Rules relative to. 1. Must be mutual. 2. Only affect parties and privies. must, upon the representations of others (p)." "The courts have been, for some time, favourable to the utility of the doctrine of estoppel, hostile to its technicality. Perceiving how essential it is to the quick and easy transaction of business, that one man should be able to put faith in the conduct and representations of his fellow, they have inclined to hold such conduct and such representations binding in cases where a mischief or injustice would be caused by treating their effect as revocable. At the same time, they have been unwilling to allow men to be entrapped by formal statements and admissions, which were perhaps looked upon as unimportant when made, and by which no one ever was deceived or induced to alter his position. Such estoppels are still, as formerly, considered odious (q).” § 517. Several rules respecting estoppels are to be found in the books. The most important are-1. That estoppels must be mutual or reciprocal, i. e. binding both parties (r). But this does not hold universally; for a feoffor, donor, lessor, &c. by deed poll will be estopped by it, although there is no estoppel against the feoffee, &c. (s). J. W. Smith, in the work already cited (t), thinks the rule will be found to apply to those cases only where both parties are intended to be bound. § 518. 2. Estoppels in general affect only the parties and privies to the act working the estoppel; strangers are not bound by them, and cannot take advantage of them (u). When, however, the record of an estoppel (p) 2 Smith, Lead. Cas. 436, 437, 3rd Ed. (9) Id. 460. (r) Com. Dig. Estoppel, B.; Co. Litt. 352 a; Cro. Eliz. 700, pl. 16. (s) Co. Litt. 363 b. (t) 2 Smith's Lead. Cas. 438, 3rd Ed. (u) Co. Litt. 352 a; Com. Dig. Estoppel, B. & C. runs to the disability or legitimation of the person, § 519. 3. It seems that conflicting estoppels neutralize 3. Conflicting each other, or, as our books express it, "Estoppel tralize each estoppels neuagainst estoppel doth put the matter at large (z).” Thus, other. if the plaintiff in an action makes title to a common by grant within time of memory, and then in another action between the same parties makes title by prescription, and the other admits this, this last estoppel shall avoid the first estoppel, so that the plaintiff may make title to the common by prescription (a). So, where in a præcipe quod reddant against two, who pleaded joint tenancy with a third, the demandant said that formerly he brought a writ against one of the two, who pleaded joint tenancy with the other, whereby the writ abated, on which he purchased this writ by journeys accounts, averring that the two were sole tenants on the day of the first writ, &c., whereon the tenants vouched the third party with whom they had pleaded joint tenancy: on its being objected, that this voucher could not be received, because they had supposed him joint tenant with them, it was answered that as the plaintiff had alleged that the defendants were sole tenants, he had ousted himself of the right to estop them from that voucher (b). For other instances, see 1 Roll. Abr. 874, 875; and D'Anvers' Abridgment, Estoppel, S. (x) Co. Litt. 352 b. (z) Id.; 2 Smith, Lead. Cas. (a) 1 Ro. Abr. 874, pl. 50, citing 11 Hen. VI. 27 b, 28 a. (b) Fitzh. Abr. Estop. pl. 3, citing 41 Edw. III. 5, pl. 11. Different kinds of estoppels. 1. Estoppels by matter of re cord. Pleading. Admissions in pleadings. § 520. Estoppels are of three kinds (c). 1. By matter of record. 2. By deed (d). 3. By matter in pais. § 521. 1. Estoppels by matter of record; as by letters patent, fine, recovery, confession on record, &c. (e). The most important form of this is estoppel by verdict and judgment, which will be considered under the head of res judicata (ƒ). § 522. With respect to estoppels by pleading. A party not pleading within the time required by law is taken to confess that his adversary is entitled to judgment. So a party may, by resorting to one kind of plea, be concluded from afterwards availing himself of another. It is a well known principle of pleading that pleas in abatement cannot be pleaded after a party has pleaded in bar, and that pleas to the jurisdiction cannot be pleaded after pleas in