Cornell Gaw School Library Cornell University Library KF 450.E7B59 1886 A treatise on the law of estoppel and it 3 1924 A TREATISE ON THE LAW OF ESTOPPEL. TREATISE ON THE LAW OF ESTOPPEL © AND ~ ITS APPLICATION IN PRACTICE BY MELVILLE M. BIGELOW, Pu.D. ee FOURTH EDITION BOSTON LITTLE, BROWN, AND COMPANY 1886 B772IS Entered according to Act of Congress, in the year 1876, BY MELVILLE M. BIGELOW, In the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1882, BY MELVILLE M. BIGELOW, In the Office of the Librarian of Congress, at Washington. Copyright, 1886, By MELVILLE M. BicELow. UNIveRsITy Press: Joun WILson AND Son, CAMBRIDGE. PREFACE TO THE FOURTH EDITION. Bryonp the usual working up of the current cases, with the re-examination and rewriting made necessary thereby, the chief features of the present edition con- sist (1) in a more clear and exact marking of the limits of the subject in various places, and (2) a filling out to the limits wherever there was found vacant territory. Sometimes vacant places were found where the boun- daries of the subject were already sufficiently marked out, as in the chapters on Res Judicata and Judgments ; sometimes it was found necessary, as in some of the chapters relating to estoppel in pais, both to fix the metes and bounds and to fill out the ground. A par- ticular example. of the latter work may be seen in the new section 7, on Waiver, of the chapter on Estoppel by Conduct, pp. 633-641; one of the former, in the consideration of judgments in rem, in Chapters II. LY, ¥- In this way much has been done at once to com- plete the subject and to distinguish things which, while bearing a resemblance to estoppel, are in reality some- thing else. Quod simile non est idem. Boston, Sept. 1, 1886. PREFACE TO THE FIRST EDITION! 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 But this notion is now out of date; and to no one is so much due for dispelling it as to Mr.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 unpromis-’ ing definition of the word “ estoppel” [by Lord Coke], it is in no wise unjust or unreasonable, but on the con- trary in the highest degree reasonable and just, that some solemn mode of declaration should be provided by law for the purpose of enabling men to bind them- selves 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 de- cided were to be again drawn into controversy, if facts once solemnly affirmed were to be again denied when- ever the affirmant saw his opportunity, the end would never be of litigation and confusion.’ 1 Abridged and in part rewritten. vill PREFACE TO THE FIRST EDITION. Mr. Smith’s note, however, with all the additions of later editors, presents only an outline of the law of estoppel; and the subject has expanded to such pro- portions in recent times 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 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 historians 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 refer- ence 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 fea- tures, 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 subject. Boston, July 20, 1872. ~CONTENTS. CASES GITED = 4% 6. wy 6 Ow SE ee we wee INSTITUTES. 1. Estoppel a substantive Right . . . 2... + e+ ea. 3 2. Principles of Estoppel. . 2. . 2. © 6 es se we ew ee 67 PART I. RIGHTS ARISING FROM ESTOPPEL BY RECORD. CHAPTER I. PRELIMINARY View.—THE Record. ...... +... 383 CHAPTER II. PRELIMINARY View.—Res JUDICATA ... . . . «. « 87 1. Meaning and Use ofthe Term . . . ....... +2. «387 2. Requisites of the Estoppel . . . . . . . 1 wes e) 48 3. Special Tribunals . . 58 4. Special Judgments (on the Merits) ‘of the ordinary Tribunals . 68 CHAPTER III. Domestic JUDGMENTS IN PERSONAM. . . . . ss «© ws) 5 1. Former Judgment . . . «©. 6 ee ee ew ee ee 5 2, Former Verdict . . 83 3. The Effect and Operation ‘of dadementt senil! Verdict Estoppels 97 4. Collateral Impeachment of Judgments . . .... . . 192 x CONTENTS. CHAPTER IV. Domestic JUDGMENTS IN Rem... .. - e + + CHAPTER V. FoREIGN JUDGMENTS IN REM . . « © e+ + se ew CHAPTER VI. 6 Foreign JUDGMENTS IN PERSONAM . ae? oy 1. Judgments of Courts of general J urisdiction te ts 2. Judgments of Courts of inferior Jurisdiction : PART II. RIGHTS ARISING FROM ESTOPPEL BY DEED. CHAPTER VII. PRELIMINARY View.—THE SEAL . . ...- . «= « CHAPTER VIII. PRELIMINARY VIEW. — PARTIES AND PRIVIES . 3 1, Parties. 6 1 ee eee ee ee es 9. ‘Priviess 4. fe a el SO eS we CHAPTER IX. PRELIMINARY VIEW. — LIMITATIONS OF THE DoctTRINE 1. The Deed must be Valid . . 2. Estoppel limited to Questions directly | concerning the Deed 8. Grantee in Deed Poll. —In Indenture. — ee 4. Estoppel against Estoppel Site : 5. No Estoppel if Truth appears . . . . . . CHAPTER X. Recitais . Bi iba ne. Nee ER Sees mi cuge ae AS 1. Particular Recitals . be cigs EGR) Bee ee ae Yer 8 2. General Recitals. . . . 3. Acknowledgment of Receipt of Coneideration i in Deed : 2138 227 248 248 310 319 824 824 3381 338 338 344 349 3850 354 355 365 372 CONTENTS. CHAPTER XI. TrTLE By EstTorre, . . Pk) a eet ae alg Bb Gal 1. History of the Subject i Sane ne err . Leases. — Where no Interest passes a men ten 4) 8h Leases. — Where an Interest passes . Grantor and Grantee , 3 . Grantee before and Grantee after Title noquired . . Personal Property eee > or bo CHAPTER XII. RELEASE oF DowER. . . . 1. 1 ee ee te ws PART III. RIGHTS ARISING FROM ESTOPPEL IN PAIS. CHAPTER XIII. PRELIMINARY VIEW . CHAPTER XIV. Contract: EsToppEL ARISING FROM TAKING PossESSION 1. Estoppel of Tenant to deny Landlord’s Title . . 2. Estoppel under Contract for Purchase a 4 . Estoppel of Bailee and Receiptor of Goods . . Assignees and Licensees of Patents . Executors and Administrators . ~ DSVISEES: kt D> OO Co CHAPTER XV. Contract: CoMMERCIAL PaPER . 1. Warranty of Genuineness . . . 2. Warranty of Capacity . 8. Certification of Checks i 4. Transfer by Indorser after Liability fixed 5 CHAPTER XVI. Contract : CoRPORATIONS. — AGENCY. — PARTNERSHIP . CHAPTER XVII. ACKNOWLEDGMENT OF Receipt In PaRoL. . . . . 489 445 449 449 487 490 494 495 497 498 498 512 516 522 524 538 xii CONTENTS. . CHAPTER XVITI. Estopret By Conpuct, or EquiTaBLE EsTtoppEL . . 1. Nature of Estoppel arising from Misrepresentation . 2. The Representation . . 8. Knowledge of the Facts by him agninst whom ‘the Estoppel is alleged . . ble 4. Ignorance of Facts by him who claims the Estoppel . . 5. The Intention . . ae a ae age? Ser ee! Gee 6. Acting on the Representation, Sesto . 7. Estoppel by Conduct not arising Seart Misrepresentation. Waiver. Knowledge of both Parties. . . . . - « « CHAPTER XIX. Quast-EstorPeL. — ELECTION AND INCONSISTENT POSITIONS GENERALLY 1. Election 2. Inconsistent Positions generally PART IV. PLEADING, PRACTICE, AND EVIDENCE. CHAPTER XX. PLEADING THE ESTOPPEL . . . .. « CHAPTER XXI. Estoppen By Recorp ...... .+ +... CHAPTER XXII. Estopre,t By DEED . CHAPTER XXIII. Estoppen In Pais . . 1. 1 ew ee te tt ee CHAPTER XXIV. InconsIsTENT Positions iy CouRT ....... 6. CHAPTER XXV. PRECEDENTS IN PLEADING. . .- . .. 1. 4. se ew es UNDIK ar ocoine. Bs Seo Se AL RS en WS Sh Ds ve at ks 543 543 553 588 608 610 620 633 642 642 652 667 671 677 679 687 693 711 CASES A. PAGE Abbott v. Marshall 873 Abouloff v. Oppenheimer 211, 247, 299 Accidental Death Ins. Co. v. Mac- kenzie 453, 475 Achorne v. Gomme 457 Ackley v. Dygert 584 Acton v. Dooley 6652, 592, 596, 597 Adair v. New River Co. 129 Adams v. Adams 71, 145, 158 v. Barnes 136 v. Brown 609 v. Cameron 94 v. Popham 562 v. Rockwell 566, 597 v. Rowe 286 Adams Co. v. B. & M. R. Co. 652, 660 _Addison v. Crow 3849 Adler v. Potter 549 Adone v. Seeligson 549, 689 Xtna Ins. Co. v. Tyler 636 475 Agar v. Young Alabama Warehouse Cc. v. Jones 191 Albany Ins. Co. v. Bay 340 Alderson v. Maddison 556 Aldrich v. Billings 447 Aldrick v. Kinney 256, 283 Alexander v. State 331 v. Taylor 118 Allebough v. Coakley 81 Alleman v. Wheeler 600 Allen v. Ashley School Fund 387, 431 v. Blunt 95 v. Butman 92 v. Dundas 237 v. Frazer 561, 590 v. Goodnow 621 v. Hodge 556 v. Holton 395 v. Kellam 640 v. Macpherson 205, 206 CITED. PAGE Allen v. Maury 647 v. Morgan 140 v. Rundle 556 Alley v. Adams Co. 658 Allie v. Schmitz 94 Allis v. Billings 615 v. Davidson 676 Allum v. Perry 610 Almy v. Thurber 621 Alner v. George 639 Alston v. Munford 139 Altman v. Klingensmith 333 Altschul v. Polack 124, 125, 127 American Emigrant Co. v. Iowa Land Co. 660 American Tube Works v. Boston Machine Co. 534 Amesti v. Castro 64, 80, 122 Anaheim Water Co. v. Semi-Tropic Water Co. 664 Anderson v. Anderson 209, 293 v. Armstead 647, 582 v. Hubble 564, 565, 576, 591, 610, ' 669 v. Kimbrough 69 v. Wilson “201 v. Young 132 Andreae v. Redfield 608 Andrews v. Aitna Ins. Co. 621 cv. Durant 186 v. Lyon 618 v. Montgomery 293 v. Smith 97 Angell v. Johnson 647 Angle v. Northwestern Ins. Co. 536 Annett v. Terry 125 Anon. 402 Ansdell v. Ansdell 95 Anstee v. Nelms 497 Anthony v. Bartholomew 549 v. Jasper 630, 581 xiv CASES PAGE Appollon, The 218 Archer v. Mosse 221, 237 Arkwright v. Newbold 247, 689, 592 Armour v. Michigan Cent. R. Co. 540 Armstrong v. Carson 259 v. Wheeler 836, 432 Arnold v. Arnold 89, 92 v. Banks 610, 612 v. Richmond Iron Works 515 Arnott v. Redfern 250 Arthur v. State 195 Ashcraft v. De Armond 515 Ashley v. Foreman 669 v. Martin, 496 v. Vischer 538 Askins v. Coe 620 Aslin v. Parkin Athens v. Georgia Ry. Co. Atkinson v. Allen 208, 297 Atlanta v. Gate City Gas Co. 640 Atlantic Dock Co. v. Leavitt 345, 346 Atlantic R. Co. v. Robbins 628 Attorney-General v. Chicago R. Co. 154 v. Hooker 141 v. Marr 831, 577 v. Simonton 526 Audenried v. Betteley 656 Audubon v. Excelsior Ins. Co. 56 Audubon Co. v. American Emi- . grant Co. Aurora City v. West Aurora Ins. Co. v. Kranich 85, 92, 189 640 660 94, 145 6386 Austin v. Charlestown Female Seminary 102 v. Craven 641 Averill v. Wilson 835, 346, 347, 433 892 181 658 Avery v. Akins v. Paine Ayres v. Probasco B. B.C. R. & M. R. Co. v. Stewart Babcock v. Camp Bachelder v. Lovely Badger v. Titcomb Baggaley v. Hares 652 94 889 186 839 Bailey v. Fairplay 121 v. Kilburn 454 v. O’Connor 277 101 566 Baines v. Burbridge Baird v. Jackson CITED. PAGE Baird v. United States 182 Baker v. Barelift 94, 457 v. Brannan 659 v. Hale 489 v. Humphrey 638 v. Jolinston 627, 684 ce. McDuffie 624 v. Preston 138 v. Rand 268, 276 v. Stone 584 v. Stonebraker 203 v. Union Ins. Co. 538, 540 vu. Whiting 487 Balch v. Shaw 36 Baldwin v. McCrea 94, 191 v. Richman 622 v. Thompson 349 Bales v. Perry 608 Balkum v. Satcher 94 Ball v. Hooton 620 Ballou v. Jones 863 Baltzell v. Nosler 285 Bancroft v. White 334 v. Winspear 182, 186 Bandon v. Becher 207, 210 Bank v. Flour Co. 524 Bank of America v. Banks 829, 341 Bank of Australasia v. Harding 264, 281, 300 v. Nias 247, 252, 253, 257, 316 Bank of Cadiz v. Slemmons 544 Bank of California v. Shaber 142 Bank of Commerce v. Union Bank 504 Bank of Commonwealth v. Hopkins 68 Bank of Hindustan v. Alison 584, 598 Bank of Ireland v. Evans’ Chari- ties 589 Bank of Lockhaven v. Mason 490 Bank of Old Dominion v. Allen 98 Bank of United States v. Bank of Georgia 510 v. Lee 579 v. Merchants’ Bank 97 v. Patton 98 Bank of Utica v. Mersereau 424 Barbell v. Gingell 509 Barber v. Hartford Bank 48 v. Lamb 258, 316 Barboro v. Occidental Grove - 626 Barham v. Turbeville 685 Baring v. Clagett 232 Barker v. Benninger 626 v. Circle CASES PAGE 172 513, 514, 516 544 304 204, 206 522 128 134, 305 620 Barker v. Cleveland Barlow v. Bishop Barnard v. German Sem. Barnes v. Gibbs Barnesley v. Powell Barnet v. Smith Barney v. Dewey v. Douglass v. Keniston v. Patterson 142, 256, 278 Barrett v. Birge 136 v. Joannes 662 Barringer v. Boyd 272 v. King 244, 285 Barron v. Cobleigh 491, 551, 559 Barrow v. Barrow 644 v. West 182, 2938 Barrows v. Kindred 122 Barrs v. Jackson 154 Barstow v. Savage Mining Co. 591 Barter v. Greenleaf 872 Bartholomew v. Jackson 658 Bartlett v. Bangor 359 ov. Knight 256 v. Wells 584 Barton v. Anderson 73 v. Smith 133 Barwick v. Rackley 648 v. Thompson 456 Bascon v. Manning 167 Basher v. Wolf 565 Bassett v. Bradley 617 v. Holbrook 628 v. Mitchell 150 Basten v. Butter 169 Bates v. Ball 688 v. Illinois Cent. R. Co. 331 v. Leclair 562 v. Norcross 832 Battey v. Button 73 Bauer v. Gottmanhausen 596 Baxley v. Linah 804 Baxter v. New England Ins. Co. 44, 231, 282, 242 |- v. Vincent 132 Baylor v. Dejarnette 142 Bazemore v. Freeman 597 Beal v. Smith 813, 316 Beall v. Beck 138 Bean v. Smith 97 v. Welsh 421 Beatty v. Kurtz 616, 626 Beaupland v. McKeen 692, 685 CITED. xv PAGE Becquet v. MacCarthy 258, 255, 293 Beddow v. Beddow 66, 67 Beebe v. Knapp 689 v. Swartwout 346 Beeckman Street, In re 64 Beeman v. Duck 601, 5038, 506 Beere v. Fleming 66, 191 Behler v. Weyburn 579, 580 Behrens v. Germania Ins. Co. 621 Bell v. Banks 103 v. Craig 496 v. Dagg 126 v. McCullough 94 v. Shafer 491, 549 v. Todd 359 Bellas v. McCarty 427 Belle of the Sea 559 Bellinger v. Craigue 165, 167, 172 Belmont v. Coleman 130 Beloit v. Morgan 94 Belshaw v. Moses 144, 145, 146, 160, 162 Bemis v. Call 579 Bendernagle v. Cocks 182, 186 Benjamin v. Gill 495 Bennecke v. Insurance Co. 635 Bennett v. Dean 559 v. Denny 50 v. Farnell 504 v. Hood 114 v. Judson 589 v. Van Syckel 688 Bensley v. Burdon 889, 415, 431 Benson v. Bennett 539 v. Matsdorf 92, 189 Benton v. Burgot 256 Bergen v. Williams 130, 138 Berkley v. Watling 538 Bernard v. Hoboken 50, 95 Bernardi v. Motteux 227, 232, 241 Berringer v. Payne 182 Bethlehem v. Watertown 223 Betteley v. Reed 493 Betts v. Brown 598 v. New Hartford 98 v. Starr 84, 172 v. Wurth 449 Bevens v. Weill 547 Beverly v. Lincoln 452 Beymer v. Bonsall 116 Bickerton v. Walker 540, 641 Bickford v. First National Bank 521 Bicknell v. Field 204 Biddle v. Bond 490, 492, 498, 494 xvl CASES PAGE Biddle v. Wilkins 672 Biddulph v. Ather 221 Bigelow v. Foss 685 v. Winsor 55, 81 Biggins v. People 79, 144 Bilsland v. McManomy 109 Bimeler v. Dawson 256 Binck v. Wood 72 Bingham v. Weiderwax 426 Birch v. Funk 50 v. Wright 486, 487 Birckhead v. Brown 172 Birdsey v. Butterfield 654 Birke v. Abbot 360 Bishop v. Hayward 110 v. Lalouette 454, 456 Bissell v. Briggs 256, 258, 259, 281 tv. Jeffersonville 533 v. Kellogg 98, 154, 156 v. Spring Valley 531 Bivins v. Vinzant 429 Bixby v. Adams Co. 660 Black v. Dressell 658 Blackburn v. Bell 864, 608 v. Crawfords 219 Blackhall v. Gibson 858, 363, 371 Blackham’s Case 204, 221 Black River R. Co. v. Clarke 529 Blackwood v. Brown 128 Blain v. Harrison 440 Blair v. Bartlett 165 v. Wait 610 Blake v. Bunbury 643 v. Douglass 102, 193 v. Exchange Ins. Co. ” 685 v. Fash 682 v. Foster 386 ». Sanderson 456 Blake Crusher Co. v New Haven 6592 Blakeslee v. Mobile Life Ins. Co. 892 Blanchard v. Brooks 892, 895 v. Ellis 421, 422, 425 v. Tyler 828 Blanchet v. Powell’s Co. 641, 598 Blasdale v. Babcock 126 Bleven v. Freer 542, 549 Blight v. Rochester 835, 846, 847, 433 Bliss v. Keweah Canal Co. 631 Block v. Commissioners 865, 532 Blodget v. Jordan 313 Bloomington v. Brokaw 660 Blount v. Darrach 259 Board v. Board 336, 497, 6438 CITED. PAGE Board of Commissioners v. Karp 63 Board of Public Works v. Colum- bia College 288 Board of School Directors v. Her- nandez 98 Bobbitt v. Shryer 547, 551 Bobe v. Stickney 95 Bobo v. Richmond 598 Bodine v. Killeen 548 Bodurtha v. Goodrich 208, 285, 288 v. Phelon 72, 166 Bogardus v. Clark 205, 223, 287 Bogg v. Shoab 891 Boggs v. Olcott 534, 662 Bohon v. Bohon 381 Boileau v. Rutlin 147 Bold Buccleugh, The 47, 225 Bole v. Horton 880 Bolling v. Petersburg 684 v. Teel 836 Bolton v. Brewster 202 v. Gladstone 227, 232 Bonesteel v. Todd 103 Bonomi v. Backhouse 162 Bonsall v. Isett 202, 281 Boone v. Armstrong 387, 404 v. St. Paul Foundry Co. 81 Borden v. Fitch 201, 298, 294 Bornheimer v. Baldwin 336 Borrowscale v. Tuttle 55 Bosch v. Kassing 73 Bosquett v. Crane 145 Boston v. Worthington 126 Boston Water Co. v. Gray 66, 67 Boston & W. R. Co. v. Sparhawk 209, 210, 297 Boswell v. Otis 197, 288 Botts v. Fultz 556 Boubede v. Aymes 689 Boucher v. Lawson 235, 252, 294 Bouchier v. Taylor 45, 154 Bowen v. Bowen 207 v. Hastings 106 Bower v. McCormick 358 Bowers v. Keesecker 488 Bowes v. Foster 538, 539 Bowman »v. Taylor 856, 389 Bowne v. Potter 334 Box v, Barrett 645 Boyce v. Kalbaugh 617 v. Methodist Church 526, 580, 581, 5382 Boyd v. Alabama 95, 880 CASES PAGE Boyd v. Plumb 620 Boykin v. Cook 189, 140 Boyle v. Boyles 221 v. Webster 691 Boynton v. Braley 664, 691, 692 v. Morrill 81 Brackenridge v. Howth 597 Bradbury v. Cony 596 Braden v. Graves 67, 68 Bradley v. Briggs 144 v. Coolbaugh 688 v. Luce 566 Bradstreet v. Neptune Ine. Co. 218, 281, 241, 244, 288 Brady v. Huff 188 v. Pryor 145 Braithwaite v. Gardiner 614 Bramble v. Kingsbury 576 Branch v. Jesup 529, 658 Brandriff v. Harrison 660 Brannon v. Noble 1381 Bransby v. Kerridge 221 Branson v. Wirth 881, 349 Brant v. Virginia Coal Co. 608, 610, 612 Brantley v. Wolf 585 Brasfield v. Lee 161 Braxton v. Freeman 647 Breeding v. Stamper 656 Brengle v. McClellan 265 Bresee v. Stiles 221 Brevoort v. Brevoort 131 Brewer v. Boston & W. R.Co. 548, 595 v. Sparrow 687 Brewster v. Madden 487 v. Striker 554 Bridge v. Johnson 59 v. Sumner 52 Bridgeport Ins. Co. v. Wilson 126, 127 Bridgeport Savings Bank v. El- dredge 202 Briggs v. Bowen 668 Brigham v. Fayerweather 44, 46, 46, 143, 156, 188, 214, 215, 221, 222, 228, 224, 282, 237, 239 v. Smith 396 Brightman v. Hicks 556, 656 Brinegar v. Chaffin 371 Bringard v. Stellwagen 575 Brinsmead v. Harrison 104 Bristow v. Warde 645 Britten v. Webb 110 Britton v. Thornton 122 Brock v. Young 336 b CITED. xvii PAGE Broda v. Greenwald 191 Broderick’s Will 206, 206 Brooke v. Haymes 865 Brooklyn v. Insurance Co. 127, 538 Brooks v. Curtis 638 v. Hill 130 v. Martin 661, 562 Broome v. Wooton 104 Broughton v. McIntosh 73 Brouwer v. Appleby 529 Brown »v. Birdsall 266 v. Bowen 685 v. Bradford 125 cv. Brown 836, 679 v. Cambridge 111 v. Clarke 98 v. Coon 580 v. Davis 624 v. Driggers 651 v. Dudley 132 v. Dysinger 472 v. Gallaudet 176 v. Hamil 549, 550 v. Jackson 893 v. Johnson 106 v. Leckie 522 v. Lexington & D. R. Co. 277, 804 v. Mayor 96 v, McCormick 427 v. McCune 680, 584 v. McKinally 170, 180 v. Moran 687 v. Neale 131 v. Newall 53 v. Nichols 208 v. Phillips 887, 404 v. Ricketts 643 v. Sprague 58, 69 v. Staples 848, 349, 392 v. Summerville 181, 132 v. Taylor 124 v. Tucker 596 v. Wheeler 685 Browning v. Crouse 636 v. Hanford 624 Brownsville v. Cavazos 122 Broyles v. Nowlin 628 Bruce v. Cloutman 200 v. United States 361 v. Wood 330, 440 Brudnell v. Roberts 886 Brugman v. McGuire 536 Brummagim v. Ambrose 74 XVill CASES PAGE Brunsden v. Humphrey 146, 160, 161, 162, 163 Bryan v. Des Moines 657 v. Malloy 81, 135, 1386 v. Uland 130 Bryans v. Nix 437 Buchanan v. Hubbard 584 v. Keines 321 v. Litchfield 365, 532, 533 v, Matlock 207 v. Rucker 251, 279, 298 Buck v. Milford 593, 608 Buckingham v. Hanna 424 v. Ludlum 107 Buckland v. Johnson 190 Buckley v. Stevens 691 Buckner v. Archer 291 Buena Vista Co. v. Iowa Falls R. Co. 660 Buffington v. Cook 96 Buford v. Kirkpatrick 278 Bull ». Church 647 vu. Rowe 693 Bullard v. Hascall 542 Bullis v. Noble 607 Bumstead v. Read 195 Bunger v. Roddy ° 487 Bunker v. Tufts 94, 185 Bunkley v. Lynde 860 Bunting’s Case. 219 Bunting v. Lepingwell 45, 219, 221 Burchfield v. Moore 503 Burdick v. Michael 564 Burgess v. Merrill 110 v. Northern Bank of Kentucky 502 v. Seligman 684, 551, 556, 559, 624 Burk v. Hill 99 v. Simonson 662 v. Webb 549 Burke v. Adams 579, 598, 620 v. Allen 618, 515 v. Elliott 62 Burkhalter v. Edwards 685 Burkinshaw »v. Nicolls 560 Burlen v. Shannon 48, 55, 57, 95, 144, 151, 164, 219, 220, 235, 237, 244, 289, 698 Burley v. Russell 584 Burlington v. Gilbert 652, 654 Burlington R. Co. v. Harris 668 Burn v. Carvalho 191 Burnap v. Campbell 132 Burnes v. St. Louis Ry. Co. 66 CITED. PAGE Burnett v. Smith «= 167, 176 Burnham v. Webster 256, 276 Burns v. Hodgdon 130 Burritt v. Belfy 80, 161, 182, 186 Burroughs v. Jamineau 252 Burrowes v. Lock 606 Burrows v. Guthrie 64 v. Jemino 221, 253 Bursley v. Hamilton 862, 491, 549 Burt v. Sternburgh 81, 673 Burton’s Appeal 536 Burton v. Reeds 426 Burwell v. Cannaday 151 Bush v. Cooper 398 v. Marshall 346, 488 Busteed, The 55 Butchers’ Assoc. v. Boston 620 Butchers’ Bank v. McDonald 627 Butler v. Miller 180, 181 v. O’Brien 656 v. Suffolk Glass Co. 176 Butterfield v. Smith 221 Buttrick v. Allen 256 v. Holden 98, 100 v. Lowell 661 Byrne v. Hibernia Bank 657 C. Cabot v. Washington 94, 223 Cadaval v. Collins 180, 212 Cady v. Dyer 573 v. Eggleston 370 v. Owen 564 Caffrey v. Dudgeon 838 Cagger v. Lansing 122 Cagwin v. Hancock 865, 582 Cahall v. Citizens’ Building Assoc. 527 Cailleteau v. Ingouf 224 Cain v. Sheets 98 Cairncross v. Lorimer 632 Cairns v. O’Bleness 658 Caldwell v. Hart 577 v. Neely 346 v. Smith 5, 457, 459, 470, 692 v. Walters 101 Calhoun v, American Emigrant Co. 524 v. Dunning 121 v. Richardson 563, 600 Calkins v. Allerton 117 v. Copley 855 CASES PAGE Callahan v. Griswold 208 Callaway v. Johnson 687 Callen v. Ellison 192 Callendar v. Dittrich 706 Calvert v. Bovill 288, 241, 242 v. Sebright 395 Cambridge Inst. for Savings v. Lit- tlefield 569 Camden v. Werninger 68 Cameron v. Stephenson 627 vo. Wurtz 265 Cammell v. Sewell 209, 215, 234, 254, 298 Camp v. Moseley 578 Campau v. Campau 835, 347 v. Lafferty 449, 469 Campbell v. Birch 576 v. Charter Oak Ins. Co. 690 v. Frankem 608 v. Goodall 145 v. Hall 136, 837 v. Hastings 536 v. Hunt 60, 53 v. Knights 334 v. Laclede Gas Co. 584 v. Phelps 118, 114 v. Rankin 81 v. Trunnell 530, 656 Canal Bank v. Bank of Albany _500, 601, 508, 613 Candee v. Clark 266 v. Lord | 46, 189, 143, 215 Candler v. Lunsford 831 Canfield v. Smith 655 Cannam v. Farmer 583 Canning v. Brown 620 v. Harlan 564 Cannon v. Home Ins. Co. 592, 636 Capital Bank v. Armstrong 512 Carder v. Fayette Co. 647 Carey v. Gunnison 489 Carithers v. Stuart 827, 829 Carleton v. Bickford 262, 288 v. Washington Ins. Co. 192, 195, 199, 200 v. Woods 187 Carley v. Wilkins 589 Carlisle v. McCall Carll v. Oakley Carlton v. Davis Carman v. Townsend Carnarvon v. Villebois Carnes v. Field 34, 226 603 CITED. x1x PAGE Carpenter v. Buller 821, 885, 841, 342, 850, 354, 369, 370, 555 v. Carpenter 582, 584 v. Pier 313 v. Thompson 453 Carr v. London Ry. Co. 665, 610, 612 v. Miner 208, 540 v. Townsend 103 v. United States 124, 330 v. Wallace 666 Carrier v. Sears 515 Carrigan v. Bozeman 355 Carrington v. Merchants’ Ins. Co. 215 Carroll v. Smith 865, 530, 582 Carson v. Faunt 450 v. New Bellevieu Cem. Co. 381 Carter v. Bennett 266 v. Cartere 66, 341 v. Doe 892 v. Fately 547 v, James 146 v. Marshall 469, 476 v. Shibles 81 Caruthers ». Crockett 598 Carver v. Astor 331, 401 v. Jackson 389, 438 v. Lewis 221 Carvill v. Garrigues 183 Case v. Beauregard 37, 50, 55 v. Boughton 589 v. Case 808 v. Reeve 128 v. Shultz 491, 551 v. State 60 Casebeer v. Mowry 694, 698 Casey v. Galli 63, 610 Casler v. Shipman 142 Cassidy v. Carr 63 Castle v. Noyes 128; 172 Castner ». Farmers’ Ins. Co. 634 Castrique v. Behrens 211, 246, 247, 299 v.Imrie 48, 44, 47, 100, 215, 288, 238, 247, 254, 255 Caswell v. Fuller 548 Catlin v. Gilders 283 Caton v. Caton 557 Catskill Bank »v. Stall 520 Cavan v. Darlington : 645 Caylus v. New York R. Co. 158 Cecil v. Cecil 223 v. Early 361 Central Agric. Assoc. v. Gold Ins. Co. 529 XX CASES PAGE Central Railroad v. Henderson 5380, 656 Central R. Co. v. Smith 84, 71 Certain Logs of Mahogany 48 Chaffe v. Morgan 620 Chamberlain v. Carlisle 144 uv. Faris 293 u. Gaillard 672, 678 v. Preble 68, 126 v. Spargur 822, 377 Chambers v. Falkner 529 Champlain R. Co. v. Valentine 370 Chandler v. Ford 340 v. White 611 Chant v. Reynolds 127 Chapin v. Curtis 64 Chapman v. Abrahams 840, 391 v. Chapman 566 v. Crooks : 598 vo. Pingree 547 v. Shepard 629 Charlestown v. County Commrs. 593, 652 Chase v. Cheney 61 v. Haughton 184, 305 v. Walker 36 Chatfield v. Simonson 553, 554, 679 Chautauque Bank v. White 566 Chautauque Co. Bank v. Risley 349 Chauvin v. Wagner Cheesman v. Exall 890, 400, 431 490, 491, 493 Cheever v. Wilson 287, 262 Cheney v. Selman 558, 689 Cheongwo v. Jones 131 Cherry v. Robinson 121 Chesham, In re 642, 644, 645 Chesnutt v. Frazier 50 Chester v. Bakersfield Assoc. 185 Chettle v. Pound 472 Chew v. Barnet 426, 427, 431 Chicago v. Chicago R. Co. 578 v. McGraw 578 v. Robbins 125, 127 v. Wright 617 Chicago Building Assoc. v. Crow- ell 531 Chicago Ins. Co. v. Warner 636 Chicago Packing Co. v. Tilton 536 Chicago R. Co. v. Joliet 524 v. Wiggins Ferry Co. 278 Chicago Ry. v. People 524, 597 Chicago Ry. Co. v. Auditor-Gen- eral 693 Chichester v. Chichester 281 CITED. PAGE Child v. Chappell 587 v. Eureka Powder Works 304, 694 Childs v. Hayman 130 Chiles v. Boothe 849 Chilton v. Scrugge 553 Chitty v. Glenn 98 Chope v. Detroit Plankroad Co. 380, 577 Chouteau v. Gibson 68, 94 Chrisman v. Harman 55 Christie v. Secretan 238, 241 Christmas v. Russell 209, 247, 262, 274, 297, 299 Christopher, The 245 Chubb v. Upton 533 Chudleigh’s Case 417 Churchman »v. Ireland 643 Churchward v. Ford 452 Cicero v. Williamson 63 Cincinnati v. Cameron 658 v. Dickmeier 143 v. Morgan 533 v. White 617 Cincinnati R. Co. v. Wynne 304 City Bank v. Bartlett 656 City Bank of New Orleans v. Wel- den 53 Clapp v. Hanson 498 v. Tirrell 374 Claridge v. Mackenzie 460, 469 Clark v. Baker 187 v. Bryan 192, 195, 200 v Carrington 125 v. Clark 558, 689 v. Deshon 374 v. Dew 237 v. Fisher 205 v. Hay ward 621 v. New England Ins. Co. 636 v. Parsons 256, 312 v. Sammons 158 v. Wiles 94, 177, 191 v. Wolf 117, 129 v. Young 50, 76 Clarke v. Clarke 459 ». Dunham 1038 Clarke National Bank v. Bank of Albion : 522 Clary v. Hoggland 202 Clauser v. Jones 669 Clay Ins. Co. v. Huron Salt Co. 531 Cleaton v. Chambliss 75 Clementson v. Gandy 645 CASES PAGE Clerk v. Withers 625 Cleveland v. Creviston 81 uv. Rogers 316 Clews v. Bank of New York 604, 516 v. Bathurst 221 Clink v. Thurston 668 Clinton v. Haddam 592 Clinton Bank v. Hart 106 Close v. Glenwood Cem. 627, 529 Cloud v. Whiting 562 Coakley v. Perry 349 Coari vr. Olsen 563 Cobb v. Arnold 475 v. Fisher 820, 822 Coburn v. Palmer 480 Cochran v. Arnold 529 Cockburn v. Thompson 129 Cocke v. Brogan 891 Cocks v. Masterman 508 Codington v. Lindsay 644 Coe v. Clay 400 v. Gerst 577 Coffey v. United States 144, 152, 218 Coffin v. Knott 53 Coffman v. Brown 53 Coggill v. American Bank 500, 502, 503 Cohen v. Teller 509, 510 Coit v. Beard 52 v. Haven 192 Cole v. Lafontaine 669 v. Raymond 422, 423, 486 v. Stone 818, 675 Coleman v. McAnulty 103 v. McMurdo 141, 309 v. Pearce 590, 669 Coles v. Allen 185, 186 v. Soulsby 378 Collier v. Gamble 401 Collingwood v. Irvin 126 Collins v. Bartlett 346, 433 v. Bennett 165 ov. Jennings 56 v. Lofftus 129 v. Mitchell 362 v. Woods 643 Collis v. Emmett 503 Coloma v. Eaves 582, 533 Colonius ». Hibernia Ins. Co. 620 Colter v. Calloway 621 Columbet v. Pacheco 597 Columbus v. Dahue 617 Colvin v. Corwin 186 Colwell v. Brower 547 CITED. xxi PAGE Combes v. Chandler 652 Comings v. Wellman 370 Commissioners v. Bolles 627 Commonwealth v. André 330 v. Blood 199, 244, 285, 316 v. Dudley 641 v. Green 262, 264, 282 v. Moltz 566, 592 v. Reading Bank 616, 531 v. Sherman 581, 585, 587 Compher v. Anawalt 2738 Compton v, Sandford 689 Comstock v. Smith 360, 893, 895 Conant v. Newton 338, 354 Conard v. Atlantic Ins. Co. 541 Concord Bank v. Bellis 579 Cone v. Cotton 816 Congregational Soc. v. Perry 529 Conklin v. Barton 636 v. Conklin 556 Connecticut Ins. Co. ». Schwenk 653, 690 Connelley v. Connelley 236 Connihan v. Thompson 642, 648 Connolly v. Branstler 582, 583 v. Connolly 221 Connor v. Eddy 348, 404 o. Martin 513 Conrad v. Lane 584 Continental Bank v. National Bank 518, 565, 610, 621 Conway v. Ellison 272 Cook v. Burnley 55, 144 v. Field 131 v. Harnes 578 v. Parham 336 v. Pridgen 638 v. Sholl 217 v. Steuben Bank 267 v. Thornhill 267 v. Toumbs 330 Cooley v. State 553 Coons v. People 657 Cooper v. Adams 480 v. Blandy 454 v. Meyer 508, 504 v. Peck 550 v. Reynolds 47, 49, 198, 267, 288. 298 v. Watson 335, 345 v. Witham 584 Copeland v. Copeland 685 Copin vw, Adamson 257, 281 ° xxii CASES PAGE Copper Mining Co. v. Ormsby 544 Corbet’s Case 221 Corbett v. Brown 660 Corbley v. Wilson 100 Corcoran v. Chesapeake Canal Co. 96, * 124, 129 Corder v. Dolin 489 Corey v. Gale 72 Corkhill v. Landers 596 Corning v. Troy Iron Factory 5738 Cornish v. Abington 476, 613 v. Searell 465, 478, 481 Corwith v. Culver 526 Cotes v. Davies 514 Counterman v. Dublin 529, 652 Courtland v. Willis 676 Coventry v. Great Eastern Ry. Co. 565, 591, 606 Covert v. Nelson 181 Covington & L. R. Co. v. Bowler 130 Cowell v. Springs Co. 336, 529 Cowles v. Marks 829 Cox v. Rogers 648 v. Thomas 202, 361, 663 Coxe v. Nicholls 273 Craddock v. Turner 188 Crafts v. Clark 675 Cramer v. Moore 56 Crane v. Maginnis 236 v. Morris 349 v. Reeder 331 Cravens v. Kitts 610 Crawford v. Howard 200 v. Jones 454 v. Turk 138 v. White 296 ov. Whittal 249 Crawley v. Isaacs 253 Creagh v. Blood 468 Crest v. Jack 566 Crichlow v. Parry 500 Crime v. Davis 558 Croft v. Johnson 57 Crofton v. Cincinnati 144 * Crofts ». Middleton 890, 415 Cromwell v. Sac 71, 74,76, 81, 84, 145, 156, 159, 175, 177, 178, 212, 865, 582 Cronan ». Frizell 123 Cronin v. Gore 598 Cronk v. Trumble 687 Cropper v. Smith 620 Crosland v. Murdock 205 Crossan v. May 662, 621 CITED. PAGE Crossley v. Dixon 494 Croudsvun v. Leonard 218, 281, 235, 240 Crout v. De Wolf 509 Croxall v. Shererd 489 Cruger v. Dougherty 627, 652 Crum v. Boss 82, 161 Crusoe v. Butler 237 Cumberland Coal Co. v. Jeffries 62 Cumberland R. Co. vs. McLanahan 638 Cummings v. Banks 256 Cummins v. Agricultural Ins. Co. 553 Cunningham v. Ashley 1389 v. Goelet 281 v. Milner : 548 v. Shanklin 330 Cupp v. Campbell 580, 582, 583 Curlee v. Smith 386 Curnen v. New York 524 Curtis v. Galvin 480 v. Gibbs 259 v. Leavitt 143 v. Spitty 452 Curtiss v. Beardsley 303 Curyea v. Berry 682 Cushing v. Laird 96, 218, 214, 235, 241 Cuthbertson v. Irving 850, 352, 482, 483 Cutler v. Bower 360 v. Dickinson 361 Cutter v. Evans 116, 188, 143 v. Waddingham 349 Cutting v. Carter 66 Cyphert v. McClune 278 D. Da Costa v. Villa Real 221 Dahlman v. Forster 34 Dale v. Turner 669 Dalgleish »v. Hodgson 232 Dalton v. Whittem 659, 688 Damouth v. Klock 659 Damp v. Dane 655 Dancer »v. Hastings 481 Dane v. Gilmore 125 Danforth v. Adams 610 Daniel v. Morton 687, 688 Daniels v. Edwards 634 v. Equitable Ins. Co. 620 v. Henderson 99, 145 v. Tearney 841, 642, 652 Darby v. Mayer 205 CASES PAGE D’Arcy v. Ketchum 196, 262 Darke v. Bush 653 Darley Colliery Co. v. Mitchell 146, 160, 161, 162 Darlington v. Gray 65 v. Pritchard 707 Darst v. Gale 631 Dashiel v. Collier 33d Davenport v. Chicago R. Co. 80 v. Tarpin 696 Davenport R. Co. v. Davenport Gas Co. 559, 590 David v. Park 608, 609 v. Porter 264 Davidson’s Appeal 579 Davidson v. Sharpe 307 v. Shipman 144 v. State 112, 120, 123 v. Young 580, 611, 620 Davies, Ex parte 494 v. New York 182 Davis v. Bowmar 562, 610, 620 v. Brown 84, 159, 178, 498 v. C. R. Co. 553 v. Connelly 270 v. Davis 685 vo. Dyer 621 v. Hedges 168, 169, 171, 176 v. Henry 66, 597 v. McCorkle 94, 144 v. Rainsford 859 v. Shoemaker 453, 678 v. Smith 610 v. Tallcot 165, 166, 167 v. Tingle 582 v. Tyler 452 v. Zimmerman 582 Davis Machine Co. v. Barnard 98, 221 Dawley v. Brown 79, 122 Dawson v. Mann 180 Day v. Hartshorn 95 v. Perkins 679 Dean v. Colt 398, v. Doe 401 v. Thatcher 69 De Armond v. Adams 208 Decherd v. Blanton 862 Decker v. Adams 72 Decorah Mill v. Greer 592 De Cosse Brissac v. Rathbone 252 De Ende v. Wilkinson 273 Deery v. Cray 70 Deford v. Mercer 657 CITED. xxiii PAGH De la Guerra v. Newhall 81 Delancey v. McKeen 579 Delaney v. Dutcher 821 v. Fox 465, 483 Delanney v. Burnett 57 Delano v. Jopling 286 Delaplaine v. Hitchcock 682 De la Vega v. League 130 Delmege v. Mullins 459 Delphi v. Startzman 669 Delta, The 95 Demarest v. Darg 94, 96 De Mill v. Moffatt 682 De Mora v. Concha 48, 44, 45, 89, 96, 218, 214, 215, 221, 222, 228, 224, 227, 232, 235, 237, 239, 241, 643 Dempsey v. Ins. Co. of Penn. 232 Den v. Ayres 205 v. Bailey 485 v. Bennett 485 v. Edmondston 489 v. Gates 336, 433 v. Reddick 60 v. Watts 835, 433 Denegre v. Hann 98 Denison v. Hyde 238, 285 Denman v. Nelson 365 Denn v. Cornell 349, 389 Dennett v. Chick 107 Denning v. Corwin 316 Denny v. Willard 624 v. Williams 186 Dent v. Ashley 309 v. Smith 254 Denton v. Noyes 273 v. Stewart 605 De Proux v. Sargent 94 Derby v. Jacques 62 v. Johnson 183 Deslonde v. Darrington 221 Despard v. Walbridge 480 Destrehan v. Scudder * 271 Detroit Ry. Co. v. Hayt 692 Devaynes v. Noble 604 Devens v. Mechanics’ Ins. Co. 637 Devin v. Ottumwa 128 Dewey »v. Bell 649, 650 v. Field 862, 491, 542, 549, 551, 629, 681 Dexter v. Clark 52 Dey v. Dox 73 Dezell v. Odell 862, 491, 542, 549, 629, 679 Xxiv Dickerson v. Colgrove Dickinson v. Goodspeed v. Hayes Diehl v. Zanger Dillett v. Kemble Dillinger v. Kelly Dills v. Hampton Diossy v. Morgan Dixon v. Merritt Doak v. Wiswell Doane v. Willcutt Dobbins ». Cruger v. Hyde Dobson v. Culpepper v. Pearce Dodd v. Una v. Williams Dodge v. Gaylord v, Pope v. Stacy Doe v. Barton v. Baytup Brown Butcher Clarke Clifton Derby Dowdall Edwards Fuller Harlow Hodgson Huddart Mills Newsom Oliver Pegge Rosser Skirrow Smith Smythe Thomas Vickers Walters Wellsman v. Wilkinson Doglioni v. Crispin Dolde v. Vodicka Dole v. Boutwell Dolphin v. Robins Don v. Lippman eseesseeesesseeeeneeeee8 Donahue v. Klassner 380, 363, 395, 396, 402, 440 387 182, 138 455, 476 192, 295, 296, 297 48, 98, 244 429, 432 68 552, 608 685 465, 478, 480, 487 458, 484 465, 466, 468 366 477 457 186, 337 423 480 456 121 690 121, 668 454, 455, 462 450, 456, 468, 479 121 457 682 708 454, 475 258 597 182 236, 289 251, 280, 289 346 CITED. PAGE Donald v. Gregory 186 Donaldson v. Hibner 598 v. Winter 205 Donnell v. Hamilton 60, 68, 69 Donohoo v. Murray 359 Dooley v. Cheshire Glass Co. 526 v. Potter -98, 185 v. Wolcott 529 Dorlargue v. Cress 608 Dorr v. Clark 491, 549 v. Stockdale 139 Dorrance v. Scott =, 101 Dotterer v. Pike 582 Doty v. Brower 172 Dougald v. Dougherty 388 Dougherty’s Estate 210 Douglas v. Forrest 251, 277, 280, 289, 293, 675 v. Fulda 124, 465 Douglass v. Craig 593 v. Howland 138, 142 v. Scott 428, 424, 432, 434 Dow v. Sanborn 48 Downer v. Shaw 285, 291 Doyle v. Coburn 377 v. Hallam 122 v. Hort 590 v. Mizner 527 v. Reilly 94 Dragoo v. Graham 316 Drake v. Glover 583 v. Mitchell 182 v. Vorse 80 Drayton v. Dale 612, 514 Dresbach v. Minnis 362, 491, 542, 549, 629 Dreyfous v. Adams 687 Drummond v. Prestman 142 Drury v. Foster 579, 582 Dublin v. Chadbourne 237 Dubois v. Dubois 205 Du Bose »v. Ball 656 . Duchess of Kingston’s Case 5, 45, 48, 68, 85, 90, 99, 100, 144, 146, 148, 151, 152, 158, 155, 203, 207, 211, 219, 220, 276, 487, 544, 667, 668 Duff v. Wynkoop 657 Duffield v. Scott 125 Duffy v. Lytle 694 Dugan v. Follett 387 Duke v. Ashby 446. 482 Dukes v. Spangler Duncan v. Bancroft 329, 435, 559, 582 81 CASES PAGE 96 133 149 863 177, 192 144, 145, 165 624 Duncan v. Holcomb v. Ware Dunckle v. Wiles Dundas v. Hitchcock v. Waddell Dunham v. Bower Dunklin v. Wilson Dunks v. Fuller 638 Dunlap v. Clements 650 v. Cody 49, 298 v. Glidden 86 Dunn t. Pipes Dunnell Manuf. Co. v. Pawtucket 662 Dunning v. West 687 Dunshee v. Grundy 454 Dunston v. Paterson 562 Durant v. Abendroth 49, 232, 288 ov. Essex Co. 55, 59 v. Pratt 610, 618, 619 Durham v. Alden 685 Dutchess Cotton Manuf. Co. v. Davis Dutton v. Woodman Du Val v. Marshall 529 81 526 Dwight v. St. John 56 Dyckman v. New York 201 Dyer v. Rich 370 v. Sutherland 536 Dykes v. Woodhouse 140, 309 Dynes v. Hoover 62 E. 620 649 628 47 489 690 151 Earl v. Stevens Easly v. Walker East v. Dolihite Easterly v. Goodwin Eastham v. Anderson East Hampton v. Kirk Eastman vr. Symonds Eastmure v. Laws 164, 190, 694, 702 Easton v. Aspinwall 659 v. Goodwin 549 v. Pickersgill 56 v, Wareham 636, 637 Eaton v. Aspinwall 527, 529 Ebersole v. Latimer 71, 73 Eberts v. Fisher 131 Eckstein v. Frank 580 Edgell v. Sigerson 90, 208 Edwards’s Appeal 689 333 Edwards v. Rogers CITED. XXV PAGE Edwards v. Stewart 91 Egerton v. Muse ~O, 97 Egler v. Marsden 452 Eble v. Bingham 120, 177 | Himer v. Richards 94 Eitelgeorge v. Mutual Bldg. Assoc. 620 Eldred v. Hazlett 186 Eldridge v. Hill 121 v. Trustees of Schools 388 v. Walker 647 Elkhart v. Simonton . 64 Elliott v. Frakes 128, 124 v. Hayden 111, 114 v. Royal Assur. Co. 65 Ellis v. Davis 206 v. Hamlin 658 v. Ohio Life Ins. Co. 499, 508, 510 v. Welch 394 v. White 688 Ellsworth v. Ellsworth 652 v. Houlton 636 Elson v. O’Dowd 101 Elston v. Piggott 130 184, 302, 305 180, 191, 192, 260, 278, 279, 688 Embree v. Hanna Embrey v. Palmer Embury v. Conner 145, 150, 195, 297, 659 Emerson v. Sansome 388 v. Thompson 92, 189 ‘Emery v. Barnett 465 v. Fowler 114 Eminence v. Grasser 681, 533 Emmes v. Feely 459 Emmons v. Milwaukee . 656 Engel v. Scheuerman 265, 295 England v. Slade 480 Engstrom v. Sherburne 78, 211, 212 Ennis v. Smith 45, 218 Ensign v. Bartholomew 52 Epley v. Witherow 566 Eppes v. Mississippi R. Co. 529 Erskine v. Loewenstein 651 Erwin v. Down 516, 709 v. Lynn 183 Eshelman v. Shuman 122 Espy v. Bank of Cincinnati 516 Esron v. Nicholas 585 Estep v. Larsh 53 Estey Manuf. Co. v. Runnels 529 Etcheborne v. Auzerais 643 Etting v. Bank of United States 59 : Eureka Co. v. Bailey Co. 63, 494 XXvi CASES PAGE Evans’s Appeal 652 Evays v. Bicknell 648, 606, 607 v. Commonwealth 188 v. Edmonds 589 v. Forstall 609 ev. Miller 596 v. Powel 856 89 589 34, 36 99 Evelyn v. Haynes Evertson v. Miles Exchange Bank v. Ault Eyster v. Gaff F. 657 74 691 145 429 338 101 Factors’ Ins. Co. v. De Blane Fagg v. Clements Fahnestock v. Gilham Fairchild v. Lynch Faircloth v. Arnold Fairtitle v. Gilbert Faithorne v. Blaquire Falkner v. Guild 195 Fall River v. Riley 188, 189 Fall River Bank v. Buffinton 638 Fanning v. Insurance Co. 667 Farish v. Coon 331 Farist’s Appeal 610 Farley v. Eller 439 v, Pettes 548 Farmer v. Simpson 1381 Farmers’ Bank v. Butchers’ Bank 517, 518, 522 Farrar v. Cooper v.-Farrar 435, 559 v. Hutchinson Farrington v. Payne Farris’v. Houston Farwell v. Hilliard Father Matthew Soc. v. Fitzwil- 459, 461, 465, 486 110 liams 361, 529 Faught v. Faught 154, 156, 188 Favill v. Roberts 548, 681 Fawcett v. New Haven Organ Co. 610 Faxton v. Faxon 558 Fay v. Ames 127 v. Valentine 681 Feather v. Strohoecker 403 Felt v. Turnure 53 Felton v. Smith 81, 91 Feltz v. Walker 562 Fenner v. Duplock 466 Fenwick v. Thornton 124 CITED. PAGE Ferguson v. Bobo 584, 585 v. Crawford 84, 192, 200, 297 v. Landram 629, 652, 658, 659 v. Mahon 252, 263, 257 v. Milliken 321 v. Northern Bank 642, 598 Fermor’s Case 294 Fernandez v. Da Costa 282 Ferrer’s Case 89, 94 Ferson’s Appeal 654 Field v. Doyon 661 v. Flanders 208 v. Seabury 63 Fields v. Bland 642 Fifield v. Edwards 109 Finlay v. Bryson 687 Finnegan v. Carraher 628, 685 Finneran v. Leonard 203 Finney v. Finney 190 First Evang. Church v. Walsh 554 First National Bank v. Gillilan 103, 529 v. Hammond 638 v. Hastings 145 v. McAllister 682 v. Ricker 510, 563 v. Warrington 690 v. Whitman 604 First Parish v. Dow 475 Fischli v. Fischli 144 Fish v. Folley 182 Fishbeck v. Phoenix Ins. Co. 632 Fisher v. Banta 98 v. Longnecker 58 v. Milmine 487 v. Ogle 241 v. Seligman 885, 551, 624 Fisk v. Miller 208 Fitch v. Baldwin 836, 346, 657 v. First National Bank 79 Fitts v. Cook 495, 648 v. Hall 584 Fitzgerald v. Spain 489 v. Turner 582 . Fitzpatrick v. Flannegan 608 Fitzsimmons v. Newport Ins. Co. 284, 241 Flad Oyen, The 248, 244, 245 Flagg v. Flagg 896 Flanagan v. Cutter 1381 Flanigan v. Turner 656 Flannigan v. Hambleton 582 Flege v. Garvey 652 Fleischmann v. Stern 561 CASES CITED. xxvii PAGE PAGE Fleming v. Gooding 464) Frayes v. Worms 254, 277, 804, 675 Flemmer v. Travelers’ Ins. Co. 388 | Frazer v. Hilliard 437 Fletcher v. Farrer 856 | Frazier v. McCloskey 162 v. Holmes 68 v. McQueen 98 Flint v. Bodge 180 v. Moore 3801 Flitters v. Allfrey 62] Fredenburgh v. Lyon Lake Church 559 Florence v. Drayson 161 | Frederick v. Missouri River R. Co. 564 uv. Jenings 159, 160} Freeman v. Auld 824, 360 Flower v. Elwood 559, 611 v. Bass 158 v. Lloyd 211, 246, 299 v. Buckingham 538 v. Parker 181 v. Clute 173 Floyd v. Ritter 84 v. Cooke 652, 589, 610, 611, 614, Floyd Co. v. Morrison 526 615, 623, 625, 669 Foley v. Cooper 547 | Freison v. Bates College 101 Folger v. Palmer 98, 128, 381, 553, 689| Fremont Ferry Co. v. Dodge Co. 688 Follansbee v. Parker 692 | French »v Donohue 529 v. Walker 112, 120 v. Howard ° 94 Foote v. Gibbs 55 v. Spencer 391 v. Newell 289 | Freon v. Brown 498, 543 Forbes v. Scannell 815 | Fretwell v. McLenore 138 Forcey’s Appeal 144, 146 | Frew v. Taylor 281 Ford v. Ager 462 | Frey v. Rawsour 388 v. Doyle 56 | Frick v. Trustees of Schools 5386, 662 v. Ford 144, 155 | Frierson v. Branch 656 v. Hurd 133 | Frink v. Darst 391 v. Loomis 547 | Frost v. Frostburg Canal Co. 529 v. Meacham 502 | Fry v. Taylor 223 Forncrook Manuf. Co. v. Barnum Fuller v. Shattuck 72 Wire Works 494 | v. Sweet 469 Forster v. Forster 387 | Fulton v. Fulton 647 Foster v. Bigelow 682 | Funk v. Newcomer 849 v. Busteed 55 | Funkhouser v. How 132 v. Charles 610 | Furness v. Williams 346 v. Dwinel 334 | Fursman v. Fursman 221 v. Glazener 316 v. Jones 103 Fountain v. Whelpley 618, 632 G. Fountaine v. Carmarthen Ry. Co. 533 Fouque v. Burgess 577 | Gaff v. Harding 542, 549, 629 Foust v. Chamblee 496 | Gage v. Holmes 180 Fowler v. Shearer 72, 829, 439 v. Pumpelly 74 Fowlkes v. State 81, 668, 672, 673 | Gaines v. Relf 210 Fox v. Union Sugar Refinery 359 | Galbraith v. Neville 249, 252 v. Whitney 498 | Gale v. Coburn 374 Foye v. Patch 81, 667, 668 | Galena & C. R. Co. v. Pound 202 Frame v. Badger 654 | Gallagher v. People 663 Francis v. Boston & R. Mill Corp. 344 uv. Riley 63 Frank v. Chemical Bank 604 | Galloway v. Finley 488 v. Frank 644] Galpin v. Page 49, 54, 196, 288, 289, Franklin v. Green 95 293 v. Merida 469, 470 | Gambetta v. Brock 101 v. Twogood 862, 527, 529 | Gammon »v. Freeman 334 Fraser v. Pendlebury 841, 842 | Gans v. St. Paul Ins. Co. 668 xxviii CASES PAGE Gansvoort v. Williams 520 Gardiner v. Suydam 487, 641 Gardner v. Boston 655 v. Buckbee 81, 90, 673 v. Greene 345 v. Keteltas 400 v. Raisbeck 144 Garland v. Jacomb 506 v. Tucker 256 Garlinghouse v. Whitwell 621 Garnett v. Macon 139 Garrard v. Haddan Garrick v. Chamberlain Garrity v. Thompson 549, 689 Garwood v. Garwood Gates v. Kerby v. Prestan Gatling v. Rodman Gaus v. Chicago Ry. Co. Gawtry v. Leland 182 579 631 640 Gay v. Parpart 70, 97, 180 v. Smith 200 Gayle v. Price 834 65 835 212 661 533 211 217 Gaylord v. Norton v. Respass Gear v. Smith Gebhardt v. Reeves Gelpcke v. Dubuque Gelston v. Codwise v. Hoyt General Finance Co. v. Liberator Soe. 390, 400, 415, 419, 424, 431 General Nav. Co. v. Guillon 254, 281 George v. Bischoff 354 Georgia R. Co. v. Hamilton 651 German v. Clark 659 Germond v. People 340 Gerrish v. Black 159 Gibbs v. Bryant 106 v. Thayer 398 Gibson v. Chillicothe Bank 541 c. Chouteau 390 v. Kirk 452 v. Lyon 122 v. Minet 504 v. Rees 97 Giddens v. Crenshaw 634 Gilbert v. Manchester 627 Gilbreath v. Jones Gill v. Fauntleroy v. Grand Tower Co. v. Read Gillespie v. Nabors 111, 669, 672, 678 336 398 220 584. 