 511; Sweetser v. Odd Fellows Assoc., 117 Ind. 97; that occasional acts do not create a duty to continue them. ? Phoenix Ins. Co. v. Doster, 116 U.S. 30. 3 Ins. Co. v. Eggleston, 96 U. S. 572. 4 Miller v. Phoenix Life Ins. Co., 107 N. Y. 292, 301; Baker v. Home Life Ins. Co., 64 N. Y. 648; In- surance Co. v. Wilkinson, 13 Wall. 222; and many other cases. If the assured’s statements are un- -true and the agent has knowledge of the true facts the underwriter is estopped. Michigan Co. »v. State Ins. Co., 94 Mich. 389, 53 N. W. 945. If the agent was in- formed there was another policy there is an estoppel to deny lia- bility. Osburn v. Phoenix Ins. Co., 23 Utah, 428, 64 P. 1103. 5 Columbia Ins. Co. v. Lawrence, 2 Peters, 25; Keenan v. Missouri Ins. Co., 12 Iowa, 126. CHAP. XIX.] ESTOPPEL BY CONDUCT: WAIVER. 723 agreed to do, and without my help, for that I have not agreed to give.’ Other courts, treating the position of the underwriter as peculiar and imposing upon him a special duty towards the assured, consider that, in view of his more intimate knowledge of what is required, he ought to object when the proofs of loss are produced, if at all, so as to.give the assured opportunity to make them good.! Certain cases in equity of expenditures made upon another’s estate for the benefit of the party claiming the estoppel may be referred, perhaps, to the present subject.2 Thus, if without deed the owner of an estate give to another permission to ex- pend money thereon, or encourage another to expend money upon it in reasonable reliance upon a claim in derogation of the owner’s right, and knowing or being bound to know that work is going on to his prejudice,’ do not interpose to prevent carry- ing out the same, he will not be permitted, on revoking his license as not binding by virtue of the Statute of Frauds, to appropriate to himself alone the benefit of substantial im- provements,‘ or, it seems, to recover damages for anything 1 Unthank v. Travelers’ Ins. Co., 4 Biss. 357; s. c. 19 Myers Fed. Dec. 816 (vol. on Insurance), and eases cited. Comp. the statutory cases of Easton v. Wareham, 131 Mass. 10, 12; New Bedford »v. Hingham, 117 Mass. 445; supra, note. 2 See the replevin case of Fowler v. Parsons, 143 Mass. 401. At. p. 408 Mr. Justice Field says: ‘If the plaintifis or their agents knew or believed that Lambert, in good faith, claimed the goods as con- signee of a supposed owner other than themselves, and they, be- lieving themselves to be the owners, and intending to claim the goods, stood by and permitted him to pay the duties without disclosing their claim, and with the inten- tion of replevying the goods after the duties were paid, we think that Lambert was equitably en- titled to have the amount of the duties paid to him before the plaintiffs were entitled to posses- sion, and that he thereby ac- quired an equitable lien upon the goods.’ The following cases were cited: Willmott v. Barber, 15 Ch. D. 96; Ramsden v. Dyson, L. R. 1H. L. 129, 141, 168, 170; Rennie v. Young, 2 De G. & J. 136; Wen- dell v. Van Rensselaer, 1 Johns. Ch. 344; Niven v. Belknap, 2 Johns. 578; Pickard v. Sears, 6 Ad. & E. 469; Gregg v. Wells, 10 Ad. & E. 90; Dewey »v. Field, 4 Met. 381; Hinck- ley v. Greany, 118 Mass. 595; Griffin v. Lawrence, 135 Mass. 365. 3 See Breeze v. Brooks, 71 Cal. 169, 182. 4Ramsden v. Dyson, L. R, 1 H. L. 129, 142, 169; Grider ». Driver, 46 Ark. 109; Montgomery v. Wasem, 115 Ind. 343; Carolina R. Co. v. McCaskill, 94 N. Car. 746. 724 ESTOPPEL IN PAIS. [CHAP. XIX. done strictly under the permission.1_ And assuming that the owner is perfectly aware of all the facts, including his own rights, it matters not that the party expending the money knows that he is expending it on the other’s estate where per- mission to do so has been actually or virtually given; ? for the case is one of actual or tacit agreement to forego a known right.® After the licensee has proceeded in good faith to do nothing more than he has received express permission to do, it would be contrary to justice to permit the licensor both to revoke his permission, and to appropriate the work done on his land.* Some of the courts, indeed, deny the right of the (parol) licensor even to revoke the license, after outlay under it; rest- ing the case on the ground of estoppel in pais, or treating the situation as equivalent to part performance of a parol agree- ment for the sale of an interest in real estate.> But the better view, in presence of the Statute of Frauds, appears to be that, 1 Griffin v. Lawrence, 135 Mass., 365; Hedgepeth v. Rose, 95 N. Car. 41; Brooks v. Curtis, 4 Lans. 283; s. c. 50 N. Y. 639; Hyde Park v. Bor- den, 94 Il. 26; Wilmington Mining Co. v. Allen, 95 Ill. 284; Graw»v. Bay- ard, 96 Ill. 146; Dunks». Fuller, 32 Mich. 242; Wilbur v. Goodrich, 34 Mich. 84; Fremont Ferry Co. ». Dodge Co., 6 Neb. 18; Groton Bank v. Batty, 30 N. J. Eq. 126; Holmes v. Steele, 28 N. J. Eq. 173; First National Bank v. Hammond, 51 Vt. 203; McLean v. Dow, 42 Wis. 610; Baker v. Humphrey, 101 U. S. 494; Malley v. Thalheimer, 44 Conn. 41; Miller ». Brown, 33 Ohio St. 547; Alabama R. Co. »v. South Alabama R. Co., 84 Ala. 570; Grider v. Driver, 46 Ark. 109. ? This, it will be seen, is not the case of rights acquired in ignorance of a boundary or of a title. See ante, pp. 651 et seq., for that. The Tule as stated in Schaidt v. Blaul, 66 Md. 141, 148, quoted from Casey v. Inloes, 1 Gill, 502, is an example of the latter case, the familiar case of ‘standing by.’ That differs radically from license. 3See Wehrman v. Conklin, 155 U. 8. 314, 15 Sup. Ct. 129, 39 L. Ed. 167. 4Ante, p. 650; Ramsden ». Dyson, L. R. 1 H. L. 129, 140; Maxwell v. Bay City Bridge Co., 41 Mich. 453; s. c. 46 Mich. 278; Griffin v. Lawrence, 135 Mass. 365; Swartz v. Swartz, 4 Barr, 353; Cumberland R. Co. v. McLanahan, 59 Penn. St. 23; Sheffield v. Collier, 3 Kelly, 82; Cook v. Pridgen, 45 Ga, 331; Lane v. Miller, 27 Ind. 534; Wilson v. Chalfant, 15 Ohio, 248; Moses v. Sanford, 2 Lea, 665. The licensor may be estopped by his conduct in certain cases to object to the continuance of the work, as where irreparable injury would result, and yet permitted to recover damages. Logansport v. Uhl, 99 Ind. 531, 540. 5 See the cases cited in Maxwell v. Bay City Bridge Co., 41 Mich. 453, 467; St. Louis Stock Yards »v. Wiggins Ferry Co., 112 Ill. 384, 393; Fargis v. Walton, 107 N. Y. 398, 403; McBroom v. Thompson, 25 Or. 559, 37 P. 57, 42 A. S. R. 806. o CHAP. XIX.] ESTOPPEL BY CONDUCT: WAIVER. 725 so far as the question of further enjoyment is concerned, the license may be revoked, though no action can be maintained against the licensee for what he has been induced or led to do. ‘Volenti non fit injuria.’ Another example of this sort of estoppel may be seen in Hope v. Lawrence.!' In this case the defendants were in- structed, 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 below 217, the plaintiff wrote to the defendants, ‘I took a note of your reply [above mentioned], and determined to wait the future course of the market before writing to you.’ The price of gold kept falling for several days, and the defendants sold it at 20734 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, his conduct being deemed misleading.” 150 Barb. 258. advanced, and that he intention- 2¢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 in- structions were absolute to sell (a) if the price reached 217, was to put them into a feeling of security and involve them in further loss if the price of gold continued to de- cline. The whole risk of the market was on them, while the plaintiff 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 instructions to sell at a price which the market had touched. His letter shows that he knew precisely how the price had ally remained 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 trans- actions at 21514, the then market price, being only 114 per cent below the plaintiff’s limit, and involving a loss of $75 only. What the market price was on the 30th of January, when the plaintiff advised the de- fendants 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 20734, the price realized. The de- fendants by the silence of the plaintiff had no opportunity to elect whether to hold or to sell the gold of the plaintiff then in (a) The defendants claimed that the instructions were not positive. 726 {cHAP. XIX. ESTOPPEL IN PAIS. The binding force of a dedication of land to public uses by way of imperfect gift, or of acquiescence in changes of position due to supposed gift, is sometimes put upon the ground of estoppel.! This too is only a recent application of that term to a new subject; and whether there is any significance in it, or whether it is only a term of convenience, is not clear. The only point in applying the term ‘ estoppel ’ to the case is that the right acquired, if at all, by the public is a right to the use of the land specifically, and not a right merely in the alterna- tive to damages, subject to the will of the late owner to revoke a gift at first imperfect. It seems that in any case of dedication by gift the action of the public should be reasonably prompt. The gift is not to be taken as absolute and irrevocable as soon as made. When a landowner 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 reasonable time the land will be put in condition to subserve those uses. If given for public buildings there must be some reasonable assurance that they will be built; and if for ornamental purposes, that it will be made available for 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 re- marked above as to the practi- cal effect upon the rights of the defendants arising out of the silence of the plaintiff when he should have spoken establishes that the plaintiff is estopped from inflicting upon the defendants any damage for the subsequent depreciation in the price of gold coin. The plain- tiff 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 this answer that the defendantg were acting on their discretion. 1See Baker v. Johnson, 21 Mich. 319; Redwood Cemetery Assoc. v. Bandy, 93 Ind. 246; Beatty v. Kurtz, 2 Peters, 566; Hunter v. Sandy Hill, 6 Hill, 407. These cases show that a dedication may arise out of the conduct of the owner of land, followed by acts of others in reasonable reliance thereon. For a.converse case, of abandonment of a street by a munic- ipality, put upon the same ground, see Lee v. Mound Station, 118 Ill. 304; Jordan v. Chenoa, 166 Ill. 530, 47 N. E. 191. CHAP, XIX.] ESTOPPEL BY CONDUCT: WAIVER. 727 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 anything more than repetitions and continuances of his offer, requiring some responsive action. The public can only bind the landowner by acting upon his dedication before he has an equitable right to withdraw it.! On the other hand, merely permitting owners adjoining a street to enclose a portion of it for even fifteen years will not estop the public to claim its rights therein, if nothing has been done by the municipality to induce others to act upon the belief of abandonment.?” In like manner, payment of a tax for five years, illegally assessed, and participating in an election at which a subscrip- tion for a railroad was voted, followed by issue of bonds in pay- ment, will not estop the people of the municipality to set up the illegality of the tax.? Indeed, evidence of passive acquies- cence alone within the period of limitation, when not fraudu- lent or misleading, cannot have the effect of taking away a man’s property; acquiescence, unlike estoppel, is, it must be remembered, only a fact tending to establish a right.* And the 1Campbell, C. J. in Baker v. Mo. 373. See also Landon uv. ‘Johnston, 21 Mich. 319, 345. See also Lee v. Lake, 14 Mich. 12; Cul- mer v. Salt Lake City, 27 Utah, 252, 75 P. 620; Russell »v. Chicago Ry. Co., 205 Ill. 155, 68 N. E. 727; Schmidt »v. San Francisco, 100 Cal. 302, 34 P. 961. If private rights intervene the dedication cannot be denied. Stevenson »v. Lewis, 244 Ill. 147, 91 N. E. 56. 2Solberg v. Decorah, 41 Iowa, 501; Sheen v. Stothart, 29 La. An. 630. In Gilbert v. Manchester, 55 N. H. 298, a way had been held out by the defendant town for thirty years as public, and it was held that the defendant was es- topped to say that it was not a public street. 3Cameron v. Stephenson, 69 Litchfield, 11 Conn. 251; Cruger v. Dougherty, 48 N. Y. 107, con- cerning payment of taxes without objection. But see Ives v. North Canaan, 33 Conn. 402. 4See e. g. Williamson v. New Jersey R. Co., 29 N. J. Eq. 311; Hamlin v. Sears, 82 N. Y. 327; Lorentz v. Lorentz, 14 W. Va. 809. Further, concerning acquiescence as working ‘estoppel,’ see ante, p. 493; Steadman v. Taylor,’ 77 N. Car. 184; Kent ». Quicksilver, 78 N. Y. 159; Atlantic R. Co. »v. Robbins, 35 Ohio St. 531; Quinlan v. Myers, 29 Ohio St. 500; Miller v. Brown, 33 Ohio St. 547; Young v. Babilon, 91 Penn. St. 280; Scott v, Strawn, 85 Penn. St. 471; Watt’s Appeal, 78 Penn. St. 370; Grand 728 ESTOPPEL IN PAIS. (CHAP. XIX. same is probably true of waiver, though in the case of waiver the other facts necessary to the right are more commonly present. It should be clearly apprehended of the entire class of cases now under consideration that the conduct of the party against whom the estoppel is alleged, whether that conduct be mis- leading silence or outward action, should be treated as waiver (or acquiescence) and not as constituting a representation. Treated as waiver it is immaterial that the party claiming the estoppel knew the facts; waiver is not only consistent with, it is generally created upon knowledge of, all the facts by both parties. Treated as a representation the case would fall under the other head of estoppels by conduct, and knowledge by the party alleging the estoppel would, according to one authority,! be fatal. This difference between the two estoppels is perhaps founded upon a difference in subject-matter, to be seen in the fact that in the present case parties are openly and expressly VS dealing with known rights; in the other case a secret concealed right is brought forward against one who has been led by the party originally owning it to believe that that one has acquired it. He had not acted in good faith if he knew the facts.” There is a further difference in principle between the two classes of estoppel, growing out of the same difference in sub- ject-matter. We have seen that in the case of concealed rights or titles pure silence may be misleading and so raise an es- toppel.? That proceeds upon the ground that the right or title is unknown to and withheld from the person acting. In the present case, however, the facts are known to him as well as to the other party; it should accordingly require more to make out the ‘estoppel ’ than in the other case. There should be some clear and decisive act or conduct, beyond silence, to work the waiver, as we have seen in regard to waiver of proofs of loss under policies of insurance. The party claiming the benefit Trunk Ry. Co. v. Dyer, 49 Vt. 74; 1 Ante, chap. xviii, § 7. Sims », Chattanooga, 2 Lea, 694; ? Quoted in McLain v. Buliner, Broyles v. Nowlin, 3 Baxter, 191; 49 Ark. 218, 225, 226. Hoyt v. Sprague, 103 U. S. 613; 5 Ante, pp. 648 et seq. McClure v. Lewis, 72 Mo. 314. CHAP. XIX.] ESTOPPEL BY CONDUCT:, WAIVER. 729 should in this case as much as in the other show that he has been misled into the confidence reposed;! and pure silence by the one party in regard to a right perfectly known to the other can rarely mislead a man of average intelligence, by whose probable action the case must of course be judged.’ Hf, then, the act of the party claiming the waiver was purely voluntary, with full knowledge of the other’s rights, and no act or conduct of the latter, beyond mere silence, induced the expenditure or other change of position, there will be no estoppel; to ‘stand by and see,’ though enough in a case of concealment, is not ordinarily enough here.? In Atlanta ». Gate City Gas Co. it appeared that a gaslight company had obtained a charter from the legislature to use the streets of Atlanta for its pipes and fixtures, and the city authorities ‘ stood by and saw ’ the company make heavy outlays in the execution of their powers, without intimating that objection would be made to the use of the streets for the purpose in question. Without such use not only could not the enterprise be prose- cuted, — the outlay would be lost. It was held, however, that the city was not estopped to object to the laying of the pipes.‘ But this comes very near to the ‘ misleading silence’ of the authorities.° How strong and decisive the act supposed to create the waiver must be does not appear, and probably could not be stated in the way of a general rule, further than this, that the act or conduct of the party to be estopped must be such as would be apt to mislead a prudent man in a case where there is much risk. Some of the decisions appear to have gone a 1See Lewis v. Champion, 40 N. J. Eq. 59, 62; Cackett v. Kes- wick, (1902) 2 Ch. 456. 2The distinction argued (as the author knows) and sustained in Fowler v. Parsons, 143 Mass. 401, 406, 407; McLain ». Buliner, 49 Ark, 218, 3 Ramsden v. Dyson, L. R. 1 H. L. 129; Maxwell v. Bay City Bridge Co., 46 Mich. 278; Atlanta v. Gate City Gas Co., 71 Ga. 106; Allen v. Kellam, 69 Ala. 442; Stockman v. Riverside Co., 64_Cal. 57; Gawtry v. Leland, 40 N. J. Eq. 323. But see Guinzburg v. Downs, 165 Mass. 467, 43 N. E. 195, 52 A. S. R. 525. ‘But comp. Athens v. Georgia Ry. Co., 72 Ga. 800, where, how- ever, the acts themselves were contrary to a municipal ordinance. And see Atlanta v. Word, 78 Ga. 276; Augusta v. Port Royal Ry., 74 Ga, 658. 5 Ante, p. 648. 730 ESTOPPEL IN PAIS. [cHAP. XIX. questionable length against the waiver. In Kelso’s Appeal 4 it appeared that a married woman entitled to dower of lands about to be sold said to one who thereupon bought, ‘ I make no claim to dower, and don’t intend to. You needn’t hesitate a moment on that account.’ It was held that she was not es- topped to set up her dower rights against the purchaser. The ground of decision is not stated; probably it was that the party to be estopped was not sui juris.? If it proceeded upon the ground of a promissory representation,’ the answer would be that such ground applies only to the case of concealed rights; cases of waiver are commonly in their nature promissory, as the above-mentioned insurance cases, among others, show.* In ordinary cases it appears to be necessary, to make a waiver effective, that the party claiming it (or his predecessor in right) 1102 Penn. St. 7. 2See ante, p. 620. The court said, ‘The case presents some strong equities in favor of the appellant.’ On the other hand, it is held that an owner of land en- titled to demand prepayment of land to be taken under eminent domain by a railroad company will be estopped to claim the right by allowing the company, with his knowledge, to construct the road on his land and make large outlays of money in improvements. New Orleans R. Co. v. Jones, 68 Ala. 48, citing Trenton R. Co. ». Chambers, 9 N. J. Eq. 471; Me- Auly v. West Vermont Ry., 33 Vt. 311; Lord v. National Protective Soc., 129 Mich. 335, 88 N. W. 876. But that is only a matter of the time of payment. See Roberts »v. Northern P. R. Co., 158 U. S. 1, 15 Sup. Ct. 756, 39 L. Ed. 873; Wisconsin Cent. R. Co., 159 U. S. 46, 15 Sup. Ct. 1020, 40 L. Ed. 71. 3 Ante, p. 637. 4This ground of waiver is per- haps the most satisfactory one upon which to explain cases of the destruction of a deed by the grantor for the purpose of enabling the grantor to convey to another party, consenting to the arrange- ment. The first grantee is said to be estopped to claim against the second, at least if the first deed was not recorded. Lawrence »v. Stratton, 6 Cush. 163; Trull ». Skinner, 17 Pick., 213, 215; Hol- brook v. Tirrell, 9 Pick. 105; Com- monwealth »v. Dudley, 10 Mass. 403; Howard v. Massengale, 13 Lea, 577; ante, p. 640. The es- toppel must of course be in pais, by conduct; it cannot be by misrepresentation; it may be by waiver, for it is an agreement in effect not to assert a right known (in law) to both parties. There may be still other cases in which an estoppel will arise with full knowledge of all the facts by both parties. Thus, in Mason v. Mason, 101 Ind. 25, it is held that marrying and living with a di- vorced woman as wife for two years, when at the time of marrying her she was under judicial inhibition to marry, to the husband’s knowledge, estops him, on a suit by her for divorce from him, to deny the valid- ity of the marriage. But the sound- ness of such cases is not clear. CHAP. XIX.] ESTOPPEL BY CONDUCT: WAIVER. 731 should have been led to act upon the facts going to make up the waiver, to his detriment.!_ But in certain cases this is not required; mere word of mouth there seems to be enough, as e. g. where, after the maturity of a promissory note, an indorser, with knowledge that his liability has never been fixed, promises to pay the note.” But such cases are probably to be considered as abandonment of rights; unless the ‘ waiver ’ really amounts to an election (of which in the next chapter), the facts should, it seems, be acted upon or there should be a consideration? Such cases at all events should not be called estoppel. 1 Henry v. Gilliland, 108 Ind. 177, 180; Barton v. Ry. Co., 24 Q. B. D. 77. Where a workman was injured and did not make statutory claim within time limited by statute because of agreement be- tween the parties that there was statutory liability, amount of dam- age being left open for future settlement, the employer was es- topped from defending on the ground of the failure of the employee in this respect. Wright v. Bag- nall, (1900) 2 Q. B. 240. In a somewhat similar case, the em- ployer made no agreement or admission, but paid one half wages “on account of compensation which may be or become due,’ and he was not estopped to make such defence. Randall »v. Hill’s Dry Docks, (1900) 2 Q. B. 245. See also City Ry. Co. v. Citizens R. R. Co., 166 U.S. 557, 17 Sup. Ct. 653, 41 L. Ed. 1114, where it was held that the passage of an amended city ordinance, to extend franchise and rights, operated to estop a city from denying that the charter _ of a railroad company was so ex- tended, after the company had acted under the ordinance. 2 Sigerson v. Mathews, 20 How. 496. 3 The facts may be acted upon in many ways. ‘A citizen of an- other state, who proves his debt in the course of proceedings under a state insolvent law, which could not constitutionally bind him with- out his assent, cannot afterwards impeach the validity of the certifi- cate of discharge granted upon those proceedings, except as al- lowed by that law.’ Gray, J. in Burpee v. Sparhawk, 108 Mass. 111, 114, citing Clay v. Smith, 3 Peters, 411; Gilman v. Lockwood, 4 Wall. 409; Journeay v. Gardner, 11 Cush. 355. 732 ESTOPPEL IN PAIS. [cHAP. XX. CHAPTER XX. ELECTION AND INCONSISTENT POSITIONS GENERALLY. §1. Election. A Party cannot either in the course of litigation or in deal- ings in pais occupy inconsistent positions.” Upon that rule election is founded; ‘a man-shall not be allowed,’ in the lan- guage of the Scotch law, ‘ to approbate and reprobate.’ And where a man has an election between several inconsistent courses of action, he will be confined to that which he first adopts; ‘ the election, if made with knowledge of the facts, is 1Jt may be doubted whether this subject properly belongs to the law of estoppel. Still, it has come to be so generally treated as a phase of estoppel that we have not felt at liberty to omit it. See Strosser v. Fort Wayne, 100 Ind. 443, 452. Indeed, it is perhaps well to bring together the scattered fragments of the law having a re- semblance to election, and give them a common name. The right in all these cases, including that of election, is specific, and therefore so far like estoppel. Hence, the name ‘election’ not having met with favor beyond its old limits, we venture to name the whole group of cases ‘ Quasi-Estoppel.’ 2Strosser v. Fort Wayne, 100 Ind. 448, 452; Daniels v. Tearney, 102 U. S. 415; Moshier v. Frost, 110 Ill. 206; Lehman »v. Clark, 85 Ala. 109; Rabitte v. Orr, 83 Ala. 185; Espy v. Comer, 80 Ala. 333; Jones v. Clouser, 114 Ind. 387; Providence »v. Washington Ins. Co., 168 Ind. 690, 80 N. E. 26, 120 A. 8S. R. 395; Galt v. Provan, 131 Iowa, 277, 108 N. W. 760; Bar- ham v. Gomez, 149 Mass. 221, 21 N. E. 297; Tozer v. Ocean Corp., 94 Minn. 478, 103 P. 509; Humes Cons. Co. v. Phila. Casualty Co., 32 R. I. 246, 79 A. 1; Bailey ». Wright, 21 S. D. 349, 112 N. W. 853; Stamper v. Venable, 117 Tenn. 557, 97 S. W. 812. 8In re Chesham, 31 Ch. D. 466, 473, Chitty, J.; Stewart v. Muirhead, 29 N. B. 273, Carter J. ‘Steinbach v. Relief Ins. Co., 77 N. Y. 498; Fields ». Bland, 81 N. Y. 239; Scholey v. Rew, 23 Wall. 331; Rodermund ». Clark, 46 N. Y. 354; Morris v. Rex- ford, 18 N. Y. 552. See Meyer ». Clark, 45 N. Y. 286; Succession SECT. I.] ELECTION. 733 in itself binding,! — it cannot be withdrawn without due con- sent; it cannot be withdrawn though it has not been acted upon by another by any change of position.? ‘ Electio semel facta, et placitum testatum, non patitur regressum.’ ‘Quod semel placuit in electionibus amplius displicere non potest.’ * The phases in which this doctrine is presented are extremely various; in the present connection we treat of those only which arise out of court, reserving for chapter twenty-two the con- sideration of the subject in its relation to the conduct of causes. The subject may be considered first, with reference to the facts requiring or permitting an election; and secondly, with refer- ence to the facts constituting an election. With regard to the facts which require an election the most familiar statement of the doctrine is found in the law of wills.* It is laid down (rather too broadly, it seems) as an old rule of equity that a person who has taken a beneficial interest under a will is thereby held to have confirmed and ratified every other part of the same, and he will not be permitted to set up any of Monette, 26 La. An. 26; Weedon v. Landreaux, ib. 729; Connihan »v. Thompson, 111 Mass. 270; Watson v. Watson, 128 Mass. 152; Lilley v. Adams, 108 Mass. 50; Sloan v. Holcomb, 29 Mich. 153; Kunzie v. Wixom, 39 Mich. 384; Walsh »v. Varney, 38 Mich. 73; Thompson v. Howard, 31 Mich. 309; Stoddard v. Cutcompt, 41 Iowa, 329; Lee v. Templeton, 73 Ind. 315; Farley Nat. Bank v. Henderson, 118 Ala. 441, 24 So. 428; Libby »v. Frost, 98 Me. 288, 56 A. 906; Bank v. Board of Com’rs., 61 Kan. 785, 60 P. 1062; Steele Lumber Co. v. Laurens Co., 98 Ga. 329, 24 8. E. 755; Bensieck v. Cook, 110 Mo. 137, 19 S. W. 642; Lilly v. Menke, 143 Mo. 187, 44 8S. W. 730; Bracken ». Atlantic Trust Co., 167 N. Y. 510, 60 N. E. 772, 82 A. 8. R. 731; Stayton ». Graham, 139 Pa. 1, 21 A. 2; Bett- man v. Harness, 42 W. Va. 433, 26 S. E. 271; Georgia Ins. Co. v. Good, 95 Va. 751, 30 8. E. 366, quoting the text; Robb »v. Vos, 155 U. 8S. 1, 15 Sup. Ct. 4, 39 L. Ed. 52. 1Lehman v. Van Winkle, 92 Ala. 448, 8 So. 870. 2 Knickerbocker Ins. Co. v. Nor- ton, 96 U. 8. 34, 24 L. Ed. 689; Ward v. Best & S. 335, Blackburn, J. Text quoted in Campbell »v. Kauffman Mills Co., 42 Fla. 328, 29 So. 435; and in O’Bryan ». Glenn, 91 Tenn. 106, 17 8. W. 1030, 30 A. 8. R. 862. 3Coke, Litt. 146. See e. g. Oakes v. Manuf. Ins. Co., 135 Mass. 248, 249; Metcalf v. Will- jams, 144 Mass. 452, 454, 11 N. E. 700; Kinney v. Kiernan, 49 N. Y. 164; Syme v. Badger, 92 N. Car. 706; Mendenhall »v. Mendenhall, 8 Jones, 287; Jones v. Gerock, 6 Jones, Eq. 190; Yorkly v. Stinson, 97 N. Car. 236, 240; 1 Bigelow, Law of Fraud, 436. : 4The doctrine applies to deeds as well. 2 Story, Equity, § 1077, note; § 1080. . 734 ESTOPPEL IN PAIS. [CHAP. XX. right or claim of his own, however legal and well founded it may otherwise have been, which would defeat or in any way prevent the full operation of the will.!_ Thus, if a man devise to A property which belongs to B, and, by the same will, give to B his own (the testator’s) estate, B must convey his property to A, or he cannot take the property devised to him under the will, except upon the footing of making compensation to A, out of the property which B takes by the will, but not beyond, what A would have received under the will.? The only question 1 Whistler v. Webster, 2 Ves. Jr. 367; Board v. Board, L. R. 9 Q. B. 48; Jacobs v. Miller, 50 Mich. 119, 126; Hyde v. Baldwin, 17 Pick. 303; Cox v. Rogers, 77 Penn. St. 160; Wise v. Rhodes, 84 Penn. St. 402; Thellusson v. Woodford, 13 Ves. 209; Churchman »v. Ireland, 1 Russ. & M. 250; Tibbetts v. Tibbetts, 19 Ves. 655; Brown ». Ricketts, 3 Johns. Ch. 553; Etche- borne v. Auzerais, 45 Cal. 121; Noe v. Splivalo, 54 Cal. 207; Mor- rison v. Bowman, 29 Cal. 337; Collins v. Woods, 63 Ill. 285; Gor- ham v. Dodge, 122 Ill. 528; Uter- mehle »v. Norment, 197 U. 8. 40, 25 Sup. Ct. 291, 49 L. Ed. 655; Del Campo v. Camarillo, 154 Cal. 647, 98 P. 1049; Madison v. Larmon, 170 Ill. 65, 48 N. E. 556, 62 A. S. R. 356; Wilson v. Wilson, 145 Ind. 659, 44 N. E. 665, quoting the text; Cooke v. Fidelity Vault Co., 104 Ky. 473, 47 8. W. 325; Tyler v. Wheeler, 160 Mass. 206, 35 N. E. 666; Drake v. Wild, 70 Vt. 52, 39 A. 248. There is reason to doubt, how- ever, as the text-intimates, whether the rule should be stated so broadly. In Wollaston v. King, L. R. 8 Eq. 165, 174, Vice-Chancellor James, a great equity judge, says that the later cases do not justify the rule to the extent in which it was for- merly laid down. He says that the rule to be deduced from the (English) cases is that election is to be applied between a gift under a will and a claim dehors the will and adverse to it; it was not to be applied between one ciause in a will and another clause in the same will. ‘It would seem,’ says he, ‘a very strange thing that in construing the same instrument the court, dealing with a clause in which a fund is expressed to be given partly to A and partly to B, should hold that, the gift to A being void, the .testator’s intention is that. B should take the whole; and then coming to another clause in which another fund is given to B, and no mention of A at all, it should hold that there is an implied condition that B should give back part of that which it was the tes- tator’s intention that he should take.’ 3 The rule against claiming under and against a will at the same time will not prevent one to claim under the will so far as to recognize that. the executors thereunder have the lawful administration of the es- tate, and to deny that the provi- sions of the will in disposing of the property are valid. De Mora »v. Concha, 29 Ch. D. 268, 305, af- firmed in House of Lords nom. Concha ». Concha, 11 App. Cas. 541. 21 Jarman, Wills, 448, 4th ed. The rule of equity in regard to such cases is that of compensation to the disappointed donee, not of SECT. 1.] ELECTION. 735 in such a case is, Did the testator intend (judging from the face of the will) that the property should go in such a manner? It is immaterial whether the testator thought he had the right, or knowing the extent of his rights intended by an arbitrary exercise of power to'exceed them; in either case the party accepting the gifts of the will can only take the property on the terms, or the equity of the terms, upon which it was given. : Married women ? and infants * may bind themselves by elec- tion; though neither perhaps could do so before the right accrued upon which the election was to be made. At least it is held that a married woman cannot bind herself by electing between a jointure and dower; only a widow can do that.* A more difficult question has arisen where, in the case of an elec- tion by a married woman, the only property with which the person disappointed by her election can be compensated is subject to a restraint upon anticipation by her. Formerly the authorities were in conflict; Lord Hatherly holding in one of the cases already cited * that there could be an election in such a case, and Sir George Jessel holding the contrary,’ on the forfeiture by the donee who keeps his own. In re Chesham, 31 Ch. D. 466, 475, 2 Story’s Equity, § 1085. It is held in the case just cited, against a dictum in Wilson »v. Townsend, 2 Ves. 693, 696, that the rule of compensation applies only to elections against the will, not to elections to take under it. 1Ker v. Wauchope, 1 Bligh, 1, 25; Upshaw v. Upshaw, 2 Hen. & M. 381; Whistler ». Webster, 2 Ves. Jr. 367, 370; Wilson v. Towns- end, ib. 696;. Blake v. Bunbury, 4. Brown, Ch. 25. The estoppel ex- tends to privies. Rowley v. Tows- ley, 53 Mich. 329, 340; Merrick’s Estate, 5 Watts & 8.9; Bradshaw v. Bradshaw. (1902) 1 Ch. 436, distinguished from In re Warren’s Trusts, (1894) 26 Ch. D. 208. 2 Barrow v. Barrow, 4 Kay & J. 409, 419; Griggs ». Gibson, L. R. 1 Eq. 685; Codington v. Lindsay, L. R. 8 Ch. 578; Willoughby ». Middleton, 2 Johns. & H. 344; In re Chesham, 31 Ch. D. 466, 472; Tiernan v. Roland, 15 Penn. St. 429. 