abatement. § 523. As to the effect of admissions, express or implied, in pleadings, the rule is, that the material facts alleged by one party, which are directly admitted by the opposite party, or indirectly admitted by taking a traverse on some other facts, cannot be again litigated between the same parties, and are conclusive evidence between them, but only if the traverse is found against the party making it (g). But whether the passing over (c) Co. Litt. 352 a; 2 Smith, (d) Coke (in loc. cit.) says, (e) Co. Litt. 352 a; Com. Dig. Estoppel, A. 1; 1 Rol. Abr. 862 et seq., tit. Estoppel. (f) Infra, chap. 9. (g) Per Parke, B., in delivering the judgment of the court in Boileau v. Rutlin, 2 Exch. 665; Robins v. Lord Maidstone, 4 Q. B. 811. See also Brook. Abr. Protestation, pl. 14; and Co. Litt. 124 b. a traversable allegation in pleading is to be deemed an admission of it for the purposes of evidence, so as to excuse the party making the allegation from adducing proof of it at the trial, is a question which has given rise to a considerable conflict of authority and opinion (h). The practical force of one of the arguments in favour of the negative has been much diminished by the 15 & 16 Vict. c. 76, s. 81, which enables several matters to be pleaded at any stage of the pleadings. deed. § 524. 2. Estoppels by deed. "Nemo contra factum 2. Estoppels by suum proprium venire potest (i)." "A deed," says Mr. Justice Blackstone (k), "is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property; and therefore a man shall always be estopped by his own deed, or not permitted to aver or prove anything in contradiction to what he has once so solemnly and deliberately avowed." This, however, must be understood of those parts of the deed where the party does solemnly and deliberately avow something; consequently it is a rule, that a general recital or rehearsal in a deed has not the effect Recitals. of an estoppel (7). This is on the principle "generale nihil certi implicat," "generale nihil ponit (m);" it being a rule that an estoppel must be certain, and not to be taken by argument or inference (n); and therefore when the recital is special of some particular fact, it will (h) The following are the prin cipal cases on this subject:Edmunds v. Groves, 2 M. & W. 642; Bennion v. Davison, 3 Id. 179; Smith v. Martin, 9 Id. 301; Carter v. James, 13 Id. 137; Hutt v. Morrell, 3 Exch. 240; Bingham v. Stanley, 2 Q. B. 117; Robins v. Lord Maidstone, 4 Id. 811; Bonzi v. Stewart, 4 M. & Gr. 295; Fearn v. Filica, 7 Id. (i) 2 Inst. 66. (k) 2 Blackst. Com. 295. (m) 2 Co. 33 b; 8 Co. 98 a. 3. Estoppels by matter in pais. estop (o). Many cases illustrative of this distinction are to be found in the reports (p). § 525. 3. Estoppels by matter in pais. Of these, Parke, B., in delivering the elaborate judgment of the Court of Exchequer, in Lyon v. Reed (q), says, "The acts in pais which bind parties by way of estoppel are but few, and are pointed out by Lord Coke, Co. Litt. 352 a. They are all acts which anciently really were, and in contemplation of law have always continued to be, acts of notoriety, not less formal and solemn than the execution of a deed, such as livery, entry, acceptance of an estate, and the like. Whether a party had or had not concurred in an act of this sort was deemed a matter which there could be no difficulty in ascertaining, and then the legal consequences followed." But, for the reasons already stated (r), the courts in modern times have wisely extended this species of estoppel beyond its ancient limits; and although the actual decisions respecting its application in some cases may admit of question, the following general principles have been laid down by authority, and may be looked on as settled. "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 own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time (s)." By the term "wil (0) 1 Wms. Saund. 216, 6th (p) See 1 Rol. Abr. 872, Es- (9) 13 M. & W. 309. See also the judgment of Tindal, C. J., in Sanderson v. Collman, 4 Man. & Gr. 209. (s) Pickard v. Sears, 6 A. & E. 474; 2 Nev. & P. 491; Freeman v. Cooke, 2 Exch. 663. See also Gregg v. Wells, 10 A. & E. 90; Heane v. Rogers, 9 B. & C. 577; Graves v. Key, 3 B. & Ad. 313; Newton v. Liddiard, 12 Q. B. 925. |