164, 167, 168 CITED. PAGE Gillett v. Hill 630 Gilliam v. Bird 336 Gilman v. Haven 348 v. Hoare 385 Gilmore v. Fox 654 Gingrass v. Iron Cliffs Co. 566 Ginnett v. Whittingham 61 Girard Bank v. Bank of Penn. 522 Glanvill, In re 644 Glasgow v. Baker 824 v. Lowther 256 Glazier v. Streamer 559 Gleason v. Dodd 282, 286 Glidden v. Strupler 579, 581 Gloucester Bank v. Salem Bank 611 Glover v. Benjamin 688 Glynn v. George 484 Goble v. Dillon Godard v. Gray Goddard’s Case 72, 168, 172 229, 254, 255, 257 667, 668 Goddard v. Merchants’ Bank 507, 508 v. Renner , 657 Godfrey v. Brown 690 Goeing v. Outhouse 621 Goff v. Dabbs 69 Goit v. National Ins. Co. 538 Golconda v. Field 620 Gold v. Canham 252 Golightly v. Jollicoe 65, 156, 179 Gonzales v. Hukil 329 Goodall v. Marshall 812 Goodel v. Bennett 398 Goodell v. Bates 500, 510 Goodenough ». Fellows 829 Goodman v. Niblack 98, 110 v. Pocock 183 v. Randall 854 v. Winter 221, 581, 585, 587, 681 Goodnow v. Litchfield 98 Goodrich v. City 77, 94 v. Jenkins 267, 272 v. Reynolds 659 v. Yale 188 Goodson v. Beacham 431 Goodtitle v. Bailey 889, 400, 401 Gordinier’s Appeal 122 Gordon v. Whitehouse 694 Gore v. Brazier 464 Gorham v. Brenon 388 Gorrisson, Succession of 224 Gorton v. Roach 837 Gosling v. Birnie 492, 632 Goucher v. Clayton 70 CASES PAGE Goudy v. Hall 202 Gould v. Evansville R. Co. 64 v. Hayden 98 Gouldsmith v. Coleman 827 Gouldsworth v. Knights 352 Gove v. White 696, 685 Grace v. McKissack 547 v. Martin Grady v. Porter 74, 188 496 Graham v. Graham 392 v. Long 101, 193 v. Monsergh 265 v. Railroad Co. 96 Grand Tower Mining Co. v. Gill 336 Grand Trunk Ry. Co. v. Dyer 628 Granger v. Clark 297 v. Parker 468 Grant v. Bledsoe 316 v. McLachlin 237 v. White 455 Grantham v. Kennedy 101, 102 Grattan v. Metropolitan Ins. Co. 658 Gravenor v. Woodhouse 465, 473, 474 Graves v. Colwell 854 v. Key 588, 589, 544, 546, 612, 683 v. Lake Shore R. Co. 555 Graw v. Bayard 638 Gray v. Agnew 692 v. Dougherty 53 v. Gray 58, 445, 563 v. Hodge 51 v. Johnson 453 v. MacLean 862 v. McNeal 200 v. Wilson 65 Great Falls Manuf. Co. v. Worster 208, 845, 368 Greaves v. Middlebrooks 668 Green’s Appeal 854 Green v. Branton 101 v. Clarke 118 v. Glynn 144 v. Hamilton 74 v. Kemp 360 v. Lycoming Ins. Co. 677 v. Sarmiento 259, 264 v. Starr 97, 802 v. Van Buskirk 267 v. Wardwell 616 v. Weaver 145 Greenabaum v. Elliott 72 Greenaway v. Adams CITED. XX1xX 7 PAGE Green Bay Canal Co. v. Hewitt 168, 171, 172, 848, 581, 682, 692 Greenby v. Wilcocks 464 Greencastle v. Black 654 Greene v. Greene 211 v. Smith 590, 596, 597 Greenfield Bank v. Stowell 512, 536, 618 Greenup v. Crooks 676 Greenvault v. Davis 464 Greenville R. Co. v. Joyce 689 Gregg v. Von Phul 566 v. Wells 547, 564, 586 Gregory v. Doidge 466, 469 v. Hobbs 171 Gridley v. Hopkins 547 Griefswald, The 226, 244, 245, 246 Griffin v. Eaton 262 v. Lawrence * 688, 661 v. Nichols 564 v. Rusdell 586 v. Seymour 50 v. Wallace 144 Griffith v. Clarke 100, 193 Griggs v. Gibson 644 Grignon v. Astor 245, 277 Grim’s Appeal 579, 581 Grimmet v. Henderson 188 Grissler v. Powers 6382, 633 Grisson v. Reynolds 134 Grist v. Hodges 464 Griswold v. Haven 535, 540, 542 v. Hill 97 v. Seligman 534, 624 Grosholz v. Newman 835, 346 Groton Bank »v. Batty 638 Grout v. Chamberlin 309 Groves v. Blondell 620 Grusenmeyer v. Logansport 63 Gudger v. Barnes 489 Guernsey v. Carver 182, 186 Guichard v. Brande 621 Guild r. Thomas 537 Gunn v. Howell 183, 245, 272, 316 Gurnsey v. Edwards 212 Guthrie v. Howard 101 v. Quinn 560 Gwinn v. Smith 335 H. Hackett v. Callender 618 v. Ottawa 865, 582 XXX CASES PAGE Hadley v. State 487 Hager v. Burlington 592 v. Spect 136 Hagerman v. Ohio Building Assoc. 526 Hagey v. Detweiler 597 Hahn »v. Kelly 192, 193, 196 Hailey v. Boyd 138 Haines v. Dennett 498, 543 Hains v. Gardner 334 Haldeman v. United States 68 Hale v. People 281 v, Skinner 553, 596, 685 Halifax Union v. Wheelwright 512 Hall v. Armor 141 v. Benner = 472 v. Blake 134 v. Butler 466, 471 v. Callahan 577 v. Cavanaugh 611 v. Fisher 566 v. Hamlin 209, 210 v. Jackson Co. 620 u. Levy 145, 177 v. Matthews 327 v. Odber 281, 300 v. Sigel 130 v. Stryker 148 v. Timmons 585 v. Williams 262, 266, 282, 288, 287, 288, 291 v. Winchell 276 Halliday v. McDougall 290 Hallifax v. Lyle 515 Hallock v. Dominy 62 Halloran v. Whitcomb 596, 685 Hambleton v. Central Ohio R. Co. 621 v. Veere 161 Hamilton v. Cutts 464 v. Dutch East India Co. 253 v. Houghton 97 v. Marsden 472 v. Quimby 144 v. Zimmerman 653 Hamilton Hydr. Co. v. Cincinnati R. Co. 484 Hamlet v. Richardson 170 Hamlin v. Hamlin 682, 688, 684 v. Sears 627 Hammerslough v. Cheatham 669 v. Kansas City Assoc. 654, 555 Hammond v. Wilder 209, 297 Hamner v. Pounds 144 Hampton v. McConnel 262, 297 CITED. Hancock v. Welch Haney v. Ray Hanham v. Sherman Hanley v. Donoghue uv. Foley Hanna v. Read Hannah v. Collins Hannon v. Christopher Hanson v. Chiatovich Haralson v. George Harbaugh v. Albertson Harbin v. Bell Harden v. Darwin Hardigree v. Mitchum Hardin v. Palmerlee Harding v. Hale Hardman v. Willcock Hardy v. Akerly v. Chesapeake Bank v. Mills v. Nelson Harlow v. Marquette R. Co. v. Pike Harmon v. Birchard Harness v. Green Harriman v. Gray . Harris v. Brooks v. Hardeman v. Harris v. Kirkpatrick v. Mulkern v. Willis Harrison v. Phenix Ins. Co. v. Rowan v. Stewardson v. Wilkin Harshey v. Blackmarr Hart v. Bullion v. Cummins v. Giles v. Gregg v. McNamara Harter v. Kernochan Hartman v. Ogborn Hartshorn v. Potrofft Hartung v. Witte Harvey v. Farnie v. Morris v. Osborne Haskell v. Putnam Hass v. Plautz Hassell v. Hamilton PAGE 115 387, 656 71, 80, 175 267, 288, 297 91 84, 89 387 350, 851, 352, 388 668 188 281, 691 659 329 547 129 285, 296 556 272 592 887 45, 215 865, 583 101, 209 660 596 236 489 127 462 596, 697 272 CASES PAGE Hasselman v. United States Mortg. Co. 336, 529 Hastings v. Pepper 538 Hatch v. Bullock 449 v. Coddington 189 v. Kimball 685 v. Spofford 97, 302 Hatcher v. Dillard 221 141 221 548 464, 475 492, 630, 631 Hawkes v. Orton 465 v. Truesdell 48, 698 Hawkins v. Methodist Church 647, 621 Hatchett v. Berney Hatfield v. Hatfield Hathaway v. Noble Hawes v. Shaw v. Watson Hawks v. Munger 536 Hawley v. Simons 79 v. Smith 68 Haws v. Tiernan 63 Haxtun v. Sizer 362, 549 Haydock v. Coope 657 Hayes v. Livingston ; 682 v. Virginia Protection Assoc. 669 Hayne v. Maltby 357, 361 Haynes v. Ordway 176 v. Stevens * 548, 404 v. Thomas 617 Hays v. Askew 871 v. Reger 575 Hazard v. Irwin 341 91 265 544, 546, 612, 683 828, 682, 684 890, 400, 415, 419 Hazen v. Reed Healy v. Root Heane v. Rogers Heard v. Hall Heath v. Crealock v. Frackelton 94 v. Franklin Ins. Co. 686 v. Keyes 551 Heck v. Fisher Hefner v. Dawson v, Vandolah 554, 620 Helena, The Helena v. Turner Hemenway v. Wood Hemphill v. McKenna Hendershot v, Henry Henderson v. Henderson Hendricks v. Kelly Hendrickson v. Hinckley 192 v. Norcross 94, 191 Henrick and Maria, The 248, 245 634 Henry v. Gilliland CITED. Xxxi PAGE Henry Co. v. Winnebago Drain Co. 657 Hentz v. Miller 652 Herbert v. Fera 48 Herbst v. Smith 63 Hern v. Nichols 519, 621 Herrick v. Belknap 65 v. Malin 559 Hertzberg v. Beisenback 400 Hewett v. Currier 656, 689 Hibshman v. Dulleban 146 Hickling v. Wilson 654 Hicks v. Cram 596 Higginbotham v. Cornwell 647 Higgins, Ex parte 106 v. Chicago 660 Hightower v. Overhaulser 654 Hilbourn v. Fogg 459, 463, 480 Hill v. Den 822 v. Hill 553 v. Huckabee 60, 526, 650, 691 v. Manchester 357, 858 v. Minor 824 v. Moore 65 v. Nisbet 656 v. Tucker 809 v. West 829 Hillock v. Traders’ Ins, Co. 590 Hills v. Laming 361, 863 v. Miller 587 v. Sherwood 143 Hindson v. Weatherill 205 Hine v. K.& D. R. Co. 98 Hirth v. Pfeifle 132 Hiss v. Baltimore Ry. Co. 617 Hitchcock v, Aicken 256, 259 v. Fortier 404 v. Galveston 631 v. Harrington 834 Hitchin v. Campbell 108, 190 Hitechman v. Waltman 487 Hobbs v Duff 179 v. Henning 232 Hockaday v. Skeggs 277 Hodges v. Spicer 576 Hodgson, In re 106 Hodsall v. Stallebrasse 160, 161 Hoeger ». Chicago Ry. Co. 538, 655 Hoffmire v. Holcomb 657 Hogan v. Harley 475 Holbert, Estate of 48 Holbrook v. Debo 895 ov. Tirrell 641 ‘Holcomb v. Tift 103 xxxii CASES “ PAGE Holdane v. Cold Spring 616 Holden v. Putnam Ins. Co. 663 Holland v. Anderson 608, 609 v. Cruft 887, 432 v. Hatch 538, 57 Holloway v. Galliac 471 Holmes v. Remsen 305 v. Steele 638 v. Trumper 612, 618 Holt v. Alloway 286, 293 v. Martin 483 Home Ins. Co. v. Gamble 132 v. Sherwood 531 Homer v. Brown 51, 52 v. Fish 176, 211, 212, 294 Hone v. Henriques 657 Hood v. Hood 44, 46, 49, 81, 219, 220, 247, 289, 299 Hooker v. Hubbard 158, 634, 650, 691, 692 Hoover v. Kilander 662 Hopcraft v. Keys 459, 466 Hope v. Lawrence 567 Hopkins v. Lee 91 Hopper v. McWhorter 71 Hoppin v. Hoppin 898, 440 Hopple v. Hipple 577 Horn v. Cole 362, 491, 547, 549, 610, = 612, 619 v. Lockhart 60 Hornby v. Glenn 327 Hortman v. Osgood 198 Horton v. Davis 656 v. Westminster Commission- ers Hortsman v. Henshaw 357 600, 501, 502, 608, 505 552 63 250 Hosford v. Johnson Hosmer v. Wallace Houlditch v. Donegal Housatonic Bank v. Martin 340, 360, 363 House v. McCormick 883 Houston v. Matthews 598 v. Turk 330 Houstoun v. Sligo 79, 81, 95, 164, 168, 171, 672 Hovenden v. Annesley 478 Hovey v. Woodward 363 Howard v. Chase 860 v. Hudson 556, 620, 622 v Massengale 641 Howard Co. v. Bullis 660 CITED. PAGE Howe Machine Co. v. Farrington 554 Howell v. Goodrich 176 v. Hale 329 Howes v. Austin 61 Howland v. Woodruff 647, 575 Howlett v. Tarte 71, 175, 211, 212 Hoxie r. Finney 395 Hoyt v. Sprague 628 Hubbard v. Norton 348, 404 Hubert v. Fera 698 Hudgens v. Cameron 141 Hudson v. Guestier 244, 245 v. Winslow 354 Huffer v. Allen 88 Hughes v. Alexander 72, 158 v. Cornelius 218, 221, 228, 229, 231, 232, 241 v. Edwards 478 v. United States 65 Hull v. Blake 306 v. Hull 620 v. Johnston 689 v. Pleasant Valley 658 Hull Mill Co. v. Wellesley 599 Humphreys v. Newman 399 Hundley v. Filbert 549 Hungerford’s Appeal 145 Hungerford v. Cushing 202, 281 v. Moore 658 Hunt v. Cope 463 v. Haven 118 v. Hunt 236, 247, 293, 299 Hunter v. Davis 144 v. Heath 621 uv. Prinsep 244 v. Sandy Hill 616, 626 Huntington v. Charlotte 195 v. Pritchard 835, 336 Hussman v. Wilke 452 Hutchinson v. Bank of Wheeling 98 Huzzard v. Nagle 125 Hyde v. Baldwin 522, 648 Hyde Park v. Borden 638 re Iberia v. Serrett 658 Idaho, The 490, 491 Thmsen v. Ormsby 168 Illinois v. Delafield 520 Illinois Ins. Co. v. Wolf 638 Illinois Masona’ Soc. v. Baldwin 620 CASES PAGE Imboden v. Etowah Mining Co. 629, 656 Imrie v. Castrique 87, 283, 234, 264, 272 Incledon v. Burges 89 Indiana v. Helmer 265, 272 Ingham v. Ingham 647 Ingraham v. Baldwin 472 Inman v. Mead 142 Innis v. Lyman 426 v. Templeton 579 Insurance Co. v. Bruce 3854, 365, 532 v. Eggleston 634, 685 v. Harris 259, 267, 668 v. Mowry 656, 558, 684, 636 v. Norton 634 v. Wolff 684, 685 Insurance Co. of Penn. v.Smith 638 International Bank v. German Bank 559 v. Bowen 587 Irby v. Kitchell 495 Iredell v. Barber 516 Iron Mountain Bank v. Murdock 512 Irvin v. Nashville Ry. Co. 562 Irvine ». Adams : 577 v. McKeon 373 Irving v. Excelsior Ins. Co. 690 Irving Bank v. Wetherald 508, 517 Irwin v. Merrill 585 Ish v. Crane 656 Isquierdo v. Forbes 249 Iverson v. Saulsbury 582 Ives v. North Canaan 627, 652 v. Sawyer 886, 346, 4338, 484 J. Jack v. D. & M. R. Co. 691 Jackson v. Allen 355, 494, 555 v. Ayres 470, 471, 489 v. Bradford 397, 427 v. Brinckerhoff 340 v. Brownell 454 v. Bull 394 v. Carver 349 v. Cuerden 474 v. Lawton 63 v. Marsh 126 v. Murray 894 v. Pixley 628 v. Randall 92, 189 CITED, XXxiii PAGE Jackson v. Sinclair 350 v. Somerville 175, 209, 212 v. Spear 474 v. Thompson 860 v. Tiernan 309 v. Vanderheyden 329, 330 v. Walker 489 v. Wood 154, 276 Jacksonville R. Co. v. Cox 390 Jacobs v. Hill 138 v. Miller 648, 656 Jacocks v. Gilliam 429 James v. Patterson 489 v. Russell 536 v. Wilder 338 Jameson v. McCoy 54 Jamison v. Miller 628 Janeson v. Janeson 565 Jaqua v. Montgomery 562 Jarboe v. Smith 68 Jarrett v. Kennedy 690 Jarvis v. Aikens 423 Jasper v. Ballou 365, 583 Jay v. Carthage 52 Jeffers v. Philo 559 Jemison v. Cozens 342 Jenkins v. Harrison 191 v. International Bank _—89, 94, 97 v. Means — 651 v. Robertson 69, 129 Jennison ». West Springfield 172 Jessup v. Carnegie 59, 676 Jew v. Wood 465 Jewell v. Rock River Paper Co. 448, 536 Johnson v. Johnson 186 uv. Northey 97 v. Owen 559 v. Pate 53 v. Provincial Ins. Co. 185 v. Pye 684 v. Riddle 144 v. Robertson 129 v. Thompson 824, 360 v. Watts 836, 433 Johnston v. Riddle 673 Joliffe v. Baker 589 Jolliffe, Ex parte 237 Jolly v. Arbuthnot 352, 481, 482 Jones v. Bow 220 v. Burnham 494 vo. Clark 652 v. Congregation of Mt. Zion 689 xXxxiv CASES PAGE Jones v. Cowles 680 v. Darch 613 v. De Graffenreid 121 v. Dorr 621 v. Drewry 268, 264 v. Gallatin 861 v. Gerock 266 v. Gregory 205 v. Hawkins 198, 547 v. Jamison 804 v. Kearney 682 v. King 395 v. Long 123 v. Morris 322 v. Oswald 127 v. Powell 587 v. Reese 829, 392, 486, 487 v. Richardson 190 v. Ritter 142, 200 v. St. Johns College 65 v. Scanland 516 ». Stanton 403 v. Underwood 52 v. Weathersbee 177 Jordaine v. Lashbrooke 498 Jordan v. Faircloth 94 v. Money 656, 557 v. Phelps 72 Jourdan v. Jourdan 401 Jowers v. Phelps 547 Joyce v. Williams 520, 597, 598 K, Kaehler v. Dobberpuhl 688 Kane v. Bloodgood 478, 487 v. Cook 804 Kane County v. Herrington 580 Kanne v. Minneapolis Ry. Co. 50, 51 Kansas Pacific Ry. Co. v. Dun- meyer Kearney v. Dean 3385 219 Keate v. Phillips 447, 648, 545, 578 Keater v. Hock 53 Keating v. Orne 559 Keeler v. Vantuyle 566 Keen v. Coleman 581, 583 683 596 48 551 836 v. Hartman Keer v. Hitt Keiffer v. Ehler Keith v. Goodwin v. Keith CITED. PAGE Keller v. Equitable Ins. Co. 608 Kelley v. Donlin 94, 144 v. Mize 209, 210 v. State 855 Kellogg v. Ely 654, 655 v. Smith 594 Kelly v. Dutch Church 126 v. Seward 387 v. Turner 829 Kelso’s Appeal 640 Kemp v. Lyon 690 Kendal v. Talbot 60, 51 Kendall v. Hamilton 106 v. Titus 103, 528 Kenicott v. Supervisors 533 Kenn’s Case 221 Kennedy v. Brown 360 v. Cassilis 235, 252 v. Georgia Bank 192 v. Redwine 192, 547, 691 Kennell v. Abbott 206 Kent v. Hudson River R. Co. 118 v. Quicksilver 627 Kepp v. Wiggett 355, 366 Ker v. Wauchope 643, 644 Kerbourgh v. Vance 335 Kerr v. Kerr 236, 285, 288 v. Shaw 464 Kersall v. Marshall 254 Ketchum v. Duncan - 621 v. Schicketanz 336, 346 Keyes v. Scanlan 634 Keyser v. Simmons 487, 658 Kidder v. Blaisdell 142, 326, 363 Kiefer v. Rogers 608, 609 Kierlighett, The 245 Kile v. Yellowhead 660, 688 Kilgore v. Jordan 684 Kilheffer v. Herr 187 Kille v. Ege 92, 189 Killen v. Marshall 140 Killsa v. Lermond 182 Kimball v. 2Etna Ins. Co. 558 v. Boston 661 v, Gay 1384, 305 v. Kimball 834 v. Lee 662 Kimberly v. Patchin 437 Kimbro v. Hamilton 870 Kimmel v. Benna 122 Kincaid v Donnell 596 King v. Boston 169 v. Chase 115, 144, 158, 155 ° CASES PAGE King v. Dunn 149 v. Hoare 103, 104, 106, 107 v. Norman 188, 142 v. Penn 281 v. Rea 330, 890, 579 v. Reynolds 400 v. Van Gilder 312 Kingman v. Graham 664, 565, 575, 608, 610, 612 288 118, 116 494 895 647, 587, 610 89 Kingsbury v. Yniestra Kingsley v. Davis Kingsman v. Kingsman Kinnear v. Lowell a Mackey Kinnersley v. Orpe Kinney v. Whiton 6577, 610, 618, 619, 620 Kinnier v. Kinnier 236 Kinsman v. Loomis 336, 401 v. Parkhurst Kip v. Brigham Kipp v. Fullerton Kirby v. Fitzgerald Kirchner v. Miller Kirk v. Hamilton Kirklan v. Brown Kirkland v. Trott Kirkman v. Bank of Greensboro Kirkpatrick v. Brown Kist v. Atkinson Kitchen v. Bartsch Kitzmiller v. Rensselaer Klein v. Caldwell 681, 583 Klinesmith v. Socwell Knapp v. Abell v. Marlboro Knibbs v. Hall Knight v. New England Worsted 89, 692 577 682 Co. 186 v. Thayer 101, 330, 423 v. Wall 682, 683 Knights v. Wiffen 491, 540, 549, 621, 628, 629 Knott v. Cunningham 111 Knouf v. Thompson Knowles v. Gaslight Co. Knox »v. Clifford v. Sterling v. Waldoborough Knox County v. Aspinwall v. Wallace Koons v. Davis Kortz v. Carpenter 608, 675 288, 675 552 127 52 582 533 510, 561, 562, 590 464 CITED. XXXV PAGE Kramph v Hatz 127 Krekeler v. Ritter 668 Kuhl v. Jersey City 641, 610 Kunzie v. Wixom 642 L. Lackland v. Stevenson 652 Lackman v. Wood 584 Lacy v. Johnson 489 Ladd v. Durkin 140 Ladrick v. Briggs 661 Lady Franklin, The 6388 Lainson v. Tremere 350, 855, 357, 889 Lake Shore Ry. Co. v. State 80 Lamb v. Gatlin 70, 97 v. Walker 161, 162 Lambert v. Smith 241 Lampon v. Corke 820 Lamprey v. Nudd 108 Lamson v. Clarkson 459 Lancaster’s Appeal 221 Land Co. v. Saunders 331 Landis v. Hamilton 99, 119 Landon v. Litchfield 627, 652 Lane v. Degberg 217 v. Miller 638 Lang v. Holbrook 2384 Langan v. Sankey 556, 655 Langdon v. Doud 555, 656 Langford v. Selmes 384, 386 Langmead v. Maple 55, 674 Langton v. Lazarus 505 Langworthy v, Baker 196 Lanigan v. New York 60 Lansing v. Gaine 520 v. Van Alstyne 464 Lantz v. Maffett 123, 124, 192 Lapham ». Briggs 288, 804 Lapping v. Duffy 639 Larkin v. Mead 548 Larkins v. Mason 138 Latham »v. Edgerton 201 Lathrop v. Kneeland 533 Latine v. Clements 309 Latiolais v. Citizens’ Bank. 529 Laughton v. Atkins 237 Laverty v. Burr 520 v. Moore 596 Lawes v. Purser 494 Lawrence v. Ballou 687 v. Berney 97 xxxvi CASES PAGE Lawrence v. Englesby 221, 222 v. Fox 360 v. Gaultney 312 v. Hunt 81, 82, 121, 144, 276 v. Jarvis 285, 288 v. Luhr 566 v. Milwaukee 50 v. Stratton 641 v. Towle 620 v. Vernon 108 v. Webster 336 Lawrence Univ. v. Smith 659 180 256 48, 698 500, 510 Lazell v. Miller Lazier v. Westcott Lea v. Lea Leach v. Buchanan Learned v. Bryant 549 Leary v. New 486 Leather Manuf. Bank v. Morgan 664, 665, 568, 576, 590, 591, 603, 610, 613, 621, 628, 629, 682 Leavitt ». Putnam 522 v. Wolcott 96 Le Chevelier v. Lynch 805 Lechmere v. Fletcher 103, 104 Lee v. Clark 126, 360 v. Dolan 65 v. Gardiner 657 v. Hopkins 84 v. Lake 627, 684 v. Monroe 543 v. State 123 v. Templeton 642 v. West 111 Leeper v. Hersman 610 Legge v. Edmons 124 Leggett v. Great Northern Ry. Co. 123 Le Guen v. Gouverneur 73, 91 Lehman v. Bradley 139 v. Warner 362, 526, 527 Leinkauff v. Munter 96, 128 Leland v. Marsh 162 Lemmon v. Hartsook 596 Leonard v. Baker 56 v. Simpson 74, 124 v. Whitney 144 Lesher v. Sherwin 489 Lesterjette v. Ford 291 Leutz v. Wallace 155 Levering v. Shockey 874, 582 Levi v. New Orleans Ins. Assoc. 214 Levy v. Gray 582 v. Hale 626 CITED. PAGE Levy v. Horne 839 Lewis v. Alexander 566 v. Allred 200 v. Board of Commissioners 71 v. Champion 639 v. Kingman 834 v. Lanphere 647 v. Lewis 205 v. Rogers 210 v. Webber 549 v, Willis ~ 451 Lexington R. Co. v. Elwell 662 Libbey v. Pierce 864, 528, 554 Lichtenberger v. Graham 586 Lilley v. Adams 642 Lincoln v. Tower 281, 288, 293 Lindell v. McLaughlin 598 Lindner v. Brock 491, 549 Lindsey v. Danville 87 v. Hawes 331 Linington v. Strong 56 Lippmins v. McCrannie 547 Lipscomb v. Postell 125 Litchfield v. Cudworth 223 Lithgow v. Kavenagh 330, 440 Littlefield v. Brown 648 v. Perry 437 Littleton v. Clayton 454, 457, 463 v. Richardson 125 Livermore v. Aldrich 374 Liverpool Assoc. v. Fairhurst 583 Liverpool Bank v. Walker 106 Liverpool Credit Co.v. Hunter 247, 255 Liverpool Wharf v. Prescott 593 Livingston v. Hastie 520 Lloid v. Maddox 221 Lloyd v. Barr 64, 96 v. Lloyd 415 Loan Association v. Topeka 655 Lobdell v. Baker 589 Lochte v. Gélé 536 Locke v. White 395 Lockhart v. Locke 244 Lockyer v. Ferryman 177 - Loeb v. Willis 58, 57 Loftus v. Maw 555 Logan Co. v. Lincoln 524 Logansport v. Humphreys 68, 94 v, La Rose 63, 64, 608, 654 v. Uhl 638, 651 Lomax v. Smyth 558 Lomerson v. Hoffman 133 CASES PAGE London & Northern Ins. Co., In re 600 London & Northwestern Ry. Co. v. West 456, 480 London Ry. Co. v. Lindsay 298 Long v. Anderson 610 v. Bullard 651 v. Fox 687 v. Wilkinson 835, 836 Longfellow v. Moore 634 Long Island R. Co. v. Conklin 400 Loomis v. Pingree 397 v. Pulver 73 Lorain v. Hall 349 Lord v. Lord 647 v. Wilcox 123, 124 Lorentz v. Lorentz 621, 627 Loring v. Folger 133 v. Mansfield 72 »v. Otis 359 v. Steineman 221, 223 Los Angeles v. Mellus 63 Lot v. Thomas 848, 404 Lothian v. Henderson 44, 227, 232 Lothrop v. Foster 439 Loud v. Loud 236 Loudenback v. Collins 55 Louis v. Brown 96 Louisiana Levee Co. v. State 98 Louks v. Kennison 590, 596 Love v. Gates 336, 433 v. Gibson 124, 125 v. Law 454 v. Trueman 55 Lovejoy v. Murray 110, 119 Low v. Bartlett 809, 310 v. Mussey 277 Lowell v. Daniels 829, 579 Lowry v. Inman 1380 vo. Lumberman’s Bank 181 Lucag v. Bank of Darien 293 v. Beebe 354 v. Brooks 470 v. Greenville Assoc. 529 v. San Francisco 68 Luce v. Dexter 110, 111 Luckenback v. Anderson 49, 296, 298 Lufkin v. Curtis 330, 440 Lumber Co. v. Buchtel 178 Lund v. Seaman’s Bank 490, 491 Lunsford v. Alexander 456 Lunt v. Holland “859 _Luntz v. Greve 130 Lush, In re 582 CITED. xxxvil PAGE Lyman »v. Faris 117, 129 Lynch v. Swanton 94 Lyon v. Northrup 125 v. Reed 669 v. Robbins 80 v. Travellers’ Ins. Co. 636, 687 Lyons v. Munson 365, 532 M. Mackintosh v. Smith 151 Macknet v. Macknet 651, 652 Maddison v. Alderson 655, 557 Madison Co. v. Paxton 590 Magee v. Hallett 831 Maghee v. Collins 158 Magoun v. New England Ins. Co. 45, 215, 218, 282, 247 Magrath v. Hardy 132 Magruder v. Esmay 389 Mahnrin v. Bickford 811 v. Harding 589 Maigley v. Hauer 373 Mailhouse v. Inloes 74 Major v. Rice 597 Majors v. Cowell 123 Males v. Lowenstein 64 Maley v. Shattuck 238, 240 Malin v. Malin 566 Mallett v. Foxcroft 168 Malley v. Thalheimer 638 Mally v. Mally 144 Man v. Drexel 92, 189 Manhattan Ins. Co. v. Broughton 52 Manigault v. Deas 140 Mankin v. Chandler 225 Manny v. Harris 81 Mansfield v. Hoagland 128 Mansur v. Haughey 558, 617 Manufacturers’ Bank v. Hazard 612 Manufacturing Co. v. Elizabeth 354 v. Montgomery 529 Maquoketa v. Willey 652 Marble v. Keyes 182 Marchant v. Errington 333, 889 Marco v. Fond du Lac Co. 638, 540 Marcy v. Oswego 533 Marine Bank »v. Fiske 576 Marine Ins. Co. v. Hodgson 192 Mariner v. Milwaukee & St. Paul R. Co. 685 XXXVIli CASES PAGE Marion Bank v. Dunkin 527, 529 Marion Road Co. v. McClure 592 Markham v. Middleton 158 v. O’Connor 575 Markland Co. v. Kimmel 564 Marlborough v. Lisson 182 Marquart v. Bradford 565 Marquette R. Co. v. Marcott 690 Marqueze v. Fernhadez 620 Marriot v. Marriot 206 Marriott v. Hampton 73, 85, 91, 170, _ 179, 180 Marsh v. Harris Manuf. Co. 494 v. Pier 79 v. Thompson 346, 488 Marshall v. Fisher 102 v. Pierce 684 v. Shafter 122 Marston v. Hobbs 881 v. Swett 494 Martel v. East St. Louis 624 Martin v. Jersey City Ins. Co. 634 v. Kennard 316 v. Kennedy 109 v. Nicolls 251, 252, 294 v. Tally 138 v. Walker 95 v. Webb 586 v. Zellerbach 552 Marvin v. Dutcher 144 Mary, The 44, 45, 244 Mason v. Anthony 544 v. Eldred - 106 v. Finch 652 v. Mason 838, 641 v. Messenger 210 v Patterson 74 v. Philbrook 575 Masser v. Strickland 188 Massey v. Building Assoc. 527 Massie v. Sebastian 329 Masterson v. Matthews 60 Matheny v. Mason 491 Mather v. Maidstone 508 Mathes v. Cover 186 Matoon v. Clapp 263, 276 Matthews v. Houghton 131 v. Matthews 66 Matthey v. Wiseman 183 Mattison v. Aussmuss 846 Mattoon v. Young 554 Mattox v. Hightshue 101 Maury v. Coleman 562 CITED. PAGE Maxwell v. Bay City Bridge Co. 5859, 564, 620, 638, 640 v. Stewart 267 May, In re 52, 79, 156, 177, 180 uv. Gates 562 vo. Marks 94 Mayenborg v. Haynes 577, 611, 619 Mayer v. Erhardt 547 v. Ramsey 608, 669 Mayfield v. Wadsley 186 Mayo v. Ah Loy 200 v. Cartwright 575 v. Wood 136 Mayor v. Lord 191 v. Pyne 187 Mays v. Stoneum 60 McAbe v. Thompson 620 McAdams v. Hawes 610 McAfee v. Fisher 561, 562 McAfferty v. Conover 685 McAleer v. Horsey 568 McAllister v. Brooks 1381 McAuly v. West Vt. Ry. 640 McBee »v. Fulton 100 McBeth v. Trabue 584 McBlair v. Gibbes 495 -McBridge v. Greenwood 392 McBroom v. Lebanon 529 McOabe v. Raney 562 McCall v. Carpenter 268, 278 v. Coover 389 v. Jones 50, 81 v. Powell 621 McCalley v. Robinson 144, 673 v, Wilburn 73 McCance »v. London, &. Ry. Co. 620, 623 McCann v. Atherton 610 McCarthy v. Lavasche 526, 659 v. Mann 423 McClure v. Commonwealth 526, 659 v. Englehardt 335 v. Lewis 628 v. Oxford 531 McConnell v. Bowdry 470, 471 v. People 662 McCoon v. Smith 580, 584 McCormick ». Baltimore 616 v. Barnum 597 uv. Penna. Cent. R. Co. 128, 689 v. Sullivant 192, 200 McCrae v. Purmort 373 McCramer v. Thompson 612 CASES PAGE 635 447 McCraw v. Old North Ins. Co. McCreary v. Parsons McCreery v. Fuller McCrory v. Parks 96 McCullough v. Clark 74 v. Wilson 683 McCune ». MeMichael 685 McCusker v. McEvey 423, 432 McDaniel v. Hughes 805 McDonald v. Gregory 98 v. Lusk 363 v. McDonald 496 v. Mobile Ins. Co. 95, 144 v. Muscatine Bank 512 McDowell v. Graham 681 v. Langdon 67 v. Peyton 205 McElmoyle v. Cohen 51, 268, 265, 275, 279 McEwen v. Jenks 553 McFarlane v. Cushman 53 McGilvray v. Avery 97, 302 McGirr v. Sell 554 McGregor v. Rhodes 501 McIntire v. Yates McKay v. Kilburn McKee v. Monterey Co. McKellar v. Bowell McKelway v. Armour, McKenzie v. British Linen Co. + 564, 576, 613 McKleroy v. Southern Bank 609 McKnight v. Dunlop 187 v. Pittsburgh 644 McLaughlin v. Citizens’ Building Assoc. 527 v. McGee 56, 122 McLean v. Dow 638 v. Meek 141, 309 v. State 657 McLeery v. McLeery McLendon v. Dodge McMahon v. Merrick McMaster v. Ins. Co. of N. A. 553, 610, 620, 622 MecMath ». Teel 488 MeMicken »v. Cincinnati 64 v. Perin 495 McMorris v. Webb 580, 581 McMullin v. Glass 375 MeNairy v. Nashville McNamara v. Arthur McNamee v. Moorland CITED. XXxix PAGE McNeil v. Hill 641 v. Tenth National Bank 647 McPherson v. Foster 530 McQueen’s Appeal 689 McQueen v. Gamble 687 v. McQueen 60 McRae v. Mattoon 209, 294 McReynolds v. Jones 656 McStea v. Matthews 547 McWilliams v. Nisly 431 v. Ramsay 496 Mead v. Bunn 608 v. Figh 550 v. Keeler 659 v. Mitchell 131 Meadowcroft v. Huguenin 207, 211, 219, 220 Meadows v. Duchess of Kingston 203, 206 Meads v. Merchants’ Bank of Al- bany 517, 522 Means v. Hicks 188 Mecca, The 47, 248, 245, 293 Megargel v. Megargel 538 Megee ». Beirne 47, 48, 56, 225 Meily v. Butler 582 Meister v. Birney 621 Meley v. Collins 652 Melick v. First National Bank 176 Melms v. Werdehoff 651 Meltzer v. Doll 48, 98 Meluish v. Milton 206 Menasha v. Hazard 865, 582 Menaugh v. Chandler 362 Menlove v. Oakes 289 Mercer County v. Hacket 538 Merchants’ Bank v. Chandler 130 v. National Bank 508 v. State Bank 518, 519, 531 Merchants’ Ins. Co.-v. De Wolf 279 Mercier v, Chace 192, 200 Meredith v. Santa Clara Assoc. 81 Meriam v. Rundlett 131, 307 Merrells v. Phelps 671 Merriam v. Boston R. Co. 3380, 338, 840, 579 v. Cunningham 684 v. Hassam 487 v. Sewall 223 Merrick’s Estate 643 Merrill v. Welsher 559 Merritt v. Harris . 887, 895 v. Horne 685 xl CASES PAGE Merryman v. Bourne 346 Merus v. Thelusson 298 Mervin v. Kumbel 291 Messina v. Petrococchino 255 Metropolitan Ry. Co. v. Chicago R. Co. 662 Metters v. Brown 124, 327 Mey v. Gullman 55 Meyer v. Clark 642 v. Mitchell 663 v. Muscatine 533 v. Ralli 255 v. Wiltshire 526 Michell v. Ingram 362 Michigan v. Phenix Bank 212 Michigan Panelling Co. v. Parsell 559, 566, 620 Michigan Ry. Co. v. Mellen 656 Middlesex Bank v. Butman 256 Middleton’s Case 124 Midland R. Co. v. Hitchcock 590 Mihills Manuf. Co. v. Camp 576 Mildway v. Smith 544, 626 Miles v. Caldwell 121 e. Furber 535 v. Lefi 548 v. Lingerman 580, 581 Milford v. Holbrook 125 Millard v. McMullin 824 Miller’s Appeal 566, 592 Miller v. Brooklyn Ins. Co. 538 v. Brown 628, 638 v. Cook 68, 94 v. Covert 182 v. Eagle Ins. Co. 636 v. Ewing 397 » Goodwin 874 v, Lang 454, 463, 475 v. Manice 79, 177 v. McBrier 469, 472 v. Miller 298, 652 v. Moses 369 v. Noble 130 v. Shackleford 836 v. Sullivan 540 v. White 1380 Millisent v. Millisent 221 Mills v. Catlin 395 v. Duryee 259, 260, 262, 282 v. Graves 682 v. Martin 201 Milne v. Van Buskirk 272, 296 Minet v. Gibson 5038 CITED. Minor v. Mechanics’ Bank 63 v. Walter 74, 187 Miranville v. Silverthorn 566 Mitchel v. Barry 846, 488 Mitchell v. Cook 63 v. Darley Colliery Co. 146, 160, 161, 162 v. Ingram 560 v. Kintzer 208 v. Lipe 486 v. Ostrom 536 v. Reed 619 v. Sanford 73 Mix v. People 354 Mobile v. Kimball 55 Mobile Ry. Co. v. Wilkinson 372, 376 Moffat v. Strong 446, 451 Moffett v. Bates 646 Mojarrieta v. Saenz 559 Monarque v. Monarque 131 Mondel »v. Steel 168, 169, 170 Monette, Succession of 642 Monin v. Beroujon 496 Monks v. Belden 620 Monroe v. Douglass 199, 238, 256 Montague v. Weil 547 Montgomery’s Case 351 Montgomery »v. Clark 237 v. Gordon » 584 v. Montgomery Plank Road Co. 529 Moore v. Beasley 453 o. Byrum 437 v. Metropolitan Bank 647, 552 v. Toppan 198 Moores »v. Citizens’ Bank 616 Moors v. Albro 559 Moran v. Miami County 533 Morgan, Ex parte 95 v. Bliss 62 v. Burr 81, 94, 144 v, Chester 111, 114 v. Elam 559 v. Larned 485 v. Moore 359 v. Muldoon 84, 124, 126 v. Railroad Co. 665, 566, 617 v. Rowlands 168 v. Spangler 577, 619 v, Vaughan 689 Morin »v. St. Paul Ry. Co. 223 Morrell v. Morgan 51, 54 Morris v. Bethell 509 CASES PAGE Morris v. Hall 656 uv. Rexford 642 v. Shannon 547 v. State 526, 658, 659 v. Webber 221 Morris Co. v. Hinchman 129 Morris R. Co. v. Railroad Co. 681 Morrison v. Bassett 452, 454 v. Bowman 643 v. New Bedford Inst. for Sav- ings 183 v. Wilson 579 Morriss v. Garland 688 Morse v. Byam 563 v. Curtis 432 v. Dearborn 589, 590 v. Elms 89, 144, 154 v. Goddard 463, 464 v. Goold 59 v. Presby 192, 195, 199 v. Toppan 100 Morton v. Hodgdon 618 v. Sweetser 53 v. Woods 850, 852, 481, 482 Mosely v. Hunter 401 Moses v. Macferlan 179, 180 v. St. Louis Dock Co. 577 v. Sanford 638 Moshier v. Frost @ 642 Moss v. McCullough 130, 139 v. Oakley 180 v. Sallimore 485, 487 Motley v. Harris 79 Mott v. Consumers’ Ice Co. 689 Motz v. Detroit 529, 652, 655 Moulton v. Reid 123 v. Trask 183 Moultrie v. Savings Bank 6383 Mt. Morris Square, In re 64 Mountnoy v. Collier 480 Mowrey v. Walsh 547 Moyer v. Lobengeir 134 Mueller v. Henning 94 Muhlenberg v. Druckenmiller 365 Mull v. Orme 63 Muller v. Pondir 610 Mulligan v. Smith 84, 193 Mumford v. Stocker 97 Muncey v. Joest 201 Munford v. Overseers 188 v. Pearce 346 Munroe v. Luke 688 Munson v. Munson 277 CITED. xii : PAGE Murdock v. Chapman 359 v. Gaskill ; 54 Murphy v. Barnett 433 v. People’s Ins. Co. 620 Murray v. Blatchford 678 v. Jones 662, 657 Murrell v. Smith 144 Mussey v. Eagle Bank 617 Mutual Ins. Co. v. Norris 590, 610, 622 Myers v. Beeman 48 v. O’Hanlon 207 v, Uhrich 134 N. Naglee v. Ingersoll 368 Napton v. Leaton 288 Nashua Ins. Co. v. Moore 527 Nashville Ry. Co. v. United States 69 Nason v. Allen 334 Nass v. Vanswearingen 566 Nathans v. Hope 80, 182 National Bank v. Bangs 499, 508, 509, 510 v. Case 533 National Ins. Co. ». Bowman 527 Nations v. Johnson 277 Neale v. Jeter 98 Needham v. Bremner 220 Neff v. Bates 617 Neill v. Devonshire 84, 226 Nellis v. Lathrop 461 Nelson v. Boynton 221 v. Cowing 652 v. Oldfield 237 v. Woodruff 638 Nemetty v. Naylor 73, 119, 120 Neusbaum v. Keim 69 Nevett v. Berry 363 Neville v. Hancock 107, 110 New Bedford v. Hingham 636 Newcomb v. Presbrey 399 Newell v. Holton 498, 543 v, Nixon 635 New England Ins. Co. v. Dunham 214 New Haven v. Fairhaven & W. R. Co. 565 New Haven R. Co.v. Chatham 624 Newington v. Levy 80, 145, 177, 192 xlii CASES PAGE New Jersey Franklinite Co. v. Ames Newman v. Waterman New Orleans R. Co. v. Jones Newport Bridge Co. v. Douglass Newton v. Egmont v. Marshall 321 v. Walters 182 New York Ins. Co. v. Clemmitt 68, 94 New Zealand Banking Corporation, 129 222 640 330 129 In re 599 Nichol v. Alexander 426 v. Mason 804 Nichols v. James 536 vu. Poole 547 Nicholson v. Caress 830, 392 Nickells v. Atherstone 468 Nickels v. Hancock 66 655 3831 449, 454, 682 54 Nicodemus v. East Saginaw Nieto v. Carpenter Nims v. Sherman Nispel v. Laparle Niven v. Belknap 565, 586 Nix v. Collins 682 Nixon v. Halley 582 Noble v. Blount 669 v. Chrisman 596 v. Cope 3867 v. Gold 250 Noe v. Splivalo 822, 643 Noel v. Bewley 431 Noell v. Wells 204, 221 Noonan v. Ilsley 426 Norridgewock v. Madison 636 Norris ». Hall 131 v. Norton 342 v. State 361 v. Wait 584, 585 North v. Henneberry 341 v. Mudge 69 North Bank v. Brown 304 Northern Bank v. Porter 365, 580, 531, 532 Northern Packet Co. v. Platt 620 Northwestern Packet Co. v. Shaw 581 Norton v. Coons 554 v. Doherty 78 v. Huxley 77 v. Norton 348 Norwood v. Kirby 188, 454, 456 Noton v. Brooks 494 Nourse v. Nourse 338 Novelli v. Rossi 254 CITED. O. PAGE Oakland Paving Co. v. Rier 526, 531 O’Beirne v. Lloyd 183 Obicini v. Bligh 254, 300 O’Brien v. Wetherell 487, 488 Ocean Ins. Co. v. Francis 45, 232 Ochsenbein v. Papelier 247, 298 O’Connell v. McNamara 97 O’Connor v. Varney 175, 176 Oddie v. National Bank 510 O’Dougherty v. Remington Paper Co. 182 Offley v. Ormes 450 Ogden v. Rowley 692 Ogdensburgh R. Co. v. Vermont R. Co. 689 Ogle v. Atkinson 484, 492 v. Smith 624 Oglesby Coal Co. v. Pasco 582 O’Halloran ». Fitzgerald 487 Ohning v. Evansville 138 Olcott v. Little 107 Oldham v. Ledbetter 134 O’Linda v. Lothrop 859 Oliver v. Holt 183 O’Mulcahy v. Holley 664 Olney v. Sawyer 336 O’Neal v. Brown @ 183 Ontario v. Hill 865, 582 Oregonian Ry. Co. v. Oregon Ry. 527, 528, 529, 542, 607, 655, 657, 677 Organ v. Stewart 622 Orleans v. Platt 99, 365, 582 Ormes v. Dauchy 690 Ormond v. Moye 48 Osborn v. Elder 552 Osgood v. Abbott 326 v. Nichols 490 Osterhout v. Shoemaker 335, 346, 347, 433 Otis v. McMillan 455, 476 v. Sill 566 Otterson v. Middleton 209 Outram v. Morewood 87, 698 Over v. Schiffling 536 Overseers v. Overseers 454 Overton v. Banister 585 v, Harvey 694 Owen v. Robbins 335 v. Slatter 569 Oxborough v. Borsser 64 CASES P. PAGE Packet Co. v. Sickles 36, 81 Padbury v. Clark 645 Padfield v. Pierce 657 Page v. Butler 862 v. Kinsman 453, 454 Page Co. v. B. & M. R. Co. 660 Paige v. Sherman 374 Painter v. Hogue 94 Palmer v. Ekins 450 v. Meiners 620 v. Smith 657 v. Temple 694 v. Williams 559 Pancoast v. Travelers’ Ins. Co. 487, 529 Pardon v. Dwire 192 Pargeter v. Harris 350, 351, 352, 482 Parham v. Randolph 608, 609 Parish v. Parish 200 Parker v. Banks 576 v. Barker 573 v. Bennett 359 v. Crittenden 587 v. Judges 191 v. Manning 332 v. Moore 124, 128, 610 v. Smith 359 v. Thompson * 36 Parkes v. Clift 145 Parkhurst v. Van Courtland 566 Parkinson v. Sherman 360 Parnell v. Hahn 120, 144, 146 Partridge v. Bere 487 v. Kingman 536 v. Messer 341 Pasley v. Freeman 643, 555, 606, 610 Patch v. Ward 208, 298 Patrick v. Jones 621 Patterson v. Baumer 655 v. Fraser 101 v. Hansel 470 v, Lawrence 829, 582 Paul v. Squibb 592 v. Witman 126 Pausch v. Guerrard 558 Pawling v. Bird 256, 259 Payment v. Church 590 Payne v. Burnham 644, 633 v. O’Shea 208 v. Payne 189 Peake v. Thomas 610 Pearce v. Olney 192, 265, 295, 296, 297 CITED. xiii PAGE Pearl v. Harris 64 Pease v. Whitten 64 Peaslee v. Robbins 518, 615 Peck v. Vandenberg 538 v. Woodbridge 211 Peebles v. Pate 98 Peek v. Gurney 560, 586, 619, 620 Peery v. Hall 553 Pelletreau v. Jackson 850 Pells v. Webquish 838 Pelton v. Platner 816 Pence v, Arbuckle 647, 577, 610, 612 Pendleton v. Dalton 56, 191, 692 v. Dyett 463 Pennington v. Gibson 277 Pennoyer v. Neff 47, 199, 288 Penobscot R, Co. v. Weeks 192, 200 Penrose v. Curren 582 v. Griffith 881, 889 People v. Baker 236 v. Bank of North America 576, 618, 622 v. Brown 331, 552 v. Dawell 236 v. Goodwin 654 v. Hall 123 v. Johnson | 144, 151 v. Judges of Monroe Co. 125 v. Murray 123, 652 v. New York 662 v. Phoenix Bank 208 v. Plumpke 596 v. Reeder 540 v. Schuyler 65 v. Sherman 281 v. Sterling Manuf. Co. 659 v. Stockton R. Co. 689 v. Townsend 208 v. Waite 662 v. White 516 People’s Bank v. Hodgdon 130 Peoria R. Co. v. Thompson 531 Pepper v. Zahnsinger 536 Perkins v. Conant 548 v. Gray 597 v. Hart 187 v. Jones 692 v. Moore 53 v. Parker 53, 57, 79, 80 v. Walker 81, 164, 188, 673 Perrine v. Serrell 173 Perry v. Cheboygan 662 v. Harrington 186 xliv CASES PAGE Perry v. Meddowcroft 207, 211, 219, 220 v. Williams 549 Perryman v. Greenville 487, 490, 653, 658, 659 Pershing v. Canfield 489 Pervear v. Kimball 114 Peters v. Sanford 106 v. Warren Ins. Co. 231 Petersine v. Thomas 144 Petrie v. Nuttall 98, 99, 100 Pettis v. Johnson 101 Peyton v. Stith 477 Pfiffner v. Kapfel 49, 298 Phelan v. Moss 512 v. Tyler 130 Phelps v. Harris 50, 55 v. Illinois Cent. R. Co. 654 v. White 589 692 221 669 Philadelphia R. Co. v. Howard Philips v. Bury Phillipps v. Van Schack Phillips v. Berick 81, 182, 672 v. Gallant 610 v. Godfrey 274 v. Hunter 250, 305 vo. Rogers 656 v. Thurn 503, 507, 508 v. Ward 107 Phillpots v. Blasdell 122 Phinney v. Johnson 608 Phoenix Ins. Co. v. Doster 634, 636 Phenix Warehouse Co. v. Badger 527 Phosphate Sewage Co. v. Malleson 192 Pickard v. Sears 446, 448, 544, 548, 551, 552, 564, 586, 592, 611, 612, 613, 614, 615, 623, 625, 683 Pickering v. Busk 547 v. Cape Town Ry. Co. 66, 67 Pickett v. Merchants’ Bank 656 v. Pipkin 46, 148 Pico v. Webster 119 Picquet v. Swan 197, 199 Pierce v. Andrews 610, 618 v. Carleton 133 v. Chicago R. Co, 135 Pike v. Fay 565 .v. Galvin 397 v. Potter 95 v. Stallings 656 Pim v. Curell 84, 226 Pinckard v. Milmine 864 Pinney v. Barnes 182 Pitcher v. Dove 693, 696, 610 CITED. PAGE Pitman v. Albany 64, 224 Pitt v. Berkshire Ins. Co. 638 v. Chappelow 618, 514 Pittsburg v. Danforth 552 Pittsburgh Ry. Co. v. Swinney 688, 689, 692 Placer Co. v. Astin 487 Planché v. Colburn 183 Plant v. Voegelin 562 Planters’ Bank v. Merritt 657 Planters’ Ins. Co. v. Selma Bank 562,610 Platt v. Squire 322, 350 Platter v. Elkhart 577 Plets v. Johnson 503 Plott v. Chicago Ry. Co. 686 Plumb v. Cattaraugus Mut. Ins. Co. 679 Plume v. Beale 237 Plumer v. Lord 556, 610 Plummer v. Farmers’ Bank 562 v. Mold 608 v. Woodburne 277, 281, 300, 304, 316, 675 Pole v. Somers 645 Pollard v. Cocke 336 v. Hanrick 94 v. Railroad Co. 121 v. Vinton 538 Pond v. Makepeace 141, 309 Pool v. Lewis 685 Poole v. Whitt 465 Poor v. Robinson 828 Poorman v. Crane 286 v. Mitchell 676 Pope v. Bank of Albion 522 Porter v. Ingraham 110 v. Purdy 202 v. Robinson 102 v. Wagner 56, 144, 145 Potter v. Brown 658 v. Parsons 296 Potts v. Coleman 489 Powell’s Appeal 829, 579, 582 Powell v. Clelland 64 v. Monson & M. Co. 330, 440 v. Rodgers 620 Powers v. Harris 547 v. Patten 392 Pratt v. Cunliff 183 v. Farrar 480 Pray v. Hegeman 143, 144, 145, 188 Preble v. Baldwin 874 v, Conger 569 CASES PAGE Preece v. Howells 340 Prescott v. Hull 807 Presstman v. Silljacks 459 Preston v. Mann 589, 602 v. Merceau 878 Prestwick v. Marshall 614 Prevot v. Lawrence 470 Price v. Dewhurst 247 v. Jennings 584 v. Neal 499, 509, 590 v. Pollock 324 . _v. Thompson 617 Prichard v. Houlditch 451 Prickett v. Sibert 592 Priestly v. Fernie 118, 116, 119 Prince v. Brunatte 6138, 514 Princeton v. Templeton 660 Pritchard v. Hitchcock 1387 Pritchet v. Clark 256 Probate Court v. St. Clair 621 Proctor’s Case 59 Proctor v. Cole 50 v. Putnam Machine Co. 593 Proskauer v. Peoples’ Savings Bank 662 Prout v. Wiley 652 Prouty v. Mather 896 Providence v. Adams 144 Providence Ins. Co. v. Fennell 538 Prudam v. Philips 204 Prudham v. Phillips 221 Pruitt v. Holly 81, 672 Puckett v. Pope 283 Pulaski v. State 331, 577 Pulliam v. Burlinghame 490, 491 Pullman v. Upton 533 Purdy v. Doyle 98 Pursly v. Hays 657 Putnam v. Clark 94 Q. Quackenbush v. Ehle 53 Queen v. Hutchins 48 Quigley v. Mexico Bank 98 Quinlan v. Myers 628 Quirk v. Thomas 619 R. Radcliff v. United States Ins. Co, 45,282 Radway ». Graham 688 Railroad Co, v. Dubois 566 CITED. xlv PAGE Railroad Co. v. National Bank 98 v. Schulte 164 v. Schurmier 831 Railway Co. v. Daniel 534 v. Graham 534 v. McCarthy 631, 687 | Rainbolt v. Eddy 612 Raley v. Ross 488 v, Williams 607 Ralston v. Lahee 102 Ramsden v Dyson 596 Ranclyffe v. Parkyns 645 Randall v. Lower 848, 387, 404, 405 Randolph v. Keiler 277 Rangeley v. Spring 579, 685 Rangely v. Webster 266, 308 Rankin v. Barnes 276 v. Godard 256 v. Warner 321 Rannels v. Gerner 579, 582 Ranson v. Stanberry 668, 669 Rape v. Heaton 288 Rapelee v. Stewart 657 Rapelye v. Prince 126 Rathbone v. Boyd 551 v. Hooney 123 Ravee v. Farmer 65, 156, 179 Rawlinson v. Stone 618 Ray v. Gardner 846 v. Indianapolis Ins. Co. 629 v. MeMurtry 621 Raymond v. Crown Mills 116 v. Holden 880, 440 v. Richmond 98, 143 Raynor v. Timerson 596 Read v. Hall 582 v. Sutton 86 v. Walker 681 Reagan v. Hadley 621 Reciprocity Bank, In re 651 Rector v. Waugh 401 Redd v. Muscogee R. Co. 547 Redgrave v. Hurd 247, 589, 592, 608 Redington v. Woods 512 Redman v. Graham 547 Redwood v. Tower 354 Redwood Cem. Assoc. v.Bandy 616, 626 Reed v. Farr 596 v. Girty 266 v. Jackson 34 v. Lyon 468, 470 v. McCourt 870, 596 xlvi CASES PAGE Reed v. Peterson 658, 660 Rees v. Chicago 660 v. Lloyd 389 Reese v. Smith 426, 589 Reeves v. Howes Regina v. Amhergate Ry. Co. 576, 577 v. Blakemore 136 . Buckinghamshire 692 VU v. Liverpool 692 v. Salop 692 v. Shropshire Union Co. 647 Reid v. Darby 244 v. Holmes 103 v. State 8380, 577 Reigard v. McNeil 659 Reimers v. Druce 255 Reis v. Lawrence 582, 583 Remington Paper Co. v. O’Dough- erty 671 Remmett v. Lawrence 625 Remsen v. Graves 516 Renaud v. Abbot 267 Rennick v. Bank of Chillicothe 657 Rennie v. Robinson 456 Renovo v. Half-Moon 223 Requa v. Holmes , 658 Ressequie v. Byers 72, 108, 172 Rex v. Bentley 228 v. Bradenham 224 v. Cirencester 223 v. Grundon 60, 221 v. Rhodes 221 v. St. Pancras 85 v. Scammonden 874 v. Vincent 204, 221 Reynolds v. Blackburn 691 Ricard v. Sanderson 360 Ricardo v. Garcino 254 Rice v. Barrett 536 v. Bunce 592 v. Dewey 675 v. Rice 548 v. Rock Island R. Co. 659 Rich v. Coe 120 v. Rich : 149 Richards v. Barlow 288, 264, 267 v. Johnston 688 Richardson v. Boston 676 v. Hickman 133 v. Stewart 121 Richman v. Baldwin 622 Riddle v. Hill 626 vw Murphy 835, 836 CITED. PAGE Rider v. Alexander 278 Ridgefield v. Reynolds 655 Riggan v. Green 515 Riggs v. Pursell 66 Right v. Bucknell 855, 365, 880, 415 Riker v. Hooper 79 Rikhoff v. Brown’s Sewing-Ma- chine Co. 525 Riley v. Murray 272 Ripley v. Ztna Ins. Co. 636, 652 v. Billings 559 Ritchey v. Withers 221 Rivard v. Gardner 626 Roach v. Brannon 559 v. Garvan 221, 235 v. White 439, 567 Robb v. Shephard 610 Robbins v. Blodgett 621 v. Bridgewater 212 c. Magee 669 v. Potter 608 Roberts z. Cooper 67 v. Davis 621 v. Read 161 v. Rice, 156 v. Wentworth 624 Robertson v. Pickrell 835, 336, 345, 346 v. Roberts 138 v. Smith 106 v. Struth 2538, 800 Robeson v. Carpenter 182 Robins v. Crutchley 204, 219, 220, 221 Robinson’s Case 124 Robinson v. Douthit 424, 436 v. Green 187 v. Howard 53 v. Jones 44, 242 v. Pebworth 656, 657 v. Prescott 811 v. Snyder . 187 v. Ward 286 v. Yarrow 604, 506 Robson v. Eaton 284 Roby v. Chicago 624, 656 Rocco v. Hackett 271 Rochell v. Benson 846 Rock v. Leighton 78, 124 Rockwell v. Brown 168 Rodermund v. Clark 642, 648, 657, 687 Roe v. Jerome 563 Rogers v. Beauchamp 84, 36 v. Blackwell 516 v. Burlington 538 CASES PAGE Rogers v. Burns 278 v. Cromack 624 v, Grannis 141, 319 v. Gwinn 295 v. Haines 121 v. Higgins 580 v. Marsh 620 v. Odell 804 v. Pitcher 465, 473, 474 v. Ratcliff 151 v. Rogers 268, 273 v. Wood 58 Romford Canal Co., In re 854, 531, 583 Root v. Crock 889, 401 v. French 547 v. Loundes 162 Rose v. Himely 243 v. Hurley 562 Rosebrough v. Ansley 544 Rosenthal v. Mayhugh 440, 582, 610 v. Renick 309, 310 Ross v. Dysart 464 v. New England Ins. Co. 95 ». Thompson 566 Rossire v. Boston 660 Rountree v. Turner 68 v. Denson 402 Rousillon v. Rousillon 46, 229, 257, 289, 298 Routledge v. Hislop 190 Rowe v. Smith 72, 73 v. Williams 65 Rowley v. Howard 200 v. Towsley 648 Rubber Co. v. Goodyear 68, 566 Rudd v. Matthews 510 Ruegger v. Indianapolis R. Co. 144 Ruff v. Ruff 134 Ruffin v. Johnson 889 Rumball v. Metropolitan Bank 547 Rumfelt v. Clemens 581 Rush Co. v. State 577 Rusk v. Fenton 582 Russ v. Alpaugh Russell v. Erwin v. Fabyan v. Kierney v. Mallon v. Place v. Smyth Rust v. Bennett Ruth v. Oberbrunner 380, 881, 395, 428 Russel v. Union Ins. Co. 241 455 453 558, 679 124, 125 55, 57, 145 229 659 221 CITED. xlvii PAGE Rutherford v. Davis 68 v. Taylor 617 v. Tracy 596 Rutland v. Rutland 141 Rutter v. Puckhover 102 Ryan v. Maxey 682 Ryder v. Mansell 449, 459 S. Sacket v. Loomis 72 Sage v. McLaughlin 578 Sahler v. Signer 484 Sainsbury v. Jones 605 St. John v. Palmer 464 v. Quitzow 459 v. Roberts 864, 522, 554 St. Joseph Manuf. Co. v. Daggett 578, 622 St. Louis v. St. Louis, Gas Co. 608 v. Shields 527 St. Louis Gas Co. v. St. Louis 529 St. Louis R. Co. v. Larned 592 St. Louis Stock-Yards v. Wiggins Ferry Co. 638, 682 St. Paul R. Co. v. First Div. St. Paul & P. R. Co. Salem v. Eastern R. R. 331 45, 98 Salisbury Sav. Soc. v. Cutting 424 Salter v. Kidley 355 Saltus v. Everett 547 San Antonio v. Mehaffy 581, 533 Sanborn v. Fellows 212 Sanders v. Robertson 517 Sanderson v. Collman 515, 669 Sands v. Davis 335, 347 Sanford v. Cloud 489 v. Sanford 294, 395, 650 Sanger v. Wood 648 Saratoga Bank v. Pruyn 329, 582 Sarchet v. Sloop Davis 276 Sargeant v. Andrews 131 Sargent v. Fitzpatrick 176 v. Flaid 688 Saunders ». Merry weather 852, 482 Savage’s Case 131 Savage v. Burnham 647 v. Dowd 563 Saveland v. Green 124 Sawyer v. Maine Ins. Co. 231, 244 v. Woodbury 57, 146, 172, 176 Saxton v. Dodge 495 Sayles v. Smith 489 xviii CASES PAGE Scanlan v. O’Brien. 