3 Storring v. Borren, 55 Barb. 595; In re Chesham, 31 Ch. D. 466, 472, 473; Neal v. Electric Co., (1906) 2 K. B. 558, C. A. 4Frank v. Frank, 3 Mylne & C. 171, 178, 179. A wife executed, but did not acknowledge, a deed of separation which provided for her an annuity for life to be paid by the husband, and she covenanted to release, when discovert, a re- versionary life interest in real and personal estate. On death of her husband she was not bound to release her life interest by having received the annuity. Harle ». Jarman, (1895) 2 Ch. 419. 5 Willoughby v. Middleton, 2 Johns. & H. 344. 6 Smith v. Lucas, 18 Ch. D. 581. [CHAP. XX. 736 ESTOPPEL IN PAIS. ground that to permit election would be to defeat the restraint upon anticipation.! This view has now prevailed.? In the case first cited a marriage settlement settled a fund for the wife with restraint upon anticipation and a covenant by her, then an infant, to settle property acquired afterwards. The covenant was of course void, unless the doctrine of election could be invoked. It was held that the wife was not bound to elect between taking after-acquired property and her interest under the settlement, but could hold both. This doctrine of election is never applied in the law of wills when, if an election is made contrary to the will, the interest which would pass from the testator by the will cannot be laid hold of in equity to compensate the disappointed donee. Some free disposable property must be given to the electing donee which can become compensation for what the testator sought to take away.? And the doctrine further becomes difficult to apply when the testator has a partial interest in the property to be dealt with by the first donee.* In such cases the court will incline to a construction which would make him deal only with his own, and thus prevent the necessity of an election. But where a testator entitled to only part of an estate uses words in devising it which clearly show that he intended to pass the entirety, the owner of the other part, if he receives a bounty under the will, is put to his election.> And it matters not in any case that the testator supposed that he owned or had the power to dispose of the property in question if the fact were otherwise.® The intention to dispose of particular property by will must 1See Bateman v. Faber. (1898) 1 Ch. 144. Chitty, J. said: ‘If the plaintiff had been a man instead of a married woman restrained from anticipation, there would have been a clear estoppel.’ 2In re Vardon, 31 Ch. D. 275 (reversing 28 Ch. D. 124); In re Wheatley, 27 Ch. D. 606; In re Glanvill, 31 Ch. D. 532, C. A. 3 Bristow v. Warde, 2 Ves. Jr. 336; Box v. Barrett, L. R. 3 Eq. 244. See In re Chesham, 31 Ch. D. 466, holding that if the donee has no interest in that out of which the compensation must be made if at all, as where the gift is of heir- looms of which he is in lawful enjoyment, there is no case for an election. 4 Ranclyffe v. Parkyns, 6 Dow. 149, 185. 5 Padbury v. Clark, 2 Macn. & G. 298; Wilkinson v. Dent, L. R. 6 Ch. 39. Stump v. Findlay, 2 Rawle, 168, 174, 1 Jarman, Wills, 445, Bigelow’s ed. SECT. I.] ELECTION. 737 appear from the will itself.!| And accordingly a mere general devise cannot be shown aliunde to have been intended to cover property which did not belong to the testator, where the object of the evidence is to put the donee to an election.? So election may be excluded by an expression of intention by the testator that only one of several gifts to a donee shall be conditional on his giving up what the testator attempts to devise away from him. If, for instance, a testator has two sons, the elder being owner of a particular piece of land, and it should appear con- venient to the testator that this piece should go to the younger son along with other property which he is devising to him, and he devises accordingly, then if among other gifts to the elder son he should give him a piece of property which the will states to be in lieu of the particular piece to be given by the elder to the younger son, the elder would be put to an election merely between these two pieces of property, and could hold the other gifts absolutely.’ In cases, however, where the intention to require an election is clear, there (notwithstanding the common-law doctrine that when a devise confers no more than the law of descent would cast upon an heir he takes by descent) a devise giving what would fall to the devisee upon intestacy may put the heir to his election. In contemplation of equity the testator means, as in other cases, that if the condition of giving up the heir’s estate be not complied with, the disappointed donee shall have out of the estate over which the testator had power, a benefit corresponding to that of which he is deprived by the action of the heir.4 The necessity of election arises similarly where a testator or other donor gives his own exclusive property to another with certain burdens attaching to it, upon condition that the donee shall take subject to the burdens. In such a case the donee must elect whether he will take the property at all or not. If he take it, he must take it cum onere.* If, however, no such 1Clementson v. Gandy, 1 Keen, 3 Wilkinson v. Dent, L. R. 6 309. Ch. 339, 341. 2Cavan v. Darlington, 2 Ves. 4Welby v. Welby, 2 Ves. & B. Jr. 544; s. c. 3 Ves. Jr. 384, 521; 187, 190. Pole v. Somers, 6 Ves. Jr. 309, 5 Talbot v. Radnor, 3 Mylne & 334. K. 252; Scholey v. Rew, 23 Wall. 331. '738 ESTOPPEL IN PAIS. [CHAP. Xx. condition be annexed or implied, the donee may elect that part of the bounty which will be of benefit to him, and reject the burdensome part, supposing’ the two are separable.! Again, where a man having power to appoint a fund to A, which in default of appointment is given to B, exercises the power in favor of C, and gives other benefits to B, in such a case though the appointment to C may be void, yet if B accept the benefits given him, he must convey the estate to C accord- ing to the appointment.? So where a person having power to appoint to two, appoints to one only, and gives a legacy not under the power to the other, a case for election arises. And the same is true where a person having a power of appointment attempts to delegate the same to another, and by the same in- strument makes a gift to the object of the power; such person is put to an election. He cannot retain the benefit and also claim the property against the execution of the power thus improperly delegated.‘ With regard to what requires an election in the case of dower, the intention to put the widow to an election must at common law be clearly expressed, or the gift to her must be so inconsistent with the right of dower as to render the intention of the testator unequivocal.’ But this rule has been changed by statute in many states, and the widow required to elect unless the will shows that the testator intended that she should have both estates, — dower and the estate given by the will. Indeed, the widow may in some states elect to take under the will, and yet contest other parts of it.® 1 Moffett v. Bates, 3 Smale & G. 468. 2 Sugden, Powers, 578, 8th Eng. 3 Ibid. 589. 4 Ingham »v. Ingham, 2 Atk. 88. § Bull v. Church, 5 Hill, 206; 8. c. 2 Denio, 430; Savage ». Burn- ham, 17 N. Y. 561, 571; Lord ». Lord, 23 Conn. 327; Fulton ». Fulton, 30 Miss. 586; Braxton ». Freeman, 6 Rich. 35; Higgin- botham v. Cornwell, 8 Gratt. 83; Shaw v. Shaw, 2 Dana, 342. ®In a late case in Ohio (Carder v. Fayette Co., 16 Ohio St. 353) arising under statutory law the Supreme Court says: ‘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 devises, or setting up her claims as heir. She can do ail or either 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 SECT. I.] ELECTION. 739 In regard to the question what constitutes an election, it is held in general that any decisive act done by a person with knowledge of his rights and of all other facts material to him is binding. Thus, one who takes possession of property under a her election to take under the will a bar to dower, and to her dis- tributive part of the personal estate due to her as widow, and to noth- ing else. A contrary reading of the statutes would in many instances result in the greatest injustice to her. She is compelled 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 con- struction of the law. She might validate 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, should she decide that the will was invalid and would be set aside, and therefore decline to take under it, the will might ulti- mately be established and she be made to lose all benefit, however great, of its provisions in her favor. Thus, an election which was in- tended 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 matters not whether the invalida- tion 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 elec- tion can have any effect: 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 prop- erty not effectually 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 provisions 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.’ 1Connihan v. Thompson, 111 Mass. 270; Rodermund »v. Clark, 46 N. Y. 354; Sanger v. Wood, 3 Johns. Ch. 416; Littlefield v. Brown, 1 Wend. 398; s. c. in error, 11 Wend. 467; Barwick v. Rackley, 46 Ala. 402; Georgia Home Ins. Co. v. Goode, 95 Va. 751, 30 8. E. 366; Robb v. Vos, 155 U. S. 1, 15 Sup. Ct. 4, 39 L. Ed. 52. The commencement of an action to set aside an assignment does: not constitute an election to take in hostility to the assignment. In re Garner, 176 N. Y. 386, 68 N. E. 667. Bringing a suit without prosecuting it to final judgment cannot deter- mine right of election. Jones »v. Burgess, 109 Ala. 412, 19 So. 851. Attempting to choose a right which one wrongly or mistakenly supposes to exist is no election. Doucette v. Baldwin, 194 Mass. 131, 80 N. E. 444, [CHAP. XX. 740 ESTOPPEL IN PAIS. 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 to accept that property upon the terms. of the will.1 It becomes a difficult matter, however, in some cases to determine what action of this sort amounts to an election. In Fitts ». Cook ? it was held that no election had been made. A testator had 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 pro- mote 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 afterwards upon the premises without change. Her: heirs now claimed the 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.’ 1Upshaw v. Upshaw, 2 Hen. & M. 381. 2 5 Cush. 596. 3 Mr. Justice Dewey, in deliver- ‘ing the opinion of the court, said: ‘It is not inconsistent with Joanna Cook’s [the widow’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 seised 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 con- troversy. 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 inferences from these acts that shall operate as an estoppel against parties subsequently setting up legal rights to the lands thus oc- cupied. To authorize such an es- toppel the conduct of the party should be manifestly inconsistent with the rights now claimed. Es- toppel in pais only arises when manifest justice and equity as respects 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 plaintiffs] about a year since, their SECT. 1] ELECTION. 741 On the other hand, it has been 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 follow- ing 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 as indorsee sued the defend- ant as maker of a promissory note. 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 for and pay- ment of the earlier one. Way said he would take it as collat- eral 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 oper- ated as a payment of the prior note; and the plaintiff was there- fore entitled to recover.’ 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 naturally 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 arrange- ment~among themselves to live together during the life of Joanna Cook, and all to participate in the property, without any special refer- ence to the will or to the devise therein of property belonging to Joanna Cook.’ 1Thompson v. Hoop, 6 Ohio St. 480, overruling Stilley v. Folger, 14 Ohio, 610. See Stockton ». Wooley, 20 Ohio St. 184, 189; Winship v. Winship, 43 Ind. 291. 25 Allen, 165. 3A very similar case was sub- sequently tried before the same court, and with. a like result. Hooker v. Hubbard, 97 Mass. 175. ‘We cannot distinguish this case,’ said Foster, J. in delivering the judgment, ‘from Dewey v. Bell [supra]. The note of November 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 742 ESTOPPEL IN PAIS. [CHAP. XX. In this connection a recent case in New York may be no- ticed.!. In that case it was held that where a husband loans money and takes a note therefor payable to the order of him- self and wife, and afterwards makes a will containing a devise or bequest to the 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 elec- tion between the note and the provision 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. In the case of Smith v. Smith ? an action was brought 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 Tight as against this defendant to take it except in payment. Hav- ing elected to take it and enforce it by suit, the law conclusively presumes that he took it for a right- ful 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 rightfully against the present de- fendant. The plaintiff must fail in one of the two pending 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 fide holder for value before maturity 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 forever bound by that construction of the transaction according to which alone it was rightful. Dewey »v. Bell is precisely like this case, with this exception: there the negotia- tion 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 plain- tiff’s own, and in this case as much as that the plaintiff is estopped to say he did not accept it for the purpose for which it was made.’ See Hill ». Huckabee, 70 Ala. 183, 188. 1Sanford v. Sanford, 58 N. Y. 69; s.c. 45 N. Y. 723. 214 Gray, 582. SECT. 1.] c ELECTION. 743 residue of the land described in the deed, and other lands. The defendant admitted at the trial that with a full oppor- tunity 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 locus 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 principle of equity above stated, said that it was equally appli- cable at law. It will be found upon an examination of these and other cases that wherever the rights of other parties have intervened, or the rights of the party alleging the estoppel have been other- wise affected, by reason of a man’s conduct or acquiescence in a state of things about which he had an election, and his con- duct or acquiescence, or even laches,? was based on a knowl- edge of the facts and of his rights,’ 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 the mere institution of a suit by a legatee to con- test a will, if the suit is withdrawn, is not an election; *® nor is 4A has a contract with B. B takes a partner C, and notifies A. A pays no attention to the notice but continues to deal with B alone 1But the grantee of land con- veyed by an intestate with intent to defraud his creditors is not es- topped by taking under the deed and acting upon it to object as one of the creditors: of the estate that the deed was fraudulent. Norton v, Norton, 5 Cush. 524. ? Williams v. Allison, 33 Iowa, 278. 3 Logansport v. Uhl, 99 Ind. 531, 540; Watson v. Watson, 128 Mass. 152; Macknet v. Macknet, 29 N. J. Eq. 54; Stedman v. Davis, 93 N. Y. 32; Jenkins v. Means, 59 Ga. 55; Georgia R. Co. ». Hamilton, ib. 171; Brown w. Driggers, 62 Ga. 354; Long ». Bullard, 59 Ga. 355. Law v. Law, (1904) 1 Ch. 140, C. A. and deposits with him a large sum of money which B misappropriates. C is not liable to A because of election to deal with B_ alone. British House Ass’n. v. Paterson, (1902) 2 Ch. 404. 5 Quoted with approval in Stros- ser v. Fort Wayne, 100 Ind. 443, 446, and in Yates v. Hurd, 8 Col. 343, 348. 8 Clough v. London Ry. Co., L. R. 2 Ex. 26, Ex. Ch., modifying Newnham »v. Stevenson, 10 C. B. 713, 728; State v. Adams, 71 Mo. 620. See also Whitwell v. Vincent, (cHAP. XX. 744 ESTOPPEL IN PAIS. mere acquiescence or waiver without consideration, not amount- ing to an election, binding if a change of purpose will not affect the rights of others. And of course the consent or acquies- cence must have been made understandingly, sometimes even of the party’s rights under the law.” §2. Inconsistent Positions generally. Upon a principle similar to that applied to persons taking under wills, beneficiaries under a trust are estopped, by claim- ing under it, to attack any of its provisions.? The same is to be said, on still stronger grounds, of the trustee; and in general, persons accepting and holding lawful * posts of duty are simi- larly estopped while holding the post, or while retaining the emoluments or benefits of it. So also one who accepts the terms of a deed or other contract must accept the same as a 4 Pick. 449; Bulkley v. Morgan, 46 Conn. 393; Equitable Foundry Co. v. Hersee, 103 N. Y. 25. To bring suit would, however, be prima facie evidence of an_ election. But see O’Meara v. McDermott, 43 Mont. 189, 115 P. 912. Judgment in detinue seems to be no election. Miller v. Hyde, 161 Mass. 472, 37 N. E. 760, 42 A. S. R. 424. See 1 Bigelow, Law of Fraud, 437. 1See Ripley v. Adtna Ins. Co., 30 N. Y. 136, 164; Cruger »v. Dougherty, 48 N. Y. 107; Landon v. Litchfield, 11 Conn. 251; Ives ». North Canaan, 33 Conn. 402; Smith v. Smith, 30 Conn. 111; Flege v. Garvey, 47 Cal. 371; Jones v. Clark, 42 Cal. 181; Meley v. Collins, 41 Cal. 663; Watt v. McGalliard, 67 Ill. 513; Maquoketa v. Willey, 35 Iowa, 323; Adams ». B. & M. R. Co., 39 Iowa, 507; Prout v. Wiley, 28 Mich. 164; Ma- son v. Finch, ib. 282; Lackland »v. Stevenson, 54 Mo. 108; Sherman v. Parish, 53 N. Y. 48; Miller v. Miller, 5 Heisk. 723. 2 Ellsworth ». Ellsworth, 33 Towa, 164; Evans’s Appeal, 51 Conn. 485; Macknet v. Macknet, 29 N. J. Eq. 54; Watson v. Watson, 128 Mass. 152; Charlestown ». County Commissioners, 109 Mass. 270. See 1 Story’s Equity, pp. 116, 117, note, 13th ed. - * Pickett v. Merchants’ Bank, 382 Ark. 346; Frierson v. Branch, 30 Ark. 453. Text quoted in Chard v. Warren, 122 N. C. 75, 29 S. E. 373. 4 See School District v. Atherton, 12 Met. 105; Mitchell v. Horton, 75 Iowa, 271, 277. 5 Damouth ». Klock, 29 Mich. 289; Woburn v. Henshaw, 101 Mass. 103; McClure »v. Common- wealth, 80 Penn. St. 167; Harbin v. Bell, 54 Ala. 389. See Mitchell v. Horton, 75 Iowa, 271; Krekel »v. Kreichbaum, 71 Iowa, 702, 706; Kothman v. Markson, 34 Kans. 542; Loveman v. Taylor, 85 Tenn. 2; Reichert v. Voss, 78 Ga. 54; Atkin- son v. McDonald, 74 Ga. 350; Union Ins. Co. v. Slee, 123 Ill. 57; ante, p. 597. SECT. I1.] ELECTION. 745 whole; one cannot accept part and reject the rest.1_ Thus, a party actively affirtaing a transaction such as a contract or a purchase, by receiving and retaining money upon it, is estopped thereafter to deny the force of any of its express or implied terms or conditions.? In the case of the Water Witch the con- signees of a cargo of freight libelled the ship in which it had been carried for damage to the goods; and the owner of the ship at the same time libelled the cargo for freight and primage. The causes were heard together; and the court held that by receiving the cargo, carrying it to the consignees, and then libelling it, the owner was estopped to deny the ship’s liability 1 Jacobs v. Miller, 50 Mich. 119, 126; Du Bose »v. Ball, 64 Ga. 350; Robinson v. Pebworth, 71 Ala. 240, 247 (‘you shall not be heard to claim both under and against the same title’); Butler v. O’Brien, 5 Ala. 316; Morris v. Hall, 41 Ala. 510; McReynolds »v. Jones, 30 Ala. 101; Swanson v. Tarkington,. 7 Heisk. 612; Williams v. Gideon, ib. 617; Emmons v. Milwaukee, 32 Wis. 434; State v. Langer, 29 Wis. 68. See Roby v. Chicago, 64 II]. 447; Alex- ander v. Winters, 23 Nev. 475, 49 P. 116; Willoughby »v. Fidelity Co., 16 Okl. 546, 85 P. 713; Kerslake v. Brower Lumber Co., 40 Or. 44, 66 P, 437; Armstrong v. Cache Valley, 14 Utah, 450, 48 P. 690; Doty »v. Barnard, 92 Tex. 104, 47 S. W. 712; Grand Rapids Ry. Co. ». Osborn, 193 U. S. 17, 24 Sup. Ct. 310, 48 L. Ed. 598. 2Water Witch, 1 Black, 494; Flanigan v. Turner, ib. 491; New York v. Sonneborn, 113 N. Y. 423; Albany v. Watervliet Turnp. Co., 108 N.Y. 14; Seneca v. Allen, 99 N. Y. 532, 539; Michigan Ry. Co. v. Mellen, 44 Mich. 321; Sutton’s Appeal, 112 Penn. St. 598; Kline- smith v. Socwell, 100 Ind. 589, 592; Hill v. Nisbet, ib. 341; City Bank v. Bartlett, 71 Ga. 798; Pike v. Stallings, ib. 860; Breeding v. Stamper, 18 B. Mon. 175; Coleman v. Pike, 83 Ala. 326; Morris »v. Hall, 41 Ala. 510; Smith v. Sheeley, 12 Wall. 358; Phillips v. Rogers, 12 Met. 405; Sherman v. McKeon, 88 N. Y. 266; Wood »v. Seely, 32 N. Y. 105; Requa v. Holmes, 26 N. Y. 338; Horton v. Davis, ib. 495; Light v. St. Louis Ry. Co., 89 Mo. 108; Bush v. Bush, ib. 360; Patterson v. Read, 43 N. J. Eq. 18; Warrenton v. Arrington, 101 N. C. 109; Ish v. Crane, 8 Ohio St. 520; McArthur v. Home Life Assoc., 73 Iowa, 336; Chicago R. Co. v. Knuffke, 36 Kans. 367; Hawthorne v. East Portland, 13 Oreg. 271. See also Terrell »v. Grimmell, 20 Iowa, 393; Hewett v. Currier, 63 Wis. 386. But it may appear that the money was not accepted in the character sup- posed. Board of Education »v. Bakewell, 122 Ill. 339. Text quoted in Hector v. Mann, 225 Mo. 228, 124 8. W. 1109. Accept- ing a reduced salary estops one from claiming money which one elected not to ask for. Lexington v. Rennick, 105 Ky. 779, 49 8S. W. 787. Accepting part of a claim allowed by commissioners estops one from asserting claim to the balance. Commissioners v. Sewell, 3 Okl. 281, 14 P. 592. But see Boyle v. Ogden, 24 Utah, 443, 68 P. 153. 746 ESTOPPEL IN PAIS. (CHAP, XX. to deliver the cargo in the same order in which it was received, with the usual exceptions. A decree was therefore given in favor of the consignees for so much as the damage to the cargo exceeded the amount of the freight. Though a contract be in fact wholly invalid when executed, still (supposing it not to be prohibited by law as relating to some illegal transaction), if it be acted upon afterwards by the parties to it as valid, they will, if sui juris, be estopped there- after to allege its invalidity.!. Thus, if a tax-collector act under his official bond, he, and his sureties also, if they do not object at the proper time, will be precluded from denying the validity of the bond.? So too if a party sui juris not only take but retain the benefits arising from an invalid sale or contract, he will be precluded in a contest with the other party upon the contract from repudiating it.2 So to accept money as redemp- 1 Quoted, Henderson »v. Price, 96 N. Car. 423, 426; Robinson v. Peb- worth, 71 Ala. 240, 247; Worrell v. Forsyth, 141 Ill. 22, 30 N. E. 673; St. Louis v. Davidson, 102 Mo. 149, 14 8. W. 825, 22 A. S. R. 764. See ante, pp. 494, 501, 597; post, p. 748. 2 McLean »v. State, 8 Heisk. 23; Coleman v. Pike, 83 Ala. 326; Coons v. People, 76 Ill. 383. 3 Walker v. Mulvean, 76 Il. 18; Padfield v. Pierce, 72 Ill. 500; Deford v. Mercer, 24 Iowa, 118; Pursly v. Hays, 17 Iowa, 310; Rennick v. Bank of Chillicothe, 8 Ohio, 529; Vicksburg R. Co. »v. Ragsdale, 54 Miss. 200; Lee ». Gardiner, 26 Miss. 521; Byrne »v. Hibernia Bank, 31 La. An. 81; Factors’ Ins. Co. v. De Blane, ib. 100; Southard v. Perry, 21 Iowa, 488; Hoffmire v. Holcomb, 17 Kans. 378; Bryan v. Des Moines, 51 Iowa, 590; Union Ins. Co. »v. McGookey, 33 Ohio St. 555; Henry Co. v. Winnebago Drain Co., 52 Ill. 454; Planters’ Bank »v. Merritt, 7 Heisk. 177; Fitch v. Baldwin, 17 Johns. 161; Rapelee v. Stewart, 27 N. Y. 310; Roder- mund ». Clark, 46 N. Y. 354; Hone v. Henriques, 13 Wend. 240; Palmer v. Smith, 10 N. Y. 303; Duff ». Wynkoop, 74 Penn. St. 300. See Haydock v. Coope, 53 N. Y. 68; Tuite v. Stevens, 98 Mass. 305; Murray v. Jones, 50 Ga. 109; Ions v. Harbison, 112 Cal. 260, 44 P. 572; Dickson v. New York Biscuit Co., 211 Ill. 468, 71 N. E. 1058; Wilmore »v. Steller, 137 Ind. 127, 34 N. E. 357, 45 A. S. R. 169; Hazel v. Lyden, 51 Kan. 233, 32 P. 898, 37 A. S. R. 273; Knutson ». Vidders, 126 Iowa, 511, 102 N. W. 433; Forbes v. Keyes, 193 Mass. 38, 78 N. E. 733; Farr v. Lachman, 130 Mich. 40, 89 N. W. 688; Tracy v. Roberts, 88 Me. 310, 34 A. 68, 51 A. S. R. 394; Staats ». Wilson, 76 Neb. 204, 107 N. W. 280, 124 A. 8. R. 806; Pope v. Benster, 42 Neb. 304, 47 A. S. R. 708; Nor- wood v. Lassiter, 182 N. C. 52, 43 S. E. 509; Ford v. Ford, 24 8. D. 644, 124 S. W. 1108. The case of a corporation acting beyond its powers stands on a snecial footing; receiving and retaining benefits would not prevent it from fermi- nating the contract. Oregon Ry. SECT. 11.] ELECTION. 747 tion of property estops the party to deny the payor’s right to redeem.’ And to receive bonds in payment for land taken for a highway estops the receiver to say, contrary to the under- standing of the parties, that the location was not permanent.? In like manner, persons who have received preferred stock in a corporation, and have for several years accepted interest thereon, cannot object to the power of the corporation to issue the same, when the holders of the common stock, and parties who have guaranteed the interest, make no objection? However, the estoppel arising from accepting the benefits of a contract applies only when the party may accept or reject without serious inconvenience. A railroad company could not forego the use of its entire track because it has a dispute with some contractor about extra compensation under his contract for the building, e. g. of one of its bridges; the bridge must be used, and the company will not be estopped by using it to ob- ject to defaults in the performance of the contract, though known to it all the time.* Nor will the receiving an indirect benefit from a transaction, it seems, if without the party’s own procurement, have the effect to preclude him from denying the validity of the transaction.’ And in general, when the position in question has been practically forced upon a party Co. v. Oregonian Ry. Co., 180 cannot afterwards repudiate one’s U.S. 1. act and take advantage of its in- 1Goddard v. Renner, 57 Ind. validity. Arthur v. Israel, 15 532. Col. 147, 25 P. 81, 22 A. 8. R. 381. 2 Alley v. Adams Co., 76 Til. 101. 3 Branch v. Jesup, 106 U. S. 468, 481. In regard to accepting and retaining the subject of a sale, see ante, pp. 504, 597, 598, 746. Receipt and retention of divi- dends estops one to repudiate liquidation of a bank. Watkins v. National Bank, 51 Kan. 254, 32 P.914. Acceptance and disposition of shares of land allotted estops one to question adjudication. Pen- nell v. Felch, 55 Kan. 78, 39 P. 1023. Accepting benefits of executor’s sale estops one to deny its validity. Creamer v. Holbrook, 99 Ala. 52, 11 So. 830. One who accepts and retains the fruits of a void judgment A stockholder who with knowledge of the character of a corporation has acquired and accepted pecuni- ary benefits thereunder is estopped to say the acts were ultra vires. Wormser v. Metropolitan R. Co., 184 N. Y. 83, 76 N. E. 1036, 112 A. 8. R. 596. ‘Cincinnati v. Cameron, 33 Ohio St. 336, 374. See Zottman v. San Francisco, 20 Cal. 97; Smith v. Brady, 17 N. Y. 173; Ellis v. Hamlin, 3 Taunt. 52; Bartholo- mew v. Jackson, 20 Johns. 28; George v. Nevada Ry. Co., 22 Nev. 228, 38 P. 441. 5 Ayres v. Probasco, 14 Kans. 175. 748 ESTOPPEL IN PAIS. [CHAP. XX. by his opponent’s conduct, he will not be bound to stand by it.1 Nor, perhaps, when one with full knowledge of the inva- lidity of his act executes a contract with another, will the fact that the latter receives benefits from it estop him from denying its validity.” An estoppel arises also, in the absence of mistake, against a person who collects or receives money for another to deny his own authority to take the money or the right of the other to receive it, so long, at all events, as no superior title is set up in anybody else; * unless he claimed the money or part of it when he received it as belonging to him, e. g. as dues.* Thus, it has been held that one cannot set up the invalidity of a statute in bar of an action for money which he has collected for the plain- tiff under such statute.° So one assuming to act in a contract as principal will afterwards be estopped to say that he was in fact acting only as agent.® A stockholder in a corporation who has participated in the transactions of the company and re- ceived dividends or benefits will also be estopped when sued under the charter to set up the invalidity of the same.’ And 1 Potter v. Brown, 50 Mich. 436. 2 Black v. Dressell, 20 Kans. 153. ’Cairns v. O’Bleness, 40 Wis. 469; McKee »v. Monterey Co., 51 Cal. 275; Iberia v. Serrett, 31 La. An. 719; Keyser v. Simmons, 16 Fla. 268; Morris v. State, 47 Texas, 583; Grattan v. Metropoli- tan Ins. Co., 80 N. Y. 281; Perry- man v. Greenville, 51 Ala. 507; Hungerford v. Moore, 65 Ala. 232. See Hull v. Pleasant Valley, 41 Towa, 494; Reed v. Peterson, 91 Til. 288. ‘United States v. Lawson, 104 U. 8. 164; United States v. Ells- worth, ib. 170. Even paying the money into the public treasury will not bar the claim upon it if that were done at the command of a superior officer. Ibid. 5 Perryman v. Greenville, 51 Ala. 507; Morris v. State, 47 Texas 583. ®Reigard v. McNeil, 38 Ill. 400. E converso, those who have held themselves as officials of a public enterprise (State Fair) are estopped from asserting private ownership. Beal v. Bass, 86 Me. 325, 29 A. 1088. One acting as agent will be estopped to deny that he was an agent. Manchester Ry. Co. v. Williams, 71 N. H. 312, 52 A. 461. 7 Wheelock v. Kost, 77 Ill. 296; McCarthy v. Lavasche, 89 III. 270, citing Baker v. Brannan, 6 Hill, 47; Embury v. Conner, 3 Comst. 511; Easton v. Aspinwall, 19 N. Y. 119; Mead v. Keeler, 24 Barb. 25; Ferguson v. Landram, 5 Bush. 230. See also People v. Sterling Manuf. Co., 82 Ill. 457; Rice v. Rock Island R. Co., 21 Ill. 98; Goodrich v, Reynolds, 31 Tl. 490. One who accepts dividends from a receiver cannot deny the validity of the appointment. Greeley v. Provident Sav. Bank, 103 Mo. 212, 75 S. W. 429. SECT. II.] ELECTION. 749 conversely, after attacking a transaction and failing, the party so doing may not be allowed to turn round and claim rights under it.} In like manner, if one without actually inducing another to act in a particular way, assent to the thing done and seek to derive a benefit from it, he cannot in case of disappointment deny the validity of the act assented to.? Thus, if a man offer himself or consent to appear as a candidate for office at an election held with his assent at an unauthorized voting-place, he will be estopped, if defeated, to say that the election was invalid because the voting was at the wrong place.’ Thus far of the effect of retaining or seeking benefits. That -is only a special phase of the rule concerning inconsistent posi- tions. Some other phases of the subject may also be noticed. It is held that a landlord who has wrongfully severed fixtures from the realty is estopped to take advantage of his act and treat the fixtures as goods for the purposes of a distress. So it was laid down in Dalton v. Whittem.* This was an action of trover for ‘certain goods and chattels, to wit, two metal counters,’ etc. On the trial it appeared that the articles re- ferred to were fixtures attached to a house of which the plaintiff was tenant under the defendant, and that they had been sev- ered in a distress for rent, and disposed of. For the plaintiff it was contended that the fixtures could not be taken under a distress for rent. Counsel for the defendant admitting this contended that for such taking trespass was the proper remedy, and that the plaintiff could not bring trover without waiving the tortious severance and treating the articles as chattels. But the court held the action proper.’ On the other hand, one t Ewing v. Cook, 86 Tenn. 332, 342. The court did not lay down any positive rule that attacking a transaction would debar one, in case of failure, from claiming rights under it. That would probably be too strong a state- ment. 2 Quoted with approval in Field v. Doyou, 64 Wis. 560, 564. 3 People v. Waite, 70 Ill. 25. Text quoted in State v. Lesueur, 103 Mo. 253, 15 8. W. 539. 43 Q. B. 961. See Zwietusch v. Walkins, 61 Wis. 615. 5Mr. Justice Coleridge said in substance: The plaintiff says that the articles are now goods and chattels, and therefore trover lies; but the defendants have wrongfully made them such, and may not defend their distress by 750 ESTOPPEL IN PAIS. (CHAP. Xx. who buys property as personalty cannot repudiate the sale (in the absence of fraud or mistake) by asserting that the property is realty.? Tn like manner, where a municipality levies an assessment to pay the compensation fixed and approved by it for laying out or improving streets, it cannot afterwards refuse to pay the money to those entitled, on any ground of prior dedication 2 or of irregularity in its own action.’ Nor after the money has been paid over, or the benefits appropriated without objection,* can the landowner allege that the work was done in violation of law, in the absence at least of evidence of mistake or ignor- ance of the facts on his part when he took the money or had the benefits.* Generally speaking, perhaps the levying and enforcing pay- ment of taxes by sale of-property estops the municipality or state to claim the property. But a municipal corporation is not estopped to claim property belonging to it where it has been improperly sold for taxes as the property of a person who had no title to or possession of it,’ or where no one’s rights will” _ an unlawful act. It was like the case of money had and received, where the plaintiff’s goods had been wrongfully taken and sold. The action to a certain extent assumed the legality of the eale; but. still the plaintiff might say that the property was not in the vendor. 1 Reed v. Peterson, 91 Ill. 288.. 2 Princeton v. Templeton, 71 Til. 68. 3 Bloomington v. Brokaw, 77 Ill. 194; Higgins ». Chicago, 18 Il. 276. 4 4Taber v. Ferguson, 109 Ind. 227; Union Ins. Co. v. Slee, 123 Ill. 57; Corry v. Gaynor, 22 Ohio St. 584; Rector v. Board of Improve- ment, 50 Ark. 128, 131, showing that silence in these, as in other cases, without a duty to speak is not enough alone to raise the estoppel. 5’ Hartshorn v. Potroff, 89 Ill. 509; Kile v. Yellowhead, 80 Il. 208; Town v. Blackberry, 29 Til. 187. See Rees v. Chicago, 83 Ill. 322. But entering a private drain into a city sewer, and agree- ing to make no claim against the city for damages on account of the work, will not estop the party from objecting to an assessment for laying the sewer. Sheehan v. Fitchburg, 131 Mass. 523. 6 American Emigrant Co. v. Iowa Land Co., 52 Iowa, 323; Audubon Co. v. American Emigrant Co., 40 Iowa, 460; Simplot v. Dubuque, 49 Iowa, 630; Adams Co. v. B. & M. R. Co., 39 Iowa, 507; Brandriff v. Harrison, 50 Iowa, 164. That public rights in land dedi- cated to public use may be lost by estoppel see Sioux City ». Chicago & N. W. R. Co., 129 Iowa, 694, 106 N. W. 183, 113 A. S. R. 500. 7Rossire v. Boston, 4 Allen. 57. SECT. II.] ELECTION. 751 be wrongfully affected by repudiating the sale; as where the purchaser knew of the claim of the corporation.!_ In Rossire ». Boston, which was a writ of entry, the city of Boston, defend- ant, had become absolute owner of the land in question by virtue of a mortgage (which had been foreclosed) and the ex- piration of the equity of redemption; and the city had been — in possession ever since the foreclosure. Before the equity of redemption had expired the land had been conveyed to one ‘Pond, and the assessors had taxed it as his and sold it as his for non-payment of the taxes. The demandant derived title from the purchaser. Judgment was given for the tenants. The ground taken by the court was that the assessors and col- lector were not to be regarded as mere private agents of the city,” and their acts in the premises therefore were not binding on the city. A remarkable case, to be received with hesitation, may now be noticed. It has been laid down that persons who have procured the passage of an act of the legislature under which they have acted and obtained benefits are estopped to show that the act was unconstitutional,’ though it may have been so 1 Howard Co. v. Bullis, 49 Iowa, 519. See Buena Vista Co. v. Iowa Falls R: Co., 46 Iowa, 226; Bixby v. Adams Co., 49 Iowa, 507. Of course the mere assessment of a tax creates no estoppel upon the municipality to claim the property. Page Co. ». B. & M. R. Co., 40 Iowa, 520. Nor will mere suit to set aside a conveyance of land by a municipality estop it to tax the land pendente lite. American Emigrant Co. v. Iowa Land Co., 52 Ill. 323. 2 Walcott v. Swampscott, 1 Allen, 101; Buttrick v. Lowell, ib. 172; Kimball v. Boston, ib. 417. 3 Ante, p. 508, note. Ferguson v. Landram, 5 Bush, 230; s. c. 1 Bush, 548; Daniels v. Tearney, 102 U. 8. 415, 421; Vose v. Cockcroft, 44 .N. Y. 415, 424. See also State v. Mitchell, 31 Ohio St. 592; Tone v. Columbus, 39 Ohio St. 281; Motz v. Detroit, 18 Mich. 526; Todd v. Kerr, 42 Barb. 317; People v. Murray, 5 Hill, 468; Van Hook v. Whitlock, 26 Wend. 43; Lee ». Tillotson, 24, Wend. 337; Burling- ton v. Gilbert, 31 Iowa, 356; B. C. R. & M. R. Co. v. Stewart, 39 Iowa, 267; Tallant v. Burlington, ib. 543; Mitchell v. Horton, 75 Iowa, 271; Shepard v. Barron, 194 U. 8S. 553, 24 Sup. Ct. 737, 48 L. Ed. 1115; Vickery v. Board of Commissioners, 134 Ind. 554, 32 N. E. 880; St. John v. Building Ase’n., 186-Iowa, 448, 1138 N. W. 663; Hoertz v. Jefferson Co., 119 Ky. 824, 84 8. W. 1141; Dow ». Electric Co., 68 N. H. 59, 31 A. 22; Bray v. Williams, 137 N. C. 387, 49 S. E. 887. In ordinary cases, however, perhaps generally where benefits have not been ap- propriated and retained by the party seeking to deny the constitu- [CHAP. XX. 752 ESTOPPEL IN PAIS. pronounced by the courts concerning those who had not par- ticipated in its passage.' In the case referred to it appeared that a large portion of the people of Gallatin County, Ken- tucky, had met in the year 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 au- thorizing 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 col- lection of the tax; but the prayer was refused.” tionality of the law, there can be no estoppel to deny the validity of a statute. South Ottawa v. Perkins, 94 U. S. 260; Counterman ». Dublin, 38 Ohio St. 515, 517; Tone v. Columbus, supra; State v. Little Rock R. Co., 31 Ark 701. ‘There can be no estoppel,’ says the court in South Ottawa v. Per- kins, supra, ‘in the way of ascer- taining the existence of a law. That which purports to be a law of a state is a law or is not a law according as the truth of the fact may be, and not according to the shifting circumstances of parties.’ But this is not said of persons who had procured the passage and re- ceived and retained the benefits of a law. And perhaps there may be other exceptions, See e. g. Daniels v. Tearney, 102 U. S. 415, 421; Strosser v. Fort Wayne, 100 Ind. 443, 452. It is held that a tax-col- lector cannot set up the invalidity of a statute in bar of an action for money which he has collected for the plaintiff under such statute. Perryman v. Greenville, 51 Ala. 507. 1 Ferguson v. Landram, 1 Bush, 548. The case under consideration, it will be seen, is not one of mis- representation, involving the rights of innocent parties who have acted thereon, but virtually a question between agent and principal. After one has submitted claims to decision under a statute, and the claims have not been with- drawn but have been passed upon, and especially if dividends have been accepted, one cannot allege the unconstitutionality of the stat- ute. Fogler v. Clark, 80 Maine, 237; Daniels v. Tearney, 102 U.S. 415, 421; Gilman v. Lockwood, 4 Wall. 234; Baldwin v. Hale, 1 Wall. 223; Chapman »v. Forsyth, 2 How. 202; Clay v. Smith, 3 Peters, 411; Bucklin ». Bucklin, 97 Mass. 256; Morse v. Lowell, 7 Met. 152. The cases contra, as e. g. Kimberly v. Ely, 6 Pick. 440, have been over- ruled. The rule would probably be the same if no dividends were received or if the claims were re- jected altogether. That, how- ever, would be on the ground of res judicata. See ante, p. 90. 2°Upon what principle of ex- alted equity,’ said the court, ‘ shall a man be permitted to receive a valuable consideration through a statute procured by his own con- sent, or subsequently sanctioned SECT. I1.] ELECTION. 753 A similar doctrine has been held in respect of one who had joined in a petition for the opening or improvement of a street gel by him, or from which he derives an interest and consideration, and then keep the consideration and repudiate the statute as unconstitu- tional? Suppose five hundred citi- zens of Gallatin County had come together and by written agreement authorized certain gentlemen ag 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 per- sonally and collectively without a statute, but to render the col- lection more secure, less uncertain as to the recipients, and more equi- table, they should agree, instead of giving their personal obligations, to procure an enactment to compel each one to contribute according to the amount of his property, and constitute the county court their agent to determine this, and have the proper assessment made and collected from each, by what rule of equity or law should they be per- mitted to withdraw their assent to this assumed liability and agency, though it be evidenced by a statute instead of a mere personal con- tract? . . . In procuring this money and obtaining with it volunteer soldiers these men violated no law of morality or of government. Their contract was not void for want of consideration or for illegal- ity; 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 considera- tion. nor estoppel as to the usurious loan; but if the borrower induces a third and innocent party to take the note, he is then estopped, be- cause his conduct becomes fraud- ulent as to this third party... . Suppose the legal voters of a town should petition the legislature to grant a charter for a manufacturing company, authorize them to or- ganize it by electing officers, and confer 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 according to what he paid of this tax; whilst this statute would be clearly in- valid 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 re- pudiate 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 valuable con- sideration by the avoidance of the draft, and hence are liable: Those who participated in the procure- ment of the law, or afterwards voluntarily ratified it, cannot be heard now to object, especially such as had relatives liable to be conscripted; because having vol- untarily waived this constitutional benefit, they shall not be heard to set it up after the money is pro- cured, the volunteers obtained, and the war ended.’ 1The same seems to be true if one had notice that improvements were being made and offered no ob- jections. Fitzhugh v. Bay City, 109 754 ESTOPPEL IN PAIS. (CHAP. XX. such a one will, it is said, be afterwards estopped to allege that the levy of a tax to pay for the improvement was unauthorized on the ground that the number of abutters required by law did not join in the petition. This position is not generally ac- cepted. It has well been declared that citizens who have petitioned for the making of an improvement have still the right to assume that things will be done lawfully, that they are not bound to take notice of illegal proceedings on the part of the municipality, and therefore are not estopped by their silence to object to them.? In accordance with the Kentucky doctrine one who as a member of a corporation advocates or votes * for an assessment Mich. 581, 67 N. W. 904; Smith v. Carlow, 114 Mich. 67, 72 N. W. 22; Wilson v. Salem, 24 Or. 504, 34 P. 691. 1 Burlington v. Gilbert, 31 Iowa, 356. People v. Goodwin, 5 N. Y. 571, and Kellogg v. Ely, 15 Ohio St. 66, were cited in support of the doctrine; but it may be doubted if they are in point. In re Sharp, 56 N. Y. 257; Tone v. Columbus, 39 Ohio St. 281, 298, denying Burling- ton v. Gilbert, supra. See also Gilmore v. Fox, 10: Kans. 509. Joining in a petition for a public improvement, accepting an ap- pointment as an officer to hold an election of commissioners for carry- ing it out, and requesting the mu- nicipality to assume payment of bonds in aid of it, were held to estop the party to object to the validity of an assessment on _ his property to pay for the same, in Ferson’s Appeal, 96 Penn. St. 140. Accepting without objection a road laid out as a private way by a tribunal having jurisdiction of the subject-matter estops one to ob- ject to the omission of a certain statement in the petition, when sued for damages. Fernald v. Palmer, 83 Me. 244, 22 A. 467. Acqui- escence by property owners for seven years in proceedings taken for annexing territory, and voting meantime for officers of the mu- nicipality, who contract debts for carrying out the improvements involved in the matter, are held to estop the owners from asserting the invalidity of the business. Lo- gansport v. La Rose, 99 Ind. 117, 132. See also Hickling v. Wilson, 104 Il. 54. An error in the proceedings of a body committed at the instance of a party and in his favor cannot afterwards be set up to impeach the validity of such proceedings. Scott v. Board of Commissioners, 101 Ind. 42. 2Steckert v. East S&ginaw, 22 _Mich. 104; Tone ». Columbus, 39 Ohio St. 281, 298. See Greencastle v. Black, 5 Ind. 557; Strosser v. Fort Wayne, 100 Ind. 448, 446; High- tower v. Overhaulser, 65 Iowa, 347. 8 Cases just cited; In re Sharp, 56 N. Y. 257. The analogy of the cases in the Supreme Court of the United States, ante, p. 410, is by no means complete, for the contest in them was between the municipal- ity and innocent purchasers for value; while here it is between the municipality and its own citizens, — between agent and principal. 4 But see Strosser v. Fort Wayne, 100 Ind. 443, 445. oy SECT. I1.] ELECTION. 755 which is made will be estopped to deny the validity of the same, so far as that turns upon mere irregularity; though it is not enough to show his mere presence at the meeting. Upon the same principle persons who petition a town to let a contract for certain work cannot object to the levy of a tax to pay for the work by alleging irregularities in the contract when the facts were known by them at the time and passed without objection.” But it is held that a landowner on whom an assess- ment for the extension of a street has been laid under the statute is not estopped to petition for a jury to revise the assessment by reason of his having asked for an apportionment thereof under the same statute.? So too one who did not assent to irregularities in proceedings for which one petitioned may assert them afterwards. And it has lately been held by the Supreme Court of the United States that a municipality is not estopped to question the constitutionality of an act authorizing it to tax its citizens even after having acted under the law for one year.® Many of the cases upon this subject, it will be noticed, are simply cases of ratification or acquiescence; ® and it is a ques- 1 Ridgefield »v. Reynolds, 46 collection of the fund. Peake ». Conn. 375; Thatcher v. People, 98 Il. 632; Cross v. Kansas, 90 Mo. 13. Petitioning for a thing estops one from claiming damage for its doing. Vaile v. Independence, 116 Mo. 338, 22 S. W. 695. The burden is upon the person alleging the estoppel to show the other party’s active favor of the assess- ment. Ridgefield v. Reynolds, supra. 2 Patterson v. Baumer, 43 Iowa, 477; Kellogg v. Ely, 15 Ohio St. 64; Motz v. Detroit, 18 Mich. 495; Erickson v. Cass, 11 N. D. 494, 92 N. W. 841. See Warner v. New Orleans, 167 U. 8. 467, 17 Sup. Ct. 892, 42 L. Ed. 239, showing liability of a city by way of estoppel to make good a fund to meet its contract. voluntarily entered into where the fund depended largely on the city’s action and such action had been taken as to prevent the New Orleans, 189 U. 8. 342, 11 Sup. Ct. 541, 35 L. Ed. 131, dis- tinguished. 3Gardner v. Boston, 106 Mass. 549. See also to the’ same effect Nicodemus v. East Saginaw, 25 Mich. 456; Steckert v. East Sagi- naw, 22 Mich. 104; In re Sharp, 56 N. Y. 257; Canfield ». Smith, 34 Wis. 381. See further Damp ». Dane, 29 Wis. 419. ‘ Taylor v. Burnap, 39 Mich. 739. Loan Association v. Topeka, 20 Wall. 655. ®See also Frick v. Trustees of Schools, 99 Ill. 167, long acqui- escence; Kimball v. Lee, 40 N. J. Eq. 403, acquiescence; Perry v. Cheboygan, 55 Mich. 250, ac- quiescence; Waldron v. Toledo Ry. Co., ib. 420, acquiescence; Skinner v. Grace Church, 54 Mich. 548, ratification; Proskauer v. 756 ESTOPPEL IN PAIS. [CHAP. XxX. tionable use of terms, as we have seen,! to apply the word ‘estoppel’ to them. A few more cases will serve to enforce this observation. Thus, if heirs of age join in a deed of quit- claim with a trustee of the ancestor’s real estate, to.complete title made by a previous deed executed by the trustee, it is said that they will thereafter be ‘estopped ’ from contesting the validity of that earlier deed.? So if a man assent with knowledge of the facts to the appropriation by an officer of the law of moneys arising from a judicial sale, he will be estopped thereafter from objecting. Taking proceedings to enforce a contract amounts also to a conclusive recognition of the validity of the contract,* until such proceedings, at all events, are dis- continued.® So if one perform acts required to be done by a written instrument purporting to be signed by him, he will be estopped to deny his execution of it.6 On the other hand, a corporation is not estopped to sue upon the bond of its treasurer for unfaithfulness and misappropriation of funds by having ac- cepted the report of an auditing committee which approved his accounts, or by making a report founded thereon to the legislature.” Nor are supervisors estopped by auditing and paying part of a claim to dispute the party’s right to the rest, though this involves denying the validity of the payment already made.® So far as the term ‘ estoppel ’ is used as a synonym in such cases with ‘ bar’ or ‘ preclusion,’ there is no great objection to its use; ° the objection to using it in cases of ratification and the People’s Sav. Bank, 77 Ala. 257, laches; Burk v. Simonson, 104 Ind. 173, acquiescence, with change of position; Sewall v. Hebert, 37 La. An. 155, ratification; Wray ». Davenport, 79 Va. 19, acquiescence. 1 Ante, p. 493. : 2 Vallette v. Bennett, 69 Ill. 632. 3 McConnell v. People, 71 Ill. 481. Text quoted in Hector v. Mann, 225 Mo. 228, 124 S. W. 1109. 4 Metropolitan Ry. Co. v. Chi- cago R. Co., 87 Ill. 317. ®Comp. State v. Adams, 71 Mo. 620. 6 Boggs v. Olcott, 40 Ill. 303. 7 Lexington R. Co. v. Elwell, 8 Allen, 371. See Dunnell Manuf. Co. v. Pawtucket, 7 Gray, 277. 8 People ». New York, 1 Hill, 362. A petitioner in lunacy pro- ceedings is not estopped elsewhere, either by the petition or judgment, from claiming that respondent was sane at the time. Hughes v. Jones, 116 N. Y. 67, 22 N. E. 446, 15 A. 8. R. 386. 9See Meyer v. Mitchell, 75 Ala. 475, for such a use of the term, in regard to fraud. #2 SECT. 11.] ELECTION. 757 like is that it is misleading. Ratification and acquiescence sup- pose the existence of something incomplete in regard to its legal consequences; hence they cannot be a kind of estoppel in themselves. At most they are but facts which may serve to supply something otherwise wanting to an estoppel.! 1The term ‘estoppel’ has also been applied to mere questions of the admissibility of parol evidence to vary the terms of a written contract. Thus, it is sometimes said that by contracting with per- sons jointly the other party is es- topped to treat them as severally liable. Sprigg v. Bank of Mt. Pleasant, 10 Peters, 257; 8. c. 14 Peters, 201. See also Cox »v. Thomas, 9 Gratt. 312; Blood ». La Serena Land Co., 113 Cal. 221, 41 P. 1017. Allowing dis- charge into a sewer for many years is but a revocable license, and licensor is not estopped or pre- cluded by laches, or acquiescence from having injunction to restrain further use. Iskington Vestry »v. Hornsey Council, (1900) 1 Ch. 695. PART IV. PROCEDURE. PART IV. PROCEDURE. CHAPTER XXI. PLEADING THE ESTOPPEL.! Ir has been an unsettled point in practice whether the es- toppel of a record or of a deed is available if not pleaded. It was said in one of the leading cases ? that the judgment of a court of competent jurisdiction was as evidence conclusive; while in another leading case * the doctrine was maintained that the estoppel of a record was removed by the failure to plead it, and that the jury were in such a case at liberty to find ac- cording to the truth of the matter. And the same position was taken in an earlier case * by Lord Coke in regard to the estoppel of a deed. In this case, an action on a bond, that great judge said: ‘ The obligee in pleading cannot allege the delivery before the date . . . because he is estopped to take an averment against anything expressed in the deed; yet the jurors, who are sworn to say the truth, shall not be estopped because they are sworn to say the truth.’ The whole doctrine that a record or deed should be pleaded in order to the estoppel appears to have been founded on this case;. and the tendency of both the English and the American courts seemed for a long time to be towards this position.® 1The attention of the reader is called to two well-considered ar- ticles on Pleading Estoppel, in the Michigan Law Review for March and May, 1911, which were over- looked in time for further recogni- tion in the present chapter. The first of the articles relates to com- mon law, the second to Code plead- ing. 2 Duchess of Kingston’s Case, ante, p. 102. 2 Vooght v. Winch, 2 Barn. & Ald. 662. See Sulis v. Ferguson, 10 N. B. 110. ; 4Goddard’s Case, 2 Coke, 4. See Miller v. Weldon, 13 N. B. 188. 5 See notes to Duchess of Kings- ton’s Case, 2 Smith’s L. C., Am. ed.; Foye v. Patch, 132 Mass. 762 PROCEDURE. [CHAP. XXI. But whatever may have been law in Lord Coke’s time, it has well been said that the jurors are not in modern times sworn to say the truth, but a true verdict to give according to the evidence.1 And as the learned writer referred to further says, it is indeed difficult to see in what manner the oath of a juror can be opposed to the rule that a record shall prevent the party against whom it is offered in evidence from producing other evidence to controvert it; and that all the evidence being thus one way, namely, with the record, the jury (by reason of their oath) should not be bound to give their verdict for the party with whom all the evidence is, and against the party with whom there is no evidence.” This seems sufficient to overturn the rule in Goddard’s Case, and with it the many cases holding the same position on both sides of the Atlantic. The tendency of the decisions has also been strongly the other way since Mr. Smith’s work was published, especially in America.’ 105. So still in some States. Meiss v. Gill, 44 Ohio St. 253; Fanning v. Insurance Co., 37 Ohio St. 344; Burlington v. Merchants’ Bank, 68 Iowa, 343. See Crawford v. Nolan, 70 Iowa, 97, 99; infra, p. 766. And see Everest & Strode, Estoppel, ch. 11, where the English ‘practice is intelligently stated. 1]t should be remembered, how- ever, that the transition into the modern jury system had not been fully accomplished in the time of Lord Coke, and that under the system which had previously ex- isted jurors were themselves wit- nesses, and were sworn as such to speak the truth. 2 Reeves’s Hist. English Law, 164, 540, note (Finl. ed.); 3 ib. 305, note. 2 Mr. Smith’s note in his Lead- ing Cases to the Duchess of Kings- ton’s Case. 3 See note of American editors to Duchess of Kingston’s Case, 2 Smith’s L. C.; Foye v. Patch, 132 Mass. 105; Insurance Co. v. Harris, 97 U. S. 331, 336; Fowlkes »v. State, 14 Lea, 14. Mr. Smith him- The self thought that the English cases might be reconciled. ‘It is sub- mitted,’ he says in his note to the Duchess of Kingston’s Case, ‘ that the cases of Vooght ». Winch [supra] and Doe »v. Huddart [2 Cromp. M. & R. 316] are by no means at variance with the doctrine of De Grey, C. J. viz., that a judg- ment on the same point between the same parties is in pleading a bar, in evidence conclusive. And it is submitted that the true mean- ing of this is that it is conclusive as a plea where there is an oppor- tunity of pleading it, but that where there is no such opportunity, then it is conclusive as evidence; and that Vooght v. Winch and Doe v. Huddart merely decide that a party may waive the benefit of an estoppel, and that he elects to waive it by not pleading it when he has an opportunity -of doing so.’ This distinction has often been suggested; but it does not go far enough. The only con- sistent rule against the estoppel would be to exclude evidence of it CHAP. XxI.] PLEADING THE ESTOPPEL. 763 failure to plead specially may properly on the general prin- ciples of pleading prevent a party from giving evidence on the point; but if the evidence be admissible, there is no good reason why the jury should not be required to accept the conclusion of law concerning it.} It is well settled at common law that an estoppel in pais need not be pleaded; * but this rule has been changed by statute in some of the states.* The effect of the statutes, however, is not altogether when an opportunity to plead it was not availed of; a course required by statute in some of the states. Wood ». Ostram and Ransom »v. Stanberry, infra; Greaves v. Middlebrooks, 59 Ga. 862; Burlington R. Co. v. Harris, 8 Neb. 140; Hansom ». Chiatovich, 13 Nev. 395. See, further, Krekeler »v. Ritter, 62 N. Y. 372; Briggs v. Bowen, 60 N. Y. 454; Lawton v. Racine, 137 Wis. 593, 119 N. W. 331. But it is clear that the facts are available as an estoppel where there was no opportunity to plead them. Foye v. Patch, 182 Mass. 105; Clink »v. Thurston, 47 Cal. 21; Gans »v. St. Paul Ins. Co., 48 Wis. 108; Cleveland Ry. Co. v. Moore, 170 Ind. 328, 82 N. E. 52; Morback v, Young, 58 Or. 135, 113 P. 22; Capital Lumber Co. v. Barth, 33 Mont. 94, 81 P. 994; Lond. ». Lackawanna Coal Co., 223 Mo. 713, 1386 S. W. 673; Rio Grand Ry. Co. v. Telluride Co., 23 Utah, 22, 63 P. 995. 1Stancill v. James, 126 N. C. 190, 35S. E. 245. Ifa party neither pleads nor proves that which is res judicata between himself and his opponent, he cannot insist on having the benefit of it, even though the prior judgment was rendered by the same court. United States v. Bliss, 172 U. S. 321, 19 Sup. Ct. 216, 43 L. Ed. 463. See also Bryar v. Campbell, 177 U. S. 649, 20 Sup. Ct. 794, 44 L. Ed. 926; Hinton v. Roane, 124 La. 927, 50 So. 798, 134 A. 8S. R. 526; Smith »v. Lumber Co., 140 N. C. 375, 53 8. E. 233. 2 Chitty’s Precedents, 407; Ever- est & Strode, Estoppel, 390, 402; Freeman v. Cooke, 2 Ex. 654, 662; Sanderson »v. Collman, 4 Man. & G. 209; Lyon v. Reed, 13 Mees. & W. 285; Coleman v. Pearce, 26 Minn. 123; Turnipseed ». Hudson, 50 Miss. 429, 485; Mayer v, Ramsey, 46 Texas, 371; Guffey v. O’Reiley, 88 Mo. 418; Blair v. Williams, 159 Ala. 655, 49 So. 71; Dickson v. New York Biscuit Co., 211 Ill. 468, 71 N. E. 1058; Nicholson v. Snyder, 97 Md. 415, 55 A. 484; Dean v. Crall, 98 Mich. 588, 57 N. W. 813. But see Bruce v. Phoenix Ins. Co., 24 Or. 486, 34 P. 16; Bays v. Trulson, 25 Or. 109, 35 P. 26; Hegan v. Freder- icton Broom Co., 18 N. B. 165. 3 Wood v. Ostram, 29 Ind. 177; Anderson v. Hubble, 93 Ind. 570; Clauser v. Jones, 100 Ind. 123; Wood ». Nicholls, 33 La. An. 744; Ransom v. Stanberry, 22 Iowa, 334; Phillipps v. Van Schack, 37 Iowa, 229; Noble v. Blount, 77 Mo. 235, 242; Hammerslough v. Cheatham, 84 Mo. 13; Dale v. Turner, 34 Mich. 405; Warder v. Baldwin, 51 Wis. 450; Cooper v. Molsons Bank, 26 Can. 611; Jones ». Peebles, 130 Ala. 269, 30 So. 564; Gulf Red Cedar Co. v. Crenshaw, 169 Ala. 606, 53 So. 812; Newhall v. Hatch, 1384 Cal. 269, 63 P. 266; 764. PROCEDURE. + (CHAP. XXI. to declare that the facts when not pleaded should be found according to the truth, but that they are inadmissible in evi- dence.! In any case, however, if the estoppel be pleaded, it should be pleaded with certainty.? Nothing will be supplied by intendment in favor of an alleged estoppel; if room is left for inference, that will be against the estoppel.* In Virginia it is held that a replication of estoppel is neces- sary where there is a special plea in defence; while if the gen- eral issue has been pleaded, the estoppel need not be pleaded in reply.* But questions of pleading the estoppel turn so much upon statutes or local practice that general rules cannot be laid down with safety. It is enough for the present to say in general that a plea of estoppel of any kind, when made, should claim that the opposite party should not be Goorberg v. Western Assur. Co., 150 Cal. 510, 89 P. 180, 119 A. S. R. 246; Devolie ». McGerr, 15 Col. 467, 24 P. 923, 22 A. S. R. 426; Keifer v. Klinsick, 144 Ind. 46, 42 N. E. 447; Center School v. State, 150 Ind. 168, 49 N. E. 961; Richie v. Cralle, 108 Ky. 483, 56 8S. W. 963; Peyton »v. Woolen Mills, 122 Ky. 361, 91 8. W. 719; Insurance Co. v. Johnson, 47 Kan. 1, 27 P. 100; Cockrill ». Hutchin- son, 135 Mo. 67, 36 S. W. 375; Chance v. Jennings, 159 Mo. 544, 61S. W. 177; Josephi v. Mady, 13 Mont. 195, 33 P. 1; Eisenhauer v. Quinn, 36 Mont. 368, 93 P. 38, 122 A.S. R. 370; Gregory v. Kenyon, 34 Neb. 64, 52 N. W. 685; Henderson v. Keutzer, 65 Neb. 460, 76 N. W. 881; Bear v. Commissioners, 124 N. C. 200, 32 S. E. 558; Porter v. Armstrong, 134 N. C. 447, 40S. E. 997; Borden v. McNamara, 20 N. D. 225, 127 N. W. 104; Deeming Invest. Co. v. Shawnee Ins. Co., 16 Okl. 1, 83 P. 918; Blakemore v. Johnson, 24 Okl. 544, 105 P. 554; McQueen v. Bank of Edgemont, 208. D. 378, 107 N. W. 208; Reed »v. Citizens Ry. Co., 110 Tenn. 316, 75 S. W. 1056; Homberger v. Alexander, 11 Utah, 363, 40 P. 260; Reynolds v. Pascoe, 24 Utah, 219, 66 P. 1064; Walker v. Baxter, 6 Wash. 244, 33 P. 426. See Scar- borough v. Woodley, 81 S. C. 329, 62 S. E. 405; Parker v. Dacres, 1 Wash. 190, 24 P. 192. 1Wood v. Ostram, 29 Ind. 177; Ransom »v. Stanberry, 22 Iowa, 334; Delphi v. Startzman, 104*Ind. 343; Robbins v. Magee, 76 Ind. 381. 2 Texas Banking Co. v. Hutch- ins, 53 Texas, 61; Bartholomee v. Lowell, 165 Ind. 224, 72 N. E. 1030. Robbins ». Magee, 76 Ind. 381, 391; Cole v. Lafontaine, 84 Ind. 446, 448; Wood v. Ostram, 29 Ind. 177; Stewart v. Beck, 90 Ind. 458; Anderson ». Hubble, 93 Ind. 570, 578; Troyer v. Dyar, 102 Ind. 396; Gilbreath v. Jones, 66 Ala. 129. Hence, if a party is to be estopped by a writing, the original or a copy should be annexed, or at least enough to show clearly the facts upon which the estoppel is to be founded. Ashley v. Foreman, 85 Ind. 55, 61. 4Hayes v. Virginia Protection Assoc., 76 Va. 225. CHAP. XXI.] PLEADING THE ESTOPPEL. 765 admitted to make use of what the supposed estoppel would exclude.! We proceed now to the consideration of the form and manner of pleading by way of estoppel, and to the matter of estoppels arising on the pleadings or in the course of the conduct of causes by reason of the action of the parties pending the liti- gation itself. The subject will be considered in the order of the three divisions of estoppel, as already presented. And first, of questions of pleading and evidence in estoppels by record. 1 Whittemore v. Stephens, 48 Mich, 573, 578. 766 PROCEDURE. [CHAP, XXII. CHAPTER XXII. ESTOPPEL BY RECORD. THE proper plea of the general issue to an action upon a judgment of a court of record is nul tiel record. The plea of nil debet would admit the existence of the record, and at the same time deny the correctness of the judgment. The same is true in respect of judgments of the sister states. But in the case of judgments of foreign countries, as these are not tech- nically records the proper way would be to plead nil debet or the special matter which shows that the judgment is void.? If the plea deny a record in the same court, the replication thereto should reassert the existence of the record and conclude with a prayer that it may be viewed and inspected by the court, and then a day is given to the parties... And when the record of another court is denied, the replication reasserts it, and a day is given to the plaintiff to bring it in. When the defendant has pleaded a record of the same court, the replica- tion denying it concludes (or concluded under the old practice) with a verification, a day being given to the parties to hear judgment; and where the defendant has pleaded a record of another court, the replication of nul tiel record may either conclude by giving the defendant a day to bring it in, or with an averment and prayer of the debt and damages.* In the former case the issue is complete upon the replication; but in the latter there should be a rejoinder, reasserting the existence of the record; and hence the first form being the more concise is preferable.® The burden of proof rests as a matter of course upon the 1 Ante, pp. 294-297. v. Becker, 8 Serg. & R. 293; 3 21 Chitty, Pleading, 485. Black. Com. 330, 331. 31 Chitty, Pleading, 600; Share 5TIbid. See the precedents, v. Becker, 8 Serg. & R. 293. post, pp. 793 et seq. 41 Chitty, Pleading, 600; Share CHAP, XXII.] ESTOPPEL BY RECORD. 767 party who sets up the judgment to show that it is a bar to the action; + but it has become the settled practice in declaring upon a judgment to allege generally that the plaintiff by the consideration and judgment of the court recovered the sum mentioned therein, and not as formerly to set out the whole of the proceedings.? The judge may look into the pleadings themselves of the former trial, though not now set out in full, to see whether a plea of res judicata can be sustained,’ or he may hear.evidence on the point when the pleadings are not decisive.* But in pleading or replying a judgment as an estoppel to an action or allegation more minuteness must be observed.® It must now be made to appear that precisely the same matter was in issue at the former trial as that now in question, and that the judgment was rendered on the merits,® or there can be no estoppel.’ If the record pleaded does not show that the fact in question was in issue or necessarily involved in the ver- dict or decision, the fact should be shown in the pleading. Thus, if a plea of judgment in favor of the defendant in de- tinue, on issue of not guilty, does not allege that the verdict was because of want of possession, it will be fatally defective in a subsequent action of trover between the parties.® ‘ Such exactness in the case of a plea may, however, be escaped by pleading, when permissible, the general issue. This is seen in Phillips v. Berick.? The plaintiff sued for work and labor done, and after a plea of non assumpsit offered to prove that the defendant was indebted to him for services rendered prior to March 8, 1817. But the defendant objected, and produced the record of a judgment rendered at the September term, 1Remington Paper Co. ». 5In equity a judgment should O’Dougherty, 81 N. Y. 474; Zoeller v. Riley, 100 N. Y. 102; Pruitt v. Holly, 73 Ala. 369. 2 Biddle v. Wilkins, 1 Peters, 686; Houstoun v. Sligo, 29 Ch. D. 448. 3 Houstoun v. Sligo, 29 Ch. D. 448; McComb ». Frink, 149 U. 8. 629, 13 Sup. Ct. 993, 37 L. Ed. 876. 4 Ante, p. 97. be pleaded by full and proper averments. Jourolmon v. Massen- gill, 86 Tenn. 81. 6 Fowlkes v. State, 14 Lea, 14. 7Temple v. Williams, 91 N. Car. 82, 91; Gilbreath v. Jones, 66 Ala. 129. 8 Gilbreath v. Jones, 66 Ala. 129. See Chamberlain v. Gaillard, 26 Ala. 504. 916 Johns. 136. [CHAP, XXII. 768 PROCEDURE. 1817, upon a debt to the same plaintiff alleged to have arisen on the 8th of March, 1817. He, however, went too far, contend- ing that this record precluded the plaintiff from giving evidence of any demand for service arising before that time. This would have been to better his case by not pleading specially. . Mr. Justice Spencer said that the question was whether a re- covery by the plaintiff for services rendered prior to March 8, 1817, was a bar to any other claim for services performed be- fore that time, though it should .be made to appear, not only that it was not the same work for which a recovery had already been had, but that it was an entirely different piece of service. He said that it had been decided that a recovery in a former action, apparently for the same cause, was only prima facie evidence that the matter of the subsequent demand had been tried; it was not conclusive.!' The plaintiff would be required, however, to show clearly and satisfactorily that the services for which he sought to recover were not the same as those embraced in the former suit, and that they grew out of a dis- tinct contract; for if a man labored for another a year under the same contract, he could not split up the demand and sue for each day’s work.’ This doctrine that parol evidence is admissible, in the silence of the record, to prove or disprove the identity of the matter in litigation with that of the former adjudication is, as we have elsewhere seen, well settled.2 Though the particular matter cluded the demand now in con- 18nider v. Croy, 2 Johns. 227; { test; and the burden of proof Seddon v. Tutop, 6 T. R. 607. 2‘Tf we test the rule we have laid down,’ he proceeded to say, ‘by the rules of pleading, the same result will be found. The defend- ant, had he pleaded specially, must have stated a former recovery. . . . The replication would be that the promises in this action were not the same identical promises for the non-performance whereof the plaintiff had not recovered by the said judgment. This would have formed an issue to the country; and the inquiry in pais would be whether the former recovery in- would be thrown on the plaintiff. The record would be prima facie evidence for the defendant; and this the plaintiff would have to meet - and overthrow by showing for what the former recovery was, and that the claim set up anew had not been submitted to the jury and was a distinct transaction, not so identified with the former suit as to render it an entire con- tract, incapable of subdivision.’ 3Supples v. Cannon, 44 Conn. 424; Fowlkes v. State, 14 Lea, 14; Chamberlain v. Gaillard, 26 Ala. CHAP. XXII.] ESTOPPEL BY RECORD. 769 may not have been the primary subject of litigation, yet if the necessary issues in the former case drew it in, the adjudication upon it will, by the better rule, be conclusive.! In regard to the matter of form the following plea was held good in a recent case: * The declaration was for an injury to the plaintiff’s reversion; and the defendant inter alia pleaded that the plaintiff ought not to be permitted to implead the defendant in respect of the causes of action in the first count alleged, because he said that after the accruing of the causes of action in the first count alleged and after the passing of the Chancery Regulation Act the plaintiff commenced his suit and filed his bill in the High Court of Chancery against the defend- ant, and impleaded the defendant therein for the very same rights, claims, and causes of action as in the said first count alleged; and such proceedings were thereupon had in the said suit that before the commencement of this suit the said Court of Chancery determined the same alleged causes of action in favor of the defendant, and gave judgment, and decreed in respect thereof in favor of the defendant; and the said judg- ment and decree still remained in force. The objection to the plea was that it was not specific enough in the statement of the issue in the trial in chancery. Counsel contended that it was necessary to show that the matter did in fact come in issue, and that it was not enough to show that it might have come in issue, as they said was the case with the plea in question. But the plea was sustained.’ 504; Gilbreath v. Jones, 66 Ala. 129, 133; Perkins v. Walker, 19 Vt. 144; Gardner v. Buckbee, 3 Cowen, 121; Burt v. Sternburgh, 4 Cowen, 559. See United States v. Lane, 8 Wall. 185; ante, p. 97. 1Gilbreath v. Jones, 66 Ala. 129, 133. See McCalley v. Robin- son, 70 Ala. 432; Johnston ». Riddle, ib. 219. 2 Langmead v. Maple, 18 C. B. N. 8. 255. 3 Willes, J. said that at first he had been disposed to think the plea bad. It was not sufficient to constitute res judicata that the matter has been determined; it must appear that the matter had been controverted as well as deter- mined upon. ‘Looking at the pleas,’ he proceeded to say, ‘ it seemed to me that probably the Court of Chancery may not have dismissed the plaintiff’s bill on the merits, but judging upon equitable grounds may have considered it not to be a case for an injunction, and may have declined to go into the question whether the plaintiff had any legal right or not. It may have been unnecessary to go into that except for the amount of 770 PROCEDURE. [CHAP. XXII. In respect of judgments of foreign countries a plea of judg- ment recovered in a foreign nation must show that the court had jurisdiction, and that the judgment was final and conclu- sive where given.’ And in the case of an action upon a foreign judgment the declaration should set out the same facts.2. With regard to judgments of the sister American states presumptions arise in favor of the record under the same circumstances? as in the state in which the judgment was rendered; and it would seem to follow that the same rules of pleading should prevail in both cases. It has been held in a late case * in an action upon a judgment rendered in another state, which would have been invalid by the law of the state in which it was sought to be enforced, that it must be shown that the judgment was valid where rendered. But whether it was necessary that this fact should be alleged in the declaration was not stated. In the case of judgments of inferior courts, as there are no presumptions in damages. Therefore the Court of Chancery may have given the go-by to the right now asserted by the plaintiff. But as the plea alleges that the Court of Chancery de- termined the same alleged causes of action, I think we are bound to assume it to mean that the court decided upon the legal merits against any right of action in the plaintiff in respect of those causes; and as the court had jurisdiction, it might have made a final end of the matter. I can quite conceive that the first view may be the proper one to take on the evidence given. It may appear that the decree was upon the face of it final, and either on the face of the decree or on the evidence if ad- missible, that the dismissal of the plaintiff’s bill proceeded upon grounds peculiar to the Court of Chancery, and that this matter was not disposed of. But on look- ing -at the plea, for the reasons mentioned I think I must assume that the Court of Chancery did dispose of the legal merits, and that the plaintiff has no right to ask this court to come to a different decision on the same matter.’ 1Frayes v. Worms, 10 C. B. n. s. 149; Plummer v. Woodburne, 4 Bam. & C. 625; Douglas ». Forrest, 4 Bing. 686. Comp. ante, pp. 280, 316-318. 2Tbid.; Nouvion v. Freeman, 37 Ch. D. 244, C. A., Cotton, L. J. s.c, L.R.15 A.C. 1. See Hilton v. Guyot, 159 U. S. 118, 16 Sup. Ct. 139, 40 L. Ed. 95. As to allegations in defences to an action on a foreign judgment with reference to matters of juris- diction, irregularity and fraud, see Ritchie v. McMullen, 159 U. S. 235, 16 Sup. Ct. 171, 40 L. Ed. 133. 3 But not in all cases to the same extent. Thus, it has lately been decided by the Supreme Court of the United States that the allega- tions of. the record as to the facts concerning jurisdiction are only prima facie evidence. Thompson v. Whitman, 18 Wall. 457; Knowles v, Gaslight Co., 19 Wall. 58. ‘Crafts v. Clark, 31 Iowa, 77. CHAP. Xx1I.] ESTOPPEL BY RECORD. 771 their favor, the jurisdiction must be proved; and this is true as well of domestic as of foreign judgments.! In those cases in which a plaintiff has by judgment estab- lished his right of action for a recurring liability ? he should declare as upon a new cause, leaving the judgment to be used in evidence to establish his general right. Thus, in regard to a second suit for a continuing nuisance Mr. Justice Rogers says that the plaintiff should file his declaration for the continuance, and not for the same cause of action involved in the first suit; and then the verdict and judgment in the former action, given in evidence (the subject of the nuisance and the parties being the same), are conclusive of the damages to the commencement of the writ, and of the right. All that is then required of the plaintiffs is to prove that the nuisance remains in the same or in a more or less damaging condition than before. However, in Massachusetts and in Ohio judgment in cases of nuisance like this is treated as but prima facie evidence of the plaintiff’s right.* If an estoppel by record appear plainly in a pleading the nature of which is opposed to the estoppel, the opposite party may demur; he is not bound to answer.’ And it matters not whether the judgment relied upon was rendered before or after the action was begun in which it is invoked.® The estoppel by record is legal, and hence, to give a court of equity jurisdiction to entertain it, it would be necessary to show some equity apart from the estoppel. 1Cole v. Stone, Hill & D. 360; »v. Boston, 19 How. 263; Courtland Thomas ». Robinson, 3 Wend. »v. Willis, 19 Ohio, 142. 267. See ante, p. 228. 5 Greenup v. Crooks, 50 Ind. 410. 2 Ante, pp. 191-198. 6 Jessup v. Carnegie, 80 N. Y. 3 In Smith v. Elliott, 9 Barr, 345. 441; Allis v. Davidson, 23 Minn. ‘Standish v. Parker, 2 Pick. 442; Poorman v. Mitchell, 48. 20; s. c. 3 Pick. 288; Richardson Mo. 45. 772 PROCEDURE. [CHAP. XXIII. CHAPTER XXIII. ESTOPPEL BY DEED. QUESTIONS peculiar to pleading and practice in relation to estoppels by deed have not arisen so often as in the other divisions of the subject, and we are unable to present the sub- ject very fully without repeating what has been said before. The following are the most important matters. When the matter which operates as an estoppel appears on the face of a pleading, the opposite party may demur to a plea by which the defendant attempts to set up such matter as a ‘ defence.t Thus, if in covenant on a lease by the lessor the defendant plead nil habuit in tenementis, that is in effect that the lessor had no title to or interest in the land, the plea will be bad because the matter of estoppel, to wit, the demise by deed and the holding thereby, appear in the declaration. But where the action upon a lease is brought by a party who claims de- rivatively from the lessor, in which case the declaration should show the lessor’s title and the derivative title of the plaintiff, it is competent to the defendant, as we have elsewhere seen,? to deny that the lessor had the particular title alleged in the declaration.? The demurrer should, it seems, be special.* If the matter of estoppel do not appear from the previous pleading, the replication should expressly show and rely on such matter; and it is advisable to have an appropriate commence- ment and conclusion to the replication; for by replying an estoppel without relying upon it the advantage of the es- 1Oregonian Ry. Co. v. Oregon y. Co., 10 Sawy. 464. 2 Ante, pp. 579 et seq. 31 Chitty, Pleading, 603. ‘Oregonian Ry. Co. v. Oregon Ry. Co., 10 Sawy. 464. E. g. that the defendant ought not to be heard to say or allege that the plaintiff is not a corporation or has no power to make the contract sued upon, contrary to his ac- knowledgment and deed, as ap- pears by the declaration and is ad- mitted by the plea. Ibid. CHAP. XXIII.] ESTOPPEL BY DEED. 773 toppel, where the rules of pleading are strictly enforced, might sometimes be lost. As (under the old law ”) where in debt for rent on a demise by indenture by one who has nothing in the land (the declaration not showing the deed) the defendant pleads nil habuit in tenementis, if the plaintiff reply that he had a sufficient estate to make the demise, he would lose, ac- cording to technical rules, the benefit of the estoppel; but if he should reply that the lease was made by indenture, and conclude unde petit judicium if the defendant shall be admitted to plead the plea against his own acceptance of the lease by indenture, the defendant would be estopped.? The estoppel by deed is a legal estoppel, and therefore al- ways available at law. To give a court of equity jurisdiction to entertain it, it would then be necessary to show some ground of jurisdiction apart from the estoppel. 11 Chitty, Pleading, 603. $1 Chitty, ut supra. See Davis 2See ante, p. 548. v. Shoemaker, 1 Rawle, 135. 774 [cHAP. xxIv. PROCEDURE. CHAPTER XXIV. / ESTOPPEL IN PAIS. A PLEA of estoppel by contract, in respect of a fact actually. or virtually (if clearly) agreed need go no further, it seems, than to allege a valid agreement as regards the fact, with such other matters as may make. that agreement intelligible. If the fact in question, though-recited in a contract, is not in law agreed, then a further allegation is necessary, showing that the pleader acted upon it in good faith, believing it to be true, and without notice of anything to the contrary. Again, if the estoppel depends upon the doing of some act in the way of performing the contract, as the giving of possession to the party to be estopped, that fact must be alleged. A plea of estoppel in pais by misrepresentation ? should ordinarily show: 1. That the party sought to be estopped has made a representation with the intention of influencing the conduct of the pleader in a manner inconsistent with the claim set up. 2. That the misrepresentation was known by the party making it to be false, and that the pleader did not know that it was false, but, on the contrary, believed it to be true. But the scienter is not alleged in England or in all our States. 3. That the pleader has acted upon such act or declaration. 4, That he will be prejudiced by allowing the truth of the admission to be disproved.? 1Quere whether this could be answered by an allegation of mis- ments of this estoppel, see cases ante, p. 631. note 2. Repre- take? See ante, p. 496. 2In regard to estoppel in pais arising from waiver, ‘see chapter 19. On pleading an estoppel in pais, see ante. p. 766. 3 Brown 0. Brown, 30 N. Y. 519, 541; Plumb v. Cattaraugus Mutual Ins. Co., 18 N. Y. 392; Dezell v. Odell, 3 Hill, 215. For the ele- sentation of the existence of a consideration to a contract stated and relied upon in a pleading works no estoppel. Chatfield ». Simonson, 92 N. Y. 209; Russell v. Kierney, 1 Sandf. Ch. 34; Day v. Perkins, 2 Sandf. Ch. 359. But as to sworn pleadings and de- positions, see ante, p. 633, note 3. CHAP. XXIVv.] ESTOPPEL IN PAIS. 775 In regard to the evidence required to establish the plea, it is not necessary that that should show or tend to show an inten- tion to mislead; enough that it shows or tends to show that the party who made the misrepresentation intended that the same should be acted upon.? Indeed, it is not necessary to offer evidence of an actual intention that the representation should be acted upon; it is enough to show that the conduct of the party supposed to be estopped or the circumstances of the situation were such as to lead a reasonable man to suppose an intention of that kind. So too it is not required that the pleader should prove that the party who made the representa- tion knew it to be false; it is enough to show that the facts were such as the law requires him to know, or that he made a statement recklessly, not knowing whether it was true or false.? On the other hand, it is not in all cases sufficient (all else having been established) for the pleader to show that he was ignorant of the facts and believed the representation to be true, for he ‘too may be required to know the true state of things.? In some- cases the pleader may show presumptive damage. * Evidence is admissible of facts constituting an estoppel in pais, even against the production of a sealed instrument. In Platt ». Squire,® a bill in equity, it appeared that Platt, a mort- gagee of certain land in question, represented to a third per- son, under whom the defendant claimed, that the debt for which the mortgage was given had been paid and satisfied, and that the third person was induced by reason of the state- ment to relinquish an attachment of the mortgagor’s goods, and to take a mortgage of the same land to secure the debt. It was held that a mortgage under which the defendant claimed should take priority over that given to Platt;® and this too though Platt’s mortgage was on record at the time of his mis- representations. The court said that it was no objection that the title of Platt was by a recorded deed. It was true that ti- tle by mortgage deed could not be released by parol. But al- 1 Ante, p. 685. The person who 3 Ante, p. 682. sets up the estoppel has of course 1 Ante, pp. 703-707. the burden of proof in regard to it. 512 Met. 494. : Petring v. Chrisler, 90 Mo. 649. 6 Fay v. Valentine, 12 Pick. 40; 2 Ante, p. 663. Dewey »v. Field, 4 Met. 381. 776 PROCEDURE. [cHAP. XxIV. though the legal title might exist as a paper title, the party may not be able to enforce it or to render it effectual. This kind of defence, when offered to control written conveyances or title deeds, was no more obnoxious to the objection of permitting oral evidence to control written evidence than was the ordinary case of setting aside conveyances for fraud upon oral proof. Where an estoppel in pais turns upon silence, as where it is alleged against the assertion of title to property on the ground that the owner stood by and suffered it to be sold as the prop- erty of another, it is necessary to allege clearly the assent of such party to what took place. A statement of information and belief is not enough. In Jones v. Cowles ! a bill was filed in chancery to restrain Cowles from asserting the legal title to certain lands alleged to have been sold to one Ware, under whom the plaintiff claimed, on the ground that he had placed himself in a position which estopped him from asserting such title against the plaintiff. The charge was that the plaintifi’s grantor, Arnold Seales, purchased the lands in question of Ware for the sum of $4,000, for which notes were given and a bond for title received. The bill then proceeded as follows: ‘ Your orator further saith that he is advised and believes that before the said contract of purchase was consummated, the said Thomas M. Cowles, in whom was the legal title, as your orator is informed, said to the said Arnold Seales and Robert J. Ware that the said Ware might sell the said lands to the said Seales, and that he (the said Cowles) would look to the said Ware for the pay- ment of the same; and that the said Cowles in fact stood by and gave his assent, as he believes, to the sale of said lands by the said Ware to the said Seales, he having been advised at the time that a contract had been agreed upon which was to be- come effectual if he (Cowles) should approve or sanction the sale, which he did do.’ The bill then stated that Seales had been induced by the statement made by Cowles to purchase the land; that Seales sold to the plaintiff, and that the plaintiff made the purchase and made valuable improvements on the faith of the assent of Cowles to the sale by Ware. The bill was dismissed.” 126 Ala. 612. delivering judgment, now said: 2Mr. Justice Goldthwaite, in ‘It will be seen from the statement CHAP. XXIV.] ESTOPPEL IN PAIS. 777 The facts constituting an estoppel in pais may, indeed, 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 compelling the conveyance of a farm which he had purchased 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 conveyance, on the ground that the executor acted with the consent and approba- tion of the heirs, and that they encouraged the sale. It was held that the plaintiff was entitled to his remedy.? Generally speaking, estoppels in pais are available as well at law as in equity. This is true even of the so-called ‘ equitable estoppel; ’ indeed, it has been laid down that that estoppel is not available as such in equity, but that there must be some - equity apart from the estoppel to give a court of equity the right to entertain it.4 The Statute of Frauds, however, raises a difficulty touching estoppels in pais in regard to land. It is everywhere conceded, indeed, that the title to land can be affected by estoppel in pais arising from fraud. Thus, it is even held that a vendor of land will not be allowed, after rep- we have made of the bill that the equity of the appellant rests entirely upon the conduct of Cowles in giving his assent to the sale by Ware to Seales; and hence it is necessary that the fact should be clearly charged in the bill. But the bill is defective in this, as the fact of the assent is not charged at all. The allegation, as will be seen from the extract we have made, simply is that the complainant was ad- vised and believed that such assent had been given, and this is not enough. See Read v. Walker, 18 Ala. 323; McDowell v. Graham, 3 Dana, 73. If the allegation we have referred to is struck out there is no -other which would create any estoppel on the part of Cowles.’ 1 Favill v. Roberts, 3 Lans. 14; s. c. 50 N. Y. 222; Goodman »v. Winter, 64 Ala. 410; Stone v. Tyree, 30 W. Va. 687, 702. See Wehrman v. Conklin, 155 U. S. 314, 15 Sup. Ct. 129, 39 L. Ed. 167. Comp. estoppel by deed, ante, pp. 472, 476. 2See Stone v. Tyree, 30 W. Va. 687, 702; Green Bay’ Canal Co. v. Hewitt, 62 Wis. 316, 327; Davis v. Wakelee, 156 U. S. 680, 15 Sup. Ct. 555, 39 L. Ed. 578. 4 But see Baltimore Ry. Co. v. Illinois Ry. Co., 137 Ill. 9, 27 N. E. 38. 4 Drexel v. Berney, 122 U.S. 241. See Moore v. Frazer, 15 Oreg. 635. 778 PROCEDURE. [CHAP. XXIV. resenting that there is an alley between two lots of his at the time of selling one of them, to deny the representation after the sale has been made and the representation acted upon; though the deed of conveyance contained no allusion to the alley.! Parol dedication is a more familiar illustration. It has been held, however, that the doctrine of estoppel by conduct, where the subject of the representation is the title to real _estate or property which can only be passed by deed, though agreed to be available in equity on the ground of fraud, is not available in a suit at law.? The case first cited was an action of ejectment. The plaintiff being seised in fee of the land in controversy, sold it to one Bird, and gave bond to make title on-payment of the purchase- money secured by the purchaser’s notes. One of these notes the-plaintiff indorsed to the defendant; he obtained judgment upon it against the purchaser, who was in possession of the land, and under the instructions of the plaintiff had the execu- tion 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 pur- chaser 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 present action to recover the land. Upon this evidence the court below instructed the jury 1 Kirkpatrick ». Brown, 59 Ga. 450. ‘ 2 Doe d. McPherson »v. Walters, 16 Ala. 714; Hendricks v. Kelly, 64 Ala. 388; Thompson v. Camp- bell, 57 Ala. 183; Taylor v. Agri- cultural Assoc., 68 Ala. 229; Hayes v. Livingston, 34 Mich. 384; White v. Hapeman, 43 Mich. 267; Show- ers v. Robinson, ib. 502, 513; First National Bank v. McAllister, 46 Mich. 397; De Mill v. Moffatt, 49 Mich. 125; Nims v. Sherman, ib. 45; Smith v, Mundy, 18 Ala. 182; Wimmer ». Ficklin, 14 Bush, 193; Hamlin v. Hamlin, 19 Maine, 141; Knight v. Wall, 2 Dev. & B. 125; West v. Tilghman, 9 Ired. 163; Stockyards ». Wiggins Ferry Co., 102 Ill. 514; Blake »v. Fash, 44 Ill. 302; Mills v. Graves, 38 Il. 455; Swick v. Sears, 1 Hill, 17; Delaplaine ». Hitchcock, 6 Hill, 14; Townsend Bank v. Todd, 47 Conn. 190, 216. See Heard ». Hall, 16 Pick. 460; Wade v. Bunn, 84 Ill. 117 (equity); Curyea »v. Berry, ib. 600; Foster v. Bigelow, 24 Iowa, 379; Suttle v. Richmond R. Co., 76 Va. 284; Nix v. Collins, 65 Ga. 219; Hawkins v. Ross, 100 Ala. 459, 14 So. 278; Hagan »v. Ellis, 39 Fla. 463, 22 So. 727; Huych v. Bailey, 100 Mich. 223, 58 Nz W. 1002. CHAP. XXIv.] ESTOPPEL IN PAIS. 779 that the plaintiff was estopped to assert his title against the defendant; but this judgment was reversed by the Supreme Court.!| The learned Chief Justice who delivered the judg- 1Dargan, C. J. (for the court): ‘The plaintiff was seised in fee of the premises, and he has executed no deed by which he has trans- ferred the title to another. This is admitted; but it is contended that the conduct of the plaintiff in direeting the levy to be made on the land as the property of Bird the purchaser, who held his bond for title, and requesting the defendant to buy, estops him from asserting his legal title, more especially as the amount ~bid at the sheriff’s sale by the defendant extinguished, to that extent, the liability 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, Vendors, 262. But the question is, In what form shall the purchaser defend himself? Can he defend at law, or must he resort to equity for protection? If the defendant had been the purchaser from the plain- tiff, had he paid the full 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-money and then as- sert 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 de- fendant in the case supposed, I do not see how it could if the plaintiff having the legal title fraudulently 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 es- toppel at law, which works a di- vestiture of title, can be created 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 sub- ject-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 pa- rol estoppel, and cannot be per- mitted after he has induced a party to act upon a supposed state of facts to show that these facts are untrue to the prejudice of him who has acted on his representations. Pickard v. Sears, 6 Ad. & E. 469; Heane v. Rogers, 9 Barn. & C. 577; Graves v. Key, 3 Barn. & Ald. 318. In the case of Hamlin ». Hamlin, 19 Maine, 141, it is said that ‘no verbal agreement respect- ing land can create an estoppel at law, for the title to land 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 in- strument 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 Bolling ». Petersburg, 3 Rand. 563, Heard v. Hall, 16 Pick. 460, Marshall »v. 780 PROCEDURE. [CHAP. XXIV. ment, 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, even though the doctrine of the Alabama court be correct, whether this can be considered a sqund distinction. It would seem better to say that the case of dedication is an admitted exception to the rule that land cannot be conveyed by parol. But it is considered that parol dedications depend upon the doctrine of estoppel in pais.* There is, perhaps, little 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 the common-law ejectment against the party who has been guilty of the fraud. The latter still holds the legal title to the land, and must pre- vail at law when it is exhibited against the equitable title. It is doubtful if an equitable estoppel can be ground of a common- law ejectment; though an estoppel by deed can be, for in the latter case the plaintiff has the legal title as between the par- ties. But it is difficult to see how an equitable estoppel could . 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 coun- tenance*a contrary 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 difficult to perceive how a plain- tiff at law shall be estopped from asserting his title merely because of his fraudulent acts or conduct, which render it inequitable or un- just 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 account of the equities of the defendant? Yet we know that a court of law will 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 the 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 Chancery, which has power not only to arrest. or enjoin the suit at law, but also to decree a conveyance of the legal title to him who in equity is en- titled to it.’ See also Warner ». Middlesex Assur. Co., 21 Conn. 444. 1 Baker v. Johnston, 21 Mich. 319, 345; Lee v. Lake, 14 Mich. 12. CHAP. XXIV.] ESTOPPEL IN PAIS. 781 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 is, however, the strongest authority in favor of the position that an equitable estoppel concerning land is available at law,? at least when it is not made the ground of a common- law ejectment. On a question of partition by parol agreement the Supreme Court of Connecticut, in Brown v. Wheeler, has 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 other- wise; ”’ and Lord Coke, commenting thereon, gives as an in- stance of estoppel by matter in fact this very case of parti- tion.’ 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.’ 4 Concerning the first two of these authorities, however, it might be replied 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 in regard to the case of partition that is record evidence of the rights of 1See Wehrman v. Conklin, 155 U. S. 314, 15 Sup. Ct. 129, 39. L. Ed. 167. Dodge v. Stacy, 39 Vt. 558; Halloran v. Whitcomb, 43 Vt. 306; Spiller v. Scribner, 36 Vt. 245; Smith »v. 2 Kirk v. Hamilton, 102 U. S. 68; Dickerson v. Colgrove, 100 U. S. 578; Brown »v. Wheeler, 17 Conn. 345; Hatch v. Kimball, 16 Maine, 146; Durham v. Alden, 20 Maine, 228; Rangeley v. Spring, 21 Maine, 137; Copeland v. Cope- land, 28 Maine, 525; Stevens ». McNamara, 36 Maine, 176; Bige- low v. Foss, 59 Maine, 162; Mc- Cune v. McMichael, 29 Ga. 312; Pool v. Lewis, 41 Ga. 162; Burk- halter v. Edwards, 16 Ga. 593; Davis v. Davis, 26 Cal. 23; Mc- Afferty v. Conover, 7 Ohio St. 99; Spears v. Walker, 1 Head, 166; Barham v. Tuberville, 1 Swan, 437; Hall, 28 Vt. 364; Shaw v. Beebe, 35 Vt. 205; Gove v. White, 23 Wis. 282; Mariner v. Milwaukee & St. Paul R. Co., 26 Wis. 84; Brown ». Bowen, 30 N. Y. 519; Finnegan »v. Carraher, 47 N. Y. 493; Beaupland v. McKean, 28 Penn. St. 124; Ste- vens v. Dennett, 51 N. H. 324; Hale vy, Skinner, 117 Mass. 474; Suddarth v. Robertson, 118 Mo. 286, 24S. W. 151; Duke». Griffith, 9 Utah, 469, 35 P. 512; Murray Hill Co. v. Havenor, 24 Utah, 73, 66 P. 762; Parker v. Dacres, 1 Wash. 190, 24 P. 192. 3 Coke, Litt. 356. : 4Doe d. Morris v. Rosser, 3 East, 15. 782 PROCEDURE. _[CHAP. XXIV. the parties. However, apart perhaps from cases of ejectment at common law, the weight of authority is now clearly this way. Indeed, the ground upon which equity treats the case as out of the Statute of Frauds, to wit, the fraud of the person to be estopped, should be sufficient to justify a court of law in acting. The ground of an estoppel by conduct commonly is fraud; ! and it cannot be that a statute made to prevent the accom- plishment of fraud should stand in the way of preventing such a result in any court. And it should be observed that it is not because of any difficulty involved in the redress itself that it has been supposed that equity alone has jurisdiction. Proceedings at law which in equity might be barred by reason of estoppel may be enjoined if the estoppel from compli- cation cannot be availed of at law.’ 1 Quoted in De Votie v. McGerr, Valley R. Co., 32 N. J. Eq. 329; 15 Col. 467, 24 P. 923, 22 A.S. R. Williams v. Jersey, Craig & P. 91, 426. 