549 Scates v. King 1865, 136, 887, 575, 608 Schaeffer v. Bonham 630, 531 Schenck v. Stumpf 580 Schermerhorn v. Vanderheyden 3873 Schertz v. People 60 Schibsby v. Westenholz 46, 229, 281, 289, 293 Schmaltz v. Avery 626 Schmidt v. Mutual Ins. Co. 637 Schnell v. Chicago 580 Scholey v. Rew 642, 646 School District v. Stocker 144, 188, 244 v. Stone 354, 355, 365, 532 School Trustees v. Stocker 244 Schroeder v. Lahrman 99, 128 Schwartz v. Saunders 580, 582 Schwinger v. Hickok 288 v. Raymond 165 Scolly v. Butler 690 Scotland v. Hill 95 Scott v. Avery 65 v. Board of Commissioners 654 v. Liverpool 65 v. Pilkington 252, 2538, 254, 279, 803 v. Shearman 216 v. Strawn 628 v. Ware 84, 189 Scovill v. Thayer 633 Scranton v. Stewart 579 Scrimshire v. Scrimshire 236 Searcy v. Kirkpatrick 488 Searle v. Abbe 594 Seavey v. Kirkpatrick 346 Sebrell v. Hughes 346 Sebright v. Moore 547 Secomb v. Railroad Co. 200 Second National Bank v. Wal- bridge 641, 542, 598 Secor v. Sturgis 80, 186 Secrist v. Green 142, 202 v. Zimmerman 69 Security Bank v. National Bank 577 Seddon v. Tutop 157, 183, 184, 678 Seeman v. Springate 579 Segee v. Thomas 202, 281 Semple v. Bank 529 Seneca v. Allen 490, 656 Sergeant v. Ewing 94, 140 Serras v. Noel 145, 146, 160, 161, 162 Sessions v. Johnson 106, 110 v. Stevens 131 Severin v. Eddy 127 CITED. PAGE Sewall v. Hebert 662 v. Sewall 236 Sewell’s Case 599 Sexton v. Chicago 578 Seymor’s Case 415 Seymour v. Page 659, 562 Shamleffer v. Peerless Mill Co. 579 Shane v. Moberly 616 Share v. Becker 671 Sharp, In re 582, 654, 655 v. Findley c 102 v. Taylor 495 Sharpe v. San Paulo Ry. Co. 65 Shaver v. Shell 62 Shaw v. Beebe 435, 685 v. Gould 236 v. Lindsey 122 v. Shaw 647 Shawhan v. Loffer 202, 281 Shay v. MacNamara 129, 136, 337 Sheehan »v. Fitchburg 660 Sheehy v. Mandeville 108, 105, 106 Sheen »v. Stothert 359, 627 Sheffield v. Collier 638 Shelbury v. Scotsford 493 Sheldon v. Atlantic Ins. Co. 538 v. Hopkins 816 v. Kibbe 111 v. Stryker 69 v. Wright 201 Sheldon Hat Co. v. Eichmeyer Hat Co. 447 Shelley v. Wright 355, 357 Shelton v. Carrol 475 zv. Shelton 364 v. Tiffin 203, 284, 288 Shephard v. Little 872 Shepherd v. May 683 Sheridan x. Barrett 596 v. New Quay Co. 493 Sherlen v. Whelen 338 Sherman v. Christy 69 v. McKeon 656, 688 v. Parish 652 v. Simmons 532 Sherrard v. Nevins 203 Sherrod v. Langdon 536 Sherwood v. Vandenburgh 834 Shields v. Smith 558 Shillock v. Gilbert 608 Shinn v. Young 144, 188 Shirland v. First National Bank 71,78 Shirreff v. Wilks 536 Shivers v. Simmons v. Wilson Shoemaker v. Atkins Showers v. Robinson Shroyer v. Richmond Shufeldt v. Buckley Shultz v. Elliott Shumaker v. Johnson Shumann v. Paradise Shumway ». Stillman Shuttlesworth v. Hughey - Sickels v. Patterson Sidensparker v. Sidensparker Silloway v. Brown Silver Lake Bank v. Harding Simers v. Saltus Simm v. Anglo-Am. Tel. Co. Simmons v. Camp v. McKay: Simons v. De Bare Simonton v. Liverpool Ins. Co. 556 Simplot v. Dubuque Simpson v. Fogo 215, 234, 247, 254, 255 v. Moore Sims v. Chattanooga v. Everhardt Simson v. Hart Sinclair v. Murphy v. Sinclair Singleton v. Whiteside Sinnett v. Moles Sintzenick v. Lucas Sizer v. Many Skaife v. Jackson Skinner v. Grace Church Slade’s Case Slaughter v. Genson Slee v. Bloom Slim v. Croucher Sloan’s Appeal Slocum v. Mayberry Slocumb v. Chicago R. Co. Small v. Reeves Smelser v. Wayne Turnpike Co. 529 68 Smelting Co. v. Kemp Smiley v. Fries Smith v. Auld v. Baker v. Brady . Busby . Chadwick . Connell . Crompton es es 262, 285, 298 543, 691, 604, 607 CASES CITED. PAGE 584 816 177 682 361 816 469, 472 895, 579 580 94 187 148 3877 318 464 624 547, 561 198 200 660 561, 590 628 584 50, 51 490 235 598 563 81 68 538 | 662] 189 568 130, 138 303 218 666 346 388 55 401, 431 658 489 563 404 125 d PAGE Smith v. Cropper 495, 620 v. De Russy 387 v, Elliott 187, 676 v, Fairfield 67 v. Fenner 237 v. Fowler 316, 553, 689 v. Graham 824, 360 v. Haire 691 v. Hall 685 v. Hamilton 598 v. Hitchcock 422 v. Hughes 610 v. Hutchinson 548, 666 v, Jones 182, 185 v. Keen 209 v. Kernochan , 84 v. Knickerbocker Ins. Co. 661 v. Kremer 608 v. Lock 359 v. Lucas 644 v. Marsack 518, 708 v. McCluskey 180 v. McNamara 596 v. Mercer 508, 511 v. Morgan 124 v. Mundy 682 v. Munroe 561 + vu, Neal / 48 v. Nicolls 281, 298, 299, 805 v. Penny 327 v. Rathbun 687 . v. Scott 453 v. Sheeley 656 v. Shepard 464 v. Smith 144, 209, 219, 220, 236, 266, 651, 652 v. Strong 397 v. Way 94 v. Weeks 72, 73 v. Whiting 178 v. Williams 282, 387, 400 Snape v. Norgate 309 Sneed v. Osborn 597 Snell v. Faussatt 245 Snider v. Croy 678 Snodgrass v. Ricketts 435 Snook v. Fries 187 Snow v. Howard 69 v. Moses 322 v. Prescott 73 ev. Walker 64 Snowden v. Grice 321 Snowdon v. Davis - 180 xlix I CASES PAGE Snyder v. Wise 812 Society for Manuf. v. Lehigh Val- ley R. Co. 686 Society for Prop. of Gospel v. Pawlet ; 335, 347 Society for Savings v. New London 524 Solberg v. Decorah 627 Somes v. Skinner 420, 421, 428 South Alabama R. Co. v. Henlein 37, 183 Southard v. Perry 657 v. Sutton 558 Southeastern Ry. Co. v. Warton 341, 369, 371 Southerland v. Stout 381 Southern Ins. Co. v. Booker 538 South Ottawa v. Perkins 95, 529, 530, 652 Soward v. Johnston 555 Spalding v. Wathen 103 Sparrow v. Kingman 829, 334, 345 Spears v. Walker 685 Spencer v. Carr 607 v. Spencer 237 v. Vigneaux 211 v. Williams 142 Spiller v. Scribner 685 Sponenbarger v. Lemert 862, 549 Spooner v. Davis 168 Spoor v. Tyzzer 66 Sprigg v. Bank of Mt. Pleasant 663 Spring v. Hewston 598 Springport v. Teutonia Bank 98 Springstein v. Schermerhorn 849 Spurlock v. Sproule 620 Squires v. Brown 130 Stace & Worth’s Case 600 Stackpole v. Robbins 874 Stacy v. Thrasher 140, 308, 309 Stafford v. Albany 64 v. Clark 177 v. Elliott 559 v. Rice 498 Standish v. Parker 676 Stanford v. Lyon 568 Stanley v. Epperson 559 Staple v. Spring 88 Staples v. Fillmore 862, 491, 649 Starbuck v. Murray 288 Starin v. Genoa 865, 582 Stark v. Starr 169, 177, 182 Starke v. Wilson 139, 140 Starkweather v. Loomis 818, 314 CITED.. Starry v. Korab Star Wagon Co. v. Swezy State v. Adams v. Alling v. Anone v. Bevers v. Bradish v. Brewer v. Candler zu. Carroll v. Cooper v. Coste v. Graham v. Grammer v. Hardie v. Hauser v. Langer v. Little v. Little Rock R. Co. v. McBride v. Mills v. Mitchell v. Neuert v. Ober v. Ogle v. Penner v. Porter v. Prather v. Ramsburg v. Rhoades v. Roswell v, Spaulding v. Stone v. Taylor v. Wertzel v. Woodside . Young State Bank v. Fearing v. Thompson Staton v. Bryant v. Mullis Steadman v. Duhamel v. Taylor Stearns v. Hendersasa v. Swift v. Wrisley Stebbins v. Walker Steckett v. East Saginaw Stedman v. Davis v. Patchin Steel v. Smelting Co. v. Smith Steele v. Adams 2 PAGE 656, 558, 562 831 624 624 60 188, 621 94 188 125 526 526 331 597 138 548 500 552 610 836 505 627 897 439 132 536 582, 656 651 271 68, 64, 608 298 661 CASES PAGE Steele v. Lineberger . 140 v. St. Louis Ins. Co. 621 Steen v. Bennett 221 v. Steen 200 Stein v. Prairie Rose 183 Steinbach v. Relief Ins. Co, 79, 144, 642 Steiner v. Baughman 895, 431 Stelphen v. Hondlette 175 Stempel v. Thomas 180 Stephens v. Baird 548, 618 v. Crawford 516 Stephenson v. Walker 563 vu. Wilson 122 Stevens v. Dennett 652, 558, 610, 685 v. Dunbar 50 uv. Fisher 1382 v. Hays 340 v. McNamara 685 v. Miner 135 v. Parish 579 v. Whistler 149 Stevenson v, Saline Co. 363 Stewart v. Anderson 391, 486, 487 v. Beck 669 v. Carleton 597, 598 v. Dent 95 v. Lansing 178 v. Metcalf 821, 608 v. Munford 547 v. Thomas 188 v. Warner 232 Stilley v. Folger 649 Stillman v. Stillman 553 Stilphen v. Stilphen 175 Stimson v. Farnham 620, 624 v. Whitney 536 Stingley v. Kirkpatrick 109 Stockman v Riverside Co. 597, 640 Stockton v. Williams 840 v. Wooley 649 Stockwell v. Coleman 813 Stockyards v. Wiggins Ferry Co. 682 Stoddard v. Burton 98 v. Cutcompt 642 v. Shetucket Foundry Co. 531 v. Thompson 98, 99, 119 Stokeman v. Dawson 585 Stonard v. Dunkin 492, 630, 631 Stone v. Covell 589 v. Dickinson 110, 111 v. Great Western Oil Co. 690, 607 v. Wood 139 Stoops v. Whistler 138, 142 CITED. li PAGE Stoops v. Woods 123 Storer v. Storer 181 Storring v. Borren 644 Storrs v. Barker 555, 566 Stortzell v. Fullerton 108 Stout v. Lye 99 Stoutimore v. Clark 527 Stovall v. Banks 138, 142 Stowe v. Wyse | 389, 401 Stowell v. Chamberlain 79, 81, 189 Strain v. Gardner 464 Strang v. Moog 50, 55, 84, 89, 94, 191, 192 Stratton v. Rastall 820 Straus v. Minzesheimer 621 Strawn v. Strawn 329 Strecker v. Conn 536 Street v. Augusta Ins. Co. 214 Stribling v. Prettyman 689 Striker v. Keller 150 Stringer v. Northwestern Ins. Co. 620 Strode v. Seaton 383, 411 Strong v. Makeever 64 v. Stevens Point B4 v. Strong 66, 67 v. Waddell 329, 330, 487, 488 Strosser v. Fort Wayne 63, 591, 592, 507, 642, 651, 652, 654, 655 Strother v. Butler 144 Stroughill v. Buck 341, 358 Strowd v. Willis 355 Struble v. Malone 272 Stryker v. Cassidy 620 Studdard v. Lemmond 665 Stump v. Findlay 645 Sturdy v. Jackaway 122 Sturgis v. Rogers 68 Sturtevant v. Randall 36 Stutsman v. Thomas 621 Suessenguth v. Bingenheimer 554 Sullivan v. Davis 576 Sulphine v. Dunbar 575, 609, 620 Sumner v. Barnard 348, 404 Sunderlin v. Struthers 324 Supervisors v. Kennicott 68, 94 Supples v. Cannon 81, 144, 673 Sutliff v. Brown 73 Sutlive v. Jones 487 Suttle v. Richmond R. Co. 682 Sutton v. Casselleggi 355 v. Wood 691 Suydam v. Barber 266 Swager v. Lehman 562 lii CASES PAGE Swan v. North British Co. 512, 621, 552, 589, 618 Swann v. Wright 528 Swanson v. Tarkington 656 629 125 638 264 895 147 144 682 Swartwout v. Mich. Air Line R. Co. v. Payne Swartz v. Swartz Sweet v. Brackley v. Brown v. Tuttle Swenson v. Cresop Swick v. Sears Swift v. Dean 469, 472 v. Dickerman 163 v. Winterbotham 619, 620 Swihart v. Spaner 143 Sykes v. Bonner 167, 169 Syllivan v. Stradling 450, 453 Syme v. Montague 342 T. Talbot v. Bank of Rochester 603 v. Radnor 646 Tallant v. Burlington 652 Talmadge v. Chapel 809 Tams v. Bullitt 1382 v. Lewis 147 Tankersley v. Pettis 55 Tapley v. Wainwright 149 Tapp v. Lee 560 Tappan v. Bruen 107 Tarleton v. Tarleton 252, 294 Tate v. Hunter 112 Taylor v. Agricultural Assoc. 682 v. Barron 256, 309, 311 v. Bradley 454 v. Brown 686 v. Bryden 256 v. Burnap 656 v. Castle 189 v. Croker 613 v. Dabar 431 v. Ely 572 v. Kilgore 272 ‘v. MeCrackin 63 v. Means 34 v. Needham 331 v. Phelps 182, 142, 256, 278, 805 v. Shew 253 v. Shufford 831 v. Wallace 3380 CITED. PAGE Taylor v. Zamira 458 Teague v. Corbitt 139 Telegraph Co. v. Davenport 685 Temple v. Williams 672 Tenant v. Elliot 495 Tennessee R. Co. v. East Alabama Ry. Co. 489 Terre Haute R. Co. v. Rodel 576 Terrell v. Grimmell 656 Terrett v. Cowenhaven 449 Terry v. Hammonds 58 Test v. Larsh 688 Teutonia Bank v. Wagner 861, 529 Teutonia Ins. Co. v. Anderson 538 Tewksbury v. Magraff 470, 471, 472 Texas Banking Co. v. Hutchins 669 Thatcher v. Howland 363 v. People 533, 655 v. Powell 816 Thayer v. Arnold 689 v. Bacon 694 v. Tyler 133 The Appollon 213 The Bold Buccleugh 47, 225 The Busteed 55 The Christopher 245 The Delta 95 The Flad Oyen 248, 244 The Griefswald 226, 244 The Helena 40, 229 The Henrick & Maria 248, 245 The Idaho 490, 491 The Kierlighett 245 The Lady Franklin 538 The Mary 44, 45, 244 The Mecca 47, 243, 293 The Tilton 238, 244 Thelusson v. Woodford 643 Third Street, In re 64 Thistle v. Buford 435 Thomas v. Citizens Ry. Co. 631 v. Cook 468 v. Hite 50 v. Hubbell 126, 127 v. Ketteriche 154 v. Pullis 597 v. Robinson 813, 816, 675 v. Sterns 141 Thomason v. Odum 144 Thompson’s Appeal 210, 211 Thompson v. Building Assoc. 34 v. Campbell 682 v. Hoop 649 CASES PAGE Thompson v. Howard 642 v. Insurance Co. 684 v. Lee Co. 278 v. McKay 690 v. Merrill 440 v. Myrick 144 v. National Bank of Redemption 58 CITED. liii PAGE Trafton v, United States 106 Trask v. Hartford & New Haven Railroad 183, 184 Treadwell v. Stebbins 168 Tredway v. McDonald 144 Trentman v. Eldridge 827, 328, 329 Trenton Banking Co. v. Duncan 565, v. Roberts 121 566, 567 v. Simpson 685 | Trenton R. Co. v. Chambers 640 v. Whitman 193, 262, 288, 675 | Trevivan v. Lawrence 382, 883, 412, 423 v. Wood 188 } Trexlor v. Miller 206 Thorne v. Tilbury 494 | Tribble v. Anderson 544, 562 Thornton v. Thompson 173 | Trieher v. Commercial Bank 652 Thouvenin v, Rodriques 209 | Troyer v. Dyar 669 Thurlough v. Kendall 687 | Trueblood v. Knox 862, 549 Thurston v. Thurston 48, 698 | Trull v. Eastman 397 Tibbetts v. Shapleigh 107, 849, 688 v. Skinner 435, 559 v. Tibbetts 643 | Trustees v. Stocker 48 Tibbs v. Allen 195 | Tucker v. Clarke 426 Tiernan v. Roland 644 v. Conwell 565 Tiffany v. Anderson 610 | Tufts v. Charlestown 359 Tifft v. Munson 423 v. McClure 637 Tilghman v. Little 461, 489 | Tuite v. Stevens 860, 657 Tilley v. Bridges 84, 89 | Tupper v. Phipps 207 Tillotson v. Mitchell 659, 693, 618 | Turbill’s Case 131 Tilson v. Davis 94, 191] Turner v. First National Bank 486 Tilton v. Gordon 73 v. Flinn 874, 641 v. Nelson 555, 562 v. Waddington 259 Tioga R. Co. v. Blossburg, &c. R. Co. 94 v. Waldo 628 Tipton v. Locomotive Works 365, 538 | Turnipseed v. Hudson 552, 656, 559, Tobey v. Bristol 65 669 v. Taunton 324, 369 | Tuska v. O’Brien 144, 188 Tobin v. Allen 621 | Tuttle v. Harrill 145 Toby v. Brown 226 | Twitchell v. Bridge 589 Todd v. Flournoy 186, 200 | Twogood v. Pence 69 v. Gee 605 | Tyler v. Bailey 510 v. Kerr 652 v. Mass. Ins. Co. 548 v. Old Colony R. Co. 114 Tolman v. Sparhawk 594 Tompkins v. Tompkins 237 U. Tone v. Columbus 529, 532, 652, 654 Torrey v. Pond 96} Uhl v. Harvey 536 Town v. Blackberry 660 | Unfried v. Huberer 71, 78, 128, 579 v. Needham 587 | Union Depot Co. v. St. Louis 524 Towne v. Butterfield 480, 489 | Union Ins. Co. v. McGookey 657 Towns v. Nims 154| Union Petroleum Co. v. Bliven Townsend v. Bush 498, 543] Petroleum Co. 122 v. Cowles 610] Union Savings Assoc. v. Kehlor 648 v. Moore 237, 288 | Union Sav. Inst. v. Wilmot 661 Townsend Bank v. Todd 559, 560, 662, 577, 619, 620, 621, 628, 682 Tracy v. Goodwin 126, 188 Trafton v. Hawes 475 Union School Township v. First National Bank 577 United Society v. Underwood 111 United States v. Ames 106 liv CASES . PAGE United States v. Chouteau 82 v. Cushman 110 v. Ellsworth 659 v. Flint 246, 298, 299 v. Hodson 341 v. Kilpatrick 831, 577 v. Lane 673 v. Lawson 659 v. Merchants’ Bank of Balti- more 301 v. Price 106, 110 v. Reiter 62 Unity Joint-Stock Assoc. v. King 6585 University v. Maultsby 53 Upshaw v. Gibson 584 v. Upshaw 648, 648 Upton v. Tribilecock 533 Usher v. Richardson 439, 440 Usina v. Wilder 364 Utterback v. Phillips 381 Vv. 124, 125, 127 391 391 447, 662 189 Valentine v. Mahoney Valle v. Clemens Vallejo Land Assoc. v. Viera Vallette v. Bennett Van Alen v. Rogers Van Bibber v. Beirne 659 Vance v. Johnson 485, 487 Vandenheuvel ». United Ins. Co. 282 Vanderpoel v. Van Valkenburgh 228 Vanderpool v. Brake 562 Vanderwerker v. Vermont Cent. R. Co. 66 Van Doren v. Horton 210 Van Fossen v. State 236, 237 Van Hook v. Whitlock 652 Van Metre v. Wolf 101 Ven Ness v. Hadsell 688, 593, 621 Vanneter v. Crossman 610 Vanquelin v. Bouard 252, 293 Van Rensselaer v. Kearney 366, 889, 891 Van Steenbergh v. Bigelow 202 | Van Vechten v. Terry 129 Vardier v. Railroad Co. 830, 577 Varnam v. Smith 452, 458 Vaughan v. Morrison 164 v, Vanderstegen 582 Veale v. Warner 460 Venable v. Beauchamp 408 CITED, PAGE Vere v. Lewis 503 Verplanck v. Van Buren 112 Vibbard v. Roderick 5386 Vicksburg R, Co. v. Ragsdale 657 Viele v. Judson 576, 618 Von Hostrup v. Madison 633 Vooght v. Winch 667, 668 Voorhees v. Seymour 143 Voorhies v. White 335, 347 Voorhis v. Olmstead 621, 628 Vredenburgh v. Burnet 432, 433 Ww. Waddle v. Ishe 53 Wade v. Bunn 682 v. Howard 52 Wadhams v. Gay 70, 97 v. Swan 387 Wadleigh v. Marathon Bank 335 Wadsworth v. Connell 48, 698 Waggener v. Lyles 489 Wagner’s Appeal 566 Walbridge v. Shaw 53 Walcott v. Swampscott 661 Walden v. Bodley 55, 477 Waldron v. McCarty 464 v. Sloper 548 v. Toledo Ry. Co. 662 Walker v. Ames 73 v. Carleton 559 v. Chase 172 v. Hall 402 v. Mitchell 96 ». Mulvean 657 v. Richardson 468 v. Sioux City Co. 870 v. Walker 576, 692 v. Witter 228, 248, 250, 252 v. Worcester 859 Wallace v. Maxwell 831 v. McConnell 134 v. Miner 829 v. Morss 580 Walling v. Beers 49, 245, 281 Walsh v. Durkin 97, 302 v. Varney 642 Walthall v. Rives 349 Walton v. Shelley 498, 543 v, Waterhouse 385 Wandling v. Straw 192, 200, 208 Wannell v. Kern 608, 609 CASES PAGE Wanzer v. Bright 49, 298 v. De Baun 212 Ward v. Allen 504 v. Johnson 106, 530 v. McIntosh 849 v. Rich 161 v. Ryan 449, 488 v. State 62 Warder v. Baldwin 621, 628, 669 Ware v. Percival 78, 81, 189 Waring v. Reynolds 102 Warner v. Comstock 114, 138 v. Middlesex Assur. Co. 684 Warren v. Comings 182 v. Flagg 310 v. Lusk 208, 285 v. Milliken 629 Warrender v. Warrender 236 Washington Bridge Co. v. Stewart 202 Washington Co. Ins. Co. v. Colton 370 Washington Packet Co. v. Sickles 81 Waters’s Appeal 833 Watertown v. Cowen 587 v. White 489 Water Witch, The 656 Watkins v. Holman 293, 335, 347 Watson v. Hewitt 577 v. Hopkins 203 v. Knight 570 v. Lane 484 v. McLaren 576 v. New England Bank 285 v. Watson 642, 651, 652 Watt’s Appeal 628 Watt v. McGalliard 652 Watters v. Smith 103 Watterson v. Lyons 563 Watts v. Gayle 138, 142 v. Welman 360 v. Wilson 161 Way v. Arnold 429 v. Lewis 116, 138, 148 Wayland v. Porterfield 267 Weale v. Lower 409, 430 Webb v. Alexander 464 v. Austin 388, 411, 412 v. Buckalew 56 v. Cook 221 v. Herne Bay Co. 354,365, 531, 538 Webster v. Bailey 608 v. Lee 65, 157 v. Lowell 138 Wedge v. Moore 384 CITED. lv PAGE Weed v. Burt 97 Weedon v. Landreaux 642 Weed Sewing-Machine Co. v. Em- erson 841, 387 Weeks v. Pearson 98, 802, 304 Weikel v. Long 69 Weil v. Uzzell 885 Weiser v. Weiser 402 Weisser v. Denison 604 Welby v. Welby 646 Welch v. Sykes 285 Weld v. Baxter 385 v. Farmington 636 Welland Canal Co. ». Hathaway 648 Wellborn v. Finley 340 Welsch »v. Belleville Bank 656 Welsh v. German Am. Bank 604 Wendell v. Van Rensselaer 566 West v. Menard Agr. Board 531 v. Platt 144 v. Tilghman 682 West Buffalo v. Walker 223 Westcott v. Brown 285, 288 Western M. Co. v. Peytonia Coal _ Co. 387 v. Virginia Coal Co. 94, 121, 155 Westerwelt v. Lewis 2938 Westoby v. Day 188 Wetter v. Rucker 181, 1383 Wetumpka v. Wetumpka Wharf Co. 144, 145, 191 Weyauwega v. Ayling 581, 533 Weyh »v. Boylan 837, 561, 576 Weyr v. Zane 272 Whalin v. White 454, 464 Wheatley, In re 644 Wheeler v. Aldrich 183 v. New Brunswick R. Co. 564 v. Raymond 816 v. Wheeler 578 Wheelock v. Henshaw 350 v. Kost 529, 659 v. Lee 689 Whicker v. Hume 221, 237 Whipple v. Parker 629 Whistler v. Webster 643 Whitaker v. Bramson 69, 74 v. Merrill 212 v. Williams 602 White v. Ashton 556 v. Barlow 456 v. Brocaw 895 v. Buccleuch 70 lvi White v. Crow v. Garden . Hapeman Jones Kyle Merritt Morgan Moseley Patten Smith Walker v. Ward v. Wilks Whitehouse v. Frost Whitfield v. Fausset Whitford v. Crooks Whiting v. Beebe v. Dewey v. Johnson Whitman v. Bolling v. Merrill egeseseeeegs Whitmore v. Nickerson Whitney v. Allaire v. Clarendon v. Porter v. Robinson v. Walsh Whitney Arms Co. v. Barlow Whittaker v. Whittaker Whittemore v. Stephens Whittier v. Wendell Whittington v. Wright Whitton v. Peacock Whitwell v. Winslow Wickersham v. Whedom Wiece v. Marbut Wieland v. Kobick Wiggin v. Wiggin Wight v. Shaw Wilbur v. Abbot v. Goodrich Wilcox v. Howell v. Kassick Wilcoxon v. Osborn Wilder v. St. Paul Wiles v. Woodward Wiley v. Pratt Wilhelm v. Caul Wilkins v. Judge v. May Wilkinson v. Dent uv. Hall v. Johnson CASES CITED. PAGE’ 49, 296 175 682 203 121 72, 166, 167, 174 536 169, 188, 184 423 359 559 73 541 541 419, 427, 431 120, 129 98 863 293 665 92 586 687 161 102, 193 529 216 531 887, 481 669 303 585 852 554 183 834 584 465 829, 397 267 638 668, 601 288 835, 836 617 843 192, 202 188 94, 192 346 645, 646 184, 805 606, 508 PAGE Wilkinson v. Kirby 703 v. Scott 874 v. Searcy 561 v. Wilson 128, 553, 689 Wilks v. Kilpatrick 583 Willard v. Sperry 182 v. Whitney 86 Willets v. Phenix Bank 522 Williams v. Allison 651 v, Armroyd 233 v. Clouse 145 v, Fitzhugh 172 v. Gideon 656 v. Glenny 620 v. Heales 454 v. Jackson 610 v. Jersey 686 v. Jones 229, 257 v. Matthews 623 v. Niagara Ins. Co. 547 v. Preston 256 v. Saunders 221, 287 v. Suffolk Ins. Co. 218 v. Sutton 111 v. Swetland 363 v. Vail 649 v. Walbridge 498, 520, 543 v. Williams 44, 45, 71, 144, 152, 155, 188, 220, 222, 232 v. Wilmington R. Co. 538 Williamson v. New Jersey R. Co. 627 v. Woodman 361 Willink v. Morris Canal Co. 129 Willison v. Watkins 477, 486, 487, 488 Willoughby v. Middleton 644 Wilmer »v. State 621 Wilmington Mining Co. v. Allen 638 Wilson v. Anderton 492, 493 v. Chalfant 638 v. Henry 122 v. Jackson 288 v. Maltby 484 v. Niles 293 v. Ray 63 v. Townsend 643, 644 v. Tunstall 801 v. Western Land Co. 888, 544 v, Widenham 392 v. Williams 520 v. Wilson 496 Wilt v. Welsh 582 Wimmer »v. Ficklin 682 Winchester v. Evans 256, 259 Winchester v. Jackson Winegar v. Fowler CASES PAGE 298 620 Wingate v. Haywood 148, 192 Winlock v. Hardy B5, 345, 347 Winn v. Cabot 363 Winnard v. Robbins 489 Winship v. Winship Winsmith v. Winsmith Winstell v. Hehl Winthrop Iron Co. v. Meeker Winton v. Hart Wisconsin v. Torinus Wise v. Fuller v. Hilton v. Rhodes Withers v. Reynolds Withington v. Warren Witte v. Lockwood Witzler v. Collins Wivel’s Case Wixom v. Stephens Woburn v. Henshaw 649 641 464 55 547 80, 192 654 132 643 187 66 167 538 428 48 336, 846, 349, 487, 488, 656 Wolcott v. Wolcott 206 Wollaston v. King 643 Womack v. Dearman 279 Wood v. Bayard 103 v. Chapin 322, 377 v. Corl 158 v. Faut 60 v. Gamble 301 v. Humphrey 65 v. Jackson 57, 81, 154 v. Nicholls 669 v. Ostram 668, 669 v. Rawlings 689 v. Seely 587, 656 v. Terry 829 v. Turner 486 v. Vance 585 v. Watkinson Woodbridge v. Banning 58, 403, 404 Woodgate v. Fleet 144 Woodhull v. Rosenthal 676 Woodley v. Coventry 491, 630 Woodruff v. Erie Ry. Co. 456 v. Taylor 48, 225, 292 Woods v. North 426 v. Pangburn 163 -v. Russell 186 v. Wilson 566 Woodward v. Tudor 592 CITED. lvii PAGE Woodworth v. Paige 440 Wooley v. United States 62 Worcester Med. Inst. v. Harding 629 Worrall v. Gheen 612 Worsley v. Johnson 835, 846 Wortham v. Gurley 587 Wray v. Davenport 662 Wright’s Appeal 552 Wright v. Andrews 128, 208, 281, 288, 285, 288, 289, 293 v. Arnold 682 v. Boynton 281 v. De Groff 827, 569 v. Deklyne 56 v. Lang 138, 537 v. Leonard 582, 583 v. McPike 620 v. Newton 590, 593 v. Phillips 99 v. Snow 585 v. Tukey 863 v. Willis 616 v. Wright 419, 428, 431 Wyatt v. Rambo 133, 245 Y. Yarborough v. Avant 191 Yare v. Gough 309 Yates v. Hurd 445, 661 Yeoman v. Younger 94, 221 Yorks v. Steele 128 Young, Ex parte 188, 189, 142 v. Babilon 566, 628 v. Grote 603, 612 v. Mutual Ins. Co. 638 v. Pritchard 89, 145 v. Raincock 841, 358 v. Stoutz 98 Youngblood v. Cunningham 634 Z. Zell’s Appeal 613 Zeller v. Eckert 477 Zimmler v. San Louis Water Co. 355 Zoeller v. Riley 135, 672 Zottman v. San Francisco 658 Zuchtmann v. Roberts 610, 616 Zwietusch v. Walkins 659, 688 THE LAW OF ESTOPPEL. INSTITUTES. THE LAW OF ESTOPPEL. INSTITUTES. 1. Estoppel a substantive Right. Tue law of Estoppel is the law of rights acquired or fixed in one of three ways, namely, by record, by deed, or by facts in pais. The term ‘record’ signifies (1) the legislature’s roll, (2) the judgment roll of a court of competent jurisdiction ; ‘deed,’ a contract under seal, and especially a conveyance of land or some interest therein ; ‘facts in pais, acts, admissions, or conduct which have induced a change of position in accordance with the real or apparent intention of the party against whom they are alleged. It may be observed of the last class of estoppels however that they sometimes arise upon sealed instruments also, as in the case of a ten- ancy 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) is of the same force and effect as where the tenancy arises in pais. And hence the tenant’s estoppel, whether the holding be by sealed lease or otherwise, is treated under the third division of the subject. 4 INSTITUTES. The historical origin of these divisions of estoppel is separated by three long and indefinite periods, which may be termed the ancient, middle, and modern. To the first belongs the doctrine of res judicata; to the second belong the doctrines of estoppel by deed, and also of estoppel in pais as it existed prior to and in the time of Lord Coke; to the third belongs the modern doctrine of estoppel in 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 collections of the English law;! the third has grown up within a century.” For a long time estoppels were considered odious; and the courts have not yet ceased altogether to apply the term to them. The definition given by Lord Coke has often been referred to as giving ground for the application of the term. He said that the name ‘ estop- pel,’ or ‘conclusion, was given ‘because a man’s own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth.* The definition certainly was not felicitous; and if it were altogether correct, the doctrine of estoppel might well be regarded as odious. It seems to be true however that in Coke’s day the doctrine was not favored, perhaps because it 1 Statham’s and Fitzherbert’s Abridgments, and Year-Books temp. 2 See chapters 2, 5, 6, 7, 11, 13, 14. 3 Coke, Litt. 352 a. Edw. 2, annis 1307-1326. These are the earliest printed volumes of the Year- Books, except five of the reign of Edw. 1. In those the title ‘ Estoppel’ is not in- dexed. * Messrs. Everest & Strode, in a new and creditable piece of work, have col- lected and commented upon the English dicta in regard to the supposed odious- ness of estoppels. Estoppel, 9-16, INSTITUTES. 5 was in fact sometimes used to shut out the truth against reason and sound policy.’ In modern times the doctrine has lost its odium and become one of the most important, useful, and just factors of the law? It is safe to say that at the pres- ent 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. Considered from the side of its formation, estoppel is a particular mode of establishing a right, just as is true of a sale; considered from the other side, that is, from the result, estoppel is the right itself. This right 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 the estoppel creates a right in personam only, as is ordinarily the case, the meaning is that the claims of others than those who were parties to the transac- tion in question 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 entitled to be heard were embraced, the estoppel cre- ates a right in rem, as broad as the sale of a chattel by one exclusively owning it. Thus if those who have the exclusive right to try a cause before the 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 1 Note to Duchess of Kingston’sCase, 35 La. An. 748, admission of a witness 2 Smith’s L. C. 693, 6th Eng. ed. A held conclusive. See chapter 3. survival may be seen in Folger v. Palmer, 2 Caldwell v. Smith, 77 Ala. 157, 165. 6 INSTITUTES. 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 war- ranty, and should afterwards acquire full title to it, the full title would inure to B, and his right, begin- ning and accruing by estoppel, would be 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.’ These are typical illustrations of the three divisions of the substantive law of estoppel. Besides this sub- stantive law there is an adjective law of the subject.‘ To see the process in which the whole law is worked out is the object of this book. An elementary statement 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. 8 See chapter 18. 2 See chapter 11. * Part IV. INSTITUTES, 7 2. Principles of Estoppel. 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 res judicata. 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 res judicata 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, ie. upon the question whether it was an action in rem or in personam; and secondly upon the forum in which it was pronounced, i.e. upon the question whether it was a judg- ment 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 ordinarily has no effect upon the rights of third persons? 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.4 This conclusive- ness has however sometimes been extended to the decrees of tribunals other than the ordinary public courts of justice. A 1 Chapter 1. the two kinds of judgments are set 2 Chapter 2. out. 8 Ib., where the distinctions between 4 Chapter 2. 8 INSTITUTES. college sentence of expulsion was held conclusive in a case before Lord Mansfield! Judgments of provisional 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 ac- quired 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 td set them aside; the decisions of the comptroller of the currency, the commissioner of patents, agreed judgments, awards of arbi- trators, 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 judgment 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 judg- ment 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 respect 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 com- petent jurisdiction may never again be called in question by parties or privies against objection, though the judgment may have been erroneous and liable to and certain of reversal in a higher court.? We must now proceed to a more detailed ex- amination 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 1 Chapter 2. 2 Tb. 8 Ib. 4 Ib. § Ib. 6 Ib. 7 Ib. 8 Chapter 3. 9 Ib. INSTITUTES. . 9 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 judg- ment 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 brought in jeopardy of life or limb for the same offence is the counterpart of this doctrine. In the case of estoppel by verdict it is immaterial whether the cause of action in which the verdict was given was the same in the subsequent suit or not. The rule in this case is that a point once determined between the parties, or those under whom they claim, may be relied upon as an estoppel in any cause of action that may thereafter be tried. The. estoppel arises upon the special findings of the jury. But though it is not necessary that the cause of action should be the same in both cases, it is essential that the point decided should be precisely the same as the one raised in the subsequent suit? In regard to the effect and operation of judgment and ver- dict estoppels it is, in the case of domestic proceedings in personam, a general rule that only parties and privies are bound by or may take advantage of the adjudication? The estoppel must be mutual; it cannot be employed by or against strangers. The term “parties’ embraces all -persons having a right to control the proceedings, make defence, adduce and cross-examine witnesses, and to appeal from the decision when an appeal lies In some cases however 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 1 Chapter 3. 2 Tb. 5 Tb, £ Tb. 10 : INSTITUTES. the action. This proceeds 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 tort~ feasors; only the defendant and those claiming under him can plead the judgment. The tort is considered as joint and several.2 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 sue upon the same cause of action. But the converse of this tule does not hold unless the suit be brought at the instance of or be acquiesced in by the principal or bailor.® Judgment in ejectment, under the old fictitious form of proceeding, is another instance of this kind® A different rule prevails where the parties are nomiually the same but really different; judgment 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 appearing 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 1 Chapter 3. 2 Tb. 8 Tb. 4 Tb. 5 Ib, 6 Ib. 7 Tb, 5 Ib. * Ib. INSTITUTES. 11 creditor may prove that the debt is greater than it was admitted to be by the debtor The term ‘privity’ as applied in the law of estoppel denotes (1) successive relationship to the same rights of property, (2) subor- dination of property rights ; and persons falling within this defi- nition, whether privies in law, in blood, or in estate, are bound by and may take advantage of judgments equally with parties.” There is no privity in the relations of guarantor and principal, surety and principal, co-sureties, and the like, in the sense of 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* But an administrator is in privity with his intestate in respect of the personalty ; and an executor is in privity with his testator to the extent to which, by the terms of the will, he succeeds to the position of the testator.©5 Whether an administrator de bonis non is in privity with his predecessor, the executor or administrator, is a point of conflict among the authorities. The weight of authority is probably in the negative.® It is an important qualification of the rule that judgments bind the parties, that they bind them only in the character in which they appeared in the proceedings. A judgment against a person as administrator is not an estoppel against him in his own proper character. And the same 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.2 And generally judgments in personam, when not 1 Chapter 3. 2 Th. 8 Th. 4 Ib. 5 Ib. § Ib. 7 Tb. 5 Ib. 12 INSTITUTES. fraudulent, are conclusive upon third persons of the relation- ship established between the parties, and of the extent of that relationship. We have already remarked that judgments are only con- clusive of matters essential to the decision; but it often becomes 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 appli- cable only to the main question in dispute, but that the judg- ment 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 putin issue; but accord- ing to the weight of authority and the better doctrine, the judgment operates only upon such matters as were neces- sary parts of the cause of action. There is no estoppel therefore except in respect 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 tried3 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 sufficient 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 judg- ments of superior courts, though not universally accepted, 1 Chapter 3. 2 Tb. 3 Ib. 4 Tb. 5 Ib. 6 Ib. INSTITUTES. 18 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 jurisdiction! In the case of the superior courts proceeding according to the course of the common law the jurisdiction will be conclusively 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 con- flict whether the same presumptions 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 presump- tions respecting jurisdiction are concerned® Judgments of inferior courts may be impeached for want of jurisdiction, except in certain cases where there has been an adjudication of jurisdiction by the inferior court on general ap- pearance 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® It is probable that judgments of inferior courts may be impeached for ordinary fraud. Fraud is certainly good ground for the im- peachment of such judgments when no appeal lies. 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 Probate," orders in some of the states concerning the settle- 1 Chapter 3. 2 Tb. 3 Tb. 4 Ib. 5 Tb. 6 Ib. 7 Chapters 4,5. ° Ib, ° Ib. 1% Tb. 11 Tb, 14 INSTITUTES. ment and removal of paupers, decrees appointing tutors to minors? and judgments confirming the reports of commis- sioners of boundary.2 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.® 3 In respect of both foreign and domestic judgments in rem the same rules prevail concerning the extent and operation of the judgment itself (as distinguished from findings and grounds) as in the case of domestic judgments in personam, with the ex- ception that they bind all persons, and not merely the actual parties and their privies® But the jurisdiction in all cases ‘probably is 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 England ;® but it has finally been settled that the judgments of foreign and colonial courts of competent jurisdiction are conclusive and unimpeachable upon the merits® The doctrine is not yet alto- gether 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 shibject of a constitutional provision, which declares that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. At first however this 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.4 But this doctrine was soon overruled by the Supreme Court of the United States; and it was there * Chapters 4,5. 2Tb 8 Ib, = Th, = Tb. ® Chapter 5, 7 Ib. 8 Chapter 6. 9 Ib. 10 Ib, Tb, INSTITUTES. 15 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 ; for they are not regarded technically as records? 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 consideration due to records of the domestic judgments. But it is agreed 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.4 It is settled that judgments of the sister states may not be impeached at law for fraud ;® but there is some conflict. whether proceedings upon such judgments may be restrained in chan- cery.6 The question has never received an authoritative answer from the Supreme Court of the United States. It would seem that fraud is a proper ground for impeaching 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 American 1 Chapter 6. 2 Tb. 3 Ib. ‘ Ib. 5 Tb. ® Ib. T Ib. 8 Ib. 16 INSTITUTES. states. As these have the force and effect of domestic judgments, the law of merger prevails, and the plaintiff, if he sue at all in another state, must bring his action upon the judgment. The relation of privity does not exist between administrators appointed in different states or countries; and therefore a judg- ment against a foreign administrator cannot be an estoppel against a co-administrator acting in the state of the forum; but it has been said to be otherwise in 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 question has never gone to the Supreme Court of the United States. The jurisdiction of such courts however is subject to impeachment except perhaps where there has been, be- tween citizens of the sister state, an adjudication upon the point. The second principal division of estoppel is denominated. estoppel by deed. The law declares that no man shall be allowed 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.6 And the rule is also to be understood with the quali- fication 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 infants Of the further limitations of the doctrine the following should be observed: 1. The deed must be valid; a void deed cannot generate an estoppel except perhaps in certain cases where its 1 Chapter 6, 2 Tb. 5 Ib. * Tb. 5 Chapter 7. ® Chapter 8. T Ib, ® Ib. INSTITUTES. 17 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 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 instru- ment. 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 subse- quently, 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 pres- ent 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 1 Chapter 9. 2 Tb. 8 Chapter 10. # Ib. 5 Ib. 6 Chapter 11. 7 Tb, 2 18 INSTITUTES. passed by the lease, no estoppel will arise in relation to future estates, and the lessor in such cases may set up the new interest and eject the lessee. In modern times the doctrine that after-acquired interests inure to the grantee of one whose actual title was not sufficient for his grant holds good even without a warranty, provided it appear from the deed itself that the grantor intended to convey and the grantee expected to receive a particular estate greater than the grantor possessed.? In case a warranty is inserted the effect upon future estates acquired by the grantor will depend upon the nature of the grant and of the warranty.2 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 grant5 The estoppel however in these cases is a mere rebutter, given to prevent a circuity of action, and arises from the warranty. If it were not permitted, and the grantor were allowed to recover the land from the grantee upon acquiring the future interest, the grantee would in turn be entitled to recover the value of the land from the grantor by an action upon the warranty. There has been much controversy 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.® 1 Chapter 11. 2 Tb. 5 Tb. * Ib. 5 Tb. 8 Tb. INSTITUTES. 19 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 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 without consideration, and in fraud of her husband’s cred- itors, is not estopped to claim dower against a purchaser for a valuable consideration from the grantee.* An estoppel in pais in its typical character is the effect of an indisputable admission, arising from the fact that the party claiming it has been induced by the action of the party against whom it is claimed to change his position.5 The first division of the subject we have 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 estoppel as known in the time of Lord Coke. At that time the tenant's estoppel arose only in the case of a sealed lease, and then only against the party sealing; so that there was no conclusion upon the tenant in the case of a deed-poll or verbal lease At the present day however the estoppel arises by reason of permis- sive possession, and lasts until a surrender. It is therefore im- material 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 1 Chapter 12. 2 Tb. 8 Ib. £ Tb. § Chapter 13. 6 Chapter 14. 1 Tb. 920 INSTITUTES. disability not being bound by the contract cannot be estopped to deny its force.1 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- 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.2 And proof may always be given of the circumstances 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.8 The estoppel may also be removed by disclaimer brought to the notice of the landlord. By such an act the title of the ten- ant becomes adverse ; and the lessor may eject him at once from the premises. And if he fail to do so before the period of limi- tation 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. 1 Chapter 14, 2 Tb. 8 Ib, 4 Tb. 5 Th. 6 Ib. 7 Ib, 8 Ib, § Ib, 10 Ib. INSTITUTES. 