97. See Taylor v..Brown, 31 N. J. 2Society for Manuf. v. Lehigh Eq. 163. CHAP. Xxv.] INCONSISTENT POSITIONS IN COURT. 783 CHAPTER XXvV. INCONSISTENT POSITIONS IN COURT.! IF parties in court were permitted to assume inconsistent positions in the trial of their causes, the usefulness of courts of justice would in most cases be paralyzed; 2 the coercive process of the law, available only between those who consented to its exercise, could be set at naught by all. But the rights of all men, honest and dishonest, are in the keeping of the courts, and consistency of proceeding is therefore required of all those who come or are brought before them. It may accordingly be laid down as a broad proposition that one who, without mistake induced by the opposite party,’ has taken a particular position deliberately in the course of a litiga- tion must act consistently with it; * one cannot play fast and loose.* Thus, if counsel seeks to amend his pleadings and his 1The remark made ante, p. 732, note 1, is equally applicable to the subject of this chapter. 2 Quoted in Lilly v. Menke, 143 Mo. 137, 44 So. 730. 3Lyon v. Travelers’ Ins. Co., 55 Mich. 141. 4 Railway Co. v. McCarthy, 96 U.S. 258; Daniel v. Morton, 16 Q. B. 198; Dreyfous v. Adams, 48 Cal. 131; Garber v. Doersom, 117 Penn. St. 162, 168; Bonham ».. Bishop, 23 8. Car. 96; Dunning ». West, 66 Ill. 366; Cronk ». Trumble, ib. 428; Long v. Fox, 100 Ill. 43; Thurlough v. Kendall, 62 Maine, 166; Brown v. Bowen, 90 Mo. 184; Callaway ». Johnson, 51 Mo. 33; McQueen v. Gamble, 33 Mich. 344; Savage v. Russell, 84 Ala. 103; Elliott v. Dycke, 79 Ala. 150; Nitche v. Earle, 117 Ind. 270; Bradley ». Rogers, 33 Kans. 120; Shubert v. Winston, 95 Ala. 514, 11 So. 200, 36 A. S. R. 241; text quoted in. McDonald v. Hooper, 57 Ark. 632, 22 S. W. 665; Scanlon v. Walshe, 81 Md. 118, 31. A. 498, 48 A. 8. R. 488; Hope v. Blair, 105 Mo. 85, 16S. W. 595, 24 A. 8S. R. 666; Newell v. Meyendorff, 9 Mont. 254, 23 P. 338, 18 A. 8. R. 738; Knud- son v. Parker, 70 Neb. 21, 96 N. W. 1010; Powers »v. Bohuslar, 84 Neb. 179, 120 N. W. 942; Wyatt v. Henderson, 31 Or. 48, 48 P. 790; Snyder v. Mystic Circle, 122 Tenn. 248, 122 S. W. 981; In re Clifford, 37 Wash. 460, 79 P. 1001. 107 A. S. R. 819. Parties ‘on appeal’ are bound by the position taken by them in the trial court. Tomlin- son v. Ellison, 104 Mo. 105, 16 S. W. 201; Morrison v. Atkinson, 16 Okl. 571, 85 P. 472. 5Garber v. Doersom, supra. [cHaP. xxv. 784 PROCEDURE. request is granted upon a condition, and the amendment made accordingly, he cannot thereafter object to the condition; sup- posing at all events that it was competent to him to accept it.) , So after agreeing that a person shall be treated as a party from a time specified the agreeing party cannot afterwards say that such person was not a party from the time stated.2_ Upon the same principle one cannot waive a tort and sue for it in the same action.2 So also after judgment for the plaintiff in eject- ment the plaintiff cannot maintain an action ex contractu for mesne profits, even though the defendant is a co-tenant with him, for the defendant has been treated as and found to be a trespasser.* And one who insists in ejectment upon recovery of a building upon the land as part thereof will not be allowed to deny that it is a fixture and a permanent improvement, so as to escape payment to the defendant of the value thereof, to which the defendant is entitled. Asking for a continuance of a cause is held to be an affirmance conclusive of the court’s jurisdiction. And participating in a new trial precludes one from complaining of errors in the first; ’ especially will one be precluded from complaining of an error committed at one’s own request.® Text quoted in Stamper v. Venable, 117 Tenn. 557, 97 S. W. 812. See also First Nat. Bank v. Dovetail is said to have translated it, a man shall not ‘blow hot and cold at the same time.’ Kaehler »v. Gear Co., 143 Ind. 534, 42 N. E. 924; Johnson v. Flanner, 42 La. Ann. 522, 7 So. 455; Bensieck v. Cook, 110 Mo. 173, 19 S. W. 642, 33 A. 8. R. 422; Larch Mt. Inv. Co. v. Garbade, 41 Or. 123, 68 P. 6; Waterworks Co. v. Tillinghast, 119 N.C. 348, 25 S. E. 960. 1Smith v. Rathbun, 75 'N. Y. 122. 2 Lawrence v. Ballou, 50 Cal. 258. 3 Finlay v. Bryson, 84 Mo. 664, 671; Brewer v. Sparrow, 7 Hurl. & C. 310; Rodermund ». Clark, 46 N. Y. 354; Brown v. Moran, 42 Maine, 44; Whitney v. Allaire, 4 Denio, 554. 4 Munroe v. Luke, 1 Met. 459. ‘ Allegans contraria non est au- diendus;’ that is, as Lord Kenyon Dobberpuhl, 60 Wis. 256, 261. 5 Zwietusch v. Walkins, 61 Wis. 615. See Dalton v. Whittem, 3 Q. B. 961; ante, p. 749. 6Sargent v. Flaid, 90 Ind. 501. So, of course, of appearance and submitting, without objection, to jurisdiction. King ». Penn, 43 Ohio St. 57; Cincinnati R. Co. ». Mara, 26 Ohio St. 190; Bowen v. Bowen, 36 Ohio St. 315. So of an admission of facts, upon which jurisdiction is exercised. Railway Co. ». Ramsey, 22 Wall. 322, 327; Thornton v. Baker, 15 R. I. 558, 555. 7Iron Mountain Bank »v. Arm- strong, 92 Mo. 265, 277. ® Price v. Breckenridge, 92 Mo. 378; Fairbanks v. Long, 91 Mo. CHAP. xxv.] INCONSISTENT POSITIONS IN COURT. 785 Again, if provisions of law are waived in the course of a trial, they cannot afterwards be set up by way of objection to any step taken or to be taken upon the footing of the waiver.! Ifa party accept the benefit of a judgment, some authorities hold that he will be estopped to appeal from it,? to dispute the court’s jurisdiction,’ or otherwise to deny its validity and force.* On the other hand, if a party decline to accept a judg- ment or decree in his favor and seek another, he will not be permitted to claim the first, on the second one turning out less favorable to him.® Nor can a plaintiff take a position in court inconsistent with the nature of his suit or claim.® 628, 633. See Mohr v. Marks, 39 La. An. 575; McKinnie v. Lane, 230 Ill. 544, 82 N. E. 878, 120 A. S. R. 338. One is estopped to question a decision procured by one’s appeal. Reynolds v. Fitz- patrick, 28 Mont. 170, 72 P. 510. One who asks court to enter an order cannot, on appeal, complain that he did it. Griswold v. Smith, 221 Ill. 341, 77 N. E. 551. One who induces court to dismiss an appeal because decree was not final will not be permitted to say decree was final. 136 Ala. 354, 34 So. 905, 96 A. S. R. 26. 1 Bates v. Ball, 72 Til. 108. 2 Carll v. Oakley, 97 N. Y. 633; Bennett v. Van Syckel, 18 N. Y. 481; Radway v. Graham, 4 -Abb. Pr. 448. But see Embrey v. Palmer, 107 U. S. 8; King v. King, 215 IH. 100, 74 N. E. 89; McGrew ». Grayston, 144 Ind. 165, 41 N. E. 1027; Ewing v. Ewing, 161 Ind. 484, 69 N.E. 156; Tyler v. Shea, 4 N. D. 377, 61 N. W. 468, 50 A. S. R. 660; Morriss v. Garland, 78 Va. 215; holding that to accept satisfaction of a decree, without agreeing not to appeal, is no waiver of errors so as to estop an appeal. Accepting only such benefits as one equally would be entitled to if judgment were re- formed, is no estoppel. Jackson ». Brockton, 182 Mass. 26, 64 N. E. Thus, in 418, 94 A. 8. R. 635. A part of a judgment may be appealed from when it does not affect the rest. Wishek v. Hammond, 10 ae D. 72, 84 N. W..590. 3 Ellis v. White, 61 lava, 644. 4Test v. Larsh, 76 Ind. 452, 460; Kile v. Yellowhead, 80 Ill. 208; Sherman v. McKeon, 36 N. Y. 266; Arthur v. Israel, 15 Col. 147, 25 P. 81, 22 A. S. R. 381; Trapp ». Off, 194 Ill. 287, 62 N. E. 615. See Davis v. Wakelee, 156 U. S. 680, 15 Sup. Ct. 555, 39 L. Ed. 578. ‘It is not inconsistent for one ap- pellant to demand that he be not harassed by many actions, and yet press his appeal [from one of them]. In beating off one action wrongfully prosecuted the right secured by the appeal, that of questioning the judgment appealed from, is not surrendered. There is no inconsistency because there is no affirmation of the validity of the judgment in the one position and a denial in the other.’ Pitts- burgh Ry. Co. v. Swinney, 91 Ind. 399, 403. 5 Glover ». Benjamin, 73 Ill. 42. ®Daniel v. Morton, 16 Q. B. 198; Bradley v. Coolbaugh, 91 Til. 148; Tibbets v. Shapleigh, 60 N. H. 487, 491; Providence Ins. Co. v. Wolf, 168 Ind. 690, 80 N. E. 26, 120 A. S. R. 395. Plaintiff sued [CHAP. XXV. 786 PROCEDURE. regard to goods levied upon, one cannot claim them first as owner, and then after sale claim a lien upon them. The first . claim is adverse to the levy; the second seeks the benefit of it.' Nor after recovering judgment in one character or capac- ity can the party turn round and say that that character or capacity was not the true one under which he should have acted.2. Nor can either party act inconsistently with the mate- rial allegations of his own pleadings.’ It is of course otherwise of immaterial allegations, as of the particular age of an infant in ordinary cases.* So after a pleading has by leave of court been withdrawn the pleader is at liberty to plead facts incon- sistent with those before alleged.> And after judgment against a party, he may allege any fact consistent therewith against the opposite party, though his present allegation be inconsist- ent with what he alleged in the first suit.® Admissions of fact, deliberately made in open court, with full knowledge, are also binding until withdrawn by leave.’ his servant for conversion; also». Louisiana Ry. & Nav. Co., 127 sued defendant, an abettor and joint tortfeasor, for same conver- sion. -Case against servant was settled by agreement for part pay- ment without prejudice to claim against defendant embodied in judge’s order, but no judgment. Held, that plaintiff by his actions did not elect to affirm the sale which constituted the tort, and waive the tort, and suit against the defendant could he maintained. Rice v. Reed, (1900) 1 Q. B. 541. 1Edwards’s Appeal, 105 Penn. St. 103. See Hewett v. Currier, 63 Wis. 386; Garrity ». Thompson, 64 Texas, 597; Adoue v. Seeligson, 54 Texas, 593; ante, pp. 614, 615. 2 Pittsburgh Ry. Co. v. Swinney, 9, 1 Ind. 399, 405. ~ 3 Greenville R. Co. v. Joyce, 8 Rich. 117; Lehman ». Clark, 85 Ala. 109; Ramsey v. Henderson, 91 Mo. 560. Parties are not bound by allegations unsuccessfully pleaded. Godwin v. Neustadtl, 47 La. Ann. 841, 17 So. 471; Behrman La. 775, 50 So. 25. But see Mur- ray v. Succession of Spencer, 46 La. Ann. 452. 4See Morgan v. Vaughan, T. Raym. 456. 5 Wheelock v. Lee, 74 N. Y. 495, explaining Ogdensburgh R. Co. ». Vermont R. Co., 63 N. Y. 176. ® McQueen’s Appeal, 104 Penn. St. 595. But after accepting face of judgment in full settlement in accordance with provision of con- gressional appropriation, creditor is estopped from claiming interest on the judgment under another statute (Rev. Statutes § 1090). Pacific R. R. v. United States, 158 U. 8. 118, 15 Sup. Ct. 766, 39 L. Ed. 918. 7 Cheney v. Selman, 71 Ga. 384; Clark v. Clark, 70 Ga. 362; Smith v. Fowler, 12 Lea, 163, 171; Strib- ling ». Prettyman, 57 Ill. 371; Hull ». Johnston, 90 II. 604; People v. Stockton R. Co., 49 Cal. 414; Hyatt -v. Burlington Ry. Co., 68 Iowa, 662; Boubede ». ye CHAP. XXV.] INCONSISTENT POSITIONS IN COURT. 787 Thus, an agent’s authority cannot be admitted and disputed by the principal in the same trial.’ Nor, generally speaking, will one who procures a special decree be permitted to allege that there are mistakes in it; ? though this must not be taken too broadly. An admission in pleading of the legal sense and effect of a writing is not enough to estop the pleader upon the matter as a question of fact. But assent to a particular pro- ceeding in court, if given with knowledge of the facts, is con- clusive.* Concessions too upon which rulings to a jury are given are conclusive.® So of recitals in judgment entries of material facts admitted or consented to.‘ And if a plaintiff offer competent evidence to prove a fact and the court reject it on the objection of the defendant, the defendant will not afterwards be permitted to allege that the plaintiff failed to prove the facts embraced in the offer of evidence.’ So if a party has upon notice refused or without excuse failed to produce a writing in his possession, and the notifying party has thereupon given secondary evidence of its Aymes, 29 La. An. 274; Comp- ton v. Sandford, 30 La. An. 838; Jones v. Congregation of Mt. Zion, ib. 711. See Mott v. Consumers’ Ice Co., 73 N. Y. 548, and ante, p. 633, note, in regard to the ex- tent of the estoppel. A witness’s statements are not conclusively admitted by not being contradicted. McCormick v. Pennsylvania Cent. R. Co., 99 N. Y. 65. Nor is a per- son estopped to deny admissions made by him on the trial as wit- ness. Wilkinson v. Wilson, 71 Ga. 497. Contra, in Louisiana. Folger v, Palmer, 35 La. An. 743. See ante, pp. 127, note 2, and 633, note 3. ! People v. Stockton R. Co., 49 Cal. 414. , 2 Wood »v. Rawlings, 76 Ill. 206. 3 Thayer v. Arnold, 32 Mich. 336. On the other hand, one who has sworn that property levied upon is another’s cannot assert that it is not that person’s on the ground that the levy did not describe it as his. Scolly v. Butler, 59 Ga. 849. ‘First National Bank ». War- rington, 40 Towa, 528. See Hilton v. Jones, 159 U. 8. 584, 16 Sup. Ct. 108, 40 L. Ed. 267. 5 Marquette R. Co. v. Marcott, 41 Mich. 433. 6Kemp v. Lyon, 76 Ala. 212; Hepler v. People, 226 Ill. 275, 80 N. E. 759; Spaulding v. Mott, 167 Ind. 58, 76 N. E. 620; Schloss ». Estey, 114 Mich. 429, 72 N. W. 264; Greeley v. Provident Sav. Bank, 103 Mo. 212, 15 S. W. 429, If in a suit at law on a written con- tract, oral evidence is offered that the writing was not intended or understood by either party to be binding, and, on objection, is ex- cluded, the objector is estopped, at a hearing in equity on a bill to restrain the suit at law, from as- serting that the evidence is ad- missible at law only. Michels v. Olmstead, 157 U. S. 198, 15 Sup. Ct. 580, 39 L. Ed. 671. . ™Thompson v. McKay, 41 Cal. 221. [CHAP. XXV. 788 PROCEDURE. contents, the party notified will be estopped in the absence of fraud to produce it in evidence.! And where a party has been notified under rules of court that he may inspect a particular document which he will be required to admit in evidence as e. g. a ‘ counterpart of lease,’ if he fail to inspect it he will not be permitted on the production of a document indorsed ‘ coun- terpart ’ to say it is not the lease.” This estoppel prevails as well of plain inferences from the facts in hand as of the facts themselves. Thus, to ask for a nonsuit or to rest a defence upon a proposition of law without asking to go to a jury estops the party on appeal to say that there were questions of fact in the case for a jury? So pleading a levy by writ on property as a defence to an action of replevin estops the party to say that he had no possession.* Indeed, the estoppel appears to prevail also in regard to inferences of law that follow regularly from the position taken. Thus, it is held in Georgia that when counsel demands the right of closing and the demand is granted, he thereby becomes estopped to say that the burden of proof is not upon him.® So if a dis- missal is entered in favor of one of several defendants sued upon a joint contract, the plaintiff will be barred from pro- ceeding against the others.’ And if one intervene in the cause of another, or bring suit before a particular court, he cannot at will deny the jurisdiction of the court he has sought; ’ though he may of course withdraw his claim on paying costs. Again, 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 error. In the case cited the de- 1Doe d. Thompson v. Hodgson, 12 Ad. & E. 135. 2 Doe d. Wright v. Smith, 8 Ad. & E. 255. Whether it is too late to correct at the trial a statement made to the opposite party before suit, concerning the cause of ac- tion, which might have been cor- rected before, see Connecticut Ins. Co. v. Schwenk, 94 U. S. 593, dis- tinguishing Campbell v. Charter Oak Ins. Co., 10 Allen, 213, and Irving v. Excelsior Ins. Co., 1 Bosw. 500. ‘ 3Ormes v. Dauchy, 82 N. Y. 443; East Hampton »v. Kirk, 68 N. Y. 459, 464. 4 Godfrey v. Brown, 86 Ill. 454. 5 Smith v. Haire, 58 Ga. 446. ® Boyle v. Webster, 17 Q. B. 950; ante, p. 117. TJack v. D. & M. R. Co., 49 Iowa, 627; Buckley v. Stevens, 29 Ohio St. 620. See Fahnestock »v. Gilham, 77 Ill. 637; Kennedy ». Redwine, 59 Ga. 327. 8 Reynolds v. Blackburn, 7 Ad. & E. 161. CHAP. XXV.] INCONSISTENT POSITIONS IN COURT 789 fendant to an action by an indorsee against him as acceptor of two bills of exchange pleaded that the bills had been accepted for the accommodation 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 on the bills now sued upon; that new bills were given in payment of the bills now sued upon; and that the transaction was unknown to the defendant. To this the plaintiff replied de injuria. The de- fendant now demurred on the ground that the replication attempted to put in issue two matters of defence; but the demurrer was overruled.? The principle under consideration will apply to another suit than the one in which the action was taken, where the second suit grows out of the judgment in the first.” It is laid down that a defendant who obtains judgment upon an allegation that a particular obstacle exists cannot in a subsequent suit based upon such allegation deny its truth? Thus, in Hooker »v. Hubbard the defendant pleaded to a suit upon a promissory note that he had given another in payment and renewal of it, and had judgment accordingly. He was now sued upon the renewal note, and attempted to set up the defence that the second note was given upon a condition which had never been 1Tn the course of the argument Patteson. J. said to counsel for the defendant: ‘You attempt to set up a plea which you allege to be bad, because, as you contend, the plaintiff has made a bad replica- tion. If your plea is double, and there is a general replication, you cannot take advantage of the fault of your plea to make the replication bad.’ 2A surety in a replevin bond, having by his execution thereof in the replevin proceedings enabled the plaintiff to obtain possession of the property in controversy, will be estopped to controvert the jurisdiction of the court over the persons of the parties. Har- baugh v. Albertson, 102 Ind. 69. 3 Hill v. Huckabee, 70 Ala. 183, - 188; Caldwell v. Smith, 77 Ala. 157, 165; Jones v. McPhillips, 82 Ala. 102, 116; Lehman v. Clark, 85 Ala. 109, 113; Clay v. Buchanan, 69 Iowa, 88; Hooker v. Hubbard, 102 Mass. 239; Philadelphia R. Co. v. Howard, 13 How. 307; Og- den v. Rowley, 15 Ind. 56; Pendle- ton v. Dalton, 92 N. Car. 185 (re- sisting enforcement of a contract successfully as within the Statute of Frauds estops the party to rely upon it in a suit for money paid thereon); Perkins v. Jones, 62 Towa, 345. If one refuse to sur- render possession of land on ground of want of right in him demanding, who thereupon brings suit for it, the party refusing cannot now deny his possession. Kirkland v. Trott, 66 Ala. 417. See also Walker v. Walker, 37 La. An. 107. [CHAP, XXV. 790 PROCEDURE. fulfilled, but the court held him estopped. It was declared by the court that if the second note had been delivered upon a condition, then by pleading it as payment of the first, upon which he was liable, he had waived the right to take the benefit of the non-performance of the condition and ratified the ab- solute delivery of the present note. ‘It could not have been effectual as a payment, unless it were a valid and binding instrument.’ It will be seen from these cases that the rule requiring con- sistency of action before the courts is no arbitrary rule, but one demanded, as was suggested at the opening of this chapter, by the very object of courts of justice.t Where, then, no wrong would be done to the court or to other parties to a cause by permitting a change of position, a change should in principle and will in fact be allowed.2 Thus, where a party has given notice of appeal by mistake to a particular court, when the appeal should have been made to another court, and has dis- covered his mistake before any step has been taken by others in consequence, he may at will correct himself; * but only (at will) upon the footing that no prejudice is done to others.* 1M’Donald v. Hooker, 57 Ark. 682, 22 S. W. 655. 1070; Regina v. Buckinghamshire, 4 El. & B. 260. 2 Quoted with approval in Green Bay Canal Co. v. Hewitt, 62 Wis. 316, 327, and in Pittsburgh Ry. Co. v. Swinney, 91 Ind. 399, 404. See Comstock v. Eastwood, 108 Mo. 41, 18S. W. 39; Louisville R. Co. v. Klyman, 108 Tenn. 304, 67 S. W. 472, 91 A. S. R. 755. 3 Regina v. Liverpool, 15 Q. B. 4 Regina v. Salop, 4 El. & B. 257. Where a special finding of an im- material fact has been made upon an erroneous instruction, the party may still have the benefit of other and material findings, which ought to have resulted in judgment for him. Detroit Ry. Co. v. Hayt, 55 Mich. 347. SECT. 11] PRECEDENTS IN PLEADING. 791 CHAPTER XXVI. PRECEDENTS IN PLEADING. WE present in conclusion the following common-law prece- dents in pleading by way of estoppel. Some of the forms are taken from Chitty’s Precedents in Pleading; some are from Story’s Pleadings; some are from Bullen and Leake’s Prece- dents; and others are from the pleadings in the reported cases. §1. Commencement and Conclusion of a Plea of Matter of Estoppel.t 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 otherwise, according to the estoppel] to say [stating the matter to which the estoppel relates, as before]. §2. Replication by 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]. 1 Chitty, 408, 3d Eng. ed. ; 2 Chitty, 408, 3d Eng. ed. [CHAP. XXVI. 792 PROCEDURE. §3. Plea by Matter of Estoppel that the Plaintiff brought an Action against the Defendant for the same Cause of Action, and that the Defendant had Judgment.! Replications, ete. {Commencement, § 1, supra.] That the plaintiff before this suit brought an action against the defendant in the Court of ——, for the said debt [or cause of action] in the declaration mentioned, and thereupon such proceedings were had that afterwards, and before [or after 7] 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, etc., when, etc., and says that the plaintiff (actio non), because he says that formerly, to wit, at a court of Common Pleas, holden at, etc., within and for the county of, etc., on, etc., the said plaintiff impleaded 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 declaration mentioned. And such proceedings were therefore had, that afterwards,‘ to wit, at a term of the court holden at, ete., within and for, etc., on, etc., 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 prom- ises in said declaration mentioned, together with $10, costs of 11 Chitty, Pl. 408, 3d Eng. ed. For forms see Palmer v. Temple, 9 Ad. & E. 508; Overton v. Harvey, ' 9 C. B. 324; Eastmure v. Laws, 5 Bing. N. C. 444; Gordon »v. Whitehouse, 18 C. B. 747. 2Jt is held to be immaterial whether the former judgment were rendered before or after the pres- ent action. Casebeer v. Mowry, 55 Penn. 419; Duffey v. Lytle, 5 Watts, 120; Child v. Eureka Pow- der Works, 45 N. H. 547. 3 Story’s Pleadings, 185, Oliver’s ed. ‘If the action be carried to the Supreme Court this form is suffi- cient; and the-defendant may say, ‘ And that such were the proceedings thereupon that afterwards at the Su- preme Court, begun and holden at, etc., within and for, etc., on, etc., the said plaintiff recovered judgment against the said D, for, etc.’ It isnot necessary that the particular pro- ceedings should be stated. SECT. III.] PRECEDENTS IN PLEADING. 793 suit, whereof the said D was convicted, 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 judg- ment if the said plaintiff ought to have or maintain his action aforesaid thereof against him, etc. Former judgment on appeal to Supreme Court, with continu- ance. [As last above as far as ‘ whereof the said D was con- victed.’] From which said judgment the said D appealed to the Supreme Court then next to be holden at, etc., within and for the same county,' on, etc.; and afterwards, to wit, at the said Supreme Court holden at, etc., on, etc., the said D entered his said appeal. And such were the proceedings thereupon had that afterwards, to wit, at a term of the said Supreme Court holden at, etc., on, etc., the said plaintiff by the consid- eration of the same court recovered judgment, etc., as appears . by the records thereof in the same court remaining; which said judgment remains in full force and unreversed. And this the said D is ready to verify. Wherefore,-etc. Former judgment and appeal, and appeal not entered, and judgment affirmed. [As above.] From which said judgment the said D appealed to the Supreme Court then next to be holden at, etc., on, etc.; and afterwards, to wit, at said Su- preme Court holden at, ete., on, etc., the said D did not prose- cute his said appeal; whereupon 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 $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. Wherefore, etc. Replication of nul tiel record. And the plaintiff says that, notwithstanding anything 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 1 This of course to be omitted where the Supreme Court has but one place for holding session. 794 PROCEDURE. [CHAP. XXVI. 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, ete., 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 adjudged to him, etc. 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, etc., as he, the said D, hath above in pleading alleged; and this he is ready to verify by the said record, ete. 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, etc., held at, etc., on, etc., within and for the county of, etc., did implead the said D, in the said court, in a certain plea of trespass on the case in promises, for the not performing certain promises; and that such proceedings were thereupon had in that plea in the same court that afterwards, to wit, at a court, etc., held, etc., on, etc., he, the plaintiff, recovered against the said D by the judgment and consideration of the same court $500, in and by the said court adjudged to him for his damages, which he had sustained as well by the reason of not performing the’ said promises, as for his costs and charges by him about his suit in that behalf expended; whereof the said D was convicted, as by the record and proceedings thereof in the same court remaining fully appears; and that the said judgment remains in full force and effect, not reversed, annulled, defeated, or avoided. Yet for replication in this behalf the plaintiff says that the said several promises for which the plaintiff impleaded the said D and recovered damages, as in the said record mentioned, were not, nor are any or either of them, the same identical promises as in the said eight counts of the said declaration of the plaintiff above are mentioned, but are other and different promises than in the said eight counts of the said declaration mentioned, and whereof the plaintiff has now impleaded the-said D in that 1 If the plaintiff does not wish the defendant to rejoin, he may add, ‘ by the record aforesaid,’ and omit the prayer of judgment. SECT. I11.] PRECEDENTS IN PLEADING. 795 behalf, and above in his said declaration in that behalf com- plained against him; for that the plaintiff has now impleaded him for that, whereas, in the lifetime of the said A, they, the said A and the said D, were indebted to the plaintiff in the sum of $1,000, other and different than the sum in the said record mentioned, for other and different work and labor, etc., than in the said record mentioned, of the plaintiff before that time done, performed, and bestowed by the said plaintiff for the said D and the said A on their retainer and at their special re- quest; and for other and different money paid, laid out, and expended than the money in said record mentioned by the plaintiff, at the like special request of the said A and the said D, etc.; and that, being so indebted, they, the said A and the said D, in the lifetime of said A, afterwards, to wit, on, etc., at, etc., in consideration thereof, etc. [in common form, and so insert the other counts in the declaration, stating them to be for other and different demands]; and which said last-men- tioned promises so mentioned and set forth in the said eight counts of the said now declaration of the plaintiff, and for the non-performance whereof the plaintiff has above in his said declaration complained against the said D, are other and different promises than those for which the plaintiff recovered damages as in the said record, and in the plea of the said D above secondly pleaded in bar are mentioned; and this, ete. Wherefore, inasmuch as the said D has not answered the said complaint of the plaintiff as to the breach and non-performance of the said promises in the said first eight counts of the said declaration mentioned, and so newly above assigned, he, the said plaintiff, prays judgment and his damages, etc., to be adjudged to him. Rejoinder. And the said D, as to the said plea of the plain- tiff by him first above pleaded by way of new assignment, and in reply to the said plea of the said D secondly above pleaded in bar, says that he did not promise in manner and form, as the plaintiff has above in his said new assignment complained against him; and of this he puts himself upon the country. Former recovery in an action by executor against lessee. And the said D comes, etc., when, etc., and says that the said plaintiff, assignee as aforesaid (actio non), because he says that 796 PROCEDURE. [CHAP. XXVI. after the making of the said articles of agreement in the said declaration mentioned, and after the said breach of covenant therein complained of, and in the lifetime of the said A in the said agreement and declaration mentioned, and before [or after +] the commencement of the action of the said plaintiff as assignee as aforesaid, to wit, at a court, etc., held, etc., on, etc., he, the said A, impleaded the said D of and for the same identical breach of covenant in the said declaration above mentioned and there complained of; and such proceedings were thereupon had in the same court, before the same judges, that afterwards in the lifetime of the said A, to wit, at the same court, he, the said A, by the consideration and judgment.of the same court, recovered against the said D $1,000, as well for damages which he had sustained as well by reason of the very same identical breach of covenant in the said declaration men- tioned and therein complained of, as for his costs and charges by him in his suit in that behalf expended; whereof the said D is convicted as by the said record and proceedings thereof, which remain in the same court in full force and effect, may fully appear; and this, etc. Wherefore, etc. §4. Plea of Estoppel by Verdict of a particular Matter adjudicated.” In the well-known case of Outram v. Morewood ° the plaintiff brought an action of trespass against the defendants, More- wood and wife, for digging and getting out coals from a coal mine, alleged by the plaintiff to be within and under his close, called the Cow Close. The defendants pleaded and showed title regularly brought down to them, in right of the wife, from one Sir John Zouch, who in the 39th Elizabeth was seised in fee of the manor of Alfreton, and of certain messuages and lands within the manor, under which title they claimed all the 1 Casebeer v. Mowry, 55 Penn. St. ». Shannon, ib. 200; Lea v. Lea, 419; and cases supra, p. 792, note2. ib. 493; Thurston v. Thurston, ib. 2 See ante, pp. 100 et seq. With- 39; Hubert v. Fers, ib. 198; Wads- out judgment a special finding worth v. Connell, 104 Ill. 369, does not work an estoppel. Hawkes 374; ante, p. 53. v. Truesdell, 99 Mass. 557; Burlen 33 East, 346. SECT. Iv.] PRECEDENTS IN PLEADING. 797 coals under those lands except such as were embraced under a certain description. And the defendants averred that the coals in question were under the lands of the said Zouch, and were not under any of the premises mentioned in the exception. The replication to this plea was the important part of the pleadings, and we present it at length. It was sustained upon thorough consideration by Lord Ellenborough. It stated that the defendants ought not to be admitted in their plea to aver that the said coal mine or vein of coals in the declaration men- tioned, at the time of the making the indenture of bargain and sale in the said plea mentioned, was part and parcel of the said coal mines, veins, and delphs of coals by the said indenture bargained and sold as aforesaid; because heretofore, in Easter term, 32 Geo. 3, the plaintiff impleaded the defendant Ellen, then Ellen Morewood, widow, in a certain plea of trespass, and therein declared against her for that the said Ellen, on the 5th of May, 1792, with force and arms broke and entered a certain coal mine or vein of coals of the plaintiff, situate and being within and under a certain part of a certain close of the plain- tiff, called Cow Close, or the Great Cow Pasture, in the parish of Alfreton, in the said county of Derby, and dug out of the said coal mine or vein of coals of the plaintiff large quantities of coals, etc., and took and carried away the same, etc.; and that in Trinity term, 32 Geo. 3, the defendant Ellen defended the force, etc.; and as to breaking and entering the said coal mines, etc., under the Cow Close, etc., pleaded that the plain- tiff ought not to maintain his said action against her, because the said John Zouch, on the 2d of November, 38 Eliz., was seised in fee of and in the said manor of Alfreton, and divers messuages, lands, and tenements in the parish of Alfreton aforesaid, in the said county, with the appurtenances. And the said Ellen, in and by her said plea in the said former suit, after further setting forth (amongst other things) the said indenture of bargain and sale in the said plea mentioned, in manner and form as the same indenture is in that plea set forth, averred that the said coal mine or vein of coals in the declaration here- inbefore mentioned, at the time of the making of the said indenture of bargain and sale, was part and parcel of the said coal mines, veins, and delphs of coals, by the said indenture 798 PROCEDURE. [CHAP. XXVI.- bargained and sold as aforesaid. And the said Ellen, in and by her said plea in the said former suit, claimed to be entitled to the said coal mine or vein of coals, in the said hereinbefore- recited declaration mentioned, by the same means, and in man- ner and form, as the said defendants have above in their said plea in this suit alleged; and that she, the said Ellen, was ready to verify: wherefore she prayed judgment, etc. And the said plaintiff, as to the said plea of the said Ellen in the said former suit, said that he ought not to be barred, etc.; because, pro- testing that the said Sir John Zouch was not seised in fee of and in the said close in the said hereinbefore-recited declara- tion mentioned, or of or in the coals, veins, mines, and delphs of coals in or under the same, or any part thereof, as by the said last-mentioned plea was above supposed, he, the said plaintiff, said that the said Ellen, at the said several times when, etc., of her own wrong, broke and entered the said coal mine, etc., within and under the said part of the said close of the plaintiff, called the Cow Close, etc., in the hereinbefore- recited declaration mentioned, and dug out of the said coal mines, etc., large quantities of coals, and took and carried away the same, etc., in manner and form as the plaintiff had above complained against her; without this, that the said coal mine or vein of coals in the said first count of the said hereinbefore- recited declaration mentioned, at the time of the making of the said indenture of bargain and sale in that plea first mentioned, was part and parcel of the said coal mines, veins, and delphs of coal by the said indenture bargained and sold as aforesaid, in manner as the said Ellen had in the said plea above alleged; and this he was ready to verify: wherefore the plaintiff prayed judgment, etc. And the said Ellen, as before, said that the said coal mine or vein of coals in the said first count of the said hereinbefore-recited declaration mentioned, at the time of the making of the said indenture of bargain and sale in her said: plea first mentioned, was part and parcel of the said coal mines, veins, and delphs of coal, by the said indenture bargained and sold as aforesaid, in manner and form as the said Ellen had in the said plea alleged; and of that she put herself upon the country, and the said Joseph did so likewisé. And such further proceedings were thereupon had that afterwards, at the assizes SECT. v.] PRECEDENTS IN PLEADING. 799 at Derby on Saturday the 16th of March, in the 33 Geo. 3, the said issue, so joined, etc., was tried by a jury of the county, etc.; and as to the same issue, the jurors of that jury upon their oath said that the coal mine or vein of coals, in the first count of the said hereinbefore-recited declaration mentioned, at the time of the making of the indenture of bargain and sale first mentioned in the plea of the said Ellen, in the said former suit, were not part and parcel of the said coal mines, veins, and delphs of coals, by the said indenture bargained and sold, in manner and form as the said Ellen had in that behalf in plead- ing alleged; and they assessed the plaintiff his damages, etc. ~ That such further proceedings were thereupon had that the plaintiff in Trinity term, 33 Geo. 3, recovered judgment, etc., which judgment is still in force, etc. The replication then averred that the plaintiff and Ellen, the defendant named in that record, are the same parties as in this suit, and that the said coal mine or vein of coals in that record mentioned, and the said coal mine or vein of coals in the pleadings in this suit mentioned, are one and the same; wherefore the plaintiff prayed judgment if the defendants ought to be admitted, against the said record, to aver that the said coal mine or vein of coals in the declaration mentioned, at the time of the making of the said indenture of bargain and sale, was part and parcel of the said coal mine, veins, and delphs of coals, by the said indenture bargained and sold as aforesaid. \ §5. Replication by Way of Estoppel to a Plea of Sei-off, of a Judgment in an inferior Court upon the same Matter. The plaintiff, as to the defendant’s —— plea, says that the defendant ought not to be admitted to plead the said plea, because he says that the now defendant, in the county court of ——, holden at ——, then being a court duly constituted and holden under the statutes relating to the county courts, and then having jurisdiction to hear and determine the plaint hereinafter mentioned, levied a plaint against the now plaintiff for the recovery of the same debt which the defendant now seeks to set off against the now plaintiff’s claim, to which that 800 PROCEDURE. [CHAP. XXVI. plea is pleaded; and such proceedings were thereupon had in the said court, in the matter of the said plaint, that afterwards it was considered and adjudged by the said court, in the matter of the said plaint, that the now plaintiff did not owe to the now defendant the said debt or any part thereof, and that the now defendant should take nothing by his said plaint in that behalf, and the said judgment still remains in force: wherefore he prays judgment if the defendant ought to be admitted, etc.+ §6. Replication to a Plea traversing the Plaintiff’s Title to Land, — an Estoppel by a Judgment in Ejectment. [Commence as in § 5, supra.] That on the day and year last aforesaid, the plaintiff, for the purpose of recovering posses- sion of the said land, sued out of the Court of —— a writ of ejectment, directed to the defendant by name, being the person then in possession of the said land, and to all persons entitled to defend the possession of the said land, to the possession whereof the plaintiff by the said writ claimed to be then en- titled and to eject ‘all other persons therefrom, commanding the said defendant and the said persons entitled to defend the possession of the said land, or such of them 4s denied the alleged title of the plaintiff, within sixteen days after service of the said writ to appear in the said Court of to defend the said property, or such part thereof as they might be advised, in default whereof judgment might be signed and they turned out of possession. And such proceedings were thereupon had in the said court, upon the said writ, that by the judgment of the said court it was considered that the plaintiff should recover the possession of the said land; and afterwards, and by virtue of the said judgment,-the plaintiff entered into possession of the said land: wherefore the plaintiff prays judgment whether the defendant ought to be admitted, ete.” ‘For similar plea in estoppel see Hastmure v. Laws, 5 Bing. N. C. 444. 2 For similar replications see Doe v. Wellsman, 2 Ex. 368; Wilkinson v. Kirby, 15 C. B. 430, 433. SECT. VII.] PRECEDENTS IN PLEADING. 801 §7. Plea of Judgment recovered by the Plaintiff in a superior Court for the same Debt or Cause of Action. And the said defendant, by, etc., comes and defends, etc., and says that the said plaintiff ought not to have or maintain his aforesaid action, etc., because he says that the plaintiff heretofore, in the Court of ——, at ——, sued the defendant in an action for the same debt [or cause of action] as in the dec- laration alleged, and such proceedings were thereupon had in that action that the plaintiff afterwards, by the judgment of the said court, recovered against the defendant $—— for the said debt [or cause of action], and his costs of suit in that behalf; and the said judgment still remains in force, and this the defendant is ready to verify, etc.:-wherefore the defendant prays judgment whether the plaintiff ought to have or main- tain his action, etc. If the judgment was rendered in an inferior court, conform the plea in this respect to § 5, supra. The following precedent for a similar plea is given by Chitty, and is perhaps preferable to the one above given.! [Commence- ment as supra.] That the said plaintiff heretofore, to wit, in —— term, A.D. ——, in the Court of ——, at ——, before ——,, impleaded the said defendant in a certain plea of trespass on the case on promises to the damage of the said plaintiff of $——,, for the not performing the very same identical promises and undertakings, and each and every of them in the said declaration mentioned; and such proceedings were thereupon had in the said court in that plea, that afterwards, to wit, in the —— term, the said plaintiff, by the consideration and judgment of the said court, recovered in the said plea against the said defendant $—— for the damages which he had sus- tained, as well on occasion of the not performing the same identical promises and undertakings in the said declaration mentioned, as for thé costs and charges by him about his suit in that behalf expended, whereof the said defendant was convicted; as by the record and proceedings thereof, still re- 13 Chitty, Pleading, 929. 802 PROCEDURE. {[CHAP, XXVI. maining in the said court at —— aforesaid, more fully and at large appears; which said judgment still remains in full force and effect, not in the least reversed, satisfied, or made void. And this, ete. [Conclude as supra.] §8. Pleas in Debt and Scire Facias on Judgments. By executor. Nul tiel record; and joint judgment, one of defendants being still alive. And the said D comes and defends the force and injury when, etc., and says that the plaintiff (actio non), because he says that there is no such record of the recovery aforesaid in the said court now here remaining, as the said plaintiff by his declaration aforesaid has above supposed. And this he is ready to verify. Where- fore he prays judgment if the said plaintiff ought to have or maintain his said action against him, the said D, etc. And the said D, with leave of the court here, further defends the force and injury when, etc., and says that the plaintiff (actio non) because he saith that the judgment aforesaid in the said declaration of the said plaintiff mentioned, to be had and recovered against the said A in his lifetime, was also had and recovered as well against a certain B as against the said A in his lifetime, as appears by the aforesaid record thereof in the court here now remaining. And the said D says that the said A died on, ete:, at, etc., and the aforesaid B survived the said A, to wit, at, etc. And this he, the said D, is ready to verify. Wherefore, etc. §9. Plea of Judgment for Defendant pro eadem Causa rendered in a foreign Court. The following plea to indebitatus assumpsit was pleaded in Plummer v. Woodburne; ? it was adjudged bad for the omission to state that the judgment rendered in the-foreign court was final and conclusive there. We have supplied the omission. As to the first, second, fourth, sixth, and eighth counts, the 1$tory’s Pleadings, 338, Oliver’s ed. See ibid. pp. 518, 519, as to like forms in scire facias on judgments. , 24 Barn. & C. 625. SECT. IX.] * PRECEDENTS IN PLEADING. 803 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 copartners, 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, etc., at, etc., 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 declaration 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 assumpsit, upon which issue was joined. And such further proceedings were thereupon had in the said former suit, that afterwards, to wit, at, etc., 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, etc. 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 established in force in the island aforesaid. And that the said several sums and debts in the first eight counts respectively mentioned 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, etc.; 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 part thereof, otherwise than was alleged in 804 PROCEDURE. [CHAP. XXVI. those parts of the declaration, in the said former suit, which are herein above set forth. [And the defendant further alleges that the said judgments rendered respectively as above men- tioned were, and still are, final 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 declaration mentioned.] And this, etc. Wherefore, etc. Another plea of the same character from Callandar »v. Dit- trich.! Fourthly (to the first and second counts), that before the commencement of this suit, and before the commencement of the proceedings 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 judi- cature, 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, etc., the plaintiff impleaded the defendant, in the said court of judica- ture, 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 dam- ages 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 that after- wards 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 been sustained by him, the plaintiff, through the non-performance of the said prom- ises; and it was further ordered and decreed by the said judg- ment or decree that the plaintiff should pay the costs and ex- penses of the proceedings so had in the same court in that behalf; which judgment or decree was not in any way reversed 14 Man. & G. 68. SECT. x.] PRECEDENTS IN PLEADING. 805 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 precluded from all further litigation in respect of the same, and ought not further to importune or molest him, the defendant, in respect of such supposed cause of action, so adjudicated upon by the said judgment or decree as aforesaid. Verification.? § 10. Estoppel by Deed. Replication in Trespass quare Clau- sum (to a Plea justifying the Entry under a Stranger as Owner) of a Demise from the Defendant.” And the defendant further says that the said MP 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, etc., was seised of the said dwelling- house, etc., in which, etc., 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 men- tioned, and before the said times when, etc., or any or either of them, to wit, on the 24th of March, 1836, the said M P demised the said dwelling-house, etc., in which, etc., to the plaintiff, to have and to hold the same to the plaintiff for the term of one whole year thence next ensuing, and fully to be complete and ended, and so on, from year to year, so long as the said M P and the plaintiff should respectively please, yield- ing the rent of £15, payable half-yearly, to wit, on the 29th of September and the 25th of March in every year, by even and equal portions; which said demise and tenancy from year to year continued in full force and undetermined, until at and after the said several times when, etc.; by virtue of which said demise the plaintiff afterwards, and before the said several times when, etc., or any or either of them, entered into and 1The judgment or decree pro- ‘suggested to the plea either by duced, however, did not support counsel or by the court. the plea; but no objection was 2 Darlington v. Pritchard, 4 Man. & G. 783. 806 PROCEDURE. [CHAP. XXVI. upon, and became and was possessed of the said dwelling- house, ete., in which, etc., for the said term so to him thereof demised as aforesaid, and remained and continued so possessed thereof, under and by virtue of the said demise from thence- forth until and at the said several times when, etc., in the dec- laration mentioned; that afterwards and before the said several times when, etc., to wit, on the 29th of September, in the year last aforesaid, the plaintiff paid to the said M P, and she, the said M P, then received from the plaintiff, the sum of £8, as and for the rent aforesaid, so reserved as 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 March 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, etc., 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 tenancy as aforesaid. Verification, and prayer of judgment if M P ought to be admitted or received, against the said de- mise 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, etc., was seised of the said dwelling-house, etc., in manner and form, etc. §11. Estoppel in Pais. Replication to a Plea of the Incompe- tency of the Payee of a Bull 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 de- murrer in Smith ». 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 con- 16 C. B. 486. SECT. x1.] PRECEDENTS IN PLEADING. 807 sented 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 to the plaintiff the property therein, because the plaintiff shys 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 bil] by the defend- ant, as well as at the time of thé indorsement 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 indorsing 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; that 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 mentioned, 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 person competent, qualified, and able to indorse the said bill to the plaintiff, and to transfer to the plaintiff the property in the same. Verifica- tion, and prayer of judgment if the defendant ought, contrary to his said acceptance of the said bill in the said second count. mentioned, and to his own act and acknowledgment, to be admitted to say that the said C W, at the time of the said in- dorsement by her of 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 at any time authorized or consented to the said in- dorsement 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 As to this see ante, p. 538. INDEX. ABATEMENT, of writ, 55. ACCEPTANCE OF BILL OF EXCHANGE, admission of signature of drawer, 519-535. not of indorser in ordinary cases, 522. except when, 523. acceptance for honor, 527, 528. ; warrants capacity of drawer and of payee, 535. See Bitts anp Norss. ACCOUNT, effect of auditing, 756. ACKNOWLEDGMENT OF RECEIPT, under seal not conclusive, 417, 515. acknowledgments in parol, 509-515. generally not conclusive, 509. exceptions, 511. acknowledgment in policies of marine insurance, 511. where acknowledgment has been acted on by third person, 511. warehouse receipts, 512. bill of lading, 514. receipt given an attaching officer, 514, 515. ACQUIESCENCE, only a fact tending to create a right, 493. when estoppel is raised by, 493, 675, 743, 755. ACQUITTAL OF GOODS, conclusiveness of judgment, 251. ACT OF LEGISLATURE, when party estopped to dispute constitutionality of, 751. ACTION, in personam and in rem by the Roman law, 43, 44. in Bracton, 45. in Coke, 46. in modern English law, 45. when prematurely brought, judgment no estoppel, 59, note. form of, immaterial to estoppel, 222. See Cause or Action; Puieapine, Practicn, aND EvIpENcE, ADJUDICATION. See JUDGMENTS. ADJUSTMENT OF LOSS, by insurance company, 707. 810 THE LAW OF ESTOPPEL. ADMINISTRATORS, verdict for plaintiff in suit against, on plea of plene administravit, 86, 306. no privity between administrator or executor and heir or devisee, 163-165. relation of administrator de bonis non to his predecessor, 165. not like executor of executor, 165. of different states or countries, 166. when estopped to claim property found among assets of the estate, 599, 601. . not estopped to amend inventory when, 600, note. when estopped to deny having funds, 600, note. estoppel against one of several estops all, 620. inducing administrator to proceed to an inventory, 703, note. See Propate, Decrees oF. ADMIRALTY, English court of, an inferior court, 228. otherwise of Federal courts of United States, 228, 229. conclusiveness of domestic judgments in, 229. adjudications of prize in, 245. conclusive both of change of property and ground of judgment, 245. adjudications in cases of collision, 246. foreign judgments in, 246. breach of warranty of neutrality under insurance policy, 265, 266. finding that vessel was enemy property, 265. immaterial that sentence was erroneous, 267: -sale of wreck and derelict, 272. judgments in, conclusive only of necessary matters, 273. possible qualification of rule, 274. obscure statements of record, 275. jurisdiction of court, 277-279. constitution of foreign tribunal, 280. fraud in obtaining judgment, 280. ADMISSION, estoppels considered as, 359, note. admissions in court, 633, note. no estoppel unless acted on, 694, 695. ADVERSARY PARTIES, rule of res judicata in regard to, 114. AFTER - ACQUIRED PROPERTY. See CovENnants. AGENCY, judgment against principal, effect on agent, 134-142. effect of suit by agent in his own name in right of principal, 141. distinguished from estoppel, 493, 612, 613. holding one out as agent, 613. representations of agents, 618. INDEX. 811 AGENCY, — continued. assuming to act as principal, 748. AGREED JUDGMENTS, conclusiveness of, 79. ALGIERS, courts of, 264. ALIMONY, effect of decree of divorce, 303, 304. ‘ALL DEMANDS,’ 186. “ALL RIGHT,’ 644, 645. APPEARANCE, by attorney, 231. special, to contest jurisdiction, 318. APPOINTMENT, POWERS OF, election growing out of exercise of, 738. ARBITRATION AND AWARD, when conclusive, 75. ASSIGNEE OF PATENT, not permitted to deny validity of patent when, 598. ATTACHMENT, proceedings in, properly in personam; 51, 259. foreign attachment, 328, 329. agreement to hold goods under, for plaintiff, 593, 614, 615. ATTORNEY, denial of authority to appear in cause, 231. appearance by, 231, 318. ATTORNMENT, lessee may explain circumstances of, 565. AUDITING ACCOUNT, effect of, 756. AWARD, when conclusive, 75. BAILOR AND BAILEE, under what circumstances bailee estopped to deny bailor’s title, 592- 597. relation analogous to that of landlord and tenant, 592. wharfinger’s possession, 594. receiptor for goods attached by officer, 593, 614. estoppel ends with dispossession, 594. BANKRUPTCY, adjudications upon validity of insolvency laws, 96. effect of judgment under insolvency laws, 311. non-disclosure of discharge in, 654. BARGAIN AND SALE, DEEDS OF, origin of, 461. void at law at first, 461. 812 THE LAW OF ESTOPPEL. BARGAIN AND SALE, DEEDS OF, — continued. effect of, in chancery, 461. effect of clause of warranty before the Statute of Uses, 463, 464. effect of Statute of Uses upon this mode of conveyance, 464-482. whether it can pass future interests, 464-482. question considered, 474~482. distinction between case of grantor with and without seisin, 474. grantee of grantor having no seisin takes nothing, 474. warranty in such case, 475. no lien created so-as to affect second grantee without notice after title acquired, 477. no privity between grantor and grantee, 477. conveyance by disseisor, 480. See Titus By Estorre.. BILL IN CHANCERY, dismissal of, 56, 62, 66. BILL OF LADING, conclusiveness of, 514. BILLS AND NOTES, “notes and other demands,’ 186. action on two notes and withdrawal of one, 188. admission of genuineness, 519-535. acceptor of a bill estopped to deny signature of*drawer, 520. effect of usage or agreement, 520, note. indorser estopped to deny signatures of prior parties, 521. admission of one’s own signature, 521, note. acceptor not estopped to deny genuineness of any indorsement, 522. unless indorsement was put on the bill by the drawer before accept- ance, 522. or unless bill is papeble to fictitious person, 524. or unless bill accepted with knowledge, 525. estoppel of acceptor extends only to signature, and does not embrace body of the paper, 526. acceptance conclusively admits procuration to draw, 527. but not to indorse, 527. whether acceptance for honor is an admission of signature of the party for whose honor acceptance is given, 527, 528. consequence of discovering forgery too late to fix liability of prior parties, 529, 530. effect of paying bill by acceptor whose acceptance is forged, 530. acceptor not estopped to deny genuineness of drawer’s signature where holder took the bill before acceptance, 531. effect of receiving forged paper as one’s own genuine paper, 532. tule where holder, by custom or agreement, takes upon himself the duty of inquiry, 532. when holder aids in mistake of acceptor, 532. INDEX. 813 BILLS AND NOTES, — continued. person selling bill or note without indorsing it warrants its genuine- ness, 534. negligence in drawing check or bill, 534. admission of capacity, 535-539. execution of note an admission of payee’s capacity to indorse, 535. so of acceptance of bill, 536. maker or acceptor cannot therefore allege that payee was a married woman, or a bankrupt, 537. admission not prospective, 537. indorsement implies warranty of capacity of all prior parties, 538. guarantor of bond estopped to deny competency of makers, 538. certification of checks, 539-546. bank estopped in New York and other states by teller’s certificate ‘good,’ 540, 541. contra in Massachusetts, 540. what amounts to certification, 545. transfer by indorser after liability fixed, 5465. statement that note is ‘ all right,’ 644, 645. BLOCKADE, judgment of breach of, 274. BOARD OF TRADE, holding oneself out as member of, 612, note. BONDS, recitals in, 411, 504. when corporation estopped to set up invalidity of, 497-508. BOUNDARY, conclusiveness of decrees of commissioners of, 258. land bounded in deed by street, 402, 403. knowledge of true boundary necessary in many states in order to raise an estoppel, in fixing line, 674. otherwise in other states, 675. long acquiescence, 675. limits of the estoppel, 676. CAPACITY, admission of that of drawer and payee of bill, 535-539. CAUSE OF ACTION, recurring damages, 191, 192. concealment of, 219. CERTAINTY, required in all estoppels, 66, 398, 641. CERTIFICATION OF CHECKS, in New York and elsewhere, 542. effect of, in Massachusetts, 542. what constitutes certification, 545. 814 THE LAW OF ESTOPPEL. CHANCERY, dismissal of bill, 56, 62, 66. when decree final, 64. when decree in, no bar to suit at law, 64. judgment at law conclusive in, 223, 313. restraining actions at law upon judgments, 331-336. CHECKS, certification of, 5389-546. CHURCH COURTS, decrees in, 71. COLLATERAL WARRANTY, explained, 421. COLLEGE ORDERS, conclusiveness of, 70. COLLISION, adjudication concerning, 246. COLLUSION, distinguished from other fraud, 236, 242, note. a ground of impeaching judgments, 236, 242, note. COMMERCIAL PAPER. : See Bitts anp Norzs. COMMON RECOVERY, operation of, 455. COMMON TITLE, disputing, 489. COMMONWEALTH, estoppel against, 371. COMPETENCY OF PARTIES. See Corporations; Inrants; Lunatics; MARRIED WoMEN. COMPTROLLER OF CURRENCY, : decisions of, 73. CONCEALMENT, silence when one should have spoken, 650. : See Conpuct, EsTorren BY. CONDEMNATION OF GOODS, : conclusiveness of judgment of, 248-251. CONDUCT, ESTOPPEL BY, origin of, 603. doctrine in equity, 603. Pickard v. Sears, 604-617. holding out another as owner of property, 607. or as having right to dispose of it, 607. principle of the estoppel, 607, 608. married women doing business for themselves, 608. conduct of cestui que trust may estop him, 608. signing note as principal, 609. allowing stock to be registered in one’s name, 610. INDEX. 815 CONDUCT, ESTOPPEL BY, — continued. receiptors for goods levied upon, 614-617. the representation, 631-662. there need not be an express representation, 632. must concern facts, 634. must have reference generally to a present or past state of things, and not to future, 636, 637. exception, 640. estoppel in pais distinguished from contract, 639. representation must be plain, 641. not a matter of inference, 641. such as would naturally be acted on, 645, 646. representation obtained by fraud, 646. silence when operating as estoppel, 648. ‘standing by,’ 649, 723, 728, 729. illustrations of rule of silence, 650, 653. when silence will not raise estoppel, 654-661. illustrations, 654-661. . silence concerning title of record, 660. possession is notice, 661. when a duty to speak exists, 661, 662. affects only parties and privies, 617, 618. rule covers representations of agents, 618. married women, 620, 621. admissions of one of several administrators which estop him estop all, 612. whether married women may be estopped by conduct, 620. rule in Massachusetts, 620, 621. . Tule in Illinois, 622. rule in Indiana, 623. rule in Pennsylvania, 623. in cases of fraud without contract, 624. action of contract cannot be maintained, 625. whether infants may be estopped in pais, 627. conflict of authority, 627, 628. question considered, 628. doctrine of privity prevails, 629, 630. illustrations, 630. whether a purchaser of goods in privity with the seller, 631. knowledge of the facts, 663-681. the rule stated, 666. means of knowledge, 666. forgetfulness of facts, 671. mistake, 672. in eases of boundary, 672. there must have been knowledge of the true boundary when incor- rect one was agreed upon in order to an estoppel, 674. 816 THE LAW OF ESTOPPEL CONDUCT, ESTOPPEL BY, — continued. different rule in some states, 675. long acquiescence sufficient in these states, 675. limits of the estoppel, 676. mere survey raises no estoppel, 676. warehouse receipts given by mistake, 677. applying for shares in corporation in ignorance of its condition, 678. ignorance the result of gross negligence, 681, note. the intention, 684-694. the general rule, 685. intention may be actual or presumable, 685-691. party must know that representation would be acted upon, 685, 693. term ‘ wilful’ in Pickard v. Sears, 686. in most cases the representation must amount to the contract or license of the party making it, 687, note. effect of negligence, 687. cases of dedication, 691. dedication may be in pais, 691. purport of inquiry not understood, 693. representation must have been acted upon, 694-709. the general rule, 694. . no mere statement or admission can estop, 695. not material how acted on, 696 refraining from steps, 696. doing only what one is bound to do, 697. whether it must be exclusively acted on, 697. representation must have been made before or at the time of change of position, 696, note. of value of horses, 698. of title to stock, 699. sheriff’s return when an estoppel, 699. terms of charter-party, 701. damage, 703. illustrations, 703. damage may be presumptive, 703. false statement inducing suit, 703. inducing administrator to make inventory, 703, note. misrepresentation concerning delivery order, 704. delivery orders, 704-707. adjustment of loss by insurance company, 707. effect of the estoppel, 710. estoppel by waiver, 717-730. CONFESSION OF JUDGMENT, rule in America, 80. rule in England, 81. CONSIDERATION, recitals of, 417, 509. INDEX. 817 CONSPIRACY, 241. CONSTITUTIONALITY OF LAW, estoppel to deny, 90, 96, 573, 751. CONSULAR COURTS, conclusiveness of judgments of, 354. CONTINUING DAMAGES, judgment in cases of, 191, 192. CONTRACT, judgment against one of several joint contractors, 117-126. judgment on contract followed by cross-action for negligence, breach of warranty, or fraud, 193-208. splitting up contracts, 218, 219. as ground of estoppel by deed, 362. estoppel by contract, 495. when party estopped to deny validity of, 497-508, 746. agreement upon a fact as basis of action, 495-497. distinguished from estoppel, 639. acceptance of terms of contract, 746. invalid contract acted on, 746. receiving benefits of, 746. joint contract, 757, note. CORAM NON JUDICE, 4 justice must have been by a legally constituted court, 67. illustrations, 67-69. CORPORATIONS, effect, on stockholders of judgment against, 153. deed in excess of powers, 380-383, 497-508. disputing existence of corporation, 497. counties and towns, 498. setting up defects in organization of body, 499. Right of a party dealing with a supposed corporation to deny the legal existence of the body, 499. ultra vires may be shown when, 503-505. the question generally one of agency, 505. purchasers of bonds certified in due form, 506. membership of corporation effected by estoppel, 610. paying calls, 610. representations by agents, 618. directors affected with notice when, 666. CO - SURETIES, effect of judgment against one upon others, 162, 163. See Surety. COUNTER - CLAIMS, right to sue for after judgment in favor of other party, 193-208. COURTS, : judgment must be given generally by lawful court of justice, 67, exceptional cases, 69-73. 