21 The tenant may also purchase the property of his landlord, and thus extinguish the tenancy.! But if he should be bound to pay taxes and neglect to do so, he could not buy in the title at tax sale and set it up against the lessor The rule is subject to the further qualification that the tenant may show that he was let into possession under a title from which the landlord’s title was derived? He may also show that one to whom he has paid rent under an attornment has no derivative title from the lessor. When however none of these exceptions are available to the tenant, the estoppel will ordinarily prevail even though the ten- ancy be created by a deed which 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.6 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 c* 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 guch a case, in an action by the bailor, the bailee may set up the jus tertii1® 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 1 Chapter 14. ? Ib. 8 Tb. 4 Ib. 5 Tb. 6 Ib. 7 Ib. 8 Ib. 9 Ib, 0 Ib. 1 Tb. 22 INSTITUTES. that the bailee has become aware of the title of a third person ; nor is it enough that an adverse claim is made, so that he may be entitled to relief under an-interpleader. The bailee can only set up the title of another against his bailor when he acts upon the asserted right, title, and authority of that person. A similar rule applies to the case of assignees and licensees of patents. If they have acted under the patent and received profits from its use, they will not be permitted to deny the validity of the patent in an action by the patentee to obtain an account2 The principle is like that by which an agent, having collected a debt for his principal, must pay the money over to his principal 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.® Acceptance of a bill of exchange is a conclusive admission of the genuineness of the drawer’s signature, at least in favor of a bona fide holder for value who has taken the bill after the act of 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 ordinarily from denying the genuineness of any other signature than that of the drawer, not even that of the payee though it may have been upon the paper when it was accepted.® But if the drawer put the bill into circulation bearing a forged indorsement of the 1 Chapter 14. 2 Tb. 8 Ib, 4 Tb. 5 Tb, ® Chapter 15. T Ib, 8 Ib. INSTITUTES, 23 payee, or bearing the name of a fictitious payee indorsed -in the drawer’s hand, the acceptor will not be permitted to escape liability by alleging that his warranty extends only to the sig- nature of the drawer. This warranty of genuineness extends only to the signature itself, and does not embrace the hand- writing 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 reason- able 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.* It is held too that one who receives as genuine, from an innocent party, paper purporting to be his own, which however has in fact been forged, will not be permitted upon a late dis- covery 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 imports a warranty of the present capacity of the payee to indorse the paper; and the same is true of the accept- ance of a bill of that character.’ But the warranty extends only to the payee’s capacity at the time the paper was made or accepted® So too by indorsing commercial paper the party warrants the capacity of all prior parties to the security.® Whether the certification of a bank check as ‘good’ by the teller or cashier of a bank operates to preclude the bank from showing that the drawer had no funds on deposit at the time A 1 Chapter 15. 2 Tb. 8 Tb. £ Tb. § Tb. 6 Tb. 7 Tb. § Ib. 9 Ib. 24. INSTITUTES, has been a subject of conflicting opinion, The doctrine held in New York and elsewhere is that the correctness of the certificate is a matter which the certifying bank has the means of knowing, and is bound to state correctly; and that if the presenting party relies upon its accuracy, and is caused to forego a remedy, the certifying bank will be held to its statement.1_ 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 how- ever it has been held that the certification of checks is not within the inherent powers of the teller so as to bind the bank to pay the amount.3 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.* The general rule in respect of the estoppel of corporations to set up the defence of ultra vires to actions upon their contracts is that corporations will not be permitted to raise the defence concerning matters within the apparent (if in the actual) scope of their powers; and they are precluded from setting up such defects in their organization, or in the preliminaries to the exe- cution of their acts, as are peculiarly within their own knowledge and cannot fairly be presumed to be known by the other party® A partner in a firm will be estopped to deny the truth of a representation concerning the business of the firm, made by his co-partner and acted upon. The same principle prevails of a note or bill fraudulently issued in the firm name and negotiated to an innocent person. The firm will be liable thereon. So if a party hold himself out as a partner, he will not be permitted to deny the truth of the representation made to such persons as have acted upon it 1 Chapter 15. * Ib. 8 Ib. 4 Tb. 5 Chapter 16. ® Tb. T Ib. 8 Ib. INSTITUTES. 25 Acknowledgment of receipt of money or of a commodity is not conclusive evidence of the matter stated, even when in a deed, unless it has been acted upon by the party to whom it is given so as to change his position. It is a general principle also that the owner of property who allows another to act or appear as the owner of it, or as having full power over it, will be estopped to dispute the authority of such person against persons who have been induced to deal with him upon his apparent authority.2 So where a person by his words or conduct voluntarily causes another to believe in the existence of a certain state of things, and induces him to act upon that belief so as to change his previous position, he will be estopped to aver against the latter a different state of things. This is a branch, and the main branch, of what is called estoppel by conduct, or equitable estoppel. In order to this es- toppel it will be necessary that all of the following facts actually or virtually should 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.‘ 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 Jaw.6 It must have been plain and certain, and such as would naturally lead to the action taken.® This estoppel may arise from misleading passive conduct or concealment as well as from active conduct.? A party who negligently stands by and allows another to contract on the faith and understanding of a fact which he can contradict may not afterwards dispute the fact in an action between himself and the person whom he has assisted in deceiving. Or as the principle has been forcibly stated in the Court of 1 Chapter17. 2 Chapter18. Ib, 4Ib ‘5SIb Ib 7 Ib. 26 INSTITUTES. Chancery, where a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to keep silent. If however the party’s silence be not the result of intended fraud or of negligence, his conduct will not raise an estoppel ;? and forgetfulness of one’s rights has sometimes been held ex- cusable2 But such a case should not be the result of gross negligence.* 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;® but the weight of authority seems to favor the doctrine that both infants of years of discretion and married women may preclude themselves from denying the truth of their representations in the case of pure torts. Where however the conduct or representation is so 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 mak- ing 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 per- mitted to deny the truth of his statement against the objec- tion of the latter.8 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 1 Chapter 18. 2 Ib. 8 Tb. £ Ib. 5 Tb. 6 Th, 7 Tb. ® Ib. * Tb. 10 Tb. INSTITUTES. 27 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 proof of express 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, to wit, by a party to a contract or transaction inducing the other to act in the belief that the former will waive certain rights he might otherwise maintain against the latter. This estoppel does not consist 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 person to expend money on one’s premises in the belief that the former will thereby acquire rights or privileges is another.® A party will not be permitted to assume inconsistent posi- tions; and where one has an election between inconsistent courses of action he will be confined to that course which he first adopts Accordingly where a party takes a beneficial interest under a will, he will not be allowed to contest the validity of the testament.’ So if a person assist in procuring the passage of an unconstitutional act by the legislature for his own benefit, and proceed to act upon it, it is held that he will not afterwards be allowed to deny its constitutionality.6 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.’ 1 Chapter 18. 2 Th. 8 Ib. * Chapter 19. 5 Th, 6 Tb. 7 Ib, 28 INSTITUTES. Whether the estoppel of a deed or record should be pleaded or not to be available has been a matter of doubt at the common law; but the prevailing and better opinion at the present time is that it is conclusive in evidence though not pleaded. This is certainly true in case the party claiming the benefit of it has had no opportunity to plead it. It is well settled at common law that the facts constituting an estoppel in pais need not be pleaded;. but there have been statutory regulations upon the whole subject in some of the states? The proper general issue to an action upon the judgment of a court of record is nul tiel record, both in the case of domestic judgments and of the judgments of a sister state of the Union? But nil debet may be pleaded to a judgment rendered in a for- eign country. The practice in declaring upon a judgment is to allege generally that the plaintiff, by the consideration and judgment of the court, recovered the sum mentioned; but in pleading or replying a judgment as an estoppel to an action or allegation it should be made to appear that the precise point now in question was brought in issue in the preceding action and there determined.é 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}? 1 Chapter 20. 2 Tb. 3 Chapter 21. 4 Tb. 5 Th. ® Ib. 7 Chapter 22. 5 Ib, » Ib. 10 Tb. INSTITUTES. 29 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 laws? but a contrary rule prevails in many states.® Parties are not permitted to take inconsistent positions in the 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 permit- ting one.‘ 2 1 Ante, p. 25. 2 Chapter 23. 5 Ib. £ Chapter 24, PART I. RIGHTS ARISING FROM ESTOPPEL BY RECORD. PART I. RIGHTS ARISING FROM 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, and that estoppel by record is a right acquired or fixed by record. But the record is attended with another twofold estoppel; the roll as a memorial creates one kind; 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 the preclusion affects all the world. There can be no such thing as individual parties to such records; all the people are parties, and all are therefore bound so long as the record remains unchanged. LEstoppel arising from court records requires closer examination. This concerns not merely record evidence arising from enrolment, but also the conclusive- ness of judgments generally. Strictly speaking perhaps this estoppel may embrace only the effect of judgments of the domes- tic 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. In one respect this estoppel is like the estoppel arising from a legislative record; as a memorial simply it has conclusive 3 84 ESTOPPEL BY RECORD. effect against all the world. No one whether party, privy, or stranger is permitted to deny the fact that the proceedings nar- rated in the record transpired,! or the time when they purport to have transpired,? 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 pro- ceeding 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; such persons can neither be bound by nor take advantage of recitals in the record.? Indeed even between parties and privies the 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 ¢hat state of recitals of jurisdictional facts of even the superior domestic courts. On the other hand the record of a judgment in rein (a term to be explained later), apart from findings and recitals of jurisdiction, is conclusive of the rights of all persons. 1 Reed v. Jackson, 1 East, 355. 2 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. 8 Morgan 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. * See Rogers v, Beauchamp, 102 Ind. 83, 36, and Exchange Bank ». Ault, ib. 822, in regard to such proceedings. 5 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 ». Stevens Point, 62 Wis. 255. 6 A finding of prescription or of repu- tation, as in regard to the existence of a ferry or a fishery, is prima facie evi- dence against strangers, but nothing more. Reed v. Jackson, 1 East, 355; Neill v. Devonshire, 8 App. Cas. 135, 147; Pim v. Curell, 6 Mees. & W. 234; Hemphill v McKenna, 8 Ir, L, R. 48, 51, 52 ; Carnarvon », Villebois, 13 Mees. & W. 313. T Perhaps an admission of record might be made for the benefit of a third person, or with a view to his acting up- on it, soas, when materially acted upon, to become conclusive. Dahlman v. Fors- ter, 55 Wis, 382. 8 Mulligan v. Smith, 59 Cal. 206, 233. ® Ferguson v. Crawford, 70 N. Y. 253. Sce chapter 3, sec. 4. PRELIMINARY VIEW. — THE RECORD. 35 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 fur- nished 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 charac- ter not, except in a partial degree, accorded to testimony con- cerning the proceedings of the inferior courts. From this circumstance it came to be said in reference to the conciusive- ness of the evidence, at least as early as the twelfth century, that only the king’s courts ‘had record’;! an expression 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 a record, though to be received in collateral actions between the parties and their privies as conclusive evidence, may always be corrected, as has been intimated, by a direct proceeding. Thus if facts are erroneously inserted, the court may order an 1 History of Procedure in England, 319. In the Dialogue of the Exchequer, a work of the king's treasurer, Richard, Bishop of London, written in the year 1177, it is said of the Exchequer, ‘ Ha- bet enim hor commune cum ipsa domi- ni Regis Curia in qua ipse [i. e. rex] in propria persona jura decernit quod nec recordation’ nec sententie .. . 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 ‘record’ 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 certi- orari between William de la C. and Richard de P. and Margaret, his wife, concerning certain land in W., which the defendants claimed had been ad- judged to them in a previous trial by recognition. Whereupon ‘scrutatis ro- tuiis [short entries or memoranda of proceedings of the court] compertum est quod predicta recognicio rite facta fuit in Curia domini Regis et contra hujus- modi recognicionem sic in curia factam non jacet inquisitio patriz ad verifican- dum contrarium. Consideratum est quod predictum recordum stet in suo robore, et Ricardus et Margareta sine die.’ These rolls, it may be remarked, were not themselves under seal. 36 ESTOPPEL BY RECORD. 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 correct- ing a written instrument would doubtless be admissible in such & case, Before the record has been extended it may be observed that 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 col- lateral proceeding ; a proceeding, that is to say, not instituted to correct or enlarge the record. The judgment itself must, now be considered, and that more at length. Thus far of the record as a memorial. The estoppel arising from or fixed by the fact enrolled is now to be considered. 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. 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 Balch v. Shaw, 7 Cush. 282; Wil- 149; Chase v. Walker, 26 Maine, 555; lard v. Whitney, 49 Maine, 235. See Dunlap v. Glidden, 34 Maine, 517 ; Par- Rogers v. Beauchamp, 102 Ind. 83; ker v. Thompson, 3 Pick. 429, 434; Exchange Bank v, Ault, ib. 322. Packet Co. v. Sickles, 5 Wall. 580. Seo 2 Read v. Sutton, 2 Cush. 115. post, p. 81. 5 Sturtevant v. Randall, 53 Maine, PRELIMINARY VIEW. — RES JUDICATA. 37 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 testimony, 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 mnay 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? as the facts involved in the case. We speak of this as fundamental 1 The expression ‘res adjudicata,’ mer always, the latter with few excep- sometimes used even by reputable writ- tions. See Dig. 44, 2. ers, is Latin made to order. The Ro- 2 South Alabama R. Co. v. Henlein, man jurists, and their successors in 56 Ala, 368 ; Imrie v. Castrique, 8 Com. Europe, say ‘res judicata,’—the for- B.n.s. 405; 5c. L.R. 4H. L. 414; Case v. Beauregard, 101 U. S. 688, 88 ESTOPPEL BY RECORD. 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 pecu- liar 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 principles 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 con- venient term, ‘res judicata’; to Rome let us turn and see what that term signified among those who invented it. In its most obvious and general meaning the term ‘res judicata’ signified at Rome, as it signifies in England and America, that a matter in dispute had been considered and settled by a com- petent court of justice. The term had however a special mean- ing, which turned upon what we should call a point in pleading. In the time of Gaius, the second century, a distinction existed in the courts between suits brought in or within a milestone of the city, and suits brought elsewhere. In contests tried in the city, judgment for the plaintiff in a particular action had the effect to annul the original obligation of the defendant, merging it, 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 afterwards brought another action upon the same demand, a simple denial, such as would be called a plea of the general issue in the English law, was sufficient for the defendant. Then when the case came to be submitted for the evidence, the trial now having come to an issue (litis contestatio), the defendant in answer to the plaintiff's evidence proved the former judgment; and this, disproving the existence of the obligation or liability alleged by the plaintiff, ended the cause in favor of the defend- ant. The proceeding in which such a course of things took place was called ‘judicium legitimum.’ If the litigation occurred beyond the territorial jurisdiction of the city courts, the effect of judgment for the plaintiff was like that of judgment rendered in PRELIMINARY VIEW.-—RES JUDICATA. 39 a country foreign to Great Britain or to the United States. Being a ‘foreign judgment’ no novation — our merger — 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 plain- tiff was not entitled to enforce his demand. For this purpose the defendant entered a plea of the former judgment, or as it was called by the Roman jurists an ‘exceptio rei judicate’ or ‘rei in judicium deducte.’ The proceeding in which this took place was called ‘judicium imperio continens. By the time of Jus- tinian, the sixth century, this distinction had ceased to prevail, the rule governing in the preetor’s court without the city having become universal. No novation occurred even of judgments rendered in 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 he 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. The parties should also have litigated in the same character in both actions.2 The conclusiveness of the judgment probably extended to every point necessarily decided ; and it was not necessary that the former cause of action should have been the same as the second except when that cause of action was itself the subject of dispute. It was enough that the point in dispute was the same in the two actions 1 The exceptio, it may be observed, 475, 6th Eng.ed. Upon the subject of was unlike our plea in confession and the text see Gaii Inst. iii. 181; ib. iv. ‘avoidance, m that it did not confess 106, 107; Inst. Just. iv. 13, 5. anything, it only avoided, and the 2 Dig. 44, 2, 14. plaintiff was still put to the proof of 8 See Dig. 44, 2, 7; ib. 44, 2, 21. his demand. Sandars, Justinian, p. 40 ESTOPPEL BY RECORD. 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 conclusive- ness of which the defendant could not deny; if judgment had gone for the defendant, he could avail himself thereof as a con- clusive 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 im- portant 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 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 property is said to be a right in rem, for it avails against all the world ; whoever faatnoes it is liable. So in regard to ac- tions, an nation was in rem when it was brought to enforce a right which availed generally, though the right having once been infringed the action was of course brought against the individual 1 Jn one case the doctrine was ex- giers. The Helena, 4 Ch. Rob. 3. Per tended to a decree pronounced in Al- Sir William Scott. PRELIMINARY VIEW. — RES JUDICATA. 41 who infringed it. The term was used 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 artiticial sense, to indi- cate 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 obligation.® 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 proceeding in rem and one in personam; neither binding any but. parties to the litigation, and their successors in right. The doctrine of the modern Roman law however approaches somewhat more nearly our own. 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 parties exceptionally, as for instance in the case of the invalidity of a testament, in an indictment, in a judgment upon the status of a person, in judgments in cases of real servitudes, in joint ownerships, and in other similar instances,’ 1 Gaius, iv. 3. 8 Goudsmit, Roman Law, p. 247. 2 See Tomkins & Lemon, Gaius, p. 4 Tomkins & Lemon, Gaius, p. 275 ; 601. See also Inst. iv. 6, 1, Sandars; but quere if judgments were not in Bracton, 102. The term ‘inrem’ indi- some cases binding upon ‘all the world,’ cated, not the object, but the nature of a ase. g. where all persons interested in a demand ; and there could. be a pactumn cause. were made parties thereto. in rem as well as in personam. Goud- 5 Tomkins & Jencken, Mod. Rom. smit, Roman Law, p. 248, by Gould. Law, p. 94. 42 ESTOPPEL BY RECORD. The old writers on the English law make use of the same terms ‘in rem’ and ‘in personam,’ the former however in a re- stricted sense as compared with its use in the Roman law. Thus according to Bracton 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 men- tioned) arose out of contract or tort. Whether there was any general difference between the two classes in their effect upon third persons does not appear; prob- ably there was not. There was a class of proceedings however which would now be called proceedings in rem that led to judg- ments 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 probatione intervenerit fraus.’? Again Little- , ton 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 demand judgment if he [the demandant or plaintiff] shall be answered.’® Lastly Lord Coke says: ‘Where the record of the estoppel doth run to the disability or legitimation of the person, there all strangers shall take benefit of that record ; as outlawry, excommengement,! profession, attainder of pramunire, 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.’® The precision of meaning of the term ‘in rem’ as used in the Roman law has been lost in change and fluctuation in the Eng- lish law. We speak of rights in rem—rights available against all the world — in the Roman sense, but of actions and judgments in rem in the Roman sense rarely if ever. Confusion began when 1 Bracton, pp. 102, 102 b. 4 Excommunication, “2 Bracton, p. 420, § 17. 5 Coke, Litt. 352 b. 3 Litt. Ten. § 197 ; Coke, Litt. 128 a. PRELIMINARY VIEW. —RES JUDICATA. 48 long ago the term ‘real actions,’ instead of being applied to the redress of any right in rem, came to be 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 to- gether 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 regard to such purposes, and not upon the distinction of the Roman law, judgments conclusive generally are said to be in rem accord- ing to the English and American law; while those which bind only the 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 per- 1 The category in De Mora v. Concha, 29 Ch. D. 268 (C. A.), prize, revenue, pauper, and probate cases, does not pro- fess 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.’ Black- burn, J. in Castrique v. Imrie, L. R. 4 H, L. 414, 429. 44 ESTOPPEL BY RECORD. mits; 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, amount- ing nearly to an impossibility, of fully investigating such causes in a court of common law ;’ and there would be an ‘impropriety 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- 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 explanation of their broadly conclusive effect.2 But however convenient and useful the term, it is doubtful whether sayiug that a particular judgment has decided a status materially helps out any diffi- culty. 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 citizen- ship, 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 question to be tried, may justly bind all men. Upon this ground the general conclusiveness of 1 The Mary, 9 Cranch, 126, 145, 414, 434; and the arguments in De quoted by Holmes, J. in Brigham ». Mora v. Concha, 29 Ch. D. 268. Fayerweather, 140 Mass. 411, 414. See 2 See e. g. Hood v. Hood, 110 Mass. also the grounds stated in Baxter v. New 463, 465, clivorce case. England Ins. Co., 6 Mass. 277, 300; 8 See Markby, Elements of Law, Robinson v. Jones, 8 Mass. 536, 540; §§168-1 80, 3d ed., a work of great merit. Lothian v. Henderson, 3 Bos. & P. 499, * Comp. Williams v, Williams, 68 545 ; Castrique v. Imrie, L. R. 4H. L. Wis. 58. PRELIMINARY VIEW.-—RES JUDICATA. 45 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 exami- nation 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 has not 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 proceedings 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 findings 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, simply because the sovereign has spoken it.’ 1 Ennis v. Smith, 14 How. 400. 2 Bunting v. Lepingwell, 4 Coke, 29 ; Duchess of Kingston’s Case, Everest & Strode, 424; Bracton, 420, ante, p. 42. 3 See however Williams v. Williams, 63 Wis. 58, under special laws in regard to divorce. 4 De Mora v. Concha, 29 Ch. D. 268 (C, A., with the fully reported arguments the most instructive case to be found perhaps) ; Brigham v. Fayerweather, 140 Mass. 411, Holmes, J. 5 Upon authority of such cases as Hart v. McNamara, 4 Price, 154, note, Magoun v. New Eng. Ins. Co., 1 Story, 157, and Bouchier v. Taylor, 4 Bro. Parl. Cas. 708. & De Mora v. Concha, supra. 7 Brigham v. Fayerweather, supra. 8 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; 8. c. 6 Cowen, 404; Rad- cliff v. United States Ins. Co., 9 Johns. 277 ; post, chapter 5. 9 De Mora v. Concha, 29 Ch. D. 268; Brigham v. Fayerweather, 140 Mass. 411. 10 Mr. Justice Holmes in Brigham v. Fayerweather, supra. 46 ESTOPPEL BY RECORD. 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. The reason has already been foreshadowed; if all who have a right to appear and be heard in a cause have been duly made parties, the judgment establishes a perfect and complete right, as much as would a conveyance of land by all the parties interested ; and that right, carried into effect, must be a right in rem, availa- ble, that is to say, against all the world. There is nothing in the case in the nature of an obligation, i. e. of a mere right in personam. Judgment in an action strictly in personam may accordingly bind third persons; all that is necessary for that purpose 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 example! But the judgment does not profess to establish rights in respect of its grounds or of the findings in the cause; in regard to these it is enough that the decision is binding inter partes.” 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 as that 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, 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 pervading the Latin states generally, which judgment would not so operate in a contest governed by the laws of Eng- a Candee v. Lord, 2 Comst. 269; Ch. D. 851; Schibsby v. Westenholz, Brigham v. Fayerweather, 140 Mass. L. R. 6 Q. B. 155. 411, 413; Pickett v. Pipkin, 64 Ala. 4 And possibly rendered anywhere, 320; post, chapter 3. in causes between the citizens of such 2 Further in regard to judgments in state. rem see chapters 4 and 5. 5 Cases in note 3, supra; Hood ». 8 Comp. Rousillon v. Rousillon, 14 Hood, 11 Allen, 196. PRELIMINARY VIEW. — RES J UDICATA. 47 land or 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 suits. These suits are 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 strangers to the record. Attachment is simply resorted to to take the place of notice or appearance, in other words merely to give the court jurisdiction ;? it is a means, and not an end. The object of the litigation 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 pro- ceeding in rem. Sir John Jervis in pronouncing judgment ‘in The Bold Buccleugh® thus distinguished the case of attach- ment: ‘The foreign attachment is founded upon a plaint against the principal debtor, and must 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 proceed- ings are in personam; in the latter they are inrem. The attach- ment, like a common-law distringas, is merely for the purpose of compelling an appearance.’ It is perhaps properly said however that an order of sale of perishable goods levied on by attachment operates as a proceed- ing in rem, since the sale gives a title against all persons ;4 the 1 In Castrique v. Imrie, L. R. 4 H. L. 414, Lord Chelmsford said that the rule was that a proceeding in a foreign court to enforce a maritime lien, which by the law of that foreign country, and of all foreign codes founded upon the Roman law, was « proceeding in rem, though not so recognized by the law of England, must be so treated there. Comp. The Mecca, 6 P. D. 106, 2 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. 8S. 714; Easterly v. Goodwin, 385 Conn. 278. 8 7 Moore, P. C. 267, 282. See to the same effect Megee v. Beirne, 39 Penn. St. 60. * Megee v. Beirne, ?9 Penn. St. 50. 48 ESTOPPEL BY RECORD. order is given upon a determination of the perishable nature of the property, and the case obviously requires the most ample protection to purchasers. Such facts in connection with the literal import of the term may have given rise to the common statement that cases of attachment are proceedings in rem; or as was stated in Woodruff v. Taylor, proceedings in rem of a limited character. At any rate the cases agree that attachment proceedings have in general no effect inter alios2 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 judgment are not binding? 2, In the next place the judgment must have been valid! If 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 1 20 Vt. 65. 2 See 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: ‘ Prop- erly speaking however proceedings by attachinent are not proceedings in rem, but against the interest of the defend- ant and those claiming under him in the thing attached. Thus a judgment rendered on the attachment 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 ont of its ne- gotiation when it is a negotiable security. Barber v. Hartford Bank, 9 Conn. 407 ‘ Myers v. Beeman, 9 Ired. 116 ; Ormond v. Moye, 11 Ired. 564 ; Keiffer v. Ehler, 18 Penn. St. 888.’ And these remarks are also applicable to Proceedings in re- plevin. Ibid. ; Certain Logs of Mahog- any, 2 Sum. 589; Dow v. Sanborn, 3 Allen, 181; Megee v. Beirne, p. 47. 3 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; Wadsworth v. Connell, 104 Ill. 369, 374. There appears to be some doubt in regard to this point in England. Everest & Strode, 26; Brown, Estoppel, pl. 189; Coke, Litt. 227 b. 4 Wixom v. Stephens, 17 Mich. 518. 5 See e. g. Queen v. Hutchins, 6 Q. B.D. 300; s.c. 5 Q. B. D. 353 ; Smith v. Neal, 109 U. S. 426 ; Meltzer v. Doll, 91 N. Y. 365, 373 (ex parte proof in bankruptcy) ; Dodd v. Una, 40 N. J. Eq. 672, 718, that neither acquiescence nor request is sufficient to give a court jurisdiction of the subject-matter of a cause. To the same effect, School Trustees v. Stocker, 18 Vroom, 116. PRELIMINARY VIEW. — RES JUDICATA. 49 were of opinion that they were not precluded from bringing a new suit to recover upon the original demand. Chief Justice Cooley said that if for any reason the judgment was not valid, and the plaintiffs could not enforce it, then it could not consti- tute 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 the defendant is a citizen or resident of the state, 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 vol- untary and general appearance (without fraud practised upon him,‘ it seems). Appearance 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 prop- erty proceeding in rem as explained heretofore, the presence of a party, assuming that proper monition or notice has been given, becomes immaterial. The presence of the subject-matter will be enough to give complete jurisdiction. 1 Ante, pp. 41, 43. 2 Hood v. Hood, 11 Allen, 196 ; ante, p- 46. But probably no sovereignty would attempt to make a judgment binding upon its citizens beyond the dis- position of property attached, without service of process or general appearance, unless the judgment was a true judgment in rem, as e. g. a decree of divorce. Hood v. Hood, 110 Mass. 463. ® Galpin v. Page, 18 Wall. 350; Cooper v. Reynolds, 10 Wall. 308 ; Du- 4 rant v. Abendroth, 97 N. Y. 132 ; post, Foreign Judginents in personam. 4 Dunlap v. Cody, 31 Iowa, 260; Pfiffner v. Krapfel, 28 Iowa, 27. See Wanzer v. Bright, 52 Ill. 35. Perhaps it would be necessary in sueh a case to deny the justice of the claim as well as to allege the fraud. Luckenback 2. Anderson, 47 Penn. St. 123 ; White ». Crow, 110 U. S. 183. 5 Walling v. Beers, 120 Mass. 548 ; post, Foreign Judgments in personam. 50 ESTOPPEL BY RECORD. If however, the court having proper jurisdiction, judgment is merely voidable, that is, if 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; for a judgment is as conclusive upon the law involved in the cause as upon the facts, as will be seen more fully in the following chapters. 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- 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.” Judgment proceeds upon the merits when 1 Lawrence v. Milwaukee, 45 Wis. 306 ; Case v. Beauregard, 101 U. S. 688. But see Bernard v. Hoboken, 3 Dutch. 412, in regard to estoppels by verdict in distinction from the judg- ment. 2 Simson v. Hart, 14 Johns. 63, 76 ; Kanne v. Minneapolis Ry. Co., 33. Minn. 419 ; Bennett v. Denny, ib. 530, 633. 3 Chesnutt v. Frazier, 6 Baxter, 217. * Strang v. Moog, 72 Ala. 460; McCall v. Jones, ib. 368; Wood », Faut, 55 Mich. 185; Clark », Young, 1 Cranch, 181 ; Kendal uv. Talbot, 1 A. K. Marsh. 321; Birch v. Funk, 2 Met. (Ky.) 544; Stevens v. Dunbar, 1 Blackf. 56; Campbell v. Hunt, 104 Ind. 210, 215; Proctor v. Cole, ib. 873; Dil- linger v. Kelley, 84 Mo. 561, 569 ; Grif- fin v. Seymour, 15 Iowa, 30; Phelps ». Harris, 101 U. S. 370 ; Schertz v. People, 105 Til. 27. 5 1A. K. Marsh. 321. 6 See also Thomas v. Hite, 5 B. Mon. 590 ; Birch v. Funk, 2 Met. (Ky.) 544; Stevens 7 Dunbar, 1 Blackf. 56. 7 Thomas v. Hite, 5B. Mon. 590. PRELIMINARY VIEW.-— RES JUDICATA. 51 the very cause of action is decided upon. Such a decision con- cludes 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 in respect of that point ordi- narily ? 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 expiration of the statute of limitations, that he had begun suit (no other one hav- ing been undertaken) within the proper time.® 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- ants in regard to those counts, that he go hence without day. 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 the 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 1 Judgment sustaining a plea of the statute of limitations is not upon the mer- its. McElmoyle v. Cohen, 13 Peters, 312; Morrell v. Morgan, 65 Cal. 575. But of course the parties are estopped to raise that question again. The subject is of special importance in relation to judgments of courts of a sister state. The reader is referred to the chapter on Foreign Judgments in personam. 2 But the decision of a mere motion or summary application not appealable will not prevent the parties from raising the question in another action. Kanne v. Minneapolis Ry. Co., 83 Minn. 419 ; Simson v. Hart, 14 Johns. 63, 76. 8 Gray v. Hodge, 50 Ga. 262. 4 35 II]. 396. 5 2 Archbold, Practice, 229. § See also 3 Black. Com. 296, 1 16 How. 354. 52 ESTOPPEL BY RECORD. 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 plain- tiff’s error in regard to the subject-matter of his suit, he might reassert it by the same remedy in another suit, if appropriate 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 nonsuif 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 tight 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 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? Indeed nonsuit is declared to be uo 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 1 Ensign v. Bartholomew, 1 Met. 274. 2 Homer v. Brown, 16 How. 354. ‘Judgment of nonsuit, even upon an agreed statement of facts, cannot be pleaded in bar to a new suit although it was rendered by a court of com- petent jurisdiction, and was between the same parties and for the same sub- ject-matter.’ Per Clifford, J., in Derby v. Jacques, 1 Cliff. 425, 482; citing Homer », Brown, supra; Morgan v. Bliss, 2 Mass. 111; Knox v. Waldo- borough, 5 Greenl. 185 ; Bridge v. Sum- ner, 1 Pick. 871; Wade v. Howard, 8 Pick. 853. See also Coit v. Beard, 38 Barb. 357; Dexter v. Clark, 35 Barb. 271; Jones v. Underwood, ib. 211 ; Jay v. Carthage, 48 Maine, 353. 8 In re May, 28 Ch. D. 516, Brett, M. R. ; Manhattan Ins. Co. v. Brough- ton, 109 U. S. 121. See Everest & Strode, Estoppel, 29, 80. PRELIMINARY VIEW.-—— RES JUDICATA. cause remanded before he dismissed his suit.1 58 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? A decision upon a demurrer which has however clearly gone to the merits of the case is an effectual bar to further litigation ;8 1 Holland v. Hatch, 15 Ohio St. 464. See Loeb v. Willis, 100 N. Y. 231, post, p. 57. 2 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 plaintiff's failing to appear to his action his writ was ‘‘abated and dismissed,” 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 rendered solely for informality in a replevin bond, a new action may be brought. Walbridge v. Shaw, 7 Cush. 560 ; Morton v. Sweetser, 12 Allen, 134. So of a cause tried upon the merits, but eventually dismissed for want of juris- diction. Waddle v. Ishe, 12 Ala. 308. But it is said there is no doubt that a judgment on retraxit, being an admis- sion of record by the plaintiff that he has no cause of action, is as perfect a bar as a judgment after verdict. Coff- man v. Brown, 7 Smedes & M.125. In this case the court held that the follow- ing plea did not constitute a retraxit : ‘That a suit had been previously brought for the same cause of action, between the same parties, in which the plaintiff in his own proper person came into court and confessed that he would not further prosecute his said suit against the said defendant, but from the same altogether withdrew himself ; whereupon it was considered by the court that the plaintiff should take noth- ing, and that defendant go without day.’ See Minor v. Mechanics’ Bank, 1 Peters, 74. In McFarlane v. Cush- man, 21 Wis. 401, the fact that the plaintiff, obligee in a bond sued on, had previously brought suit upon the same bond before its maturity, was decided to be no bar to the present action, in- stituted 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. The assignee of a mort- gage 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 assignment 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 v. Banning, 14 Ohio St. 328 ; Taylor v. McCrackin, 2 Blackf. 261; Perkins v. Parker, 10 Allen, 22. 8 Johnson v. Pate, 90 N. Car. 334; Los Angeles v. Mellus, 58 Cal. 16 ; Felt v. Turnure, 48 Iowa, 397 ; Gray v. Gray, 84 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. Welden, 1 La. An. 46; Keater v. Hock, 16 Iowa, 23 ; Coffin v. Knott, 2 G. Greene, 582; Perkins v. Moore, 16 Ala. 17. A plaintiff in a bill in equity is not concluded on demurrer by his allegations of Jaw. Thompson v. National Bank of Redemption, 106 Mass. 128; Brown v. Newall, 2 Mylne & C. 555, 576. 54 ESTOPPEL BY RECORD. and upon the facts admitted it is held to be as conclusive as a verdict! But where a demurrer presents 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® 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 deter- mined that the contract had been performed, except so far as the judgment for the small sum indicated the contrary. But the court ruled otherwise.* 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- 1 Nispel v. Laparle, 74 Ill. 306. Judgment sustaining a demurrer to a declaration in a suit for seduction, based upon the statute of limitations, is no bar to a subsequent suit by the same plain- tiff against the same defendant, averring her infancy, if that fact was not set up in’ the former action. Morrell v. Morgan, 65 Cal. 575. 2 Griffin v. Seymour, 15 Iowa, 30. 8 Chapin v. Curtis, 23 Conn. 388. 4 ¢Did that demurrer prove,’ said Mr. Justice Ellsworth, ‘that the facts contained in the declaration 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 declara- tion? The whole effect of the judg- ment on a demurrer, and the $100 dam- ages, is that on that declaration, on some of the counts, the defendant had subjected himself to pay $100 for not performing his contract, or for his fraudulent warranty, 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 everything except to the amount of $100, which dam- ages might have been given, and prob- ably were given, for the carriers destroy- ing a portion 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 per- forming in due time and in proper man- ner makes no difference, for an admis- sion 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 Mur- dock v. Gaskill, 8 Baxter, 22 ; Jameson v. McCoy, 5 Heisk. 109; McNairy ». Nashville, 2 Baxter, 251; Gould ». Evansville R. Co., 91 U. S. 546. PRELIMINARY VIEW. —-RES JUDICATA. 55 pose, and this too though the court may not have gone into the evidence. 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 knowl- edge, the bill was dismissed and judgment given for the defend- ant for costs. The time had expired within which the plaintiff might have filed a replication and taken testimony. The court held the defence perfect. It was a judgment which, as had been settled in Foote v. Gibbs,? was conclusively presumed to have been upon the merits, and was a final determination of the controversy? 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 evidence.® Dismissal of a bill seeking relief in equity in respect affirmatively appear that the dismissal was on the merits to make it a bar. 1 5 Allen, 377. 