818 THE LAW OF ESTOPPEL. COURTS, — continued. English admiralty an inferior court, 228. otherwise of Federal courts of United States, 228. jurisdiction of, 277-279. constitution of foreign court may be examined, 279. presumption as to, 279. Federal not foreign to state, 314. effect of judgment in consular courts, 354. See Courts-Mart1aL; Inrerion Courts; JupemMentTs; JURISDIC- ‘ TIoN; Muatary Courts. COURTS-MARTIAL, _ conclusiveness of judgments of, 71. COVENANTS, of warranty in old common law, 420. operate as a rebutter, 422. in modern times, 423. depend upon nature of grant and of warranty, 435. effect of, upon after-acquired title at the present time, 442. for quiet enjoyment, 443. covenants of title, seisin, and right to convey, 444. for further assurance, 444. not a conveyance, 476. nor a lien so as to affect a subsequent purchaser without notice, 477. See TittE By EsTopret. CREDITOR AND DEBTOR, judgment in fraud of creditors, 240. no privity between, 374. CRIMINAL CAUSE, JUDGMENT IN, doctrine of jeopardy, 99. effect in civil suit, 129, 130. CROSS-ACTION, right of, after judgment for opposite party, 193-208. CUMULATIVE REMEDIES, effect of judgment in case of, 213, 214. CURTESY, - husband not estopped to claim when, 484, note. tenant by, whether estopped by his tenancy, 587. CUSTOM, custom of London in foreign attachment, 155. judgments incidentally establishing, 259. DAMAGE, continuing, 191. an essential part of estoppel by conduct, 694-710. will be implied in some cases, 703. false statement inducing suit, 703. INDEX. 819 DECLARATION, judgment for insufficiency of, 55, 56. DECREES, in Chancery, 63. See JUDGMENTS. DEDICATION, when effectual by estoppel, 691, 726. DEED, estoppel by deed as resting on contract, 361, note. defined, 362. division of subject, 363. parties and privies, 364-379. deed binds such only, 364. parties, 364-372. boundaries upon streets; 364, note. illustrations of the rule, 364. persons acting under authority of grantee, 366. deed under which grantee does not claim, 366, 367. ; estops parties only in the character in which they appear, 367. guardian’s deed, 368. parties must be sui juris, 369. covenants of married women, 369, 370. deed of infant, 371. estoppel by deed against the state, 371. privity, 372-379. assignee of lessee,,372. other cases, 373-375. privy in estate, 373, note. no privity between judgment creditor and debtor, 374. effect of acceptance of, in regard to dower, 375. apparent conflict on this point, 375. question considered, 376. relation of doctrine of privity to the point, 376. what privity of estoppel means, 378, 379. no privity of estoppel between grantor and grantee, 387. deed must be valid in order to an estoppel, 380-383. and delivered, 380. deed executed in violation of injunction, 380, note. by corporation in excess of powers, 349-383. in contravention of statute, 382. void only as to one of several grantors, 383. deed void in part, 383. deed procured by fraud, 383. no estoppel in collateral matters, 384. proceedings growing out of the deed, 385. joint grant, 386. grantee in deed-poll, 387. 820 THE LAW OF ESTOPPEL. DEED, — continued. whether one who accepts a deed from another estopped to deny his title, 387. purchaser buying in better title than that of his vendor, 388. when he can set up paramount title, 389-392. may show eviction, 391. estoppel against estoppel, 392. estoppel in pais against estoppel by deed, 393. if truth appears on face of, no estoppel arises, 393. ‘limitations of rule, 394. in actions of covenant and ejectment, 394, 395. recitals, 397-417. particular recitals conclude, 397-410. illustrations, 397-400. land bounded on street, 402, 403. land sold subject to mortgage, 404. recitals in patents, 404, 405. sureties in bonds, 406. homestead, 408. recital of law, 408. general recitals do not ordinarily estop, 410-417. examples, 410-414. exception, 414. recital of immaterial facts, 416. date of deed, 416. ground of estoppel by recital, 416. acknowledgment of receipt in a deed, 417. not conclusive, 417. title by estoppel, 418-483. See TitLE By Estopret, release of dower, 484-486. . See Dower. witnessing another’s deed, 633. DEED - POLL, grantee in, 387. DEFAMATION, repetition offered in evidence, 192. DEFAULT, judgment by, 82, 83, 206, 207. DELIVERY BONDS, conclusive of what, 614, 615. DELIVERY ORDERS, effect of, 512, 513, 614, 615, 677. DEMURRER, decision on, conclusive when merits involved, 56, 57, 62. DEPOSITIONS, sworn, 633, note. ae INDEX. 821 DEPUTY-SHERIFF, effect on sheriff of judgment against, 137. DERELICT, sales of wreck and derelict conclusive on all persons, 272. DIRECTORS OF CORPORATION, affected with notice estopped, 666. See CorPoraTIONs. DISCLAIMER, under what circumstances effectual to remove estoppel, 578. DISCONTINUANCE OF SUIT, « effect of, 56, 66, note, 79. DISMISSAL OF SUIT, effect of, 55, 57, 79, 81. DIVORCE, juagment in suit for, 252-254. jurisdiction in causes of, 269. suit for alimony after decree of divorce, 304. See MarriacGe aND DivoRrce. DOMESTIC JUDGMENT, See JupgmEents, Domestic. DOMICILE, ; decisions in regard to, 257, 271. DOWER, whether acceptance of deed estops grantee to dispute widow’s claim to, 375. release of, 484. wife not estopped without release, 484, note. ? conveyance by husband of his wife’s land, wife affixing her signature and seal, 484, 485. release of dower in fraudulent conveyance, 485. effect of election to take under will, 735, 738. DURESS, representation obtained by, 646. EJECTMENT, effect of judgments in, 143, 144. ELECTION, INCONSISTENT POSITIONS, party cannot occupy inconsistent positions, and the first taken will be held a conclusive election, 732. one who has taken beneficial interest under will estopped to deny its validity in equity, 733. examples, 734. testator devising another’s property to whom he makes a gift, 734. by married women and infants, 735. widow’s election to take under will, 735, 738. doctrine of election not applied when, 736. 822 THE LAW OF ESTOPPEL. ELECTION, INCONSISTENT POSITIONS, — continued. intention to dispose of property must appear in will, 736, 737. how election excluded, 737. election by heir, 737. property given subject to burdens, 737. election arising under exercise of powers of appointment, 738. what constitutes election, 739-744. any decisive act with knowledge is an election, 739. party taking possession of property, and holding and managing it, 739, 740. “result of the cases, 743. instituting suit to contest will, 743. acquiescence and waiver, 744. beneficiaries under trust estopped to impeach trust, 744. acceptance of terms of contract, 744. invalid contract acted upon, 746. examples, 746. receiving benefits of sale, 746. limitation of the rule of estoppel in such cases, 747. indirect benefit received, 747. collecting or receiving money for another, 748. taking appointment of trust, 748. assuming to act as principal, 748. stockholder in corporation receiving dividends, 748. wrongful severance of fixtures, 749. persons who have procured the passage of an act estopped to deny its constitutionality, 751. but in general no estoppel to deny validity of statute, 751, note. joining in petition for opening or improving street, 753. levying tax to pay compensation for laying out street, 754. levying taxes generally, 755. other cases of similar nature, 755. improper use of term ‘ estoppel’ in many of the cases, 756. examples, 756. ratification only an element of estoppel; 757. contracting jointly, 757, note. EMPLOYEES, effect of accepting employment, 597. ENEMY PROPERTY, condemnation of vessel as, 273, 274. ENTIRE DEMAND, : continuing damages, 190, 191. not to be split in ordinary cases, 219. concealment of part of cause of action, 219. what constitutes, 219. ENTRY, WRIT OF, effect of judgment in, 108, 109. INDEX. 823 EQUITABLE ESTOPPEL, origin, 603. doctrine in equity, 603. doctrine of Pickard v. Sears, 604-617. leading cases in America, 617. affects only parties and privies, 617, 618. rule covers representations of agents, 618. admission of one of several administrators which estops him estops all, 612. whether married women subject to estoppel in pais, 620. rule in Massachusetts, 620, 621. rule in Illinois, 622. rule in Indiana, 623. Tule in Pennsylvania, 623. in cases of fraud without contract, 624. action of contract cannot -be maintained, 625. whether infants subject to estoppel in pais, 627. conflict of cases, 627, 628. question considered, 628. doctrine of privity prevails, 629, 630. the representation, 631-662. need not be express, 632. must concern facts, 634. must have reference generally to present or past state of facts, and not to future, 636, 637. exception, 640. estoppel by conduct distinguished from contract, 639. representation must be plain, 641. not a matter of inference, 641. such as would naturally be acted on, 645, 646. representation obtained by fraud, 646. silence when operating as estoppel, 648. ‘ standing by,’ 649. illustrations of rule of silence, 650, 653. when silence will not raise estoppel, 654-661. silence concerning title of record, 660. possession is notice, 661. when duty to speak arises, 661, 662. knowledge of facts, 663-681. Tule stated, 666. in cases of boundary, 672. knowledge of true boundary required in many states, 674. different rule in other states, 674, 675. long acquiescence, 675. limits of the estoppel as to boundaries, 676. mere survey raises no estoppel, 676. warehouse receipts given by mistake, 677. 824 THE LAW OF ESTOPPEL. EQUITABLE ESTOPPEL, — continued. applying for shares in corporation in ignorance of its condition, 678. ignorance the result of gross negligence, 681, note. the intent, 684-694. party must know that representation will be acted on, 685, 693. term ‘ wilful’ in Pickard v. Sears, 686. in most cases representation must amount to contract or license, 687, note. effect of negligence, 687. cases of dedication, 691. purport of inquiry not understood, 693. | representation must have been acted on, 694-709. representation must have been made before or at time of change of position, 696, note. : misrepresentation as to character of warrant, 697. of value of horses, 698. sheriff’s return, when an estoppel, 699. damage may be presumptive, 703. Knights v. Wiffen, and other cases, 703-707. false statement inducing a suit, 703, note. inducing administrator to proceed to an inventory, 703, note. delivery orders, 704-707. adjustment of loss by insurance company, 707. effect of the estoppel, 710. EQUITY, dismissal of bill in, 56, 62, 66. when decree final, 63. verdicts out of, 113. judgment at law conclusive in, 223, 313. restraining actions on judgments, 332-337. ERROR, ; no ground of impeaching judgments, 55, 267, 287. ESTATES BY ESTOPPEL, history of the doctrine, 418-424. at common law only four kinds of assurance possessed the efficacy of passing after-acquired interests, 419. operation of feoffment, 419, 450. the old common-law warranty, 420. lineal warranty, 420. collateral warranty, 421. modern warranty, 423. leases, 424-429. where no interest passes, 424. where an interest passes, 425. the doctrine explained, 427. between grantor and grantee, 429-449, title by estoppel without warranty, 431. INDEX. 825 ESTATES BY ESTOPPEL, — continued. under statutes, 433. title by estoppél in deeds with warranty, 435. effect of deed depends on nature of grant and warranty, 435. covenant of warranty limited to estate granted, in certain states, 438. rule different in other states, 438, 439. grants with warranty by trustees, executors, and the like, 439. Tights of way, 439. construction of language not in form of warranty, 440. effect of mill acts, 441. extinguishment of covenants, 441. fraudulent conveyance, 442. improvements erected by grantor, 443. covenants for quiet enjoyment, 443. distinction between covenants of seisin and those for further assur- ance, 444. implied warranty in partition of land, 445. grantee before and grantee after title acquired, 449-482. estoppel at common law in case of feoffment, 450. whether the interest passed by reason of the warranty, 453. operation of the fine, 453. operation of the common recovery, 455. operation of lease, 456-459. ‘ explanation of, 457-459. operation of the release, 459. operation of the lease and release, 459. operation of the grant, 460. operation of the bargain and sale, 461-464. origin of the same, 461. void at law originally, 461. effect of a warranty in, 463. result of consideration of law prior to the Statute of Uses, 464. conveyances under this statute, 464-482. consideration of bargain and sale, 464-482. decisions in favor of the estoppel against second. grantee, 465-469. cases contra, 469-474. consideration of question, 474-482. distinction between cases where grantor had seisin and where he had not, 474. where grantor had not seisin, 474-479. such a case not within the Statute of Uses, 474. what necessary to pass title under the statute, 474-476. warranty never possessed power of conveyance, 476. nor can it operate as a lien against innocent purchaser, 477. effect of registry laws, 477. no privity between second grantee and his grantor, 477. cases distinguished, 479. 826 THE LAW OF ESTOPPEL. ESTATES BY ESTOPPEL, — continued. grantee with seisin, that is, as disseisor, 480. first grantee now acquires an estate under the Statute of Uses, 480. title by estoppel may prevail now without a rebutter, 481. title by estoppel as to personalty, 482. ESTOPPEL, nature of, 3, 4. justification of the law in its early appearance and continual -expan- sion, 5. supposed odiousness, 5, 6. may create a right in personam or in rem, 6. Further, see special divisions. ESTOPPEL AGAINST ESTOPPEL, sets the matter at large, 392. EVICTION, removes estoppel of tenant when, 562. eviction by law not necessary, 564. EVIDENCE. See PLEADING, PRACTICE, AND EVIDENCE. EXCEPTIO REI JUDICATA, 5 in the Roman law, 42. EXECUTION, stay of, 81, note. EXECUTORS AND ADMINISTRATORS, verdict for plaintiff in suit against, on plea of plene administravit, 86, 306. effect of judgment against by default, 86. no privity between administrator or executor and heir or devisee, 163-165. relation of administrator de bonis non to his predecessor in the ad- ministration, 165. : not like executor of executor, 165. residing in different states, no privity between, 166. when estopped to claim property found among assets of the estate, 599. not estopped to amend inventory when, 600, note. when estopped to deny having funds, 600, note. estoppel against one of several estops all, 620. inducing to proceed to inventory, 703, note. FEDERAL COURTS, not foreign to state courts, 314. FEOFFMENT, operation of, 419, 450. FERRY, PUBLIC, judgment incidentally establishing, 36, note, 259. INDEX. 827 FINDINGS, effect of, 49, 248, 256, 267, 273, 275. See InreRENCES, GROUNDS, AND’ FINDINGS. FINE, operation of, 453. FISHERY, judgment establishing, 36, note. FIXTURES, wrongful severance of, 749. FOREIGN COURTS, jurisdiction of, may be examined, 277. presumption, 279. so of constitution of tribunal, 280. consular courts, 354. See Jupements, Foreien. FOREIGN JUDGMENTS, in rem, 261-279. in personam, 282-355. See JupGMENTS, ForREIGN. FORGERY, admission of genuineness, 519-535, 688. See Bitits anp NorTEs. FORGETFULNESS, ; when it may be replied to estoppel by conduct, 671. FORM OF ACTION, : change of, 96, 222. FORMER ACQUITTAL, 99. FORMER CONVICTION, 99. FORMER JUDGMENT, plea of judgment for defendant for premature action, 59, note. nature of plea of, 89-100. causes of action must be identical, 89. plea of non est factum as to a bond, judgment sustaining, as bar to special promise to pay the bond, 90. plea of judgment in an action for failing to remove a wreck, 91. plea of judgment for defendant in an action of contract, as bar to suit for fraudulent representations concerning the contract, 92. plea of judgment for defendant in an action for false representation of soundness, as a bar to an action on warranty, 92. action for goods sold defeated by special promise, and subsequent suit on the special promise, 92. cages of recurring liability, 95. tax assessments and debts due by instalment, 95, 96. form of action immaterial, 96. evidence of identity, 98, 99. doctrine of twice in jeopardy, 99. 828 THE LAW OF ESTOPPEL. FORMER JUDGMENT, — continued. trespass quare clausum, plea of judgment in, as bar to an entry sur disseisin, 109. FORMER RECOVERY. See Former JUDGMENT. FORMER VERDICT, nature of plea of, 100. causes of action need not be identical, 100. doctrine of Duchess of Kingston’s Case, 102. of Outram v. Morewood, 103, 104. other cases, 105-108. judgment for defendant on one of two notes by reason of a defence common to both, 105, 107. plea of fraudulent alteration of note, and reply of judgment obtained on the note, 107. suit upon a special contract pleaded by opposite party in a former action and there denied by plaintiff, 108. judgment in ejectment conclusive of right to mesne profits, 108. * result of the cases stated, 110, 111. verdicts out of equity, 112. judgment against several parties, rights inter sese, 113, 114. FRAUD, concealment of cause of action, 219. when ground of impeaching judgments, 282-244, 280, 331-336. term ‘fraud ’ defined, 242. representation obtained by, 646, 647. FURTHER ASSURANCE, COVENANT FOR, effect of, 444. GARNISHMENT, effect of judgment against garnishee, 154. voluntary payment by garnishee, 154. custom of London, 155. if execution satisfied, garnishee discharged pro tanto, 155. original creditor may prove his claim greater than admitted, 155, 156. judgment must have been valid, 156, note. and real, 156, note. all defences must have been made, 155, 158. court must have had jurisdiction, 156, note. foreign judgments on, 343-346. ‘GOOD,’ certification of a check as, 540, 541. answer of maker of a note on inquiry, 643-645. GOVERNMENT, estoppel against, 371. GRANT, DEED OF, operation, 460, 461. INDEX. 829 GRANTOR AND GRANTEE, not in privity, 387. title by estoppel between, 429-449. See Titte sy Esroppeg.. GROUNDS OF DECISION. See INFERENCES, GROUNDS, AND FINDINGS. GUARANTOR, no privity between, and principal, 162, 163. GUARDIAN, deed of, with warranty, 368. HEIR, not in privity with executor or administrator, 163-165. election by, 737. HUSBAND AND WIFE, husband’s representations cannot bind wife, 619, note. See Marriace anp Divorce; Marriep WoMEN. IDENTITY OF CAUSE OF ACTION, necessity of, to support plea of former judgment, 89. test of, 93, 94. IGNORANCE. See KNnowLepcE or Facts. IMMATERIAL FACTS, verdicts on, 175, 273. IMPEACHMENT OF JUDGMENTS, for want of jurisdiction, 225-231, 277, 316. for fraud, 232-244, 280, 331-336. See JUDGMENTS. IMPROVEMENTS, erected by grantor of deed with warranty inure to grantee, 443. made under license, 723. INCIDENTAL MATTERS, effect of verdict upon, 175, 273. what meant by incidental matter, 175. various illustrations showing judgment not to be binding, 273, 274. INCONSISTENT ACTS, election between, 732-757. See ELection. in court, 783-790. INCREMENT, damages by, 190, 191. INDORSEMENT, warrants genuineness of negotiable paper, 521. acceptor may deny genuineness of, 522. unless when, 523-525. 830 THE LAW OF ESTOPPEL.. INFANTS, whether concluded by judgment, 132. decree appointing tutor, 258. not estopped by deed, 371. whether subject to estoppel in pais, 627. conflict of authority, 627, 628. question considered, 628. election by, may bind, 735. INFERENCES, GROUNDS, AND FINDINGS, judgment establishes necessary when, 50, 169, 177, 247, 256, 257, note, 267, 273, 275. New York rule in regard to judgments in rem, 49, note, 267. INFERIOR COURTS, _ judgments of, conclusive when, 72. superior courts not proceeding according to course of the common law, 227. of sister states, 348-355. consular courts, 354. INJUNCTION, against suing on judgment, 332. on ground of estoppel in pais, 782. IN PAIS, ESTOPPEL. See Acency; Britis anp Nores; Conpuct, Estopren By; Corpora- TIONS; ELECTION; EstoppeL; LANDLORD AND TENANT; PARTNERSHIP. INSOLVENCY LAWS, ~ adjudications upon constitutionality of, 96. effect of judgments under, 311. INSTALMENTS, debts payable in, effect of judgment, 95, 96. INSUFFICIENCY, dismissal of bill in chancery for, 56, 62, 66. judgment on demurrer to declaration for, 55, 56. INSURANCE, acknowledgment of receipt of premium, 509, note, 511. adjustment of loss by insurance company, 707. waiver of defects in proof of loss, 719. waiver of terms of payment, 717-723. discontinuance of agency, 721. INTENTION, in equitable estoppel, 684-694. general rule concerning, 685. may be actual or presumable, 685-691. See Conpuct, EsTopre BY. INTERLOCUTORY ORDERS, effect of, 65, note. INVENTORY, amendment of, by administrator, 600, note. INDEX. 831 INVENTORY, — continued. inducing administrator to proceed to, 708, note. ' JEOPARDY, twice in, 99. JOINT CONTRACT, judgment upon, merges the same, 117. JOINT JUDGMENT, suit by one to restrain, 124. JOINT TORT, effect of judgment on, 125. JUDGMENTS, FOREIGN, IN PERSONAM, cases considered historically concerning judgments of foreign nations, 282-288. finally settled in England that such judgments are conclusive on the merits, 261. immaterial that they are erroneous, 287. or that they proceed on an incorrect view of the law of England, 288. unsettled state of cases in this country, 290. early English dicta formerly followed, 290. question considered, 291. judgments of the sister states of America, 292. history, provisions of Confederation and Constitution, 268, 269. conclusive on merits, 294. Mills v. Duryee, 294. nil debet not a good plea, 295-297. judgments of superior courts record evidence, 295. Statute of Limitations a good plea when, 297. whether constitutional provision includes criminal cases, 300. does not embrace qui tam actions, 300. does not embrace matters subsequent to the judgment, 301. judgment of sister state for plaintiff establishes his right to sue in the same capacity, 303. judgment for a party conclusive of his existence, 303, note. non-production of evidence, 303. independent demands, 304. effect of judgment against executor in regard to assets, 306. cases of principal and surety, 306, 307. judgment conclusive of law applied, 307. error of fact cannot be alleged, 307. so of irregularity, 308. unconstitutional laws concerning foreign judgments, 309. effect of judgment in insolvency, 311. judgment must have gone on the merits, 312. matters collateral and incidental, 312. judgment must have been final and conclusive where rendered, 313. 832 THE LAW OF ESTOPPEL. JUDGMENTS, FOREIGN, IN PERSONAM, — continued. tule of conclusiveness prevails also in chancery, 313. Federal courts not foreign to state courts, 314. result of cases stated, 315. limitation of rule, 315. judgments of foreign countries liable to impeachment in respect to jurisdiction, 316. limitation of rule, 317, 318. not record evidence, 318. doctrine in respect to impeaching the jurisdiction of courts of sister states, 318-325. state statutes providing for judgment without personal service have no extra-territorial effect, 325, 327, 330. cases of foreign attachment, 328. citizens of the state bound, 330. also property of non-residents, 330. whether judgments of sister states may be impeached or restrained for fraud, 331-336. whether judgments of foreign countries may be, 336. judgment of foreign country no merger of cause of action, 337. otherwise of judgments of sister states, 339-343. garnishment or trustee process, 343-346. doctrine of privity, 346. no privity between executors or administrators of different states, 347. executor in one state and administrator de bonis non in another state, 348. : judgments of foreign courts of inferior jurisdiction, 348. whether constitutional provision embraces such judgments, 349- 352. question considered, 352, 353. foreign consular courts, 354. impeaching jurisdiction of such courts, 355. JUDGMENTS, FOREIGN, IN REM, deemed conclusive a century ago, 261. Algerine decrees, 263. conclusive of the fact for which the condemnation was pronounced, 266. otherwise in New York, 267. immaterial that judgment was palpably erroneous, 267. decrees concerning marriage and divorce, 269. decrees of Probate Court, 271. sales of wreck and derelict, 272. conclusive only of matters essential to the decision, 273. limitation of doctrine, 274. not conclusive of matters obscurely or ambiguously stated, 275. whether evidence admissible to show what was meant, 276, 277. INDEX. 833 JUDGMENTS, FOREIGN, IN REM, — continued. jurisdiction may be questioned, 277. adjudication of jurisdiction, 278. presumption of authority, 279. want of authority of tribunal to sit as court, 280. may be impeached for fraud, 280. . JUDGMENTS IN PERSONAM, distinguished from judgments in vem, 44, 50, note. general operation of, 49, 50. judgment conclusive of necessary inferences, grounds, and findings, when, 49, 170, 176, 248, 256, 257, note, 267, 278, 275. plea of former judgment, 89-100. See Former JUDGMENT. there must be an identity between the causes of action, 89.. judgment on plea of non est factum in suit on a bond no bar to special promise to pay the bond, 90. judgment that suit has been prematurely brought on a note no es- toppel to sue on the consideration of the note, 90. other examples of the rule concerning identity, 91. plea of judgment in an action for failing to remove a wreck, 91. plea of judgment for defendant in an action of contract as bar to suit for fraudulent representation concerning the contract, 92. plea of judgment for defendant in an action for false representation of soundness as bar to an action on warranty, 92. _ action for goods sold defeated by special promise, and subsequent suit on the special promise, 92. test of identity, 93, 94. cases of recurring liability, 95. tax assessments and debts due by instalment, 95, 96. form of action different, 96. evidence to supply omission in the record, 97. twice in jeopardy, 99. plea of former verdict, 100-115. operates as estoppel, though cause of action be different, 100. but the particular point in dispute must be the same in both cases, 100. - nature of the plea, 101. sentence of spiritual court against a marriage in suit for jactitation no estoppel to an indictment for bigamy, 102. recovery in trespass, effect of, 104. ‘ other cases, 105-108. judgment for defendant on one of two notes by reason of defence common to both, 106, 107. plea of fraudulent alteration of note and reply of judgment obtained on the note, 107. suit upon a special contract pleaded by opposite party in a former action and there denied by plaintiff, 108. 834 | THE LAW OF ESTOPPEL. JUDGMENTS IN PERSONAM, — continued. judgment in ejectment conclusive of right to mesne profits, 108. in trespass quare clausum, 109. result of the cases stated, 110, 111. verdicts out of equity, 113. judgment against several parties, rights inter sese, 113, 114. when suit to enforce judgment opens it, 114, 115. effect and operation of judgment and verdict estoppels, 116. merger, 116-124. joint contractors, 117-124. partners, 119, 120. other special cases, 121-124. parties to bills and notes, 124. joint and several bonds, 125. tortfeasors, 125. parties, 127-158. See Partizs AND Privius. judgments in personam bind only parties and privies, 127, 128. who are parties, 128. parties under legal disability, 130-133. married women, 130-132. infants, 132, 133. lunatics, 133. judgments against persons deceased, 134. . principal and agent, master and servant, 134-142. master of vessel and owner, 136. officer and deputy, 135. principal and surety, 138. bailor and bailee, 141. \ judgment in ejectment, 143, 144. parties nominally the same, but really different, 145. judgment concludes parties only in the character in which they appear, 146. effect of notice to third persons liable over, 147-150. in some cases liable to indemnify without notice, 149. whether one appearing as a witness is estopped, 151, 152. trustee and cestui que trust, 152, 153. effect of judgment against a corporation in suit against stockholder, 153. garnishment or trustee process, 154-158. judgment without satisfaction, 154, 155. custom of London, 155. judgment must be fairly obtained, 157. all defences must be made, 158. privies, 158. definition, 158, 159. judgments conclude privies as well as parties, 159. illustrations, 160-162. INDEX. 835 JUDGMENTS IN PERSONAM, — continued. _ho privity between guarantor and principal, surety and principal, and co-sureties, 162, 163. no privity between administrator or executor and heir or devisee, 163, 164. executor of executor, 165. whether administrator de bonis non may maintain scire facias on a judgment of his predecessor, 165, note. administrator in privity with intestate, 165. executor in privity with testator, 165. heir or devisee in privity with ancestor or devisor, 165. whether administrator de bonis non in privity with his predecessor, 166. no privity between executors or administrators of different states, 166. purchaser of a judgment, 166. claimants who are not privies, 167-169. cases in which judgments avail against third persons, 167-169. relation of debtor and creditor, 168, 169. judgments no estoppel as to matters incidentally determined, 169. matters which might have been litigated, 170, 171. effect of judgments as to matters.not passed upon, which might have been put in issue, 171. various examples, 173-175. distinction between courts of concurrent and those of exclusive juris- diction as to matters incidentally determined, 175. what is to be regarded the point in issue, 176. submission of ‘ all matters in difference’ to reference, 186. evidence withheld as to one count of declaration, 186. submission of ‘ all demands between the parties,’ 186. action on two notes and withdrawal of one, 188. " distinct trespasses, 188, 189. continuing damages, 191, 192. suit for interest after judgment for principal, 190. independent cause of action may be drawn into the pleadings and decided upon, 194. judgment on contract and cross-action for negligence, or breach of warranty or fraud, 194-208. rule in New York, 195. rule in Massachusetts, 197. rule in New Hampshire, 197. rule in Ohio, 198. rule in England, 199. rule in Michigan, 203. question considered, 206. nature of cross-rights, 207. distinction between case where evidence is omitted and where insuffi- cient evidence is produced, 208, 209. 836 THE LAW OF ESTOPPEL. JUDGMENTS IN PERSONAM, — continued. evidence as to one count rejected as inadmissible, and subsequent suit on same count, 210. ; action to recover money paid under judgment, 211. effect of judgment upon one of several cumulative remedies, 213, 214. effect of judgment upon portion of an entire demand, 215. single cause of action not to be split, 219. concealment of part of cause of action, 219. what constitutes an entire demand, 219. judgment for plaintiff by default, plaintiff allowing defendant partial credit for separate demand, 221. entries made of record after judgment, 221. form of action not material, 222. judgment against plaintiff estops him to allege same demand as set-off, 223. immaterial that former judgment averred other demands besides the present claim, 223. judgment at law bars suit in chancery, 223. collateral impeachment of judgments, 225. as to jurisdiction of superior courts, 225, 226. presumption as to, 227. parties under disability, 227. courts not proceeding according to common law, 227. inferior courts, 228. adjudication as to jurisdiction, 228-230. denial of attorney’s authority to appear, 231. fraud in case of superior courts, 232-241. English doctrine, 209-240. probate decrees, 234. American cases concerning fraud in conflict, 237-240. question considered, 241. distinction between judgment obtained by fraudulent practice and judgment on fraudulent claim, 242-244. JUDGMENTS IN REM, general nature and effect of, 43-51. distinguished from judgments in personam, 44, 50, note, 247. adjudications of prize in admiralty, 245. conclusive upon all persons, not only of the change of property, but also of the fact for which condemnation was pronounced, 245. cases of collision, 246. condemnation of goods in the Exchequer, 248-251. acquittal of goods, 251. effect of decree establishing pedigree, 251. decree as to legitimacy, 251. proceedings in marriage and divorce, 251-254. decrees of probate, 254-257. orders of removal of paupers, 257. INDEX. 837 JUDGMENTS IN REM, — continued. decree appointing a tutor to a minor, 258. judgment confirming report of commissioners of boundary, 258. judgments in attachment, replevin, and the like, 259. judgments incidentally establishing reputation, custom, public fer- ries, etc., 259. nature of judgment in rem, 259. whether unsatisfied judgment against a vessel a bar to a suit in per- sonam, 260. JURISDICTION, recitals of, 37, 324. what constitutes, 54, 55. not acquired by acquiescence or request, 53, note. courts must have, 67. impeachment of jurisdiction of superior courts, 225, 226. presumptions as to jurisdiction, 226. superior courts not proceeding according to course of the common law, 227. English Admiralty an inferior court, 228. otherwise of Federal courts of United States, 228, 229, adjudication of jurisdiction, 228-230, 278, 279. appearance by attorney, 231. of foreign courts, 277-279, 316-318. of judgments of sister states, 318-331. See Jopements. JUS TERTII, when bailee may set up, 592-597. See Battor AND BAILEE. KNOWLEDGE OF FACTS, the rule concerning, in equitable estoppels, 666. where party has means of informing himself, 666. forgetfulness of facts, 671. in cases of boundary, 672. conflict of cases, 674, 675.. long acquiescence held sufficient in some states, 675. limits of the estoppel in these cases, 675, 676. warehouse receipts given under mistake, 677. ignorance the result of gross negligence, 681, note. party must know that representation will be acted on, 685, 693. purport of inquiry not understood, 693. LAND COMMISSIONERS, decisions of, 73. LANDLORD AND TENANT, estoppel of tenant to deny landlord’s title, 547. of modern origin, 547. 