2 1 Gray, 412. 8 Further see Case v. Beauregard, 101 U. S. 688; Phelps v. Harris, ib. 370. 4 Durant v. Essex Co., 7 Wall. 107 ; Walden v. Bodley, 14 Peters, 156; Hughes v. United States, 4 Wall. 237 ; Bigelow v. Winsor, 1 Gray, 801 ; Foote v. Gibbs, ib. 412 ; Tankersley v. Pettis, 71 Ala. 179, 185; Strang v. Moog, 72 Ala. 460, 465. See Langmead r. Maple, 18 C. B.n. s. 255; Mey v. Gullman, 105 Ill. 272 ; Garrick v. Chamberlain, 97 Ill. 620 ; Winthrop Iron Co. v. Meeker, 109 U. 8. 180; Smith v. Auld, 31 Kans. 262, 267. In the last case it is declared, upon the authority of Loudenback v. Collins, 4 Ohio St. 251, and Love v. Trueman, 14 Ohio St. 45, that it should And in the absence of evidence upon the point, that appears to be correct, for an estoppel can only be founded upon a certainty. Besides it should appear in some way that the fact in question was necessarily decided. See The Busteed, 100 Mass. 409. The fact that the dis- missal is not stated to be without preju- dice does not necessarily show that it was on the merits. 5 Foster v. Busteed, 100 Mass. 409; Burlen v. Shannon, 99 Mass. 200 ; Cook v. Burnley, 45 Tex. 97,117. See Mo- bile v, Kimball, 102 U. S. 691 ; Russell v. Place, 94 U. S. 606. 6 Russell v. Place, 94 U. S. 606; Chrisman v. Harman, 29 Gratt. 494. 56 ESTOPPEL BY RECORD. 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.2 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 to settle the rights of the parties or the extent of those rights. Thus an order in garnishment directing the garnishee 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, 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, 1 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 v. Arthur, 2 Ball & B. 349. 2 Webb». Buckalew, 82 N. Y. 555; Linington v. Strong, 111 Ill. 152, that judgment reversing and remanding a cause is not final, in the sense of the Tule. 8 Ford v. Doyle, 44 Cal. 635. 4 Collins v. Jennings, 42 Iowa, 447. See also Burnes v. St. Louis Ry. Co., 71 Mo. 163. The rule as to interlocu- tory orders has been somewhat enlarged by statute in New York ; but still they are not deemed to possess the full effi- cacy of judgments. Webb v. Bucka- lew, 82 N. Y. 555; Easton v. Pickers- gill, 75 N. Y. 599; Riggs v. Pursell, 74.N. Y. 870; Dwight v. St. John, 25 N. Y. 203. Before the Code they had no force as res judicata. Riggs v. Pur- sell, supra ; Webb v. Buckalew, supra. In any event the interlocutory decree must have been final, so as to be the sub- ject of a present appeal. Webbv. Buck- alew. Concerning ex parte orders see Burnes v. St. Louis Ry. Co., 71 Mo. 163 ; Collins v. Jennings, 42 Iowa, 447. And see Megee v. Beirne, 39 Penn. St. 50, ante, p. 47. 5 Webb v. Buckalew, supra; Car- lisle v. McCall, 1 Hilt. 399; Audu- bon v. Excelsior Ins. Co., 27 N. Y. 216 ; Leonard v. Baker, 5 Denio, 220; McLaughlin v, McGee, 79 Penn. St. 217. PRELIMINARY VIEW. —-RES JUDICATA, 57 appeal and affirmance, and remanding of the action for further proceedings.! 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- ceedings, it remains in full force and vigor, 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 aud one who had assumed the mortgage and was found liable accordingly, obtained leave, before sale, to dis- continue 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 agreement to assume that security.‘ 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 still at large for further litigation.® Another requisite remains, which should be considered in a separate section. 1 Croft v. Johnson, 8 Baxter, 390. 2 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. The effect of carrying a cause to a higher court is a matter largely of local law. % Loeb ». Willis, 100 N. Y. 231. See Holland v. Hatch, 15 Ohio St. 464, ante, p- 53. 4 ‘By the discontinuance of an ac- tion 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. 5 Russell v. Place, 94 U. S. 606; Burlen v. Shannon, 99 Mass. 200, 204 ; McDowell v. Langdon, 3 Gray, 513; Perkins v. Parker, 10 Allen, 82; Saw- yer v, Woodbury, 7 Gray, 499. 58 ESTOPPEL BY RECORD. 8. 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 v. Wood.2 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 show that the usurpation had been committed within the juris- diction of the court and county above named. The court were of opinion that it was improperly received. Lord Tenterden said that no one could read the names that appeared in it with- out seeing that the decree was neither that of the Court of Ex- chequer, 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 proceeding before persons not forming any court known to the laws of the land as having au- thority to decide the matter in issue or to make the decree in question. And he said that the document was not even evi- dence of reputation. In a case in Pennsylvania® the defendant, to sustain a plea of 1 In regard to such tribunals in England see Everest & Strode, 43-50, 91 et seq. 29 Barn. & Ad. 245. 8 Fisher v. Longnecker, 8 Barr, 410, PRELIMINARY VIEW,— RES JUDICATA. 59 Tes judicata, gave in evidence the record of proceedings before a justice of the peace by the same plaintiff against the defendant upon the same cause of action; in which case judgment had been given for the defendant. It appeared from the record that the summons to appear before the justice was returnable Decem- ber 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 therefore 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 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? 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 1 Durant v. Essex Co., 8 Allen, 103; Morse v. Goold, 11 N. Y. 281; Jes- 8. c. 7 Wall. 107. sup v. Carnegie, 80 N. ¥. 441; Etting 2 Proctor’s Case, 12 Coke, 118. v. Bank of United States, 11 Wheat. 2 Bridge v. Johnson, 5 Wend. 342; 59. 60 ESTOPPEL BY RECORD. 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? The report of an auditor on the other hand, though under an order of court is not, it need hardly be said, a judgment of a judicial tribunal Though it is commonly said that only the judgments of the public courts of justice are to be held conclusive, there are instances in which the proceedings of other bodies have on spe- cial grounds been regarded with the same respect and considera- tion. 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 dis- cipline. The decisions of the managing boards, lawfully consti- tuted, upon individual delinquencies touching the institutions alone must be conclusive ; conclusive, that is to say, upon the matter of delinquency, 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 sub- stance 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 1 Donnell v. Hamilton, 77 Ala. Ohio, 16; Case v. State, 5 Ired. 1; 610. State v. Anone, 2 Nott & M. 27. 2 Masterson v. Matthews, 60 Ala. 8 Horn v. Lockhart, 17 Wall. 570; 260; Mays v. Stoneum, 2 Ala. 390; Hill ». Huckabee, 52 Ala. 155; Me- State v. Porter, 1 Ala. 688. See State Queen v. McQueen, 55 Ala. 483. v. Carroll, 38 Conn. 449; Den », Red- * Lanigan v. New York, 70 N.Y. 454, dick, 4 Ired. 368; State v. Alling, 12 5 Rex v. Grundon, 1 Cowp..315. PRELIMINARY VIEW. —- RES JUDICATA. 61 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 con- cerned. Where the rights of others are immediately concerned, the rulings of the governing body should have no such effect.? 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 deci- sions of church courts, councils, or synods in this country con- cerning 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 1 Lord Mansfield, after having shown that the prosecutor was only a com- moner and not a member of the college, said that he was then but a mere boarder, and had no right to continue in the col- lege after they had given him notice to quit. ‘But,’ said he, ‘supposing Mr. Crawford [the prosecutor] were subject to the rules and orders of the college; in that case it is insisted that the sentence of expulsion is illegal. And at the trial the statutes of the college were offered in evidence to show that it should have been signed by the master and a major- ity of the fellows, whereas it was signed by the master and one fellow only. The answer to it is that, even if the allega- tion were well founded, the merits, the justice, or the regularity of the expul- sion cannot be entered into at the as- sizes; but the proper mode of impeach- ing it is by appeal to the visitor. Mr. Justice Willes was of that opinion at the trial, but reserved the question whether the statutes were to be admit- ted in evidence to impeach the sentence and enter into the validity of it then. And we are all of opinion with Mr. Jus- tice Willes that they could not. So that even if Mr. Crawford was a mem- ber, and subject to the jurisdiction, rules, and orders of the college, his mode of redress is by appeal to the vis- itor, and not to this court.’ 2 See Ginnett v. Whittingham, 16 Q. B. D. 761. ® See Chase v. Cheney, 58 Ill. 509, 537, 588, and cases cited. 4 6 Cold. 391. 62 ESTOPPEL BY RECORD. 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 involved. In such as in all of 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 subject 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 justices 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. 1 Mr. Justice Ellett, speaking for the court said: ‘The establishment of legal tribunals for the adjudication and protection of civil rights is the most favorable condition for the conquered people. There is always more or less security in a judicial body organized according to the forms of law for the administration of justice according to the rules that obtain in courts of judi- cature, There is a dignity and respon- sibility 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 bel- ligerent military occupation, and if their judgments and decrees are held to be binding on all parties during the period of such occupation, as the acts of a de facto government, we are not able to see on what grounds we can refuse to them a like effect when pleaded as res judicata before the regular judicial tri- bunals of the State since the return of peace.’ D “2 4 Am. Law Reg. n. 8. 534. 3 See Dynes v. Hoover, 20 How. 65; Wooley v. United States, 20 Law Rep. 631. * Hallock v. Dominy, 69 N. Y. 288; Cumberland Coal Co. v. Jeffries, 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, PRELIMINARY VIEW. — RES JUDICATA. 63 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 decisions of a body to which have been given semi-judicial powers, with a mode of review prescribed by law! The decisions of the 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.2 In Jackson v. Lawton, just cited, a case of patent of lands, Mr. Chancellor Kent said that unless letters-patent were absolutely void on their face, or their issuance was unauthorized or prohibited by statute, they could only be avoided in a regular course of pleading in which the fraud, irregularity, or mistake 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.6 In Cassidy v. 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 1 Logansport v. La Rose, 99 Ind. 117, 127; Grusenmeyer v. Logansport, 76 Ind. 549; Board of Commissioners v. Karp, 90 Ind. 236; Cicero v. Wil- liamson, 91 Ind. 541; Rutherford vz. Davis, 95 Ind. 245. See Strosser v. Fort Wayne, 100 Ind. 443, and cases in notes following. 2 Casey v. Galli, 94 U. S. 678. 8 Jackson v. Lawton, 10 Johns. 23; Rubber Co. v. Goodyear, 9 Wall. 788, 796; Eureka Co. v. Bailey Co., 11 Wall. 488; Field v. Seabury, 19 How. 332; Hosmer v. Wallace, 51 Cal. 368. * Rubber Co. v. Goodyear, ut su- pra. 5 Steel v. Smelting Co., 106 U. 8. 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. 96. 64 ESTOPPEL BY RECORD. was excluded; and it was held that the claimant was bound.! Mr. Justice Field, of the Supreme Court of the United States, 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 that is a matter of the statute, which of course might otherwise provide.’ 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 1 Judgment against an inchoate Mex- In re Beeckman Street, 20 Johns, ican land grant is not a bar to proceed- ings after the grant has been perfected, for obvious reasons. Amesti v. Castro, 49 Cal. 325, ante, p. 53, note. 2 Steel v. Smelting Co., 106 U. 8. 447, 450. 8 Oxborough v. Borsser, 30 Minn. 1. 4 Pitman v. Albany, 34 N. H. 577. 5 Powell v. Clelland, 82 Ind. 24. 8 Elkhart v. Simonton, 71 Ind. 7, 21, citing McMicken v. Cincinnati, 4 Ohio St. 394; In re Mt. Morris Square, 2 Hill, 14; In re Third Street, 6 Cowen, 671; Stafford v, Albany, 7 Johns, 541; 269. 7 Logansport v. La Rose, 99 Ind. 117, 127. As to orders of commission- ers of highways see Strong v. Makeever, 102 Ind. 578. 8 Pearl v. Harris, 121 Mass. 300. ® Lloyd v. Barr, 11 Penn. St. 41; Pease v. Whitten, 31 Maine, 117; Males v. Lowenstein, 10 Ohio St. 512; Burrows v. Guthrie, 61 Tl. 70; Snow v. Walker, 42 Texas, 154. An agree- ment to arbitrate, which ousts the juris- diction of the courts, is void both at law and in equity. Pearl v. Harris, 121 PRELIMINARY VIEW. — RES JUDICATA. 65 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 appraisers be attacked collaterally for mere error of judgment. 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.* 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 Mass. 390; Wood v. 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 ar- bitrate before, or as a condition prece- dent to, bringing suit. Scott v. Avery, 8 Ex. 487; s. c. 5 H. L. Cas. 811; ‘Wood v. Humphrey, supra; Rowe v. Williams, 97 Mass. 163; Scott ». Liv- erpool, 3 De G. & J. 334; Jones v. St. Johns College, L. R. 6 Q. B. 115; El- liott 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. 1 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 wit- nesses produced by the bank to prove it; a privilege which constitutes one of the principal tests of estoppel by judg- ment. The very point too, to establish which that judgment is now pleaded, was then in issue. Notice to the de- fendants of the dishonor of the note was a material allegation of the narr. in that action. And though no technical issue was formed by a formal plea, there was a substantial one under our system of ar- bitration, requiring proof of everything necessary to show the bank’s right to recover. Darlington v. Gray, 5 Whart. 487. The award of the arbitrators has therefore the same legal effect as the verdict of a jury and judgment thereon under an issue strictly made up.’ 2 People v. Schuyler, 69 N. Y. 242 (canal appraisers). 8 Gaylord v. Norton, 130 Mass. 74. 4 Lee v. Dolan, 39 N. J. Eq. 193. See Ravee v. Farmer, 4 T. R. 146; Go- lightly v. Jollicoe, ib. note; Webster v. Lee, 5 Mass. 334; post, Domestic Judg- ments in personam. 66 ESTOPPEL BY RECORD. without effect.1 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 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; at least 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.1° 1 Boston Water Co. v. Gray, 6 Met. 181; Nickels v. Hancock, 7 De G. M. & G. 300. 2 2 Story, Equity, § 1453. 8 Davis v. Henry, 121 Mass. 150; Boston Water Co. v. Gray, 6 Met. 181, 169, 170; Withington v. Warren, 10 Met. 481; Strong v. Strong, 9 Cush. 560, 569; Cutting v. Carter, 29 Vt. 72; Mat- thews v. Matthews, 1 Heisk. 669. 4 2 Story, Equity, § 1454. 5 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; Vander- werker v. Vermont Cent. R. Co., 27 Vt. 180. S Boston Water Co. v. Gray, 6 Met. 131, 168. ; 7 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 impeachment. The same may be said of Withington v. War- ren, and Strong v. Strong. 8 Pickering v. Cape Town Ry. Co., L. R. 1 Eq. 84; Beddow v. Beddow, 9 Ch. D. 89; Cutting v. Carter, 29 Vt. 72; Boston Water Co. v. Gray, supra; Strong v. Strong, supra. ® Cutting v. Carter, 29 Vt. 72. 10 See Boston Water Co. v. Gray, supra; Strong ». Strong, supra. PRELIMINARY VIEW. — RES JUDICATA. 67 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 deliberate contract to pay so much money, or to do or not to do a 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 con- cerning it. Indeed it appears to be the substantial result of such authoritative cases as Boston Water Co. v. Gray! that when a contract could be reformed or avoided for 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 how- ever 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 directly 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 exer- cise 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 law ‘ or fact, in that or in any other court; and it is remarkable 16 Met. 131. Our authorities, as Pickering v. Cape Town Ry., L. R. 1 indicated by this case, perhaps go fur- .Eq. 84; Beddow v. Beddow, 9 Ch. D. ther than the English. 89. 2 Boston Water Co. v. Gray, 6 Met. 3 Strong v. Strong, 9 Cush. 560, 574. 131; Strong v. Strong, 9 Cush. 560. 4 Braden v. Graves, 85 Ind. 92, 96; So an injunction will be granted in Roberts v. Cooper, 20 How. 467. such a case egainst enforcing the award, 68 ESTOPPEL BY RECORD, 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 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. But this is doubtful ;? it is making an estoppel turn upon uncertain argument, against the Duchess of Kingston’s Case, With regard to an agreed judgment on the merits the court in Chamberlain v. Preble* said that it could make no difference 1 Sturgis v. Rogers, 26 Ind.1; Braden v. Kennicott, 94 U. S. 498; Chouteau ». v. Graves, 85 Ind. 92, 96; Hawley ». Smith, 45 Ind. 183; Dodge v. Gaylord, 53 Ind. 365; Sizer v. Many, 16 How. 98; Lucas v, San Francisco, 28 Cal. 591; Donnell v. Hamilton, 77 Ala. 610; Roundtree v. Turner, 36 Ala. 555; Cam- den v. Werninger, 7 W. Va. 528; Lo- gansport v. Humphreys, 6N. E. R. 337; New York Ins. Co. v. Clemmitt, 77 Va. 866; Miller v. Cook, ib, 806; Supervisors Gibson, 76 Mo. 38, 51; Star Wagon Co. v. Swezy, 63 Iowa, 275. 2 Bank of Commonwealth v. Hop- kins, 2 Dana, 395. 8 Haldeman v. United States, 91 U. S. 584, contra. * 11 Allen, 370. Tothe same effect, Dunn ». Pipes, 20 La. An. 276; Jarboe v, Smith, 10 B. Mon. 257. See also in regard to agreed judgments Fletcher v. PRELIMINARY VIEW.—RES JUDICATA. 69 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 counsel to many 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 in the admission of any one such fact, if material, would be quite as fatal in its effects upon the conclusiveness of the judgment as an error in an agreed statement of facts.) Indeed it is commonly held in this country that where the agreement, confession, or consent is certain,? the judgment will be conclusive. Jn Sheldon v. Stryker there was an attempt in 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 and in some of our courts. In a Scotch case before the House of Lords‘ it ap- peared 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 ap- peared 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, Holmes, 25 Ind. 458; Brown v. Sprague, 5 Denio, 545; Donnell v. Hamilton, 77 Ala. 610. 1 See McCreery ». Fuller, 63 Cal. 30. 2 Nashville Ry. Co. v. United States, 113 U.S. 261. The effect of a consent decree extends to all matters within the consent, whether litigated or not. Ibid. 3 Sheldon v. Stryker, 34 Barb. 116 ; Neushaum v. Keim, 24 N. Y. 325; Dean ». Thatcher, 3 Vroom, 470. See Snow v. Howard, 35 Barb. 55; North v. Mudge, 13 Iowa, 496; Twogood v. Pence, 22 Iowa, 543; Sherman v. Christy, 17 Towa, 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. 288 ; Goff v. Dabbs, 4 Baxter, 300, Stay of execution being deemed a judg- ment by confession, the judgment is equally conclusive and cannot be im- peached, Anderson v. Kimbrough, 5 Cold. 260. 4 Jenkins v. Robertson, L. R. 1 H. L Scotch, 117. 70 ESTOPPEL BY RECORD. laying before the court the same cause which had been com- promised; and the question arose whether the matter was res judicata. Lord Chancellor Chelmsford said that the judgment in the former action having been the result of compromise be- tween the parties, it could not be considered as a judicium, nor could it be regarded as res judicata. Lord Romilly said that res judicata by its very words meant a matter upon which the court had exercised its judicial mind, having come to the conclusion that one side was right, and having pronounced a decision ac- cordingly. And this was the opinion of the House of Lords. The weight of reasoning appears to be this way.! In this view judgment by confession is less effective than judgment by default; if so, then a fortiori where there was no issue.2, The case cited was a suit to restrain an infringe- ment 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 subsequently joined it) vio- lating his patent, commenced an action against them for 41s. damages. They submitted, as they alleged, by arrangement to give judgment for 40s. and costs before any pleadings had been filed in the case. They immediately took a license from the plaintiff to use his patent for a certain time; and now he al- leged 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 1 See to the same effect, White ». say, “We thought it not worth our Buccleuch, 1 H. L. Scotch, 70; Lamb while to try the question, and we there- v. Gatlin, 2 Dev. & B. Eq. 37 ; Egerton v. Muse, 2 Hill, Eq. (S. Car.) 51 ; Wad- hams v. Gay, 73 Ill. 415. See also Gay v. Parpart, 106 U. S. 679, 696, 698. 2 Goncher v. Clayton, 11 Jur.w.s. 107. 8 Wood, V. C. said: ‘Ido not think that even if all the present defendants were parties to the record in the action a court of common law would have held, in » new action by the plaintiff, that there was an estoppel. There is no evidence of any issue between the parties, The defendants are supposed to fore did not raise the issue.” They sub- mitted and paid 40s. damages and costs, possibly because they might have been unwilling to give over working, or incur the expense of litigation. At any rate there appear to have been no pleadings in the action ; and the defendants 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 71 PRELIMINARY VIEW.—-RES JUDICATA. 2. Judgment by default is virtually judgment renderéd ex parte. It is of course conclusive for its own purpose, for appear- ance or contest by a party served with process, or otherwise bound by notice, is unnecessary ;! but it is laid down in England 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 respect of the same subject-matter ; as for subsequently accruing rent under the same lease upon which the first action was brought.2_ 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 avoid- ance of the first action.? former action, from setting up the de- fence ; and he must therefore hold that “there was no estoppel. 1 Lewis v. Board of Commissioners, 70 Ga. 486. It is held that judgment by default in a suit not controverted, as e. g. in a suit alleging a partnership against the defendants, is an admission, and as such may be used, like any other admission, by third persons. Central 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. 8 Cromwell v. Sac, 94 U. S. 351, 356; Hanham v. Sherman, 114 Mass. 19; Harrison v. Pheenix Ins. Co., 83 Ind. 575, 577; Unfried v. Huberer, 63 Ind. 67. See Shirland v. First National Bank, 65 Iowa, 96. 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 another of the notes still avail himself of the 72 ESTOPPEL BY RECORD. Ort 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 defendant upon the note. The present plaintiff appeared and defended that suit, but then said nothing of the alleged partial payment now in question. The court held that the action could not be main- tained ; distinguishing the case from the earlier cases of Rowe ». Smith? and Fowler v. Shearert 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 dis- tinction has however been disregarded in later cases of the same court, and the two cases above mentioned have been declared overruled.6 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 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 3 16 Mass. 306. 47 Mass. 14. defence. Hughes v. Alexander, 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. Merritt, 7 N. Y. 352; Bodur- tha v. Phelon, 13 Gray, 413; Ressequie v, Byers, 52 Wis. 650 ; Goble v, Dillon, 86 Ind. 327. ‘1 Rowe v, Smith, 16 Mass. 306; Fowler v. Shearer, 7 Mass. 14; Smith 0. Weeks, 26 Barb. 463. 2-17 Mass. 394. * Fuller v. Shattuck, 13 Gray, 70. See also Sacket v. Loomis, 4 Gray, 148 ; Jordan v. Phelps, 3 Cush. 547 ; Greena- baum ». Elliott, 60 Mo. 25, 30; Decker v. Adams, 4 Dutch. 511, 514; Corey » Gale, 13 Vt. 639, 645. 6 Binck v. Wood, 43 Barb. 315; 87 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. PRELIMINARY VIEW. — RES JUDICATA. 73 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, ex- cept 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- 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 ® the plaintiff sued the defendant, a sheriff, for a false return. The fact was that the sheriff had returned a devastavit to an 1 26 Barb. 463. 2 The following cases were cited : Tilton v. Gordon, 1 N. H. 38 (overruled by Snow v. Prescott, 12 N. H. 535); Broughton v. McIntosh, 1 Ala. 103; Mitchell v. Sanford, 11 Ala. 695; Loo- mis v. Pulver, 9 Johns. 244 ; White v. Ward, ib. 232; Battey v. Button, 18 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. 8 Sutliff v. Brown, 65 Iowa, 42. See Engstrom v. Sherburne, 137 Mass. 152. * See State v. McBride, 76 Ala. 51; McCalley v. Wilburn, 77 Ala. 549 (uil dicit, i.e. judgment without a plea); Barton v. Anderson, 104 Ind. 578; Shirland v. First National Bank, 65 Towa, 96. The case of Ebersole v. Lati- mer, 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. Anderson, 104 Ind. 578, cit- ing Unfried v1 Huberer, 63 Ind. 67, and other cases. Further in regard to judgments by default see Nemetty v. Naylor, 100 N. Y. 562. 51 Salk. 810; s.c. 1 Ld. Raym. 589. 74 ESTOPPEL BY RECORD. 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 devastavit. The court however ruled that the confession of judgment, or suffering judgment by default, in the case of an executor 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 appearance of the defendant does not operate as a bar to another action until after the damages have been determined.* Whitaker ». Bramson involved a judgment under a rule of court authorizing 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 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 relitigating the same matter.® 1 Leonard ». Simpson, 2 Bing. N.C. Mailhouse v. Inloes, 18 Md. 328; Green 176 ; s. 0. 2 Scott, 355; Grace v. Mar- »v. Hamilton, 16 Md. 317, 329 ; Minor». tin, 47 Ala, 135. See also 2 Wms. Walter, 17 Mass. 237; Brummagim ¥. Executors, 1953 (7th Eng. ed.). Ambrose, 48 Cal. 366 ; Mason v. Patter- 2 Cromwell v. Sac, 94 U. S. 350, 356. son, 74 Ill. 191. Under statutes of Il- 8 See post, p. 83. linois judgment by default in a county 4 Whitaker v. Bramson, 2 Paine, 209. court, for collection of taxes, is not con- 5 See further as to judgment by de- clusive. Gage v. Pumpelly, 115 U. S. 454. fault Fagg v. Clements, 16 Cal. 389; § McCullough ». Clark, 41 Cal. 298. DOMESTIC JUDGMENTS IN PERSONAM. 75 CHAPTER III. DOMESTIC JUDGMENTS IN PERSONAM. In presenting this subject we have adopted the following order and divisions :— 1. Estoppel by former judgment; 2. Estoppel by former ver- dict; 3. The limits and operation of judgment and verdict estop- pels ; 4. Under what circumstances judgments may be impeached in collateral actions. 1. Former Judgment. Judgment upon the merits of a cause in litigation rendered by any court of competent jurisdiction is a bar to all further prosecution of the same claim or demand! The peculiarity of the plea of former judgment consists therefore in the fact that it shows that a certain claim or demand has already been tried and determined. To this end 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 ques- tion 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 now present some of the cases which explain or illustrate this point. The case of Cleaton v. Chambliss,? decided by the Virginia 1 Cromwell v. Sac, 94 U. S. 351. 2 6 Rand. 86. 76 ESTOPPEL BY RECORD. Court of Appeals, will serve to illustrate the subject. Apart from everything unnecessary to the subject in hand the case was this: Wessen being indebted to the plaintiff Chambliss, paid him by unnegotiable bonds purporting to have been exe- cuted 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 judgment 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 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 insolvency made to appear. But the plea was held bad. Chief 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 would 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 respecting the note. 1 After having considered the ques- tions of pleading and other matters in- volved, 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 These were distinct points; and point decided, the allegation taken and found ; an allegation not put in issue, and which could not possibly 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 de- murrer would have lain ; and if incor- rectly, the replication of nul tiel record would have overthrown it.’ 2 Clark v. Young, 1 Cranch, 181. DOMESTIC JUDGMENTS IN PERSONAM. 7 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 Tllinois, in an action on the case between the same parties respecting the same injury.2 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 fora 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 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 15 Wall. 566. 2 Goodrich v. City, 20 Ill. 445. $18 Gray, 285. 78 ESTOPPEL BY RECORD. 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 de- fendant; which the latter refused to accept. The defendant offered in bar of the suit the record of an action by the plaintiff against the defendant to recover for the services, materials, and money just mentioned; in which suit judgment had gone for the defendant. But the record was excluded. The court said that the former action was one .of contract, in which a promise and a breach had been averred. This was an action for a tort, in which the plaintiff alleged that he had sustained damages by the fraudulent representations of the defendant. Proof which would fully support the one case would have no tendency to sustain the other; the questions involved being essentially unlike. A judgment however for the defendant in an action for a false representation which was the inducement to a contract, for exam- ple of soundness on an exchange of horses, is a bar to a subse- quent action of contract on the defendant’s warranty of the fact falsely stated at the time of the contract; for the two causes of action are identical. 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 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 judgment in the first did not negative the cause of action relied upon in 1 Norton v, Doherty, 8 Gray, 872; Ware v. Percival, 61 Maine, 391, 2 2 Gray, 399, DOMESTIC JUDGMENTS IN PERSONAM. 79 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 sup- port 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 1 99 Ind. 448. for a fresh action after judgment against ° Perkins v. Parker, 10 Allen, 22; the same plaintiff. Ibid. Hawley v. Simons, 102 Tl. 115 ; ante, ® See besides the cases referred to in p. 53, note 2. the text above Steinbach v. Relief Ins. 8 Hawley v. Simons, 102 Ill. 115. Co., 77 N. Y. 498; Dawley v. Brown, See Houstoun v. Sligo, 29 Ch. D. 79N. Y. 390; Stowell v. Chamberlain, 448. 60 N. Y, 272; Miller v. Manice, 6 Hill, 4 Biggins v. People, 106 Ill. 270. 114; Riker v. Hooper, 35 Vt. 457; 5 In re May, 28 Ch. D. 516. Newly- Marsh v, Pier, 4 Rawle, 273; Motley» discovered evidence affords no ground Harris, 1 Lea, 577. 80 ESTOPPEL BY RECORD. 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 de- fect of title in the plaintiff, the judgment will not bar proceed- ings 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 plaintiff’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. In the case of periodically recurring ® liability, as in tax assess- ments 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! 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.6 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 com- promise, would doubtless operate as a bar. In the case of an action on a debt due by instalment, as for example on a promis- sory note, judgment against the validity of the main obligation 1 Amesti v. Castro, 49 Cal. 325 ; Per- kins v. Parker, 10 Allen, 22; ante, p. 58, note. 2 Nathans v. Hope, 77 N. Y. 420. See also Lyon v. Robbins, 45 Conn. 513. 3 Continuing damage is another thing, to be considered later. 4 See Lake Shore Ry. Cv. v. State, 46 Mich. 1983; Hanham v. Sherman, 114 Mass. 19; Burritt v. Belfy, 47 Conn. 328 ; Secor v. Sturgis, 16 N. Y. 548. If however the plaintiff were to wait until the whole debt were due, he could ordinarily bring but one action. Burritt v. Belfy, supra. 5 Davenport v. Chicago R. Co. 38 Towa, 634. 8 Drake v. Vorse, 42 Iowa, 653; Wisconsin v. Torinus, 28 Minn. 175, 180; Newington v. Levy, L. R. 7 C. P. 180, DOMESTIC JUDGMENTS IN PERSONAM. 81 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 instalment sued upon could not in principle bar an action on another of them.? Nor could a judgment e.g. in trespass 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 is different in the two suits will not prevent the existence of an estoppel.4 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® Thus in Packet Co. v. Sickles® the 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 1 Cleveland v. Creviston, 93 Ind. 31; Strauss v. Murtief, 64 Ala, 299. 2 So of a series of notes given by the same person. Felton v. Smith, 88 Ind. 149, 152; Gardner v. Buckbee, 3 Cowen, 120; post, p. 90. See further concern- ing rights of action for recurring liabil- ity Duncan v. Bancroft, 110 Mass. 267. 8 Dela Guerra v. Newhall, 55 Cal. 21. * Stowell v. Chamberlain, 60 N. Y. 272; Ware v. Percival, 61 Maine, 391. 5 There are many illustrations, See Carter v. Shibles, 74 Maine, 273; Packet Co. v. Sickles, 5 Wall. 580; Cromwell v. Sac, 94 U. S. 351, 355; Campbell v. Rankin, 99 U. S. 261; Allebough v. Coakley, 75 Va. 629; Fowlkes v. State, 14 Lea, 14; Bryan v. Malloy, 90 N. Car. 508; Morgan v. Burr, 58 N. H. 167; McCall v. Jones, 72 Ala. 368; Pruitt v. Holly, 73 Ala. 869; Foye v. Patch, 132 Mass. 105; Boynton v. Morrill, 111 Mass. 4; Hood v. Hood, 110 Mass. 463 ; Wood v. Jack- son, 8 Wend. 10; Washington Packet Co. v. Sickles, 24 How. 383; Lawrence v. Hunt, 10 Wend. 80; Supples 7. Can- non, 44 Conn. 424; Dutton v. Wood- man, 9 Cush. 255 ; Bigelow v. Winsor, 1 Gray, 299. See also Phillips ». Ber- ick, 16 Johns, 186; Perkins v. Walker, 19 Vt. 144; Gardner v. Buckbee, 3 Cowen, 121; Burt v. Sternburgh, 4 Cowen, 559. 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 per- haps in regard to matters without the issues. Sintzenick v. Lucas, 1 Esp. 43 ; Manny v. Harris, 2 Johns. 24; Mere- dith v. Santa Clara Assoc., 56 Cal. 178, 181. The burden of proof is of course upon the party alleging the decision of the fact in question. Pruitt ». Holly, 78 Ala, 369. 8 5 Wall. 580. 82 ESTOPPEL BY RECORD. 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 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 notions 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 the main features of the doctrine as stated in the text-books. The estoppel, if such it may be called, of a former acquittal or a former conviction arises where the defendant was technically in jeopardy on the former trial; and this begins, according to the better authorities, when the petit jury is sworn5 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 1 Mr. Justice Nelson speaking for the majority of the court said: ‘As we un- derstand the rule in respect to the con- clusiveness of the verdict and judgment in a former trial between the same par- ties, when the judgment is used in pleading as a technical estoppel, or is relied on by way of evidence as conclu- sive per se, it must appear by the record of the prior suit that the particular con- troversy 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 particu- lar matter, it will be considered as hav- ing settled that matter rs to all future actions between the parties ; and further in cases where the record itself does not show that the matter was necessarily and directly found by the jury, evidence 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 with- in the issue controverted in the former suit, if it be not shown that the verdict and judgment necessarily involved its consideration and determination, it will not be concluded.’ 2 Crum v. Boss, 48 Iowa, 433 ; Law- rence v. Hunt, 10 Wend. 80. 8 4 Black. Com. 335. See United States v. Chouteau, 102 U. S. 603. * Const. Amend., art. 5. 5 Bishop, Crim. Law, §§ 856, 857. DOMESTIC JUDGMENTS IN PERSONAM. 83 for the trial, the prisoner, according to the better opinion, has reached the jeopardy which protects him from a second trial.! Whatever is done thereafter is immaterial, so far as the question of another trial is concerned; the legal effect of the position of the defendant is to preclude another trial for the same offence. And this too though the attorney-general, by consent of the judge, enters a nol. pros., or though he withdraws a juryman and thus puts an end to the trial? 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 proceedings, 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.4 This doctrine, it will be seen, is in strict accord with that in relation to civil judgments. 2. Former Verdict, 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 1 Bishop, Crim, Law, § 858. the subject. The question hardly comes 2 Thid. within the scope of this work, and it 8 Ibid. The reader is referredtothe will not be further pursued. work cited for a further consideration of | 4 Bishop, Crim. Law, § 873. 84 ESTOPPEL BY RECORD. 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. Hence this may 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 mortgage was usurious and void. The plaintiff objected on the ground that the defendant was estopped by a former judgment between the parties. From the record of the case referred to it appeared that the 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 having said that in the action on the note the jury found that the defendant assumed and promised, and that the judgment further was a direct adjudica- tion that the plaintiff should recover upon the note; that the making of the promise, and its validity, were not drawn inciden- tally in question or to be inferred from the judgment, since this was for the plaintiff to recover the very money secured by the mortgage; he proceeded to answer the objection that the subject- matter of the two actions was different, the former being brought to recover the debt, and the latter to recover the land mortgaged. He laid down the rule that when the cause or object of two actions was different, though the matter in dispute was the same in both, the prior judgment was indeed no bar to a subsequent action; but the verdict might still be conclusive evidence upon the point in dispute. Commenting upon Lee v. Hopkins’ he 1 Cromwell v, Sac, 94 U. 8. 350, 852; 72 Ala. 460; Smith » Kernochan, 7 Davis v. Brown, ib. 423, 428. See How. 198. Hanna v. Read, 102 Ill. 596 ; Tilley v, 2 5 Conn. 550. Bridges, 105 Ill. 336 ; Strang v. Moog, 8 6 Wheat. 109. DOMESTIC JUDGMENTS IN PERSONAM. 85 said that no one could suppose that, whatever way the judgment or decree on the bill in ehangery 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 chan- cery 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 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.t 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, — where- by she was pronounced a spinster and free from all matrimonial alliance with Hervey ‘as far as yet appeared.’ The case having gone to the House of Lords, the lords spiritual and temporal ordered this question among others to be put to the judges, Whether a sentence of the Spiritual Court against a marriage in a suit for jactitation of marriage was conclusive evidence so as to estop the counsel for the crown from proving the said 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 1 Aslin v. Parkin, 2 Burr. 665; Rex 2 Everest & Strode, Estoppel, 410 v. St. Pancras, Peake, 219; Marriott v. (full report); 20 How. St. Tr. 355; 1 Hampton, 7 T. R. 269; 2 Phillipps, Leach C. ©. 73; 2 Smith’s Lead. Cas. Evidence, 18, 19, 4th Am. ed. 679, 6th Eng. ed. 86 ESTOPPEL BY RECORD. 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- 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, examine 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 1 ‘This,’ he said, ‘is ranked as a marriage. So that, admitting the sen- cause of defamation only, and not as a matrimonial cause unless where the de- fendant pleads a marriage; and whether it continues a matrimonial cause through- out, 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 matri- monial 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 mar- riage in another cause ; and if such sen- tence is no plea to anew suit there . . . it cannot conclude w court which re- ceives the sentence from going into new proofs to make out that or any other tence 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 any- thing to be inferred 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 sufficient proof of some marriage.’ DOMESTIC JUDGMENTS IN PERSONAM. 87 Outram v, Morewood! isa leading case of high authority. upon this subject. The case was this: An action of trespass was brought for digging and getting out coals from a mine alleged by the plaintiff to be within and under his close, called Cowclose. The defendants pleaded and showed title by a regular chain in right of the wife from one Zouch; and they averred that the coals in question were under the lands of Zouch, and were derived by bargain and sale to certain imme- diate bargainees, from them to the defendant, the wife, and were not within a certain exception named. To this plea the plain- tiff 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 mines 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 question are parcel of the coal mines bargained and sold by the indenture above mentioned.” And it was held that they were? 1 3 East, 346. ? In delivering the judgment of the court Lord Ellenborough, C. J. said: ‘The operation and effect of this find- ing, 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 aver- ring the contrary 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. Danville, 46 Vt. 144, 148.] . . . The question then is, Is the wife herself estopped by this former finding? In Brooke, tit. Estop- pel, 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 88 ESTOPPEL BY RECORD. A recent case in the English Court of Exchequer?! shows in a very strong light how rigidly the courts hold to the doctrine run with the land; so that a man may plead this as a party, or as heir, as privy, or by que estate.” But if it be said that by the freehold coming in de-. bate must be meant a question respect- ing 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 subject-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 sup- posed right of possession. In trespass for breaking the plaintiff's close, report- ed in 3 Leon. 194, the defendant pleaded “that heretofore he himself brought an ejectione 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, &c. It was moved that the bar was not good because that the de- fendant had not averred his title ; and the recovery in one action of trespass is no bar in another,” &c. (Staple v Spring, 10 Mass. 72.] Quod curia con- cessit. 