838 THE LAW OF ESTOPPEL. LANDLORD AND TENANT, — continued. nature of, in time of Coke, 547. arose only in case of deed, and against the party sealing, 547. and only when the demise was the gist of the action, 548. seal not the foundation of the modern estoppel, 547, estoppel continues as long as tenant continues in possession, 548. estoppel applies to leases of personality, 548. estoppel of the old common law different from that which now pre- vails, 548. . modern doctrine arose out of assumpsit for use and occupation, 550. enjoyment by permission the foundation of the estoppel, 550. several cases criticised, 551. payment of rent evidence of tenancy, 553. doctrine of mutuality prevails, 553. same rules prevail concerning competency of parties as in estoppel by deed, 553. persons under disability not estopped, 554. doctrine of privity prevails, 554. sub-lessees, 555. outstanding title cannot be set up by tenant, 556. not estopped in cases of fraud, 558. tenant may show that landlord’s title has expired, 559. new taking or letting into possession, 560, note. tenant may purchase landlord’s estate, and thus end the estoppel, 561. buying tax title, 561. acquisition by tenant of title under which landlord claims, 561, 562. eviction of tenant may be shown, 562. constructive eviction enough, 564. ouster in pais, what tenant must prove, 564, note. tenant not estopped in cases of mistake, 565. tenant not estopped to explain circumstances under which an attorn- ment has been made, 565. whether tenant taking lease of land of which he was already in pos- session is estopped without surrender, 567, 568. no estoppel in case of mistake, fraud, or misrepresentation, 569. California doctrine, 570. tule in New York and Kentucky, 570. rule in England, 572. rule in Massachusetts, 576. question considered, 577. effect of disclaimer, 578. lessor may at once eject tenant, but if he do not within the period of limitation, tenant may then set up his own title, 578. but not before period of limitation has expired, 578. tenant may show that one to whom he has attorned has no derivative title, 579. INDEX. 839 LANDLORD AND TENANT, — continued. when tenancy is established, the estoppel of tenant arises though tenancy be created by deed showing that landlord had no legal estate, 582. limitations of rule, 584. doctrine of tenant’s estoppel not confined to cases of ejectment, 585. doctrine prevails against one in possession under mere license, 586. tenancy created by law, 586. widow continuing in possession of husband’s estate, 586. tenant by the curtesy, 587. relation of mortgagor and mortgagee, 588. relation of trustee and cestui que trust, 589. position of purchaser of land before payment, 590. entry under contract of purchase, 590-592. LAND PATENTS, when binding, 73. survey and patent of land commissioners, 73. LAW, ‘ estoppel to deny constitutionality of, 90, 96, 573, 751. effect of decisions on the law, 112, 113. mistake or error of, no ground for impeaching judgments, 92, 93, 232, 233, 287. estoppel as to statement of, 408, 635. LEASE, where no interest passes an estoppel arises, 424. where an interest passes no estoppel arises, 425. See LANDLORD AND TENANT; TITLE BY ESTOPPEL. LEASE AND RELEASE, DEEDS OF, operation of, by way of estoppel, 459. LEGITIMACY, judgment of, as to other children of the same marriage, 46, 251. LIBEL, repetitions offered in evidence, 192. LICENSE, | possession of premises under, works an estoppel, 586. to use another’s land, 723. LICENSEE OF PATENT, not permitted to deny validity of patent when, 597-599. LIMITATIONS. See Statuts. LIS PENDENS, 129. LUNATICS, judgments against, 133. MARINE INSURANCE, acknowledgment of receipt of premium, 511. 840 THE LAW OF ESTOPPEL. MARRIAGE AND DIVORCE, sentence of Spiritual Court in suit for jactitation of marriage, Duchess of Kingston’s Case, 102. proceedings are in rem, conclusive against all persons, 251-254, 269. foreign decrees, 269. MARRIED WOMEN, judgments against, 130-132. separate estate, 369. not estopped by deed at common law, 370. contra in some states, 370. joining with husband in deed of her estate, 484, note. warranty of capacity to draw or indorse bill, 536, 537. whether subject to estoppel in pais, 620. conflict of cases, 620-627. election by, may bind, 735. _ MASTER AND OWNER OF VESSEL, nature of the relation, 136. MASTER AND SERVANT, judgment against servant, 134-136. judgment in favor of servant defendant, 137. : judgment for or against master, 139, 140. MERGER, judgment works, 116. effect of judgment on joint contract, 117. partnership cases, 118-121. effect of judgment on joint tort, 125. recurring damages, 191, 192. doctrine of, as to judgments of foreign countries, 337-342. as to judgments of sister states, 339. MERITS, when judgment rendered on, 55, 56. See JUDGMENTS. MESNE PROFITS, judgment in ejectment conclusive of right to, 108. MILITARY COURTS, conclusiveness of judgments of, 71. MISREPRESENTATIONS, nature of estoppel arising from, 602-631. fraudulent and negligent, work estoppel, 663. the scienter, 663. as to boundaries cases in conflict, 674, 675. See EquitaBLte EstTopre.. MISTAKE, of law no ground of impeaching judgments, 112, 231, 267, 287. of foreign law, 287. may be shown in cases of tenancy, 565. See” Know Lene or Facts. INDEX. 841 MOLLOY, on Algiers, Tunis, and Tripoli, 264, note. MORTGAGE, buying land subject to, estops purchaser to dispute validity of 364, note, grantee in warranty deed reconveying in, not estopped to set up out- standing title and eviction, 391. nor to claim an after-acquired title, when, 447-449. of goods to be acquired, 483, note. MORTGAGOR AND MORTGAGEE, when mortgagor in possession may dispute title of mortgagee, 588. MUNICIPAL CORPORATION, when estopped to set up illegality of bonds, 410, 505-507. not estopped to claim property belonging to it improperly sold for taxes, 754. METERS 127-129, 364, 553, 710. See Parties AND PRIVIES. NEGLIGENCE, judgment on contract followed by action for negligence in perform- ance thereof, 193-208. in drawing bill or check, 534, 713, 714. when estoppel produced by, 534, 667, 687, 710-715. must be proximate cause of loss, 713. NEGLIGENT PERFORMANCE OF SERVICES, - action for, after judgment for the services, 193-208. NEGOTIABLE PAPER. See Bitts anp Nortss. NEUTRALITY, adjudication concerning, 266. ‘NIL HABUIT IN TENEMENTIS,’ when allowed between landlord and tenant under the old law, 548. modern doctrine, 550. NON-PROS, effect of entry of, 57. NON-RESIDENTS. See JURISDICTION. NONSUIT, effect of, 59. on agreed facts, 59. NOTES. See Bris ann Nortss. NOTICE, effect of, upon persons liable over, 147-150. having means of, 666. directors of corporations, 666. NUISANCE, continuing, 192, note, 771. 842 THE LAW OF ESTOPPEL, ODIOUSNESS, of estoppels, 5. OFFICER AND DEPUTY, judgment for or against deputy, 135-137. OFFICER’S RETURN, when conclusive, 699, 700. OPINION, representations of, 634. OUSTER, how tenant may show, 564, note. OUTSTANDING TITLE, may not be set up by tenant when, 556. See LANDLORD AND TENANT. OWNER OF VESSEL, relation to master, 136. PAIS, ESTOPPEL IN, : defined, 4, 489. in the old common law, 490. division of subject, 491. changes in and growth of the doctrine, 492. See Acency; Bitts anp Notes; Conpuct, Estoprent spy; Cor- PORATIONS; ELECTION; EstoppEL; LANDLORD AND TENANT; ParRTNERSHIP. PARTIES AND PRIVIES, adversary parties required by rule of res judicata, 114. judgment against one of several joint contractors a bar to an action against the rest, 117-123. tule as to joint and several contracts different, 117, note. tule concerning joint contractors as declared in Sheehy v. Mandeville denied, 120, note. Sheehy ». Mandeville explained, 120, note. judgment against one of several partners, 119. parties to bills and notes, 124. English rule concerning judgment against one of several joint tort- feasors, 125. contrary rule in America, 125. parties in estoppel by matter of record, 127-158. judgments in personam bind only parties and privies, 127, 128. examples, 129. what term ‘ parties ’ means, 127, 128. parties must be openly such, 129. purchasers pendente lite, 128, 129. judgments against parties under legal disability, 180-133. tule in Maryland concerning married women, 130. in Massachusetts, 130, 131. in Indiana, 131. INDEX. 843 PARTIES AND PRIVIES, — continued. in Pennsylvania, 132. judgments against infants, 132. day given them by statute after majority, 132. cases not arising on the statute, 132. tule in Kentucky, Indiana, and North Carolina, 132. Tule in Illinois, 132. consideration of the question, 132, 133. judgments against lunatics binding when, 133. judgments against deceased persons, 133. not always fatal that parties more or less numerous in former action than in the present, 133. principal and agent, master and servant, 134-142. officer and deputy, 135~137. master and owner of vessel, 136. principal and surety, 138. bailor and bailee, 141. judgments in ejectment, 143, 144. parties nominally the same, -but really different, 145. judgments conclude parties only in the character in which they ap- pear, 146. apparent exceptions to this rule, 146. effect of notice to persons liable over, 147-150. in some cases liable to indemnify, bound without notice, 149. whether one appearing as witness is estopped, 151, 152. trustee and cestui que trust, 152, 153. numerous beneficiaries, 152, 153. limit of rule, 153. relation of stockholder and corporation, 153. garnishment or trustee process, 154-158. See GARNISHMENT, privies, 158. definition, 158, 159. judgment concludes privies as well as parties, 159. illustrations, 160-162. no privity between guarantor and principal, surety and principal, and co-sureties, 162, 163. no privity between administrator or an heir or devisee, 163, 164. administrator in privity with intestate, 165. executor in privity with testator, 165. executor of executor, 165. heir or devisee in privity with ancestor or devisor, 165. whether administrator de bonis non in privity with his predecessor, 166. situation of administrator de bonis non historically considered, 166. whether he may maintain scire facias on a judgment of his prede- cessor, 165, note. 844 THE LAW OF ESTOPPEL. PARTIES AND PRIVIES, — continued. no privity between executors or administrators of different states, 166. purchaser of a judgment, 166. claimants who are not privies, 167-169. where personal judgments bind strangers, 167-169. chain of title under judgment and sale, 167. relationship established, 167. in estoppel by deed, 364-379. stranger cannot take advantage of estoppel, 364. persons acting under authority of grantee by deed not strangers, 366. party not estopped by a deed under which he does not claim, 366, 367. parties only estopped in the character in which they execute deed, 367. deed of guardian, 368. parties must be sui juris, 369. estoppel against the state, 371. effect of accepting deed without relinquishment of dower, 375. doctrine of privity illustrated and examined, 376. parties in estoppel in pais, 553. landlord and tenant, 554. doctrine of mutuality prevails, 553, 618. competency of parties, 553. doctrine of privity prevails, 554. estoppel by conduct, 618. admissions of one of several executors or administrators, 620. whether married women may be estopped by conduct, 620. See Marriep WoMEN. whether infants may be, 627. See InFAnts. doctrine of privity prevails in cases of estoppel by conduct, 629, 630.. rule of mutuality does not apply to estoppel by misrepresertation, 710. PARTITION, effect of judgment in, 87. implied warranty in deed of, 445. PARTNERSHIP, judgment against one of several partners, 119. holding one out as partner, 612, 612, note. PATENTS, decisions of commissioner of, conclusive, 73. land patents, 73. recitals in, 405. licensee or assignee of, when estopped to deny patentee’s right to profits, 597, 598. PATENTS, LAND, when binding, 73. INDEX. 845 PATENTS, LAND, — continued. survey and patent of land commissioners, 73. PAUPERS, effect of orders concerning, 46, 257. PAYMENT, of rent evidence of tenancy, 5538. or that tenant is assignee of lease, 553, note. PEDIGREE, decree concerning, conclusive upon all persons, 46, 251. PENDENTE LITE, situation of purchasers, 129. perjury, 241. / PERSONAL PROPERTY, title by estoppel concerning, 482. PLEADING, PRACTICE, AND EVIDENCE. sworn pleadings, 633, note. pleading the estoppel, 761-765. whether estoppel by record or by deed must be pleaded, 761. where there is no opportunity to plead, matter of estoppel conclusive in evidence, 762, note. estoppel in pais need not be pleaded at common law, 763. effect of statutes upon the subject, 763, 764. estoppel by record, 766-771. nu! tiel record the proper general issue in suit upon judgment of court of record, 766. so of judgments of sister states, 766. otherwise of judgments of foreign countries, 766. replieation to denial of record in the same court, 766. of record of another court, 766. burden of proof, 766, 767. practice as to setting out judgment in suit upon the same, 767. in pleading or replying judgment, 767. examples, 767, 768. parol evidence admissible to show or disprove identity of matter in litigation, 768. plea of judgment in foreign country, 770. in sister state, 770. practice in declaring for a continuing nuisance, 771. estoppel shown against one’s own pleading, 771. immaterial whether judgment rendered before or after action, 771. estoppel by deed, 772, 773. when demurrer may be entered, 772. replication where declaration does not show the matter of estoppel, 772. pleading respecting leases, 773. estoppel in pais, 774-782. proof requisite to estoppel by conduct, 774. 846 THE LAW OF ESTOPPEL. PLEADING, PRACTICE, AND EVIDENCE, — continued. allegation of assent to sale, 776. estoppel in pais against a deed, 777. may be ground for filing bill for conveyance, 777. whether the estoppel is available at law in respect to land, 777. conflict of authority, 777. question considered, 780, 781. injunction against proceedings at law, 782. inconsistent positions in court, 783-790. amendment granted on terms, 783. waiving provisions of law, 783. other cases, 784. admissions of fact, 786, 787. admissions in pleading, 787. rejecting competent evidence, 787. refusal to produce document on notice, 787, 788. inferences from position taken in court, 788. committing fault in pleading which has been followed, 788. principle of the rule concerning inconsistency, 789. when rule not applied, 790. POSSESSION, effect of tenant being in possession at time of taking lease, 569- 578. under will, 599-601. notice by, 660, 661. POWERS OF APPOINTMENT, election arising under exercise of, 738. PRECEDENTS IN PLEADING, commencement and conclusion of plea of matter of estoppel, 791. replication by way of estoppel to plea, 791. plea by matter of estoppel that the plaintiff brought an action against the defendant for the same cause, and that defendant had judg- ment, 792. former judgment with appeal and continuance, and appeal dismissed, 793. former judgment and appeal, and appeal not entered, and judgment affirmed, 793. replication of nul tiel record, 793. rejoinder, 794. replication with new assignment of other promises, 794. rejoinder, 795. former recovery in an action by executor against lessee, 795. plea of estoppel by verdict of a particular matter adjudicated in a different cause of action, 796. replication by way of estoppel to plea of set-off of judgment in inferior court upon the same matter, 799. plea of same, 800, note. “be Sd he INDEX. 847 PRECEDENTS IN PLEADING, — continued. replication to plea traversing plaintiff’s title to land, an estoppel by judgment in ejectment, 800. A plea of judgment recovered by plaintiff in superior court for same cause of action, 801. pleas in debt and scire facias on judgments, by executor, nul tiel record, and joint judgment, one of defendants being still alive, 802. d plea of judgment for defendant pro eadem causa, rendered in a foreign court, 802-805. 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, 805. estoppel in pais, replication to a plea of the incompetency of the payee of a bill to indorse the same, 806-808. PREMATURE ACTION, , judgment by reason of, 55, 56, 59, note. PRESUMPTIONS OF JURISDICTION, when conclusive, 226. when prima facie, 226. PRINCIPAL AND AGENT, judgment against principal, 134-142. effect of suit by agent in his own name in right of principal, 139. judgment against principal bars suit against agent when, 140. ratification by principal only an element of estoppel, 493, 757. liability of principal not based on estoppel, 493, 614. holding one out as agent, 611, 613, note. representations of agents, 614, 618, 619. assuming to act as principal, 748. agents of corporations, 618, 619. state officers, 619, note. PRINCIPAL AND SURETY, judgment for or against either in contest with another, 138, 162, 163, 167, note, 306, 307. surety estopped to deny existence of principal, 406. PRIVITY, in case of judgments, 158-166. doctrine of, in estoppel by deed examined, 376, 378, 387. defined, 378, 379. in law, 379, note. in case of estoppel in pais, 554, 629, 630. See PARTIES AND PRIVIES. PRIZE, adjudication of, 47, 245, 263, 274. PROBATE, DECREES OF, conclusive upon all persons, how far, 44, 234, 254-257. foreign decrees, 271. 848 THE LAW OF ESTOPPEL. PROCEDURE. See PLEADING, PRACTICE, AND EVIDENCE. PROXIMATE CAUSE, ; negligence must be, to create estoppel, 713. PUBLIC FERRY, judgment incidentally establishing, 259. PURCHASE, CONTRACT OF, possession obtained by, 590-592. QUIET ENJOYMENT, COVENANT FOR, works estoppel, 443. QUI TAM ACTIONS, of sister states not intended by Constitution, 300. QUITCLAIM, DEEDS OF, warranty in, 435. rule in Massachusetts and other states, 438. rule in still other states, 438, 439. See Tirtz sy EsTopPe.. RATIFICATION, only an element of estoppel, 493, 757. REAL ACTIONS, use of this term in English law, 46. REAL PROPERTY, title by estoppel, 418-482. See Tirte sy Estoprs.. whether estoppel in pais as to, available at law, 777. REBUTTER, " meaning of, 422. title by estoppel may arise without, 481. See Tittz sy EstTorpe.. RECEIPT, in instrument not under seal not conclusive generally, 509. exceptions, 511. acknowledgment in policies of marine insurance, 511. where acknowledgment has been acted on by third person, 511. warehouse receipts, 512. bills of lading, 514. receipt given an attaching officer, 514. in a deed not conclusive, 515. RECITALS, of jurisdiction, 36. not under seal, 361, note. of boundaries, 364, note. defined, 397. in deeds, 397-417. particular recitals work estoppel, 897-410. illustrations, 397-400. INDEX. 849 RECITALS, — continued. land bounded on street, 403. land sold subject to mortgage, 404. recitals in patents, 404, 405. sureties in bonds, 406. recital of law, 408. deed confirming a former deed in which were recitals, 409, 410. in municipal bonds, 410, 505, 506. general recitals do not work estoppel, 410-417. qualification of rule, 414. & recital of immaterial facts, 416. date of deed, 416. acknowledgment of receipt in a deed, 417. RECORD, defined, 35. its effect, 35. whom it binds, 35. recitals of jurisdiction, 36. clerk of court may bind himself by the record, 36, note. early meaning of term, 37. may be corrected how, 37. docket entries, 38. foreign judgment not debt of, 338. See Jupements; Res Jupicata. RECOVERY, COMMON, operation of, 455. RECURRING DAMAGE, 191, 192. REGISTRATION OF STOCK, when conclusive evidence of membership of corporation, 610. REGISTRY LAWS, effect of, in questions of title by estoppel, 477. RELEASE, DEEDS OF, operation of, by way of estoppel, 459. REMITTENT TORT, 220. RENT, PAYMENT OF, evidence of tenancy, 553. also of assignment of lease, 553, note. REPLEVIN, not a proceeding in rem, 52, note. REPRESENTATIONS, defined, 602, 631, 632. estoppel by misrepresentation, 602-631. need not be express, 632. must concern facts, 634. roust refer to present or past facts, 636. exception, 639, 640. must be plain, 641. 850 THE LAW OF ESTOPPEL. REPRESENTATIONS, — continued. such as might well be acted on, 646. knowledge of facts, 663-681. fraudulent and negligent misrepresentations work estoppel, 663, 665, 667. intention, 684-694. must have been acted on, 694-710. negligence, 710-715. See Conpuct, Esrorre. BY. REPUTATION, judgments incidentally establishing, 259. RESIDENTS, judgments touching residents who are not citizens, 326. RES JUDICATA, meaning of the term, 40. general principle of, 40. effect of, under Roman system, 41. decree in the judicium legitimum, 41. in the judicium imperio continens, 42. doctrine depends for its effect upon the nature of the proceeding, whether in personam or in rem, 43. terms ‘in rem,’ and ‘ in personam ’ in the Roman law, 43, 44. in the English law, 45. use of terms ‘in rem’ and ‘in personam ’ by Bracton, 45. by Coke, 46. judgment in rem is a proceeding in respect to status, 48. special significance of term ‘in rem’ at the present time, 46, 47. judgment in rem binds all the world, 46, 47. literal import of the term ‘in rem,’ 47. proceedings in attachment not properly proceedings in rem, 51. otherwise of an order of sale of perishable goods, 52. proceedings in replevin, 52, note, 259. verdict must be followed by judgment, 52. must have been valid and subsisting, 53.: voidable judgments, 54. must have been on merits, 55. judgment on preliminary point, 55. insufficiency of declaration, 56. dismissal of bill in chancery for insufficiency, 56. judgment on demurrer, 57, 61, 62. dismissal of bill in equity, 56, 62, 68, 66. when decree is on merits, 56. ; non-pros, 57. nonsuit, 58, 59. dismissal of cause, 59. nonsuit on agreed facts, 59. judgment on retraxit, 59. INDEX. 851 RES JUDICATA, — continued. premature suit, 59, note. abatement of writ, 59, note. dismissal for want of jurisdiction, 59, note. decree that plaintiff had no title and subsequent acquisition of title, 60, note. dismissal for want of equity does not bar suit at law, 64. judgment must have been final, 64. interlocutory orders, 65, note. judgment must be certain, 66. \ judgment must have been rendered by a legally constituted court, 67. illustrations, 67-69. jurisdiction, 67. judgment by divided court, 68. college orders, 70. ecclesiastical decrees in this country, 71. courts-martial, 71. judgment of courts of inferior jurisdiction, 72. decisions of comptroller of currency, 73. of commissioners of patents, 73. of board of land commissioners, 73, 74. award of arbitrators, 75. of statutory appraisers, 75, 76. judgment of court of last resort, 78. agreed judgments, 79. English rule, 81. stay of execution, 81, note. judgment by confession, 80. judgment by default, 82. English rule, 83. conflict of authority in this country, 84, 85. judgment by default against executor or administrator, 86. final judgment by default, 86. proceedings supplementary to judgment, 87. adversary parties necessary, 114. See JUDGMENTS. ’ RETRAXIT, ‘ effect of judgment on, 60. RETURN OF SHERIFF, when an estoppel, 699. REVENUE CASES, judgment in, 47, 248, 249. ROMAN LAW, doctrine of res judicata in, 41. SCIENTER. See KNowLEDGE or Facts. i 852 THE LAW OF ESTOPPEL. SCIRE FACIAS, whether administrator de bonis non may maintain, on judgment of his predecessor, 165, note. SEAL, the foundation of estoppel by deed formerly, 360. history of seals, 360, 361. only great men used them at first, 360. hence their significance, 360. change of doctrine concerning seals, 361. contract as the ground of the estoppel, 361, 362. SEPARATE ESTATE OF WIFE, | may be bound by her through estoppel, 369, 370. SERVANT, judgment against, effect on master, 134, 135. SERVICE OF PROCESS. See JurispicTion. SET-OFF, judgment upon plea of, conclusive, 194, 223. SETTLEMENT CASES, judgment in, 46, 257. SHERIFF, effect of judgment against deputy, 137. SHERIFF'S DEED, ineffectual as an estoppel when, 430. SHERIFF’S RETURN, when an estoppel, 699. SIGNATURE, adoption of, 580, 531. SILENCE, when estoppel in pais created by, 648. See Conpuct, EsTopPeL BY. SLANDER AND LIBEL, judgment of acquittal in criminal prosecutions, 130. repetitions of, offered in evidence, 194. SPECIAL APPEARANCE, effect of, in a cause, 318. SPECIAL JUDGMENTS, 79-87. SPECIAL TRIBUNALS, 67-79. SPLITTING ACTION, continuing damages, 191, 192. not allowed in ordinary cases, 213, 214. concealment of part of cause of action, 219. what constitutes entire demand, 219. ‘STANDING BY,’ effect of, 649, 650, 729. See Conpuct, EstopPreL BY. STARE DECISIS, not an estoppel, 113. INDEX. 853 STATE, whether bound by estoppel, 371, 619, note. STATUS, judgment of, 48. STATUTE, of Limitations, not a defence on the merits, 56, note 7. of Limitations, when a good plea to an action on a foreign judgment, 297, 298. deed in contravention of a statute, 382. de Bigamis, 419. Quia Emptores, 419. of Gloucester, 421. of Anne, 422, note. disclaimer of tenant, 578. of Uses, law before as to title by estoppel, 464. since the statute, 428-482. : See Trrtp py Esrorpen. when party estopped to deny constitutionality of, 751. of Frauds as to estoppels in pais, 723-725, 777. STAY OF EXECUTION, conclusive as a judgment by confession, 81, note. STOCKHOLDERS, effect as to, of judgment against corporation, 153. receiving dividends, 748. STREETS, land bounded by, 402, 403. effect of petitioning for opening, 753. SUB-LESSEES, in privity with lessee, 555. SUPERIOR COURTS, presumption concerning jurisdiction, 227. impeaching judgments of, for fraud, 232-241. SUPERVISORS, effect of auditing and partly paying improper claim, 756. SURETY, judgment against principal not a judgment against surety, 138, 162, 163, 167, note, 306, 307. effect of judgment against co-surety, 148, note, 162, 163. not permitted to say that principal was not duly appointed, 406. SWORN STATEMENTS, in pleadings, depositions, and the like, 633, note. SYNODS, decrees in, 71. TAX ASSESSMENTS, former judgment on, 95, 96. levying tax to pay compensation for laying out street, 754. 854 THE LAW OF. ESTOPPEL. TAX ASSESSMENTS, — continued. _ levying taxes generally, 754. TAX TITLE, tenant cannot buy and set up against landlord, 561. TENANCY. See LANDLORD AND TENANT. TITLE BY ESTOPPEL, history of the doctrine, 418~424. proper statement of the rule, 418. estoppel not a conveyance, 418, note, 419, 449, note. at common law only four kinds of assurance possessed the efficacy of passing after-acquired interests, 419, operation of feoffment, 419, 450. : Statutes de Bigamis and Quia Emptores, 419. the old common-law warranty, 420. lineal warranty, 420. collateral warranty, 421. Statute de Donis, 421. statute of Gloucester, 421. warrantia charte, 422. statute of Anne, 422, note. warranties and real actions abolished, 422, note. modern warranty, 423. rebutter, 422. leases, 424-429. where no interest passes, 424. where an interest passes, 425. the doctrine explained, 427, 428. between grantor and grantee, 429-449, general rule, 429. sheriff’s deed, 431. title by estoppel without warranty, 431. under statutes, 433. title by estoppel in deeds with warranty, 435. effect of deed depends on nature of grant and warranty, 435. covenant of warranty limited to.estate granted in some states, 438. rule different in other states, 438, 439. grants with warranty by trustees, executors, and the like, 439. rights of way, 439, 440. partition deed, 440. a. effect of mill acts, 441. / extinguishment of covenants, 441. fraudulent conveyances, 442. improvements erected by grantor, 443. covenants for quiet enjoyment, 443. distinction between covenant of seisin and those for further assur- ance, 444. INDEX. 855 TITLE BY ESTOPPEL, — continued. implied warranty in partition of land, 445. grantee before and grantee after title acquired, 449-482. statutes as to this subject, 449, note. estoppel at common law in case of feoffment, 450. whether the interest passed by reason of the warranty, 451. operation of the fine, 453, 454. operation of the common recovery, 455. operation of lease, 456-459. explanation of, 457-459. operation of release, 459. operation of lease and release, 459. operation of the grant, 460. operation of the bargain and sale, 461-464. origin of, 461. void at law originally, 461. effect of a warranty in, 463. result of consideration of law prior to Statute of Uses, 464. conveyances under this statute, 464-482. consideration of bargain and sale, 464482. decisions in favor of the estoppel against second grantee, 465-469. cases contra, 469-474. question considered, 474482. distinction between cases where grantor had seisin and where he had not, 474. where grantor had not seisin, 474-479. such a case not within Statute of Uses, 474. what necessary to pass title under the statute, 474-476. warranty never possessed power of conveyance, 476. nor can it operate as a lien against an innocent purchaser, 477. effect of registry laws, 477. no privity between second grantee and his grantor, 477. cases distinguished, 479. grantee with seisin, that is as disseisor, 480. first grantee now acquires an estate under Statute of Uses, 480. title by estoppel may prevail now without rebutter, 481. covenants for title, 482. _ title by estoppel concerning personalty, 482. TORT, JOINT, effect of judgment on, 125, 126. TORT, REMITTENT, judgment in cases of, 191, 192. TRESPASS, effect of judgment in trespass quare clausum fregit, 109. TRUST, beneficiaries under, estopped to impeach, 743, 744. accepting appointment under, 747. 856 THE LAW OF ESTOPPEL. TRUSTEE, when he can represent cestui que trust in litigation, 152, 153. when he may dispute title of cestui que trust, 589. TRUSTEE PROCESS, effect of judgment against trustee, 154. voluntary payment by trustee, 154. custom of London, 155. if execution satisfied, trustee discharged pro tanto, 155. original creditor may prove his claim greater than admitted, 155. judgment must have been valid, 156, note. all defences must have been made, 158. foreign judgments on, 343-346. TUTOR, decree appointing tutor to minor, 261. -TWICE IN JEOPARDY, rules in respect to, 99. ULTRA VIRES, when corporations estopped to set up, 503-505. USE AND OCCUPATION, ground of tenant’s estoppel, 550. USURY, one may not be estopped to allege, 614, note. VALUE, representations of, 636. VENDEE, estoppel of, in equity while purchase-money remains unpaid, 590-592. holds relation of duty in such case like that of tenant, 591, 592. VERDICT, must be followed by judgment, 52, 53. estoppel by, 100-104. verdicts out of equity, 113. See Former VERDICT. WAIVER, distinguished from estoppel by misrepresentation, 717. of defects in proofs of loss in insurance, 719. -of payment of premium or other terms of contract, 720. discontinuance of agency, 721. whether waiving one term of contract waives more, 720, 721. permitting outlay on one’s premises, 723. what necessary to make a waiver, 729. of provisions of law, 783. WAREHOUSE RECEIPTS, when conclusive, 512, 513. mistake in giving may be shown, 622. INDEX. ‘ 857 WARRANTIA CHARTS, 422. WARRANTY, judgment on contract followed by action for breach of ne therein, 193-208. under the old common law, 420. lineal warranty, 420. collateral warranty, 421. modern warranty, 423. limited in some states to extent of grantor’s interest, 438. otherwise in other states, 438, 439. never possessed power of conveyance, 476. nor can it operate as a lien against an innocent purchaser, 477. See Tirte By EstToppe.. admission of genuineness of signature, 519-535. of capacity, 535-539. See Brits anp Notes. WHARFINGER, possession by, 594. WIDOW, acceptance of deed by grantee of husband, 375. release of dower, 484. in possession of husband’s real estate estopped to deny title of heir, 586. and of husband’s grantee, 587. election of, 735, 738. ‘ WILFULLY,’ term as used in Pickard v. Sears explained, 686. WILL, probate of, establishes what, 45, 234, 235, 254-256, 271. possession taken under, 600. doctrine of election, 732. WITNESS, whether estopped by judgment, 151. may deny his own statements, 151, note. procuring another to witness one’s deed, 633, note. WITNESSING DEED, works estoppel, 633. WORDS, “all demands,’ 186. ‘ good,’ 540, 541. ‘ all right,’ 644, 645. ‘ wilfully,’ 686. WRECK AND DERELICT, sales of, conclusive upon all persons, 272. WRIT OF ENTRY, effect of judgment in, 109. KF 450 E7 B59 1913 é Vol. Author Bigelow, Melville Madison Title a A Treatise on the Law of Estoppe! le re!