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 re- covery in ejectione firme the possession is bound.” And by Anderson : ‘* A re- covery in one ejectione firme is a bar in another, especially, as Periam said, if the party relieth upon the estoppel.” And afterwards judgment was given that the plaintiff should be barred. This, it will be recollected, was an ac- tion of ejectione firma, and not an eject- ment moulded and regulated by rules of court as it is at present. The court very properly distinguish there between what operates by way of bar to a future re- covery for the same thing, and what by way of estoppel. That was the case of a mere recovery in ejectione firme without title alleged ; and the plaintiff might, in respect of possession or other varying circumstances of title, be well entitled to recover at one time, and not be so at another. And it is not the recovery, but the matter alleged by the party, and upon which the recov- ery proceeds, which creates the estop- pel. The recovery of itself in an action of trespass is only a bar to the future re- covery of damages for the same injury ; but the estoppel precludes parties and privies from contending to the contrary of that point or matter of fact which having been once distinctly put in issue by them, or by those to whom they are privy in estate or law, has been, on such issue joined, solemnly found against them.’ In considering the complaint of Lord Coke, Preface, 8 Rep., concern- ing 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 con- clusive upon the right (I mean a writ of right itself) a right of possession derived under the owner of the inheritance in fee simple, or those under whom he claims; which may enable a plaintiff in trespass to recover for an injury to his possession 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 ac- tion is final only for its own proper pur- pose and object, and no further. The 1 Huffer v, Allen, L. R. 2 Ex. 14. DOMESTIC JUDGMENTS IN PERSONAM. 89 under consideration. It was an action against the defendant for maliciously signing judgment for £28, the amount of the plain- tiff’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 pro- cure his discharge, to pay the full sum indorsed and the sheriff’s fees. The declaration then alleged that at the date of the judg- ment 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. judgment in trespass affirms a right of possession to be, as between the plain- tiff 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 demandant at the time of the writ brought. Each species of judgment, from one in an ac- tion 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 decided.’ See Arnold v. Arnold, 17 Pick. 4 ; post, p. 93; Morse v, Elms, 181 Mass. 151 ; Young ». Pritchard, 75 Maine, 513, 517 ; Hanna v. Read, 102 Ill. 596; Tilley v. Bridges, 105 Ill. 136; Strang v. Moog, 72 Ala. 460; Kirkland v. Trott, 75 Ala. 321; Jenkins v. International Bank, 111 Ill. 462. After having considered 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 ; Kinners- ley v. Orpe, 2 Doug. 517), his lordship said: ‘None of the cases therefore, cited on the part of the plaintiff, nega- tive 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 ex- plained and enforced by the defendants’ counsel, together with the other authori- ties on the subject of protestation and estoppel (cited from Bro. Abr., Protes- tation, pl. 9; Fitzherbert, Estoppel, pl. 20), are in our opinion, 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 ac- tion 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.’ In regard to the rule in this well-known case see De Mora v, Concha, 29 Ch. D. 268. 1 “Our 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 sign- ing the judgment, their act was highly unjustifiable. But we must here de- termine the legal question, which is whether the previous judgment... estops the plaintiff from bringing this action, the first step in which is to im- peach that record. It is a simple and unanswerable argument against its main- tenance that it is not competent to either party to an action to aver anything either 90 ESTOPPEL BY RECORD. The case of Gardner v. Buckbee! will also illustrate the prin- ciple under consideration. That case was an action upon a promissory note. The defence was that the note was given in part payment of a vessel, and fraud was alleged in the sale; the vessel being at the time rotten 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 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- deuce 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 ». expressing or importing a contradiction to the record ; which, while it stands, is as between them an evidence of incon- trollable verity. . . . The then defend- ant now avers that the judgment was signed and the execution issued wrong- fully and maliciously . . . and on this averment founds his action against the judgment creditor. But he cannot make this averment, and therefore can- not maintain this action, whilst the judgment, against which no averment can be admitted, stands as evidence that, when judgment was signed, the debt which the then defendant owed was £28, and not £18.’ Mr. Baron Bram- well agreed, but did not regret the result of their judgment, for he said the plain- tiff himself had caused the difficulty by not pursuing the proper course. He should have had the judgment corrected. 1 8 Cow. 120. 2 Duchess of Kingston’s Case, 20 How. St. Tr. 355 ; 2 Smith’s Lead. Cas. 679, 6th Eng. ed. DOMESTIC JUDGMENTS IN PERSONAM. 91 Sigerson! That too was an action upon a promissory note. The plaintiff’s petition stated that he had formerly brought suit to recover an instalment of interest on the same note; that the 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 execution of the note, but defended on the ground of the same alleged fraudulent alteration, insisting that the note had thereby become void. But the Supreme Court overruled the defence. 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.” Another case which well illustrates this doctrine was tried in the Supreme Court of New York.2 The action was for medical services and attendance of the plaintiff’s intestate upon the defendant for a broken leg. The defence was a recovery of a judgment by the present defendant as plaintiff against the in- testate in an action for negligence and unskilfulness in his treatment of the broken leg. The court, reversing the judgment below, held the record conclusive, with proof that the same injury and the treatment by the intestate which constituted the present cause of action were the subject of inquiry in the former suit. The objects of the two actions, the court said, were dif- ferent; but the former judgment was conclusive, by way of evidence, upon the fact that the services were unskilfully and negligently performed. The evidence necessary to sustain the present action would have constituted a defence to the action brought by the defendant; and hence the judgement in that action was conclusive in the present.® In a case in Kentucky ® it appeared that the defendant in a 1 26 Mo. 583, £ Hopkins v. Lee, 6 Wheat. 109. 2 See in regard to a common defence 5 Marriott v. Hampton, 7 T. R. 265 ; to a series of notes Felton v. Smith, 88 Le Guen v. Gouverneur, 1 Johns. Cas. Ind. 149, 152; Hazen v. Reed, 30 Mich. 436, 831; ante, pp. 80, 81. 6 Hanley v. Foley, 18 B. Mon. 519, 8 Edwards v, Stewart, 15 Barb. 67. 92 ESTOPPEL BY RECORD. former action for work and labor done had pleaded a special con- tract with the plaintiff in regard to the services, and had averred a failure by the plaintiff to comply with it; but that upon issue joined on the point verdict and judgment were given for the 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- 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 v. Arnold’ ig an illustration; a writ of right, to which the 1 2 Burr. 665. See Harris v. Mul- kern, 1 Ex. D. 31, 35. 2 Kille v, Ege, 82 Penn. St. 102; to immediate possession at the time of the suit. Allen v, Butman, 138 Mass. 586. It does not show that the taking Man v. Drexel, 2 Barr, 202; Benson v. Matsdorf, 2 Johns. 369; Jackson v. Ran- dall, 11 Johns. 405 ; Emerson », Thomp- son, 2 Pick. 473, 487. So too judg- ment for the plaintiff in replevin con- clusively establishes the plaintiff's right was unlawful, for the action lies for un- lawful detention as well as for unlawful taking. Ibid.; Whitman v. Merrill, 125 Mass. 127. 817 Pick. 4, DOMESTIC JUDGMENTS IN PERSONAM. 98 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 mentioned, Both defences were overruled on the ground that the questions at issue were different 1 Mr. Justice Putnam who delivered the opinion of the court said : ‘ The er- ror lies at the threshold. It is in the assumption that the same cause of ac- tion was tried in the action of trespass quare clausum upon an issue of soil and freehold, and the same cause of action was tried in the writ of entry sur dis- seisin upon the issue of nul disseisin, as isto be tried in the writ of right ; an assumption which must strike the mind of every lawyer as extraordinary. Who needs to be told that the plea of soil and freehold would be supported by a defendant who should prove an estate for his life in the locus in quo, or that in a writ of right the right of property is in question? Who needs to be told that the actions of trespass quare clau- sum fregit, and the various writs of en- try, and the judgments upon them, affect only the right of possession and entry, and do not conclude as to the mere right? It will be answered that no- body 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 impediment 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 appear 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 prop- erty. The issue to be tried was upon the soil and freehold ; and the verdict followed the issue. If the verdict had been upon the mere right of property, it could not have warranted a judgment for the prevailing party on the issue of soil and freehold ; for it might be that the plaintiff might have the right of property, and his adversary might have the right of possession. A man enti- tled to the herbage for the current sea- son 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 question by the plead- ings, but no further. . . . In every ac- tion the verdict is conclusive as to the subject-matter of the suit, and any matter particularly put in issue and found by the jury; and it will not be competent fora party in any other ac- tion to deny or plead anything 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 permit- ted 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 dis- seisin, the demandant cannot be per- mitted to say, contrary to the verdict, that the tenant had disseised him. Ho roust go to trial upon his writ of right with the disadvantages arising from the 94 ESTOPPEL BY RECORD. 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 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 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 prevail.’ Refer- ring 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 consecu- tive remedies, which had before been tried in the lower action. The causes of action in trespass quare clausum fre- git, and in the writs of entry, related to the right of possession and of entry; while in the writ of right the demand- ant counted upon a fee simple and a deforcement. 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 pre- sented a different cause of action. 1 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. Clemniitt, 77 Va. 366; Miller v. Cook, ib. 806 ; Super- visors v. Kennicott, 94 U. S. 498; Logansport v. Humphreys,6 N. E. R. 337 ; Chouteau v. Gibson, 76 Mo, 38, 51; ante, p. 67; Davis v. McCorkle, 14 Bush, 746. 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 represent- ative is no reason why the judgment should not be conclusive even in equity. Putnam v. Clark, 34 N. J. Eq. 532. 8 Balkum v. Satcher, 51 Ala. 81; Strang v. Moog, 72 Ala. 460; Wilkins v. Judge, 14 Ala. 185; May v. Marks, 74 Ala. 249; Pollard v. Hanrick, ib, 334; Baker v. Barclift, 76 Ala. 414; Morgan v. Burr, 58 N. H. 167; Muel- Jer v. Henning, 102 Ill. 646 ; Jenkins v. International Bank, 111 Ill. 462; Yeo- man v. Younger, 83 Mo. 424; Clark ». Wiles, 54 Mich. 328 ; Kelley v. Donlin, 70 Ill. 378; State v. Ramsburg, 43 Md. 825 ; De Proux ». Sargent, 70 Maine, 266 ; Adams v. 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. McCrea, 38 Ga. 650; Tioga R. Co. v. 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. 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. Faircloth, 34 Ga. 47; Dema- rest v. Darg, 82 N. Y. 281; Eimer », Richards, 25 Ill. 289; Babcock v. Camp, 12 Ohio St. 11; Bell v. McCulloch, 31 Ohio St. 397; Sergeant v. Ewing, 36 Penn. St. 156; Cabot v, Washington, 41 Vt. 168; Lynch », Swanton, 58 Maine, 100; Bunker v. Tufts, 57 Maine, 417; Garwood v. Garwood, 29 Cal. 514; French v. Howard, 14 Ind. 455; Shut- tlesworth v. Hughey, 9 Rich. 387; DOMESTIC JUDGMENTS IN PERSONAM. 95 former judgment was rendered after the second action was begun, though formerly the rule was otherwise in England ;} nor that it is in conflict with another judgment between other parties? But it is said that estoppel by verdict concludes only the questions of fact decided, not questions of law.8 Verdicts in equity causes are also in some degree exceptional.4 There is ground, as has just been intimated, for a distinction in regard to questions of law between judgment and verdict es- toppels. Ifa decree in a suit to declare a mortgage invalid pro- ceed upon the constitutionality of a statute, the parties cannot afterwards deny the validity of the statute in question when the mortgagee attempts to foreclose5 But it could hardly be true that they could not raise the question again in a suit upon a 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 judi- cata to such cases. The court might deem it best to rely upon the maxim ‘stare decisis’ indeed; but that is another thing. Stewart v. Dent, 24 Mo. 111; Walker v. Mitchell, i8 B. Mon. 541; Bobe v. Stickney, 36 Ala. 482. 1 Houstoun v. Sligo, 29 Ch. D. 448 ; The Delta, 1 P. D. 893, 404; Martin v. Walker, 60 Cal. 94. 2 Scotland v. Hill, 112 U. S. 183. 8 Bernard v. Hoboken, 3 Dutch. 412. See Boyd v. Alabama, 94 U. S. 645, 648, * Burlen v, Shannon, 99 Mass. 200, 206. In this case Mr. Justice Foster speaking for the court said: ‘ The ver- dict {in an equity cause] is treated as weighty, but not always as conclusive evidence. In England and in many American courts the verdict is some- times 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 es- tablished 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 Pitman, J. quoting the opinions of Nel- son, Curtis, Woodbury, and Sprague, JJ.; Pike v. Potter, U. 8. Cire. Court, R. IL. Dist. 1859, before Clifford and Pitman, JJ. ; 2 Dan. Ch. Pr. 8d Am. ed. 1115 and notes.’ See also Allen v. Blunt, 3 Story, 746; Franklin v. Green, 2 Allen, 519; Ross v. New Eng- land Ins. Co., 120 Mass, 113 ; Ex parte Morgan, 2 Ch. D. 72. In accordance with this intimation the court in Bur- len 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 how- ever arose from the uncertainty of the verdict. 5 McDonald v. Mobile Ins, Co., 65 Ala. 358. ® See Boyd v, Alabama, 94 U. 8. 645, 648, where the point is not decided. 7 Bernard v. Hoboken, 3 Dutch. 412, 8 See South Ottawa v. Perkins, 94 U. 8. 260; post, chapter 19, sec. 2. 96 ESTOPPEL BY RECORD. Judgment against several defendants cannot however deter- mine the rights of the defendants inter sese. Thus if judgment 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 ;1 the judgment decided the existence and legality merely of the demand. The parties must be adversary.2 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 devisees have ad- verse claims under the will, no decision on the question of pro- bate will bind such claimants inter se2 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 qualification not yet referred to. It is this, 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 that the decree or judgment is right. So Lord Redesdale and the House of Lords held in the year 1820, and so the lord keeper had declared in the year 1700; and so it is laid 1 McCrory v. Parks, 18 Ohio St. 1; Leinkauff v. Munter, 76 Ala. 194; Dun- can v. Holcomb, 26 Ind. 378; Buffing- ton v. Cook, 35 Ala. 312. See Lloyd v. Barr, 11 Penn. St. 41. 2 Ibid. ; Leinkauff v, Munter, 76 Ala. 194. See Cushing v. Laird, 107 U. S. 69, 80. 3 De Mora v. Concha, 29 Ch. D. 268, 303. # Graham v. Railroad Co., 3 Wall. 704 ; Corcoran 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. 855. See Cushing v. Laird, 107 U. 8. 69, 80. ‘In chancery suits, where parties are often made defendants because they will not join as plaintiffs, who are yet neces- sary parties, it has long been settled that adverse interests as between co- defendants may be passed upon and decided ; and if the parties have had a hearing and an opportunity of assert- ing their rights, they are concluded by the decree as far as it affects rights pre- sented to the court and passed upon by its decree.’ Corcoran v. Chesapeake Canal Co., 94 U. S. 741, quoted in Louis v. Brown, 109 U. S. 162, 167. That was said in answer: to the objec- tion 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. 5 P, 94, DOMESTIC JUDGMENTS IN PERSONAM. 97 down by other authorities. The former decree or judgment is to be taken unquestioned only when it can be carried into effect by virtue of some order or direction contained within it- self. So too it has recently been held that when a person partly opens in his pleadings the facts of a judgment on which he re- lies, 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 present the divisions separately, or by special designation. We must how examine at length 3. The Effect and Operation of Judgment and Verdict Estoppels. It is a fundamental rule of law that a judgment for the plain- tiff, 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 voidable; it is still binding for the purpose of all collateral actions, of which a suit upon the original cause of action would be one. 1 Wadhams v. Gay, 73 Il. 415 (con- sent decree ; see concerning this litiga- tion 8 Chic. L. News, 189); Gay ». Parpart, 106 U. 8. 679, 699; Jenkins v. International Bank, 111 Ill. 462, 471; Hamilton v. Houghton, 2 Bligh, 169, 182, 193; Johnson v. Northey, Finch, Pree. Ch. 184. See also Lawrence ». Bernev, 2 Rep. in Ch. 127 ; O’Connell v. McNamara, 38 Dru. & War. 411; Bean v. Smith, 2 Mason, 252, 299; Gibson v. Rees, 50 Ill. 883, 406, 410; Egerton v. Muse, 2 Hill, Eq. (S. Car.) 51; Lamb »., Gatlin, 2 Dev. & B. Eq. 37. Comp. post, pp. 250 et seq. 2 Weed v. Burt, 78 N. Y. 191. 3 Bank of United States v. Mer- chants’ Bank, 7 Gill, 415; McGilvray v, Avery, 30 Vt. 538; Green v. Starr, 52 Vt. 426 ; Hatch v. Spofford, 22 Conn. 485; Walsh v. Durkin, 12 Johns. 100. But see Mumford v. Stocker, 1 Cowen, 178 ; Griswold v. Hill, 2 Paine, 492; Andrews v. Smith, 9 Wend. 53. 98 ESTOPPEL BY RECORD. 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.1 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 state2 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; while in the case of the two judgments the obligations are of the same degree.? Next concerning the parties to the former litigation, and those claiming under them, It is a general principle, fundamental to the doctrine of res judicata, that personal judgments conclude only the parties to them and their privies. The bar must be mutual to the parties in the later action. ‘ Parties,’ says Green- leaf, ‘in the larger legal sense, are-all persons having a right to 2 Gould v. Hayden, 63 Ind. 443, cit- ing Purdy v. Doyle, 1 Paige, 558, 561; Denegre v. Hann, 13 Iowa, 240; Whit- ing v. Beebe, 7 Eng. (Ark.) 421, 549; Chitty v. Glenn, 3 T. B. Mon. 424; Frazier v. McQueen, 20 Ark. 68 ; Neale v. Jeter, ib. 98; Bank of United States ». Patton, 5 How. (Miss.) 200; Brown '». Clarke, 4 How. 4. 2 Gould v. Hayden, 63 Ind. 443. Contra Weeks v. Pearson, 5 N. H. 324. See Bank of Old Dominion v, Allen, 13 Rep. (Va.) 509. 8 See Story, Conflict of Laws, p. 823, 8th ed., criticising the rule of merger in such cases. 4 Petrie v, Nuttall, 11 Ex. 569; Springport v. Teutonia Bank, 75 N. Y. 397 ; Bissell v. Kelloye, 65 N. Y. 482; Fisher v. Banta, 66 N. Y. 468; Ray- mond 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, 686 ; Stoddard v. Thompson, 31 Towa, 80; Goodnow vw. 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. 865, 373 ; Quigley v. Mexico Bank, 80 Mo. 289, 296 ; Young v. Stoutz, 74 Ala. 574; Cain v. Sheets, 77 Ala. 492; Doo- ley v. Potter, 140 Mass. 49; Salem v. Eastern Railroad, 98 Mass. 431, 446; McMahon v. Merrick, 33 Minn. 262 ; Dodd v. Una, 40 N. J. Eq. 672, 722. It is difficult to understand Board of School Directors v. Hernandez, 31 La, An. 158, or Louisiana Levee Co. v. State, ib. 250, or Folger v. Palmer, 35 La. An. 473. Such estoppels are odious. DOMESTIC JUDGMENTS IN PERSONAM. 99 control the proceedings, to make defence, to adduce and cross- examine witnesses, and to appeal from the decision, if an appeal lies ;’1 and it may be added, those who asswme such a right. And parties, it is said, must be openly such; there can be no secret parties in benefit, unknown to the adverse side? It should be noticed too that purchasers pendente lite of non-negotiable 4 property in litigation are, so far as the property is concerned, deemed to stand in the situation of parties.® The recent case of Wright v. Phillips ® may be referred to as a forcible illustration of the rule that personal judgments cannot affect the rights of strangers. It was there held that, notwith- standing a judgment rendered in favor of one of several distribu- tees of an estate of a decedent against the administrator, 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 v. Nuttall’ the plaintiff sued in trespass for breaking and entering the plaintiffs land. The defence was that the part referred to was a public highway; ahd an indictment, verdict, and judgment against the plaintiff were pleaded by way of es- toppel 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.® 1 1 Greenleaf, Ev. § 535; Duchess of Kingston’s Case, Everest & Strode, Estoppel, 421. 2 Stoddard v. Thompson, 31 Iowa, 80; Landis v. Hamilton, 77 Mo. 554. 8 Schroeder v. Lahrman, 26 Minn.’87, where it was held that secretly employ- ing counsel and appearing as a witness were not enough to enable one to make use of the judgment as an estoppel. 4 Orleans v. Platt, 99 U. S. 676. 5 Stout v. Lye, 103 U.S. 66; Eys- ter v. Gaff, 91 U. S. 521; Daniels v, Henderson, 49 Cal. 243. 6 56 Ala. 69. 711 Ex. 569. 8 Alderson, B. said that it was es- sential to an estoppel that it should be mutual, so that the same parties or puivies might be bound and take advan- tage of it. The crown and _ subject were parties to the indictment; and therefore it was not between the two parties to this action. ‘The distinc- tion,’ he said, ‘is shown by the author- ity cited in Viner’s Abr., Estoppel (F), 35, where it is said : “If a man indicted of extortion or trespass puts himself into the grace of the king, and makes fine, and after the 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 pre- cisely this case, and we ought to follow the same rule. No doubt the judgment 100 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 though the defendant or the state be there a party, either for or against such party, for want of mutuality Hence an ac- quittal upon a charge of crime will not estop one who accuses the party acquitted from proving the charge true in an action for slander.” In a case in Massachusetts? the defendant contracted to sell land to the plaintiff, but instead of doing this sold the land to a third person. The action was for the breach 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- ments 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 upon a promissory note ; and an injunction having been obtained to restrain the former plaintiff from obtaining satisfaction 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 in the indictment may be given in evi- 209. See McBee». Fulton, 47 Md. 403, dence upon the trial of the issue as to and comp. Duchess of Kingston's Case, whether the locus in quo is a public ante, p. 86. highway ; but it cannot be pleaded as 2 Corbley v. Wilson, 71 Ill. 209. an estoppel.’ 8 Buttrick v. Holden, 8 Cush. 233. 1 Castrique v. Imrie, L. R. 4 H. L. 418 Md. 457. 414, 434; Corbley v. Wilson, 71 Ill. 5 8 Gray, 411. DOMESTIC JUDGMENTS IN PERSONAM. : ; LAPT 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 recently been decided in Indiana upon a long line of authorities in that state that judgment ob- tained against a married woman by default upon a contract void for coverture is binding; and the two cases above referred to were sharply criticised.2 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 purchaser gets a good title, and the feme cannot allege her coverture in ejectment for the premises against him.2 However it 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* The enabling acts concerning mar- ried women .znust no doubt be taken into consideration in refer- ence 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 1 Faithorne v. Blaquire, 6 Maule & 8. 73. For the later rule in Massachu- Grantham v. Kennedy, 91 N. Car. 148. setts see Freison v. Bates College, 128 Mass. 464. A married woman may now he hound by covenants of warranty in Massachusetts. Knight v. Thayer, 125 Mass. 25. 2 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 estop- pel. Mattox v. Hightshue, 39 Ind. 95; Pettis v. Johnson, 56 Ind. 189. In North Carolina judgment is binding. 8 Hartman v. Ogborn, 54 Penn. St. 120. See also Van Metre v. Wolf, 27 Iowa, 341; Green v. Branton, 1 Dev. Eq. 500; Gambetta v. Brock, 41 Cal. 78 ; Patterson v. Fraser, 5 La. An. 586; Elson v. O’Dowd, 40 Ind. 300 ; Guthrie v. Howard, 32 Iowa, 54. 4 Graham v. Long, 65 Penn. St. 383 ; Dorrance v. Scott, 3 Whart. 309 ; Cald- well v. Walters, 18 Penn. St. 79. See also Baines v, Burbridge, 15 La. An. 628. 102 ESTOPPEL BY RECORD. 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 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.? 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 proceeding is not according to the course of the common law, and hence by analogy to other cases the presumption concerning the court’s jurisdiction cannot be conclusive if there be no express averment in the record.® Thus if the record should simply state that the defendant was served with process, he could in the collateral suit allege, if not too late, that he was then an infant without guardian, and that no guardian ad litem was appointed® Whether he could do so in case of an appearance and neglect to plead his disability is more doubtful; although if the view above expressed be accurate, that the judgment is a contract, it could not be material whether there had been an appearance or not; in either case the judgment could be impeached. But it is doubtful if a judgment for the plaintiff can be considered for all purposes a contract. Perhaps the more consistent rule would be that judgment against an infant without guardian or appearance is not binding in collateral ac- tions, but if an appearance were entered, that the judgment cannot be disturbed.’ This subject however is so far matter of statutory regulation that it will not be further pursued. 1 Waring v. Reynolds, 8 B. Mon. 59; Porter v. Robinson, 3 A. K. Marsh. 253. ; The proceeding was not collateral, but direct. 4 Whitney v. Porter, 23 Tl], 445. 2 Sharp v. Findley, 71 Ga. 654, 667. 3 Thid. ; Blake v. Douglass, 27 Ind. 416 ; Marshall v. Fisher, 1 Jones, 111. See also Grantham v. Kennedy, 91 N. Car. 148; Austin v. Charlestown Fe- male Sem., 8 Met. 196 ; Ralston v. La- hee, 8 Iowa, 11. The statements of the court in the latter case are only dicta. 5 See post, sec. 4. 5 See Whitney v. Porter, supra. But see Austin v. Charlestown Female Sem., 8 Met. 196; Rutter v. Puckhover, 9 Bosw. 688, to the effect that even then the judgment would be only voidable and not void. ™ Judgment against an adult in an DOMESTIC JUDGMENTS IN PERSONAM. 103 Apart from statutory enactment, judgment against a lunatic, in a suit duly begun, is binding in collateral actions;! and the same is true of judgment against a person deceased.” There has been some conflict of authority concerning the question whether a judgment against one of several joint con- tractors is a bar to a suit upon the same contract against all the co-cantractors, or against all except the one first sued. The question received most thorough consideration in the English Court of Exchequer in the year 1844 in the case of King v. Hoare ;? and though that case is in apparent conflict with one of the decisions of the Supreme Court of the United States* by Chief Justice Marshall, the rule laid down in the first-named case has become well settled with us. The English case referred to was an action of debt against Hoare, who pleaded that the con- tract’ alleged in the declaration was made by the plaintiff with the defendant and one Smith jointly, and not with the defendant alone, and that subsequently the plaintiff recovered a judgment. against Smith for the same debt; and the plea was sustained.® 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 sub- ject to it. Comp. First National Bank », Gillilan, 72 Mo. 77. 1 Wood v. Bayard, 63 Penn. St. 320; Foster v. Jones, 23 Ga. 168 ; Lamprey v. Nudd, 29 N. H. 299 ; Clarke v. Dun- ham, 4 Denio, 262. 2 Carr v. Townsend, 63 Penn. St. 202; Stortzell v. Fullerton, 44 Ill. 108 ; Reid v. Holmes, .127 Mass. 326; Spal- ding v. Wathen, 7 Bush, 659 ; Coleman v. MeAnulty, 15 Mo. 173. 813 Mees. & W. 494. 4 Sheehy 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 v. Todd, 9 Mich. 371. 6 ‘Tt is remarkable,’ said Parke, B. ‘that this question should never have been actually decided in the courts of this country. There have been appar- ently conflicting dicta upon it. Lord Tenterden in the case of Watters vu. 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 Lechmere v. Fletcher, 1 Cromp. & M. 634, Bayley, B. strongly intimates the opinion of the Court of Exchequer that the judg- ment 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 positive authority upon the precise question we must decide it upon prin- ciple, and by analogy to other authori- ties ; and we feel no difficulty in coming to the conclusion 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 judgment be recovered in a court of record, the judgment is a bar to the original cause 104 ESTOPPEL BY RECORD. In accordance with the principle in King v. Hoare it was held, where a vendor brought an action and recovered judgment 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 vexatious to subject the defendant to another suit for the purpose of obtaining the same result. Hence the legal maxim transit in rem judicatam, 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 judgment of a court of record changes the nature of that cause of action, and prevents its being the sub- ject of another suit ; and the cause of action being single cannot afterwards be divided into two, Thus it has been held that if two commit a joint tort the judgment against one is of itself, with- out execution, a sufficient bar to an action against the other for the same cause. Broome v. Wooton, Yelv. 67 ; 8. c. Cro. Jac. 73 ; Moore, 762. (a) And though in the report in Yelverton ex- pressions 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 cir- cumstance of the damages being unliq- uidated. Chief Justice Popham, Cro. Jac. 74, states the true ground. He says: ‘‘If one hath judgment to re- cover in trespass against one, and dam- ages are certain” (that is, converted into certainty by the jndgment), “ al- though he be not satisfied yet he shall not have a new action for this trespass. By the same reason, e contra, if one hath cause of action against two and obtain judgment against one, he shall not have remedy against the other ; and the dif- (a) This doctrine has recently been Harrison, L. R. 6 C. P. 584. But the rule is otherwise in America. ference betwixt this case and the case of debt and obligation against two is because there every of them is charge- able and liable to the entire debt; and therefore a recovery against one is no bar against the other until satisfaction.” And it is quite clear that the chief jus- tice 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 Yelverton. 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 tortfeasors or contrac- tors, 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 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 com- prises the joint bond of all and the several bonds of each of the obligors and gives different remedies to the ob- ligee. 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 dis- cussed 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 after- reaffirmed in England. Brinsmead ». Post, p. 110. . DOMESTIC JUDGMENTS IN PERSONAM. 105 against one of several partners, that the partnership debt was merged in the judgment, so that there could be no proof upon it wards, can he plead in abatement or not? If he cannot, he would be de- prived of the right by the act of the plaintiff, without his privity or concur- rence, 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 judg- ment against the co-contractor, so that there would be two separate judgments for the same debt. Further the case would form another exception to the general rule that an action on a joint debt barred against one is barred alto- gether ; the only exception now being when one has pleaded matter of per- sonal discharge, as bankruptcy and cer- tificate. 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 judg- ment 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 plead- ing in abatement. These considerations lead us, quite satisfactorily 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 action for the same debt or tort against another party. During the argument a decision of the Chief Justice Mar- shall in the Supreme Court of the United States was cited as being con- trary to the conclusion this court has come to; the case is that of Sheehy »v. Mandeville, 6 Cranch, 258. 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 satisfactory to us ; and we have since been furnished with a report of a subsequent case, in which that authority was cited and con- sidered, and in which the Supreme Ju- dicial Court of Massachusetts decided that, in an action against two on a joint note, a judgment against one was a bar.’ Ward v. Johnson, 18 Mass. 148. In the case referred to, Sheehy v. Mandeville, 6 Cranch, 253, decided by Chief Justice Marshall, the facts and issue were these : The plaintiff, having sold goods to R. B. Jamesson, one of the defendants, took his note for the sum due. Afterwards suspecting that the other defendant, Mandeville, wasa part- ner, 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. Jamesson. 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 judgment bars an action against Robert B. Jamesson, the inquiry still remains, if Mandeville was originally bound, if a suit could origi- nally be maintained against him, is the note, as to him, also merged in the judgment? Had the action in which judgment was obtained against James- son been brought against the firm, the whole note would most probably have merged in that judgment. 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, 106 ESTOPPEL BY RECORD. , against the-joint estate in bankruptcy; the partners having failed, and execution upon the judgment having been defeated by an adjudication in bankruptcy. The doctrine of King v. 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 deceased partner. ® It was accordingly held in the case last cited that judgment against the surviving partner will not bar proceedings against the estate of the deceased partner; and that it matters not which is first made liable. It is not to be understood from this that equity treats the partnership debts otherwise than as joint; the debts are still deemed joint in equity, ‘though it will allow the separate remedy.’ # 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 ob- ligation, so that a distinct action could not afterwards be maintained against the others, which is not admitted) can be applied only to a case in which the original declaration was on a joint cove- nant, not to a case in which the dec- laration in the first suit was on a sole contract.’ This decision has been criti- cised by other courts than those above mentioned. See Robertson v. Smith, 18 Johns. 459; Trafton v. United States, 3 Story, 646; Brown v. John- son, 13 Gratt. 644. But perhaps it may be sustained on the ground that the note contract was regarded as several as well as joint. In a subsequent case in the Supreme Court of the United States, United States v. Price, 9 How. 83, Mr. Justice Grier, who was speak- ing for the court, said that Sheehy «. Mandeville, ‘though sometimes criti- vised and donbted 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 toa suit against the other, because this con- tract was not merged in the judgment, and because the first judgment was founded on a several not a joint prom- ise.’ The English doctrine in King », Hoare, lately reaffirmed in Kendall v. Hamilton, 4 App. Cas. 504, may now be considered as well settled in this country. Sessions v. Johnson, 95 U.S. 347 ; United States v. Ames, 100 U. S. 35, 44; Mason v. Eldred, 6 Wall. 231; Gibbs v, Bryant, 1 Pick. 118 ; Robert- son v. Smith, 18 Johns. 459; Clinton Bank v. Hart, 5 Ohio St. 83; Bowen w Hastings, 47 Wis. 232, 236. 1 Ex parte Higgins, 3 DeG. & J. 33. See Peters v. Sanford, 1 Denio, 224. 2 Kendall », Hamilton, 4 App. Cas. 504 ; In re Hodgson, 31 Ch. D. 177; Liverpool Bank v. Walker, 4 De G. & J. 24. 8 Sir J. Hennen in In re Hodgson, at p. 184. 4 Lord Justice Bowen in the same case. Of course judgment against a surviving member of a partnership does DOMESTIC JUDGMENTS IN PERSONAM. 107 The converse too of this rule is equally true. In Olcott ». Little’ 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? The rule in King v. Hoare is not applicable where the judgment has been rendered in favor of a joint obligor defendant unless it was upon a plea which would operate asa discharge to all? In the case first cited an attorney sued for counsel fees; whereupon the defend- ants 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. not conclude the representative of the deceased partner. Buckingham », Lud- lum, 37 N. J. Eq. 187. 1 ON. H. 259. 2 See also to the same effect Tap- pan v. Bruen, 5 Mass. 193 ; Dennett v. Chick, 2 Green]. 191. It is also 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. Tibbetts v. Shapleigh, 60 N. H. 487. 8 Phillips v. Ward, 2 Hurl. & C. 717; Neville ». Hancock, 15 Ark. 511. 4 Bramwell, B. said: ‘No doubt if a person jointly liable with others suc- ceeds in an action against him alone, by pleading a release or payment, that would afford a good defence to an ac- tion against the other joint debtors ; . . . fora release to one is a release to all, and payment 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. But this plea does 108 ESTOPPEL BY RECORD. 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, and recovered judgment; the jury specially finding ‘that the defendant promised so far as to make himself liable for the damages incurred by widening the upper part’ of the street. The defendant contended that this judgment concluded the plaintiffs, as the declaration in the former suit embraced the widening of both ends of the street; and the jury by their ver- dict had negatived the claim as to the widening of the lower end. But the defence was held insufficient. The learned judge said that the case was to be distinguished from Hitchin v. Campbell, the ruling in which was approved. The parties 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 maintainable. Nothing was better settled than that in assumpsit ona joint promise to three a promise to all . jointly must be proved. A promise to two or one of the plain- tiffs would not be sufficient; and therefore a promise to Law- rence 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 consistent with the demand now made by the two plaintiffs? not show that the former action was some ground purely personal, as infancy, successfully resisted on some ground bankruptcy, or insolvency.’ common to all the joint debtors; but 13 Sum. 20. only that the court gave judgment for 22 W. Black. 779, 827. the defendant, which may have been on 8 The learned judge also stated his DOMESTIC JUDGMENTS IN PERSONAM. 109 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 obtained against two in an attempt to enjoin the enforcement of a judg- ment against both of 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 cther.” acquiescence in the test as generally true that it would determine whether the causes of action were the same if the same evidence would support each case. Martin v. Kennedy, 2 Bos. & P. 71. But even tried by this test the de- fence must fail. The evidence neces- sary 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 defendant’s argument was that it confounded the evidence offered in an action conducing to es- tablish the facts necessary to support it with the evidence indispensable to support it in point of law. Evidence 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 support an action by the three, See also Fifield v. Edwards, 39 Mich. 264. 1 Stingley v. Kirkpatrick, 8 Blackf. 186. ‘2 Bilsland v. McManomy, 82 Ind. 139. 110 ESTOPPEL BY RECORD. 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! And in Neville v. 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 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 judgment, 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 1 Goodman v. Niblack, 102 U. 8. 2 9 How. 83. 556; Bishop v. Hayward, 4 T. R. 470; 8 United States v. Cushman, 2 Sum. Britten v. Webb, 2 Barn. & C. 483; 426, was directly overruled by this Burgess v. Merrill, 4 Taunt. 463; Far- case. well v. Hilliard, 8 N. H. 318 ; Porter v. * Lovejoy v. Murray, 3 Wall. 1; Ses- Ingraham, 10 Mass. 88 ; Neville». Han- sions ». Johnson, 95 U.S. 347; Luce ». cock, 15 Ark. 511. Dexter, 185 Mass, 23; Stone v. Dickin- DOMESTIC JUDGMENTS IN PERSONAM. 111 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- quently sued as a participant, from claiming the whole land! 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 re- leased 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.’ son, 5 Allen, 29; Brown v. Cambridge, 8 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. 1 Williams v. Sutton, 48 Cal. 65. 2 Stone v. Dickinson, supra ; United Society v. Underwood, supra; Luce », Dexter, supra. 8 Mr. Chief Justice Bigelow speak- ing for the court said: ‘It cannot be denied that the parties who were plain- tiffs in the original actions, in suing out their writs against the present plaintiff and causing him to be ar- rested and imprisoned, acted separately and independently of each other, and without any apparent concert among themselves. As a matter of first im- pression 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 regarded as co-trespassers in the absence of proof of any intention to act together or of knowledge that they were engaged in a common enterprise or un- dertaking. But a careful consideration ’ of the nature of the action, and of the injury done to the plaintiff for which he seeks redress in damages, will disclose the fallacy of this view of the case. The plaintiff alleges in his declaration that he has been unlawfully arrested and im- prisoned. This is the wrong which con- stitutes 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 compensa- tion. He has not in fact suffered nine separate arrests, or undergone nine sepa- rate terms of imprisonment. . . . The alleged trespasses on the person of the plaintiff were therefore simultaneous and contemporaneous acts, committed on him by the same person acting at the same time for each and all of the plain- tiffs in the nine writs upon which he was arrested and imprisoned. It is then the common case of a wrongful and un- lawful act committed by a common 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, with- 112 ESTOPPEL BY RECORD. There is another 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. The cases al- luded to are cases in which real parties fight out a cause behind a nominal party2 In Tate v. Hunter® it appeared that the com- plainant’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 execution which had been assigned to the defendant. After a revivor by the complainants as executors, and a closely contested litigation, judgment had gone for the defendant. The complainants then filed the present bill, praying that the execution and judgment in question (the one assigned to the defendant) might be post- poned to the subsequent judgment in favor of their testator against the party whose funds the sheriff had collected and re- out 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 the number of principals who procured it to be done so as to entitle the party injured to a compensation graduated, not according to the damages sustained, but by the number of persons through whose in- strumentality the injury was inflicted. The error of the plaintiff consists in supposing that the several parties who sued out writs against him and caused him to be arrested and imprisoned can- not be regarded as co-trespassers, because it does not appear that they acted in concert or knowingly employed a com- mon agent. Such preconcert or knowl- edge 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 ren- ders 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 Follansbee v. Walker, 74 Penn. St. 306; Davidson v. State, 63 Ala. 432. 2 Comp. cases of representative par- ties, pp. 113-119, 129. And see Ver- planck v. Van Buren, 76 N. Y. 247, 256. ‘True the parties plaintiff in the two actions differ in name of per- son, but their representative character is the same in that each stands for the estate and right of T. W. C. True they were appointed at the instance of differ- ent creditors; but one succeeded the other in title, and took into possession the same estate and right, that of T. W. GC.’ Folger, J., in Verplanck v. Van Buren. 8 3 Strob. Eq. 186. DOMESTIC JUDGMENTS IN PERSONAM. 113 tained. But the bill was dismissed. Mr. Chancellor Dargan said that the only question to be considered 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 defendant in the present case being the real party in interest. The sheriff was simply a stakeholder without a particle of interest; it mattered not to him which of the claimants recovered the money in his hands. The battle was fought over his shoulders by the real parties. The defend- ant was not only the real party adverse in interest to the com- plainants, 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 has not participated in a tort committed by the agent or ser- vant, the two cannot really 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 possibly, without 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 acase? Will the mere fact alone that A is liable for the act of B be sufficient ground for an ac- tion and judgment against each separately? Now if an action cannot be maintained against a master after judgment against his servant for the authorized act of the latter, it must be either 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 1 But see Campbell v. Phelps, 1 tion of election appears to amount to Pick. 62, infra, p. 114. the same thing as merger; for there is 2 It is more usual to speak of elec- no binding election until judgment, tion as the ground for holding the rec- and then there is clearly a merger. ord a bar, but when the case is that of Priestly v. Fernie, 3 Hurl. & C. 977; judgment in favor of the plaintiff (the Kingsley v. Davis, 104 Mass. 178; post, case now under consideration) the no- pp. 116, 119, note. 8 114 ESTOPPEL BY RECORD. cause of action; the one being a reason working in favor of the plaintiff, the other a reason working against him. 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 master, to subject the latter’s property to execution. The other reason has a better foundation. There is no several liability be- cause 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 ac- tion, annulling it by transforming it into a judgment obligation.! Thus the case would appear to stand, apart from authority. The question as it has been presented before the courts has gen- erally arisen in relation to officer and deputy; though it has sometimes taken the wider form in which we have thus far considered it, the decision being in accord with the view above taken.2 The question in the narrower form arose in Campbell v. 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,t 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.6 1 No action can be maintained deputy’s act binds the sheriff in the against the sheriff upon a judgment situation under consideration. There against the deputy; the sheriff does not owe the judgment, not having been a party to the cause. Pervear v. Kim- ball, 8 Allen, 199. 2 Emery v. Fowler, 89 Maine, 326. 31 Pick. 62. 4 This appears to be a strained tech- nical position. The deputy must be liable because the tort is his; and the is no sound reason why both may not be sued together. 5 See further Todd v. Old Colony R. Co., 8 Allen, 18; Pervear v. Kimball, 8 Allen, 199; Bennett v. Hood, 1 Allen, 47; Elliott v. Hayden, 104 Mass. 180. ® Morgan »v. Chester, 4 Conn. 387. Comp. Warner v. Comstock, 55 Mich. 615. DOMESTIC JUDGMENTS IN PERSONAM. 115 But if upon judgment in favor of the plaintiff against the servant another action cannot be permitted because of merger, 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 decided 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 plain- tiff’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 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 1 King v. Chase, 15 N. H. 9,19. The ground taken was the true one that the plaintiff, having an election, had elected to sue the deputy. 2 Hancock v. Welch, 1 Stark. 347. 116 ESTOPPEL BY RECORD. several,! it seems clear that judgment in favor of the principal or the surety, 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 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 tule 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 ‘eonclusive 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. But this, it is apprehended, is not the better doctrine. When the cause has once reached judg- ment, the demand ought to be treated as determined ;7 unless matters exist which would justify a new trial, in which case there may be no sound objection to permitting the plaintiff to 1 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 condi- tioned to pay the judgment. Way ». Lewis, 115 Mass. 26; Cutter v. Evans, ib. 27. 2 State v. Coste, 36 Mo. 437. 5 Priestly v, Fernie, 3 Hurl. &C. 977. ‘4 Kingsley v. Davis, 104 Mass. 178; Raymond v. Crown Mills, 2 Met. 319; Jones v. Atna Ins. Co., 14 Conn. 501. 5 Priestly v. Fernie, p. 119, note 5. 6 Beymer v. Bonsall, 79 Penn. St. 298. 7 As for the subsequent discovery of an undisclosed principal a new action could consistently with this position be allowed, since the plaintiff, not know- ing of the existence of a principal, had no opportunity to sue him. DOMESTIC JUDGMENTS IN PERSONAM. 117 bring his action against the party not sued in the first proceed- ing. 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. Sometimes the converse situation is brought before 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 plaintiff 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 pos- session, produced the record of a judgment in his favor in an action of trover brought by him against the person under whom. the defendant now justified. The defendant objected on the ground that the parties to that suit were different from those to the present; but the record was received and held conclusive. The court thought indeed that if the present defendant had sus- tained 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 voluntary act that the conversion was effected, and the mere fact that the master would be bound to indemnify him for the consequences would not be enough to exempt the defend- ant. 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 jus- tified 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 of course it was not a case of privity in the ordinary sense of the law of estoppel; there was no succession of interests. The better 1 See Lyman v. Faris, 53 Iowa, 498 ; Clark v. Wolf, 29 Iowa, 197. 2 4 Barb, 171. 118 ESTOPPEL BY RECORD. ground for the decision would be that the judgment had decided a question in which the defendant, by his own admission, 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 property, 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 plaintiff’s goods is without avail against a purchaser at the officer’s sale; the purchaser 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 indispen- sable to enable each to protect his particular interest ; but as the law would not suffer a defendant to be twice harassed for the same cause, only one suit could be brought, and it would be a bar to every other. On the other hand judgment obtained by or against the agent 1 Alexander v. Taylor, 4 Denio, 302. 8 Green v. Clarke, 12 N. Y. 848; * McKay v. Kilburn, 42 Mich. 614. Kent v, Hudson River R. Co., 22 Barb. And comp. Hunt v. Haven, 52 N. H. 278. 162, which turned upon a like principle. DOMESTIC JUDGMENTS IN PERSONAM. 119 or bailee cannot be used for or against the principal or bailor, except in case of an action brought at his instance,! or 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 con- verting it; in which action the jury had found that the coin belonged to the principal, and had given nominal damages. The principal now sued the same defendant for the same trespass ; and the former judgment was relied upon as a bar. But the court overruled the objection. ‘There was,’ they said, ‘no evi- dence, certainly no conclusive proof, that the suit of Brodie [the agent] was brought at the instance or for the use of Pico.’ A question arose in a recent case* in the English Court of Exchequer which involved the nature of the relation between the master of a vessel and the owner. The plaintiff sued the owner of a ship on a bill of lading; and he pleaded a judgment on the same bill of lading against the master of the vessel, ob- tained by the same plaintiff’ The question was finally raised by demurrer whether the judgment pleaded was a bar to the present action. 1 One who instigates and promotes a suit for one’s own benefit, by employing counsel and binding one’s self to the pay- ment of costs and damages, is bound by the judgment obtained. Landis v. Ham- ilton, 77 Mo, 554, citing Stoddard ». Thompson, 31 Iowa, 80; Lovejoy v. Murray, 3 Wall. 1, 18. Comp. ante, p. 99, note 3. 2 Nemetty v. Naylor, 100 N. Y. 562. 3 12 Cal. 140. 4 Priestly v. Fernie, 3 Hurl. & C. 977. ® The case is a leading one of con- siderable importance; Mr. Baron Bram- well said: ‘We are of opinion our judgment should be for the defendant. If this were an ordinary case of princi- pal 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 second action would be maintainable against the principal. It was held.that it was not.® The very expression that where a con- tract is so made, the contractee has an election to sue agent or principal, sup- poses he cansonly sue one of them, that is to say sue to judgment. For it may be that an action against one might be discontinued and fresh proceedings be well taken against the other. Further there is abundance of authority to show that where the situation of the princi- pal is altered by dealings with the agent as principal, the former is no longer subject to an action. But this is the case here. . . . If this then were the ordinary case we have mentioned, there could be no doubt on the subject. But it is said that the liability of the master of a vessel acting for his owners, and their liability where he acts for them, is different from the liabilities in ordinary cases of principal and agent, and that first one and then the other 120 ESTOPPEL BY RECORD. Other cases (not of privity) have also arisen in which a for- mer 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 in- voked asa bar! Ehle v. 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 sound- ness. 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? may be sued. The plaintiff's argument then, namely, that the present case is anomalous, is exceptional. When that is contended for, strong reason ought to be given for it. What is given here ? It is certain that the master’s liability is founded on the same considerations as that of an ordinary agent, namely, he makes the contract in his own name. Rich v. Coe, 2 Cowp. 636; Story, Agency, § 296. Butitis 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 afterwards sue the owner merely because 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 between this and other cases of principal and agent. It is not said none could be given why in all cases of principal and agent both should be suable, but that there is no particular reason applicable to the mas- ters and captains of ships.’ The learned baron then says that the only authority for the position of the plaintiff is a pas- sage in one of the works of Mr. Justice Story (Story, Agency, § 295), given on the authority of Mr. Livermore (2 Liv- ermore, Agency, 267). He shows that the former misunderstands the. latter ; and that though the case cited of Rich v. Coe, 2 Cowp. 636, which he pro- nounces of questionable authority, sup- ports the proposition stated by Mr. Livermore, it does not support that maintained in Story on Agency. 1 Ehle v. Bingham, 7 Barb. 494; Whitford v. Crooks, 54 Mich. 261; Fol- Jansbee v. Walker, 74 Penn. St. 306; Davidson v. State, 68 Ala, 432; Parnell v. Hahn, 61 Cal. 131; Nemetty v. Nay- lor, 100 N. Y. 562 (that one of a partner- ship may represent the firm, in a cause). 2 Upon this point Mr. Justice Ed- wards said: ‘It will be remembered that the former suit was upon a prom- issory note which grew out of a transac- tion to which the plaintiff and defendant in this suit alone were parties, and that the plaintiff in this suit put in a sepa- rate plea and notice of a matter personal to himself; and the mere fact that an- other person was sued with him ought not to deprive the defendant in this suit of the benefit of the former judgment.’ DOMESTIC JUDGMENTS IN PERSONAM. 121 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 8. was joined as complainant, and the P. M. 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 admitted 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 judg- ment 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 common-law action of ejectment with its 1 24 How. 238. 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 defend- ants,’ such parties being joined as suc- cessors to the present plaintiffs and defendants. ‘The matters at issue, common to both suits, have been ad- judicated.”. And Thompson v. Roberts was then quoted. See also Pollard vu. Railroad Co., 101 U. S. 223 (that judg- ment in assumpsit by husband and wife in favor of the plaintiffs for injury caused the wife by a carrier of passengers bars fictitious parties held other- an action by the husband alone for damages from the same cause of ac- tion); Lawrence v. Hunt, 10 Wend. 80. 8 2 Wall. 35. * See Doe v. Harlow, 12 Ad. & E. 40; Doe v. Thomas, 1 Tyrwh. 410; Bai- ley v. Fairplay, 6 Binn. 450; Rogers v. Haines, 3 Greenl. 362; Richardson v. Stewart, 2 Serg. & 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. 816; Jones v. De Graffenreid, 60 122 ESTOPPEL BY RECORD. wise No uniform rule however prevails upon this subject, ejectment having been variously treated according to the nature of statutory provisions or the persuasive force of the old com- mon-law rule? 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 Ala, 145; Shaw v. Lindsey, ib. 844. 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 judgment thereon will be conclusive. Gibson v. Lyon, 115 U.S. 439, 446; Britton v. Thornton, 112 U. S. 526. 1 Mr. Justice Miller in delivering judgment said: ‘It must be conceded that such is the general doctrine on the subject as applicable to cases tried under the common-law form of the ac- tion of ejectment. One reason why the verdict cannot be made conclusive in those cases is obviously due to the ficti- tious character of the action. Ifa ques- tion is tried and determined between John Doe, plaintiff, and A. B., who comes in and is substituted defendant in place of Richard Roe, the casual ejector, it is plain that A. B. cannot plead the verdict and judgment in bar of another suit brought by John Den against Richard Fen, though the de- mise may be laid from the same lessor, for there is no privity between 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 estop- pel 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 suffi- cient number of trials had taken place, to determine fairly the validity of the title; and by injunction directed to the unsuccessul litigant compel him to cease from harassing his opponent by useless litigation. There was perhaps another reason why the English com- mon law refused to concede to the action of ejectment, which is a personal action, that conclusive effect which it gave to all other actions, namely, the peculiar respect, almost sanctity, which the feudal system attached to the tenure by which real estate was held. So pecul- iarly 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 ac- tions in other cases.’ 2 See Cagger v. Lansing, 64 N. Y. 417; Dawley v. Brown, 79 N. Y. 390; Doyle v. Hallam, 21 Minn. 515; Sturdy v. Jackaway, 4 Wall. 174; Barrows v. Kindred, ib. 399; Stephenson v. Wil- son, 50 Wis. 95; Wilson v. Henry, 40 Wis. 594; Phillpots v. Blasdell, 10 Nev. 19; Marshall ». Shafter, 32 Cal. 176; Amesti v. Castro, 49 Cal. 325; Kimmel v. Benna, 70 Mo. 52; Brownsville » Cavazos, 100 U. S. 138; Union Petro- leum Co. v. Bliven Petroleum Co., 72 Penn. St. 173; Gordinier’s Appeal, 89 Penn, St. 528; McLaughlin v. McGee, 79 Penn. St. 217. 8 Eshelman v, Shuman, 13 Penn. St. 561. DOMESTIC JUDGMENTS IN PERSONAM. 123 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 president of the Orphans’ Court, for the use of one Herr, trustee of Eshel- man 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 Orphans’ Court ; but it was really for the use of Eshelman’s assignees. He said that it was only by virtue of the maxim ‘communis error facit jus’ that the president of the Orphans’ Court could sue at all in such a case; but 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.1 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 one not a party to'a judg- ment 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, does 1 Davidson v. State, 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. 2 People». Hall, 80 N. Y. 117 ; Peo- ple ». Murray, 73 N. Y. 535. See State v. Hardie, 1 Ind. 42. 8 Majors v. Cowell, 51 Cal. 478, £ Leggett v. Great Northern Ry. Co., not ordinarily preclude him, in 1Q. B. D. 599; Lord v. Wilcox, 99 Ind. 491, 496 ; Lantz v. Maftett, 102 Ind. 23, 27; Elliott v. Frakes, 71 Ind. 412; Unfried v. Heberer, 63 Ind. 67; Cronan v. Frizell, 42 Ill. 319; Mansfield », Hoagland, 46 Ill. 359 ; Stoops v. Woods, 45 Cal. 439; Rathbone v. Hooney, 58 N. Y. 463. So of other estoppels also. Jones v, Long, 50 Ala. 493 (in pais). 124 ESTOPPEL BY RECORD. a different cause of action affecting his own proper person, from disputing the special findings in the former cause.’ 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 against him personally in an action by the creditor for a devastavit.t This however is only an apparent exception. The former judg- ment in this case affects the administrator personally, 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 pre- clude 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 parties to the proceedings, by giving them due notice of the suit. This occurs 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 defendant becomes conclusive evidence in an action by him against the person liable over to him. In Love v. Gibson ® the plaintiff sued the defendant for contribu- tion as co-surety ina bond. It appeared that the obligees had 1 Coke, Litt. 128a ; Robinson’s Case, 5 Coke, 32 b; Middleton’s Case, ib, 28b; Legge v. Edmonds, 25 L. J. Ch. 125 ; Fenwick v. Thornton, Moody & M. 51; Parker v. Moore, 59 N. H. 454. See Smith v. Morgan, 2 Moody & R. 257, explained in Metters v. Brown, 1 Hurl. & C. 686, 691; post, p. 128. 2 [elliott v. Frakes, 71 Ind. 412. See Lantz v. Maffett, 102 Ind. 23, 26. 8 Lord v. Wilcox, 99 Ind. 491. 4 Leonard v Simpson, 2 Bing. N. C, 176 ; Rock v. Leighton, 1 Salk. 310; ante, pp. 78, 74. 5 Thid. § Corcoran v. Chesapeake Canal Co., 94 U. S. 741. 7 Saveland v. Green, 36 Wis. 612, 622; Valentine v. Mahoney, 37 Cal. 389 ; Russell v. Mallon, 38 Cal. 259; Altschul v. Polack, 55 Cal. 688 ; Doug- las v. Fulda, 45 Cal. 592; Carr ». United States, 98 U. S. 483; Morgan v, Muldoon, 82 Ind. 347, 352; Brown v. Taylor, 13 Vt. 631. But the govern- ment cannot be estopped by notice from its tenants or agents to defend proceed- ings against them. Carr v. United States. § 2 Fla, 598. DOMESTIC JUDGMENTS IN PERSONAM. 125 sued the plaintiff alone on the bond; and that he thereupon gave notice to the present defendant, his co-surety, of the pen- dency of the suit. The defendant denied his liability upon the bond ; contending that as he was not a party to the former suit, the judgment did not bind him. But the court held him es- topped.’ So if a landlord 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 subse- quent action by the landlord 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 indi- cate; its full extent is thus set forth by Mr. Justice Bell in Lit- tleton v. Richardson:? 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 1 The court referred with approba- tion to the language of Mr. Justice Buller in Duffield v. Scott, 3 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 ac- tion, in consequence of which the per- son to be indemnified is obliged to pay the demand, that is equivalent to a judgment, and estops the other party from saying that the defendant in the first action is not bound to pay the money.’ Several other leading authori- ties were also cited, showing that the doctrine was well settled. See Smith v, Crompton, 3 Barn. & Ad. 407; Kip ». Brigham, 6 Johns. 158; Swartwout ». 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. Holbrook, 9 Allen, 17; Annett v. Terry, 35 N. Y. 256; Thomas v. Hubbell, 15 N. Y. 405; s. c. 85 N. Y. 120; Chicago v. Rob- bins, 2 Black, 418; Huzzard v. Nagle, 40 Penn. St. 178; Carlton v. Davis, 8 Allen, 94; Tracy v. Goodwin, 5 Al- len, 409; State v. Roswell, 14 Ohio St. 73; Lipscomb v. Postell, 38 Miss. 476; Lyon v. Northrup, 17 Iowa, 314 ; McNamee v. Moorland, 26 Iowa, 96; Dane v. Gilmore, 51 Maine, 544; Brown v. Bradford, 80 Ga. 927; Knapp ». Marlboro, 34 Vt. 285. 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 defences he might other- wise have to the introduction of the instrument to be introduced in evi- dence ; and his right is gone to contest its validity in a collateral way in a suit brought by the co-surety for contribu- tion, for it must be deemed res judicata,’ Love v. Gibson, 2 Fla. 598. 2 Valentine v. Mahoney, 37 Cal. 389 ; Russell v, Mallon, 38 Cal. 259; Alt- schul v. Polack, 55 Cal. 638. 8 34 N. H. 179, 187. 126 ESTOPPEL BY RECORD. 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, 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 lat- ter need not longer defend.! That was the case of a party who had placed obstructions in a highway ; who, being answerable 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 war- ranty 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 judg- ment 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 1 Morgan v. Muldoon, 82 Ind. 847; * See also concerning notice to war- dachaton v, Marsh, 5 Wend. 44. rantors, Bell v. Dagg, 60 N. Y. 528; 10 Gray, 496. Blasdale v. Babcock, 1 Johns. 517; 811 Allen, 870. See also Lee v. Kelly v. Dutch Church, 2 Hill, 105; Clark, 1 Hill, 56; Rapelye v, Prince, Collingwood v. Irvin, 3 Watts, 306; 4 Hill, 119; Bridgeport Ins, Co. » Paul v. Wit Te ac: : a — oo aul v, Witman, 8 Watts & S. 407 DOMESTIC JUDGMENTS IN PERSONAM. 127 liable even without notice, as where they have so stipulated with the latter! Such cases will of course depend upon the construction to be placed on the contract of indemnity. 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 »v. 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 nonpayment 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, between 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 1 Thomas v. Hubbell, 15 N. Y. 405; s. c. 80 N. Y. 120; Fay v. Ames, 44 Barb. 327 ; Bridgeport Ins. Co, v. Wil- son, 84 N. Y. 275. 2 Knox ». Sterling, 73 Ill. 214 ; Sev- erin v. Eddy, 52 Ill. 189; Chicago v. Robbins, 4 Wall. 657. 3 Jones v. Oswald, 2 Bail. 214; Kramph v. Hatz, 52 Penn. St. 525; Chant v. Reynolds, 49 Cal. 213; Val- entine v. Mahoney, 37 Cal. 389; Alt- schul v. Polack, 55 Cal. 633. Indeed though a party liable over was duly notified, if suit was afterwards dis- missed in regard to him and his defence stricken from the record the judgment will not estophim. Altschul v. Polack, supra, * Brooklyn v. Insurance Co., 99 U. 8. 362. 5 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 128 ESTOPPEL BY RECORD. as it may without fraud establish some special relation between such particular parties. The question whether one who appeared as a witness in a for- mer 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 to 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 another against himself, the pres- ent 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 an- other, who now brought trover for it ; in which action the defend- ant appeared as a witness for the then plaintiff, who prevailed. Such appearance was thought tantamount to an averment of no- tice to defend, estopping the witness to question the judgment. In equity it is usually necessary to join the cestui que trust the land concludes the other. Devin v. Ottumwa, 53 Iowa, 461. 1 Yorks v. Steele, 50 Barb. Parker v. Moore, 59 N. H. Wright v. Andrews, 180 Mass. 149; Blackwood v. Brown, 32 Mich. 104; Schroeder v. Lahrman, 26 Minn. 87. 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 ». 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. (Con- tra in Louisiana. Folger v. Palmer, 35 La. An. 748 ; ante, p. 98, note 4.) Un. less indeed in a proper case it has been acted upon. Leinkauff v. Munter, 76 Ala. 194, ? In delivering judgment Mr. Jus- tice Johnson said: ‘It is a gencral if 397 ; 454 ; 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 de- fence, to examine witnesses, or to appeal from the judgment. Case ». Reeve, 14 Johns. 79; Castle v. Noyes, 14.N. Y. 329, 832; Greenl. Ev. § 523. - . + It is of no consequence, prima facie, that the plaintiff was a witness for the defendant in the action brought by this defendant. He had no right as a witness to examine or cross-exam- ine other witnesses, or to call other wit- nesses, who might have a better knowl- edge of the facts than himself. In short as a mere witness he had no charge or control of the case whatever. And supposing that judgment was erro- neous for any reason, he had no right of appeal, and no standing by which he could be heard to correct the error.’ 3 13 Johns, 224, DOMESTIC JUDGMENTS IN PERSONAM. 129 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.2 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 pro- ceedings 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 the beneficiaries are so numerous that it would be very inconvenient to bring them all before the court, it has been considered sufficient for part of them to sue as laintiffs on behalf of all® But this rule applies only to cases P PP y 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 incon- venience arising from a great number of parties, they must all be before the court in order to be bound by the adjudication.’ This in the case cited was said of creditors in a question of pri- ority of charging real estate; but the principle is probably gen- eral, 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.6 Mr. Chancellor Kent 1 Collins v. Lofftus, 10 Leigh, 5 ; 5 Adair v. New River Co., 11 Ves. Shay v. McNamara, 54 Cal. 169. 429 ; Cockburn v. Thompson, 16 Ves. 2 Whitford ». Crooks, 54 Mich. 261. 821; Harrison v. Stewardson, 2 Hare, And where there are several cestuis que 530. trust, it makes no difference after a re- ® Newton v. Egmont, 5 Sim. 130, covery of property by the trustee for 187. them that their respective rights therein 7 Tbid. have not been determined. Upon the 8 Judgment against a corporation of termination of the trust any ofthem may course binds the members thereof, in have the benefit of the judgment. Ibid. the absence of fraud, for all the pur- 3 Johnson v. Robertson, 31 Md. 476; poses of the judgment. So judgment Corcoran v, Chesapeake Canal Co., 94 against a municipality concludes the U. S. 741. citizens thereof individually. Morris 4 Willink v. Morris Canal Co., 3 Co. v. Hinchman, 31 Kans. 729, 737; Green's Ch. 377 ; Van Vechten v. Terry, Lyman ». Faris, 53 Iowa, 498; Clark 2 Johns. Ch. 197; New Jersey Frank- v. Wolf, 29 Iowa, 197. Seo however linite Co. v. Ames, 1 Beasl. Ch. 507; Jenkins v. Robertson, L. R. 1 H. L. Johnson v. Robertson, 31 Md. 476. Scotch, 117, 121. 9 130 ESTOPPEL BY RECORD. 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 in- tended to go even so far as this;® and later still in Belmont ». Coleman‘ a majority of the Court of Appeals were unwilling to concur in the dictum of one of their number that such judgment was prima facie evidence against a stockholder.® It is clear that the corporation cannot be estopped by judgment against the stockholders individually. 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 the 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.® Judgment in partition binds parties only ;!° it may indeed con- clude contingent interests of persons not in being, but this only 1 Slee v. Bloom, 5 Johns. Ch. 366 ; Teversed, 19 Johns. 456 ; s. c. 20 Johns, 669. 2 Moss v. Oakley, 2 Hill, 265. 3 Moss v. McCullough, 5 Hill, 181; 8. c. 7 Barb. 279; 5 Denio, 567. * 21 N. Y. 96. 5 See also Squires v. Brown, 22 How. Pr. 35; Miller v. White, 59 Barb, 434; 8. C. rev. 18 Abb. Pr. N. 8, 185, note; Hall v. Sigel, 18 Abb. Pr. nN. s. 178; Lowry v. Inman, 2 Sweeny, 117; 8. c. 46 N. Y. 119; Brooks v. Hill, 1 Mich. 124; Berger v. Williams, 4 McLean, 577; Merchants’ Bank v, Chandler, 19 Wis. 484. 6 Covington & L. R. Co. v. Bowler, 9 Bush, 468. ‘Gay v. Parpart, 106 U. S. 679. Secus in Indiana under statutes. Luntz ». Greve, 102 Ind. 173; Elston v, Pig- gott, 94 Ind. 14. In that state, and probably in other states, it merely sev- ers possession and awards to each ten- ant his part in severalty. Elston v. Piggott, supra. But title may there be put in issue and decided. Luntz »v. Greve, supra, and cases cited. 8 Gay v. Parpart, at p. 689, Miller, J.; De la Vega v. League, 64 Texas, 205, 215. See the second case for a further consideration of partition in equity. » See Elston v. Piggott, 94 Ind. 14, 24, citing Miller ». 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 ». Hodgdon, ib. 95 ; Embrey v. Palmer, 107 U.S. 8, 11. Contra where the af- ter-acquired title was only a formal conveyance of the title already litigated. Phelan v. Tyler, 64 Cal. 84. ° 10 Childs v, Hayman, 72 Ga. 791. DOMESTIC JUDGMENTS IN PERSONAM. 181 in cases where the judgment provides for and protects such in- terests 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.! The effect of a judgment upon garnishment or trustee process in suits by the original creditor of the garnishee or trustee against the latter has frequently arisen.2 Compulsory payment in full is of course a discharge. Such a case, it was thought, was Wetter v. 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 voluntary payment. The court therefore held that the garnishees 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 Savage’s Case * is that attachment and condemnation are a good discharge. So in Maine judgment against the trustee having been rendered and duly recorded is conclusive upon the creditor of the trustee to the extent of the judgment,’ provided the judgment be final. Judgment by default will not discharge the trustee. The same doctrine prevails in other states.? But in some of the states the garnishee is not considered discharged without satisfaction.® * Monarque v. Monarque, 80 N. Y. Rucker, 1 Brod. & B. 491; and other 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. 2 The trustee or garnishee (duly no- tified) is bound by the judgment against himself though he failed to appear and was defaulted. Flanagan v. Cutter, 121 Mass. 96, overruling a dictum in Brown v. Neale, 3 Allen, 74. 3.1 Brod. & B. 491; 5s c. 4 B. Moore, 172. 41 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 execution sued out by the plaintiff ;’ and this seems to be the modern English rule. Wetter v. cases, supra. 5 McAllister v. Brooks, 22 Maine, 80; Norris v. Hall, 18 Maine, 332; Matthews v. Houghton, 11 Maine, 377. ® Sargeant v, Andrews, 3 Green]. 199. In Florida: Sessions v. Stevens, 1 Fla. 233. In Massachusetts execn- tion must have issued : Meriam v. Rund- lett, 18 Pick. 511. See also Cheongwo v. Jones, 3 Wash. C. C. 859. So in Maryland : Brown v. Summerville, 8 Md. 444. And in Pennsylvania: Lowry v. Lumberman’s Bank, 2 Watts & S. 210. 7 In Indiana: Covert v. Nelson, 8 Blackf. 265. 8 In Alabama : Cook v. Field, 3 Ala. 53. In Texas: Farmer v. Simpson, 6 Tex. 803, In Georgia: Brannon », Noble, 8 Ga. 549. See also Flower ¥. Parker, 8 Mason, 247. 132 ESTOPPEL BY RECORD. 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 attach- ment; otherwise he might be subjected to much unnecessary annoyance 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 defend- ant 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 plaintiff 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 replication was good. They said that if the execution in the garnishment 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. 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 garni- shee ; otherwise it would be in the power of the latter to prac- tise an irreparable fraud upon the former.® Nor is the garnishee’s 1 Magrath v. Hardy, 4 Bing. N. C. 782. 2 See Home Ins. Co. v. Gamble, 14 Mo. 407; Burnap v. Campbell, 6 Gray, 241; Brown v. Summerville, 8 Md. 444. ® Brown ¥. Dudley, 33 N. H. 511; Stearns v. Wrisley, 30 Vt. 661; Ste- vens v. Fisher, 80 Vt. 200; Dole v. Bout- well, 1 Allen, 286; Wise v. Hilton, 4 Greenl. 435; Killsa v. Lermond, 6 Greenl. 116; Anderson v. Young, 21 Penn. St. 443; Drake, Attachment, § 706, and cases cited. * Funkhouser v, How, 24 Mo. 44; Gates v. Kerby, 18 Mo. 157; Dobbins v. Hyde, 37 Mo. 114; Newton v. Wal- ters, 16 Ark. 216; post, p. 134. 5 Barrow v. West, 23 Pick. 270; Taylor v. Phelps, 1 Har. & G. ‘492; Drake, Attachment, supra. § Robeson v. Carpenter, 7 Mart. N. 8. 80; Brown v. Dudley, 33 N. H. 511; Tams v. Bullitt, 35 Penn. St. 308; Bax- ter 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 (Attachment, § 711, a work DOMESTIC JUDGMENTS IN PERSONAM. 183 creditor estopped by judgment in favor of the garnishee in the to which it is hardly necessary to direct the reader’s particular attention): — ‘1. The judgment against the gar- nishee, under which he alleges he made the payment, must be proved. Barton v. Smith, 7 Iowa, 85. *2. It must have been a valid judg- ment. No payment made under a void judgment, however apparently regular the proceedings may have been, can protect the garnishee against a subse- quent payment to the defendant [i. e. the garnishee’s creditor] or his repre- sentatives. Thus where an attachment was obtained against one supposed to be living in a foreign country, but who was dead when the suit was commenced, it was held that a payment made by a garnishee under execution was no de- fence against an action by the defend- ant’s administrator; the whole proceed- ings 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 recovery in favor of one who had previously to the garnishment taken an assignment of the debt from the defendant in the attachment, the garnishee having no- tice of the assignment. Dobbins ». Hyde, 37 Mo. 114. ‘3. The payment must not haye been voluntary. Any payment not made under execution will be regarded as voluntary, and therefore no protec- tion tothe garnishee. Wetter v. Rucker, 1 Brod. & B. 491, and cases cited supra. ‘4, The payment must be actual, and not simulated or contrived. Thus when certain persons were charged as garnishees, and credited the plaintiff on their books with the amount of the judgment, and debited the defendant with the same amount, but did not in fact pay the money, it was held to be no payment. Wetter v. Rucker, supra. ‘5. The judgment under which the payment was made must have been ren- dered 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; Robertson v. Rob- erts, 1 A. K. Marsh. 247; Richardson v. Hickman, 22 Ind. 244. If however the court have jurisdiction of the sub- ject-matter and the parties, 2 payment on execution under its judgment will protect the garnishee though the judg- ment may have been irregular and re- versible on error (Lomerson v. Hoff- man, 4 Zabr. 674; Pierce v. Carleton, 12 Ill. 858; Gunn v. Howell, 35 Ala. 144; Webster v. Lowell, 2 Allen, 128); and a reversal of it by the defendant for irregularity, after payment by the garnishee, will not invalidate the pay- ment. Duncan v. Ware, 5 Stew. & P. 119. But if the garnishee contest the jurisdiction of the court, and his objec- tion is overruled and judgment ren- dered against him, a payment made by him under that judgment cannot be collaterally impeached elsewhere on the ground that the court had no jurisdic- tion. 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 v. Cunliff, 9 Allen, 90. ‘6. Though the court have juris- (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 thé court, the garnishee is concerned in the question of juris- diction both as to the defendant and as to himself. Drake, Attachment, ‘§ 693. See Wheeler v. Aldrich, 13 Gray, 51; Morrison v. New Bedford Inst. for Sav- ings, 7 Gray, 269; Thayer v. Tyler, 10 Gray, 164; Pratt v. Cunliff, 9 Allen, 90. 134 ESTOPPEL BY RECORD. 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 proceed- ing against him on the debt by his own creditor, the doctrine is to be received with this qualification, that the judgment on the garnishment process was fairly obtained. If the garnishee was guilty of any collusion or fraud, he will be liable to pay a second time.2 In the case first cited the defendant had been summoned as trustee or garnishee of the plaintiff in an action in Connect- icut against the latter instituted subsequently to the present suit; he failed then to make any disclosure to the Connecticut court of the pendency of the action by his creditor in Massachu- setts ; and the court held that in view of this fact, which would have been sufficient to abate the trustee process,? he must pay again. In Wilkinson v. Hall, above cited, the defendant, maker of a negotiable promissory note, had been served with trustee process in Vermont after the negotiation of the note, and charged as trustee of the payee. The indorsee and plaintiff offered to prove that the defendant had knowledge of the transfer of the paper before the service in Vermont; which fact, had it there been disclosed, would have defeated the garnishment.t The court said that the fact of negotiation before the service of the trustee ‘process was most material to the right determination of the cause; and if the defendant had knowledge of the transfer he was bound to disclose it. The garnishee to be protected against his creditor should in a word avail himself of all defences which diction of the parties, and its judgment be valid against the garnishee, yet if the law require the plaintiff as a condi- tion precedent to obtaining execution to do a particular act, and without per- forming the condition he obtain execu- tion, and the garnishee make payment under it, the payment will be no pro- tection; for it is in the garnishee’s power to resist the payment until the condition be fulfilled; failing in which his payment is regarded as voluntary. Myers v, Uhrich, 1 Binn, 25; Moyer v. Lobengeir, 4 Watts, 390; Oldham ». Ledbetter, 1 How. (Miss.) 48; Grisson v. Reynolds, ib. 570.’ 1 Ruff v. Ruff, 85 Penn. St. 333. 2 Whipple v. Robbins, 97 Mass. 107; Wilkinson v. Hall, 6 Gray, 568; Hall v. Blake, 13 Mass, 153; 2 Kent, Com. 119. 8 See Wallace v. McConnell, 18 Pe- ters, 136; Embree v. Hanna, 5 Johns. 100. 4 Barney v. Douglass, 19 Vt. 98; Kimball v. Gay, 16 Vt. 181; Chase ». Haughton, ib. 594. DOMESTIC JUDGMENTS IN PERSONAM. 185 exist at the time in regard to the debt owed by him (the gar- nishee) 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 transfer 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 defendant 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 not strictly or nominally parties to the former suit, but whose inter- ests were in some way affected by it. And first of privity; which by Lord Coke is divided into privity in law, i.e. by opera- tion of law, as tenant by the curtesy; privity in blood, as in the case of ancestor and heir; and privity in estate, i.e. by sub- ordination of tenure, as in 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 property 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 sub- sequently to the action? Thus an assignee is not estopped by 1 Pierce v. Chicago R. Co., 86 Wis. note); Scates v. King, 110 Ill. 456; 283; ante, p. 132. Zoeller v. Riley, 100 N. Y. 102; Ches- 2 Bunker v. Tufts, 57 Maine, 417. ter v. Bakersfield Assoc. 64 Cal. 42; 3 Bryan v. Malloy, 90 N. Car. 508, Coles v. Allen, 64 Ala. 98. Hence A 511; Dooley v. Potter, 140 Mass. 49, 58 and B, claiming under deeds made by (doubting Stevens v. Miner, 5 Gray, 429, the same grantor before the suit, are not 1386 ESTOPPEL BY RECORD. 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.2 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.2 Judgment bars those only whose interest is acquired after the suit; excepting of course the parties.* The rule of law, as we have already stated, is that a judgment is conclusive, not only against the actual parties to the particular litigation, but also against all persons who claim under them as privies. The doctrine is illustrated in Regina v. Blakemore.® The 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 v. Barnes ® brought an action to recover certain lands, in which the following facts appeared: The defend- ant Batnes had loaned money to one Ingersoll on a mortgage of the premises if question. Subsequently he brought an action against Ingersoll to recover possession; in which suit the latter 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 opposition to it. Scates v. King, supra. 1 Todd » 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. 2 Of course judgment for or against an assignee in a suit with a third per- son has no force in regard to the as- signor. Donald v. Gregory, 41 Towa, 513. 8 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. # Shay v. McNamara, 54 Cal. 169; Campbell v. Hall, 16 N. Y. 575; Doe v, Derby, 1 Ad. & E. 783, 5 2 Den. Cr. C. 410, 8 17 Mass, 365. DOMESTIC JUDGMENTS IN PERSONAM. 1387 pleaded usury. But judgment was given for Barnes, the present defendant; and he was put into possession by the sheriff. After- wards 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 between 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 could convey to a stranger the right to bring Barnes’s title again into contro- versy. 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 mortgage, 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 v. Hitchcock! the plaintiff sued the defendant as guarantor of the acceptor of a bill of exchange; and the latter pleaded payment by the acceptor. The facts were that the acceptor when in a state of complete insolvency had paid the amount to the plaintiff; but the money was subsequently recov- ered from the plaintiff in an action by the acceptor’s assignees in bankruptcy. The guarantor now sued contended that the 16 Man. & G. 151; 6 Scott N. R. 851. 138 ESTOPPEL BY RECORD. payment by the acceptor to the plaintiff was a satisfaction. The plaintiff on the other hand urged that the recovery by the as- signees 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 de- cision shows that in the relation of guarantor 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, prin- cipal and agent,? and the like cases where parties are answer- able over.2 There is no succession of rights and 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 1 Means v. Hicks, 65 Ala. 241, hold- ing 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. 2 Warner v. Comstock, 55 Mich. 616, 620. 3 Ex parte Young, 17 Ch. D. 668 (C. A.), following Douglass v. How- land, 24 Wend. 35; State v. Wood- side, 7 Ired. 296 ; McKellar v, Bowell, 4 Hawks, 34; Beall v. Beck, 3 Har. & McH. 242. See also King 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 re- gard to principal and surety, with a few cases which followed it (State v. Grammer, 29 Ind. 530; State v. Pra- ther, 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 ; Ohning v. Evansville, 66 Ind. 59; State v. Rhoades, 6 Nev. 352. The old doe- trine is followed within limits in Stovall v. Banks, 10 Wall. 583 ; Evans v. Com- monwealth, 8 Watts, 898; Masser », Strickland, 17 Serg. & R. 354, Gib- son, C, J. dissenting ; Hailey v. Boyd, 64 Ala. 399; Martin v. Tally, 72 Ala. 23, 29, 830; Grimmet v. Henderson, 66 Ala. 521; Larkins v. Mason, 71 Ala, 227; Fretwell v. McLenore, 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 ». Howland, 24 Wend. 35, 58, was contra. Every distinct party should have the right to try his own case. The prin- cipal may be hostile to the surety, or indifferent to the surety’s interests, and the surety ignorant of the fact. It is conceded in Martin v. Tally, 72 Ala. 28, 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. 4 Cases in note 8, supra, especially 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 DOMESTIC JUDGMENTS IN PERSONAM. 189 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 2 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 deviseet Such a judgment upon v. Evans, ib. 27; Ex parte Young, 17 Ch. D. 668. That is another thing ; it is merely a decision of debtor and creditor between those entitled to a decision. See Candee v. Lord, 2 Comst. 269 ; ante, p. 46; post, pp. 148, 144. 1 Note 4, supra. 2 The sureties may show that the. court had no jurisdiction over the principal. Fall River v. Riley, 140 Mass. 488. 8 It is otherwise by statute in Cali- fornia. Cunningham v. Ashley, 45 Cal. 485. 4 Garnett v. Macon, 6 Call, 308; Stone v. Wood, 16 Ill. 177; Dorr v. Stockdale, 19 Iowa, 269; Moss v. Mc- Cullough, 5 Hill, 131; Alston », Mun- ford, 1 Brock. 266 ; Scott v. Ware, 64 Ala. 174; Starke v. Wilson, 65 Ala. 576; Boykin v. Cook, 61 Ala. 472; Lehman v. Bradley, 62 Ala. 31; Teague v. Corbitt, 57 Ala. 529. In the case first cited Marshall, C. J. in the Circuit Court of the United States for Virginia said: ‘The defendants insist that the decree against the personal representa- tive 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 de- cide the very point. Not one of them brings directly into question the conclu- siveness of a judgment against the execu- tor in a suit against the heir or devisee. They undoubtedly show that the execu- tor 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 cred- itors. Yet there are strong reasons for denying the conclusiveness of a judg- ment against an executor in an action against the heir. He is not a party to the suit, cannot controvert the testi- mony, adduce evidence in opposition to the claim, or appeal from the judgment. In case of a deficiency of assets the ex- ecutor may feel no interest in defending the suit, and may not choose to incur the trouble or expense attendant on a laborious investigation of the claim. It would seem unreasonable that the heir who does not claim under the execu- tor should be estopped by a judgment against him. . . . In this case the creditor is bound to proceed against the executor, and to exhaust the per- sonal estate before the lands become liable to his claim. The heir as devi- see 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 executor is in substance the foundation of the pro- ceeding against the heir as devisee, the argument for considering 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 proprietor of the land.’ That the judgment is no evidence against the heir, see the Alabama cases above cited. 140 ESTOPPEL BY RECORD. 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 representative to subject the dece- dent’s land to the payment of the 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 executor or administrator can bind those interested in the estate unless they or the decedent author- ized it. An administrator is of course in privity with his intestate in respect of the personality ;4 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.® 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 admin- istrator; and sd some of the authorities declare” 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 offi- cer of the ordinary, appointed by law, in whom the deceased cannot be said to have reposed any confidence, cannot transmit his office ; and if he should die before closing his administration, the office would result back to the ordinary for the appointment of a successor. So when an executor dies intestate, his admin- istrator does not represent the testator; and it now devolves 1 Starke v. Wilson, 65 Ala. 576. 2 Sergeant v. Ewing, 36 Penn. St. 156. 8 As where an executor before quali- fication failed to defend an application concerning homestead. Killen v. Mar- shall, 55 Ga. 340. See also Allen v. Morgan, 61 Ga. 107. 4 Steele v. Lineberger, 59 Penn. St. 308. 5 Manigault v. Deas, 1 Bailey, Eq. 283 ; Ladd v. Durkin, 54 Cal. 395. ® Boykin v, Cook, 61 Ala. 472, 7 Ibid. ; 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 maintained by the administra- torde bonisnon. Dykes v. Woodhouse, 8 Rand. 287. There was some dispute even on this point in the old cases. Ibid. ® Contrary however to the analogous case of agency. DOMESTIC JUDGMENTS IN PERSONAM. 141 upon the ordinary, as in the other case, to commit administra- tion afresh with the will annexed.!. The administrator 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? It is well settled that there is no privity between executors or administrators appointed in different states or countries It is often loosely said indeed that a judgment is conclusive of everything that might have been litigated in 1 See also Chamberlain v Carlisle, 26 N. H. 540, 558, and cases cited. 2 See infra, p. 152, note; Lawrence v. Hunt, 10 Wend. 80; Forcey’s Ap- peal, 106 Penn. St. 508, 515 ; Coffey ». United States, 111 U. 8. 436, 445 ; Wil- liams v. Williams, 63 Wis. 58, 71 ; Ford v. Ford, 68 Ala. 141, 148. For the second part of the rule in the Duchess of Kingston’s Case see infra, pp. 148-150. 8 School District v. Stocker, 42 N. J. llo; Tuska v, O’Brien, 68 N. Y. 446. But see King v. Chase, 15 N. H. 9, infra, p. 158, note. * Burlen v, Shannon, 99 Mass. 200 ; 8. c. 3 Gray, 387, and 14 Gray, 433; Morse v. Elms, 131 Mass. 151; Leon- ard v. Whitney, 109 Mass. 265, 268 ; West v. Platt, 127 Mass. 367 ; Morgan v. Burr, 58 N. H. 167; Biggins v. Peo- ple, 106 Ill. 270 ; Porter v, Wagner, 36 Ohio St. 471; Crofton », Cincinnati, 26 Ohio St. 571; Marvin v. Dutcher, 26 Minn. 891; Dixon »v. Merritt, 21 Minn. 196 ; Dunham ». Bower, 77 N. Y. 76; Steinbach v. Relief Ins. Co., ib, 498; Providence », 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, 85 Wis, 141 ; Shinn v, Young, 57 Cal. 525 ; Mc- the action;® but that is not Calley v. Robinson, 70 Ala. 432; John- ston v. Riddle, ib. 219; Hamner », Pounds, 57 Ala. 348 ; Davidson v. Ship- man, 6 Ala. 27, 33 ; Strother v. Butler, 17 Ala. 733; Thomason v. Odum, 31 Ala. 108 ; Belshaw v. Moses, 49 Ala. 283; Me- Donald v. Mobile Ins. Co., 65 Ala. 358; Bradley v. Briggs, 55 Ga. 354; Hunter v. Davis, 19 Ga. 418 ; Supples v. Cannon, 44 Conn. 424, 5 Kelley ». Donlin, 70 Ill 378; Hemenway v. Wood, 53 Iowa, 21. What this means will be seen a little further on. All material issues appear- ing of record are conclusively presumed to have been passed upon. Davis » McCorkle, 14 Bush, 746. & Wetumpka v. Wetumpka Wharf Co., 68 Ala. 611, 634 ; Murrell v. Smith, 51 Ala. 301 ; Ruegger v. Indianapolis R. Co., 103 Ill. 449 ; Hamilton 2. Quimby, 46 Ill. 90; Parnell » Hahn, 61 Cal. 131; Green v. Glynn, 71 Ind. 336; Fischli v. Fischli, 1 Blackf. 360 ; Griffin v. Wallace, 66 Ind. 410, 420; Tredway v. McDonald, 51 Iowa, 663. See Mally». Mally, 52 Towa, 654; Harris v. Harris, 36 Barb. 88 ; Thompson ». Myrick, 24 Minn. 4, 11; Gardner v. Raisheck, 28 N. J. Eq. 71; Smith v. Smith, 79 N. Y. 634 ; Petersine v. Thomas, 28 Ohio St. 596; Swenson v. Cresop, ib. 668; DOMESTIC JUDGMENTS IN PERSONAM. 145 true,! as will be seen,? except so far as it relates to a particular issue actually joined or necessarily implied? Everything within the necessary issues is determined by the judgment, 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.* Campbell v. Goodall, 8 Bradw. 266; Newington v. Levy, L. R. 5 C. P. 607 ; Hall v. Levy, L. R. 10 C. P. 154; Adams v. Adams, 25 Minn. 72, 76; Aurora City v. West, 7 Wall. 82. 1 Cromwell v. Sac, 94 U. S. 851; Young v. Pritchard, 75 Maine, 513, 518 ; 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. Hen- derson, 3 Hare, 100, 115; Parkes ». Clift, 9 Lea, 524), 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- tion is not what the court might have decided, but what it did decide. Porter v. Wagner, 36 Ohio St. 471; Brady v. Pryor, 69 Ga. 691, 697. 2 Indeed the court of Alabama have held that judgment in unlawful de- tainer is no bar to an action for dam- ages by reason of the detainer when such damages were not claimed in the first suit. Belshaw v. Moses, 49 Ala. 283. But see Serrao v. Noel, infra. A general judgment upon a general count no doubt carries prima facie all de- mands that might have been embraced within it, upon the natural presumption that the parties probably litigated every- thing they could litigate in the particu- lar action. Hungerford’s Appeal, 41 Conn. 322. But this presumption may be overcome. Ibid. See Sawyer v. Woodbury, 7 Gray, 499; Green v. Weaver, 63 Ga. 302. 8 Cromwell v. Sac, 94 U. 8S. 351; Fairchild +. Lynch, 1 Eastern Rep. 190, N. Y. Ct, App. 1885; Pray ». But the parties are not bound to litigate un- Hegeman, 98 N. Y. 351, 358; Wil- liams 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 determined, 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 zv. Conner, 3 Comst. 522; Dunham ». Bower, 77 N. ¥. 76. This applies to conclusions both of law and of fact. Pray v. Hegeman. A judgment has of course no effect upon questions which could not be raised or determined upon the issues in- volved in the action. First National Bank v. Hastings, 22 Minn. 224 ; Dan- iels v. Henderson, 49 Cal. 2438; Hall v. Levy, L. R.10 C. P. 154. Thus judg- ment at law upon a municipal bond es- tablishes the validity of that bond be- tween the parties in all courts ; but that judgment decides nothing concerning the question whether the bond attaches to a trust provided 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. We- tumpka v, Wetumpka Wharf Co., 63 Ala. 611. Indeed when a court has no au- thority to try a question sought to be put in issue properly in another court, it is universally true that there is no estop- pel. See e. g. Bosquett v. Crane, 51 Cal. 505. # Serrao v. Noel, 15 Q. B. D. 549 10 146 ESTOPPEL BY RECORD. necessary questions, even though they might do so and settle the same forever,! and though there may be a presumption that they did so, of matters pertaining to the former trial? The case of Hibshman v. Dulleban 3 illustrates the first part of the rule in the Duchess of Kingston’s Case* 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 ad- ministration 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 satisfactory bar to the exception, and that it was held a good and valid release. The question was finally raised by demurrer whether the validity of the release had passed in rem judicatam; and the Supreme Court of Pennsylvania held that it had not5 Tn 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 saine principal sum and interest as -(C. A.). That proceeds upon the ground that the two items of damage constitute but one cause of action, a subject how- ever beset with difficulties. See Bel- shaw v. Moses, 49 Ala, 283, supra, which seems opposed in principle to Serrao »v. Noel. Sce alsoBrunsden 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. 159-163, for a con- sideration of the subject. 1 Post, p. 164. 2 Parnell v. Hahn, 61 Cal. 131. 3 4 Watts, 183. 4 P. 144, 5 Mr. Chief Justice Gibson in speak- ing for the court said: ‘The validity of the release was drawn into contest incidentally; and the point, being thus incidentally decided against him, can no more prejudice his title in another court than can the decision of a surro- gate or register prejudice the title of an unsuccessful claimant of administra- tion to the estate of a decedent. Again the point was not actually, or at least necessarily, decided. The plaintiff's ex- ceptions to the administration account were also the exceptions of Henry Dul- leban’s trustees; and whether the re- lease 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 de- termination 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 Appeal, 106 Penn. St. 508, 515. 6 13 Mees. & W. 137. DOMESTIC JUDGMENTS IN PERSONAM. 147 were secured to the plaintiff by a mortgage deed of even date with the bond. The present plea further stated that the defend- ant 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 traversed 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 were 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 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 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 init. This latter allegation alone being traversed, the only issue the jury had to try was whether the bond was given for the sum mentioned, £600. The jury found that it had been so given; and incidentally 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 admit- ted by him for the purposes of that suit, and for the purposes of that suit only. ‘If therefore,’ said he, ‘the plaintiff 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 recover- ing on the bond, or disputing 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 decid- ing the question at issue.’ 2 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 fact are only conclusive in case the traverse is found against the party making it. Boileau v. Rutlin, 2 Ex. 665. And of course there is no estoppel concerning an immaterial allegation. Sweet v. Tuttle, 14 N. Y. 465. 148 ESTOPPEL BY RECORD. 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 gar- nishee) had the verdict. To the present action the general issue was also pleaded; and upon that the jury found for the plain- tiff. 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. The recent case of Dickinson v. Hayes! illustrates the second part of the rule in the Duchess of Kingston’s Case? The action was ejectment for certain land, to which the defendant claimed title under the will of a minor between seventeen and twenty- one years of age. The will had included both personal and real estate, and the probate ran thus: ‘An instrument purporting to be the last will of F. H., late of M., in this district, deceased, was presented in court for probate, and 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. 1 31 Conn. 417, 2 Supra, p. 144. 8 *The general question,’ said Mr. Justice Sanford in delivering the judg- ment, ‘before that court was whether the instrument was the last will and testament of Frances E. Hubbard, and as such entitled to probate. This ques- tion 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 attested as the law required, it was a valid will, and it was the duty of the Court of Pro- bate to approve, accept, and establish it accordingly... . The record demon- strates that the Court of Probate passed upon and found all facts necessary to uphold its judgment, and justify its ap- DOMESTIC JUDGMENTS IN PERSONAM. 149 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 am action of trespass quare clausum fregit; ‘the close being a large one, and embrac- ing 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? proval of the instrument as a will; to wit, the legal capacity and mental com- petency of the testatrix to make a will, that she had made one in fact, and in due form of law, and that it was duly attested as her will. Without all these facts found the judgment had no legal basis to stand upon. Standing on them it could not be overthrown. . . . This record says in substance that the Court of Probate found that the testamentary paper in question was the will of Fran- ces E. Hubbard, and consequently that she had one degree at least of testamen- tary capacity ; but whether she was found to have had both or not the record does not, with conclusive cértainty, dis- close. The will must therefore operate upon something, on one kind of prop- erty or on both ; otherwise it would not bea will. But to concede to it the effi- cacy of a will in its operation upon the personal property is all that is necessary to uphold the judgment of approval by the court.’ 1 5 Denio, 296. 2 Beardsley, C. J. speaking for the court said that the verdict and judg- ment would create an estoppel on the question of title to the entire close in question if title to that extent was shown to have been in controversy on the trial of the first suit. But no evi- dence out of the record had been pro- duced to-show whether the whole ora part only of the close, was in question before; so that the point would have to be determined from the record. If a close was to be regarded, he said, like a horse or an ox, as entire and in- divisible, it would follow that judgment on the question of title must be conclu- sive as to all the land of which it was constituted. Assuming this principle as correct a plaintiff in trespass quare clausum fregit, the close having been described in the declaration and libe- rum tenementum pleaded, could only Yecover by proving a trespass coex- tensive territorially with the close as described. There would be no difficulty however in doing this, since upon the principle assumed the close was one and indivisible, so that a trespass upon any part would necessarily be a 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 de- fendant had title to the place where the alleged trespass was committed al- though such place was but part of the entire close to which the plea had refer-: ence. This principle was well settled. King v. Dunn, 21 Wend. 253; Rich ». Rich, 16 Wend. 663; Stevens v. Whis- tler, 11 East, 51; Tapley v. Wainwright, 5 Barn. & Ad. 395. He said that it 150 ESTOPPEL BY RECORD. 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 defendants claimed. The plaintiffs desired to show that these proceedings were void on the ground that the legislature had assumed un- constitutional 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 Su- preme Court confirming the report of the commissioners; that court having had jurisdiction to adjudicate between the corpora- tion 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.? must follow that as the plaintiff in the action of trespass, of which evidence had been given in the present case, might have recovered without showing an injury coextensive with the whole close described in the declaration; and as the defendant might have maintained 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 therefore no bar. The judgment was undoubtedly conclusive of everything necessarily in- volved in the issue, or of that which, falling within its limits, had come di- rectly in question. But the title to the entire lot had not necessarily been drawn in issue, and no extrinsic evi- dence had been offered to show that the title to the seven acres now in question had been directly tried. The injury complained 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. 1 Embury v. Conner, 3 Comst. 511. 2 Mr. Justice Jewett who delivered the judgment of the court first observed that the Supreme Court, under the street law, exercised its powers as a court and not as commissioners appointed by the legislature ; and that its decisions in such matters were judgments of the court, and subject to review on appeal; though in this particular it was a court of limited jurisdiction. Striker v. Kel- ler, 7 Hill, 9; s.c. in error, 2 Denio, 328; 2 Cow. & H. notes, 946. He then proceeded to say that to determine the question involved by this point it be- came necessary to see what matters were referred to the Supreme Court in street cases for adjudication, and what were the issues between the parties; DOMESTIC JUDGMENTS IN PERSONAM. 151 Many other cases illustrative of the rule under consideration might be given, but it will be sufficient to cite some of them in the note! There is an observation by Lord Chelmsford? (founded apparently upon but hardly borne out by language of the court in the Duchess of Kingston’s Case) to the effect that a distinction exists between the judgments of courts of concur- rent 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 be- tween the same parties. The judgments of courts of exclusive jurisdiction are evidence whether the matter arises incidentally ‘because,’ to quote his language, ‘ or- dinarily 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 submit- ted to the court, he said, but the ap- pointment of the commissioners and the confirmation of their report. This in- volved 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 corpo- ration the legal title of the owner of the lands proposed 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 adjudication upon the question by the Supreme Court. The whole proceeding 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 confir- mation 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 concluded the parties in respect to the regularity of the preliminary proceedings, 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, 1 Eastman v. Symonds, 108 Mass. 567; Burlen v. Shannon, 99 Mass. 200 ; Watts v. Wilson, 75 Ala. 289; People v. Johnson, 38 N. Y. 63; Crum v. Boss, 48 Jowa, 433. See also Rogers v. Rat- cliff, 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 defend- ant upon the general issue fixed the fact that the plaintiff had no cause of action, and consequently it was unnecessary to investigate the matter of the special plea. See Burwell v. Cannaday, 3 Jones, 165. ? Mackintosh v. Smith, 4 Macq. 918, 924, 3 Everest & Strode, Estoppel, App. B, p. 421. 152 ESTOPPEL BY RECORD. or is the matter directly in issue.’ By ‘incidentally’ in this connection the Lord Chancellor appears to refer (not to inma- terial issues, but) to external facts drawn into the case by the course of pleadings diverging from direct denial of an allegation, as by confession and avoidance. The intimation appears not to have been acted upon.? 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 decision, 1 The whole passage in the language of the court in the Duchess of Kings- ton’s Case is as follows: ‘From the va- riety of cases relative to judgments being given in evidence in civil suits, these two deductions 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 evi- dence conclusive, between the parties, upon the same matter directly in ques- tion 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 parties, coming incidentally in question in an- other 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 incidentally or is the mat- ter 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 exclusive 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 exclu- sive jurisdiction is evidence of any mat- ter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argu- ment 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 v. Williams, 63 Wis. 58, 71. As the text however states, no distinction appears to have become established 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 bind- ing 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 infer- ence from the judgment. Matter of the latter kind clearly is within a judgment. Post, p. 188. DOMESTIC JUDGMENTS IN PERSONAM. 153 in contrast with such matters as in themselves alone involved questions foreign to the cause of action, but which in the posi- tion of the case became necess much conflict of authority upon ary to its decision? There is 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. 1 See p. 145, ‘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 at- tempted to be established 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 attempts 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 controverts by his pleadings, which is in issue. The declaration and plead- ings 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 issne and thereby make the pleadings as if they were spe- cial. 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 con- troverted on the trial. Deeds which are merely offered in evidence are not in issue even if their authenticity be denied. When a deed is merely offered as evidence to show a title, whether in a real or personal 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 evi- dence. The title isin 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. It is not a matter necessary, of itself, to the finding of the issue. It may be made so by the parties. This may be illustrated by the case before us. Laying out of consideration the ques- tion 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 plaintiff had no title, or that the defendant did not con- vert them, which may be involved in the first. It may be shown by parol evidence, if necessary, upon which ground the verdict proceeded; and it appears in this case that 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 154 ESTOPPEL BY RECORD. In the further examination of the law concerning questions embraced within the scope of the judgment we come to the con- judgment may be given in evidence in another 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 wu mortgage. In finding that the plaintiff had no title the jury must have been of opinion that the mortgage was fraudulent. It is con- tended that this was in issue, and the only matter in issue. But this was only a controversy about a particular matter of evidence upon which the plaintiff then relied to show title. If that was the only matter in issue, the plaintiff might bring another suit for those oats against the same 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 incidentally, by reason of his rely- ing on that as his title; but the mort- gage 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 main- tain that a former judgment 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 necessarily in question and passed upon by the jury. Jackson v. Wood, 3 Wend. 27; s. 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 matter was in issue in order to make the deter- mination 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 judg- ment to be conclusive upon all mat- ters which might legitimately have been given in evidence under the issue joined, and such that, when proved to have been given in evidence, it is manifest by the verdict and judgment that they must have been directly and necessarily in question, and passed upon by the jury ; as this must include all matters which came in 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 decision 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); Railroad Co. » Schulte, 103 U. S. 118, 148; Perkins v. Walker, 19 Vt. 144; Faught 2. Faught, 98 Ind. 470; Burlen v. Shan- non, 99 Mass. 200; Morse v. Elms, 131 Mass. 151; Attorney-Gen. v. Chicago R. Co., 112 Ill. 520, 539; Bissell » Kellogg, 60 Barb. 617 ; Wood v. Jack- son, 8 Wend. 9. Though it has late- ly been reaffirmed in New Hampshire. Vaughan v. Morrison, 55 N. H. 580, (2) See ante, p. 81. DOMESTIC JUDGMENTS IN PERSONAM. 155 sideration of special and material demands of the plaintiff connected with his former action but not passed upon in the 589. See also Ford v. Ford, 68 Ala. 141, 143 (quoting from the Duchess of Kingston’s Case the language ante, p. 152, note); Williams v. Williams, 63 Wis. 58, 71 (same quotation) ; Western M. Co. v. Virginia Coal Co., 10 W. Va. 250; Lentz v, Wallace, 17 Penn. St. 412. But an examination of the rule of res judicata will perhaps show its infirmity. This rule is based on the ground that there has already been a fair and full trial of the matter, which one or the other party is endeavoring to litigate again; and the reason why there is no estoppel 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 would not require, and in all probability did not receive, that searching examination and scrutiny that would be given to a matter in issue the decision of which would de- termine the case. Buta 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 argument is directed to the solution of the issue made by it. The main ques- tion in the cause, if it had distinctly arisen alone, could not have received a more thorough investigation ; and the matter itself, thus in issue, would com- mand as careful a consideration as if it had been the main and only question in controversy. In the case of the mort- gage in King v. Chase, supra, the va- lidity of the instrument would be as thoroughly considered in the action of trover as if a direct action had been brought between the parties to it to cancel it. If this is true, we see no reason why the decision in the action of trover should not be conclusive upon the validity of the mortgage in all sub- sequent actions between the parties, But it should be a test of the con- clusiveness of the verdict upon such a matter that it clearly appear that the whole case turned exclusively upon its decision, so that it must have received as thorough an investigation as inf a suit brought for the specific purpose of de- ciding the point ; for if it should appear that it might have been determined the same way upon other grounds also, there could then be no certainty that the de- cision of the point relied on as an estop- pel had received a full examination, such as an estoppel is presumed to rest upon, And such a case would be pre- sented upon a general verdict unex- plained, involving several diverse 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 mortgage from the plaintiff letting him into pos- session, 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 case 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 mort- gage 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 mort- gage ; and in a suit to cancel either or both, this verdict unexplained could not be an estoppel. The certainty upon which an estoppel must rest would be wanting. If however it is once established be- yond doubt by evidence of the plead- ings, or other sufficient evidence, that the whole case turned upon the validity either of the mortgage or of the deed ex- elusively and independently, this should 156 ESTOPPEL BY RECORD. 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 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, dnd that the parties should give general re- dence that his mental condition was the same all the tine? Comp. Dickinson end the controversy forever. See Bis- sell v. Kellogg, 60 Barb. 617. Of course if the verdict is special, the same conclu- sion follows. To conclude this note with two or three special cases, an independent cause of action, such as set-off, may be drawn into the issues and conclusively adjudicated (post, p. 164), and the ease under consideration 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 conclusive, between the heirs or devisees, of the testator’s mental capacity in ejectment on a deed by the testator, in connection with evi- v. Hayes, 31 Conn. 417, ante, p. 148 ; Faught v. Faught, 98 Ind. 470 (converse case); Brigham v. Fayerweather, 140 Mass. 411, 415, 416. 1 In 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 judg- ment upon a great change in its value. Roberts v. Rice, 71 Ala. 187. 2 Cromwell v. Sac, 94 U. S. 351, 354. 8 Ravee v. Farmer, 4 T. R. 146. ‘ Golightly v. Jollicoe, 4 T. R. 146, note. DOMESTIC JUDGMENTS IN PERSONAM. 157 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 submis- sion 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 demands, the presumption was that all demands were in fact submitted ; but the presumption might be disproved. Without deciding however that an agreement to refer ‘all demands’ was subject to the same construction as a submission of ‘all matters in differ- ence’ the chief justice said that it was manifest that an agree- ment to refer might not be executed ; and he said that evidence might be received to show the fact. A similar principle decided Seddon v. Tutop2 The action was for goods sold and delivered ; to which there was a plea of former recovery. The plaintiff replied that he was now suing on 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 dam- ages for the amount of the promissory note only. It was held 1 5 Mass. 334. 26T. R. 607. 158 ESTOPPEL BY RECORD. that the judgment was not a bar to the present suit! However it is held that after judgment against an agent for the price of goods sold for 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 asa 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 redeem the first one of them, which he had foreclosed ; that he 1 Lord 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 evidence was only given on the first demand ; that the plaintiff recovered damages adapted to that de- mand ; and that the other demand for the goods still remains unsatisfied... . The issue was whether the damages de- manded in this action have been already satisfied by the recovery in the former action; and most clearly they have not. The case of Markham v. Middle- ton, 2 Strange, 1259, is extremely dif- ferent from the present. There the plaintiff had but one demand; and though the jury gave inadequate dam- ages for that demand on account of the plaintiff'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 to- gether ; and though the plaintiffs might in the first action have proved this de- mand, 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 question 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 ac- tions for the same demand. The plain- tiff 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 dif- ferent 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.’ 2 Caylus v. New York R. Co., 76 N. Y. 609. 8 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 v. Alexander, 5 Duer, 488 ; Adams v. Adams, 25 Minn. 72, ante, p. 71. See Treadwell v. Stebbins, 6 Bosw. 538; Clark v. Sammons, 12 Towa, 368; Freeman v. Bass, 34 Ga 355 ; Maghee v. Collins, 27 Ind. 83; Hooker v. Hubbard, 102 Mass. 239. Judgment for interest on a note is no bar to a subsequent action for the prin- cipal. Morgan v. Rowlands, L. R. 7 Q. B. 493. DOMESTIC JUDGMENTS IN PERSONAM. 159 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 was that the trespasses were distinct and independent. The court said that if the defendants had gone upon the mill lot in order to complete their design of destroying the dam, there would have been but one trespass; and the 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 they said the object of the defend- ants seemed to have been to destroy the dam; and this was effected before they recrossed the stream. It is perfectly 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? But where the supposed second cause of action is a mere increment of the first, and not independent of it, the rule is different 1 Gerrish v. Black, 122 Mass. 76, Field, J. See also Cromwell v. Sac, 2 8 Pick. 356. ib. 350 ; Davis v. Brown, ib. 423. 8 Stark v, Starr, 94 U.S. 477, 485, 4 Florence v. Jenings, 2 C. B. x. a. 160 ESTOPPEL BY RECORD. The case of Florence v. Jenings will illustrate the last point. The action was for a certain snm 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- 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 interest 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 distinct debt, and properly declared for in a count upon the agreement, or for interest, was only a substitute for the interest ordinarily recoverable as damages upon a bill. Therefore when judgment had been recovered and the claim upon the bill had become res judicata (so that any further interest payable would be upon the judgment under the statute, and not upon the bill), the right to 454. See also Serrao v. Noel, 15 Q. B. Q. B. D. 125; 8. c. 11 App. Cas. 127; D. 549 (C. A.) ; Brunsden v. Humphrey, Hodsall v. Stallebrasse, 11 Ad. & E. 14 Q. B. D. 141, reversing 11Q. B. D. 305; Belshaw v. Moses, 49 Ala. 283; 712; Mitchell v. Darley Colliery Co., 14 ante, p. 146. DOMESTIC JUDGMENTS IN PERSONAM. 161 interest upon the agreement ceased. But concerning the interest which accrued prior to the judgment the case, he said, was dif- ferent. It was clear that the plaintiff had not recovered the interest now claimed; and looking at the declaration which determined the scope of the former action, the plaintiff could not have recovered such interest in that action for want of a count upon the agreement, or for interest. What is 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 re- curring damages arising from a tort or a breach of contract pre- sents one phase of the question. With regard to such cases the rule appears to be that all damages of the kind, of a then ascer- tainable nature at least, are a necessary part (or an ‘increment’ within the rule) of the recovery2 Whitney v. Clarendon was trespass in the vase to recover for loss of services sustained after February 28, 1840, in consequence of injuries to the plaintiff's son by the breaking down of a bridge. The defence was that the plaintiff had obtained a judgment for similar 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 v. Belty,t 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 restitution 1 See Florence v, Drayson, 1 C. B. guished: Hambleton v. Veere, 2 Saund, N. 8. 584, 169 ; Ward v. Rich, 1 Ventr. 103 ; Bras- 2 Whitney v. Clarendon, 18 Vt. 252; field vy. Lee, 1 Ld. Raym. 329 ; Roberts Hodsoll v. Stallebrasse, 11 Ad. & E. 301; v. Read, 16 East, 215. The chief jus- Darley Colliery Co. v. Mitchell, 11 App. tice thought that where prospective Cas. 127, overruling Lamb v. Walker, damages were uncertain they could be 3 Q. B. D. 389; Brunsden v. Hum- recovered only to the commencement of phrey, 14 Q. B. D, 141, 152; Serraov, the action, and that another. suit could Noel, 15 Q. B. D. 549, 557. be brought if needed. 8 The following cases were distin- 4 47 Conn, 323. 11 162 ESTOPPEL BY RECORD. alone of goods, when a claim might have been preferred for dam- ages for the wrongful detention down to the time of the judgment of restitution, no subsequent suit for such damages can be main- tained.! In the case cited Lord Justice Bowen said that if the plaintiff’s suit had been detinue at common law, the jury could have included damages not only for the original wrongful deten- tion of the property but also for the detention until it should be re-delivered ; damages might have been assessed 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 a new event. It is well settled e.g., 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 of action, though each subsidence is due to the same act.2 The case of Leland v. Marsh * 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 defend- ant rejoined, not guilty; and issue was taken thereon. In regard ‘to the former recovery, that was for an imprisonment on Decem- ber 3, the writ being dated December 5; while the imprison- ment 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 consti- tuted but one injury, for which the plaintiff had already recov- ered. But the defence was overruled. The court said that the imprisonment was the gist of the action, and that every continu- ation 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.5 1 Serrao v. Noel, 15 Q. B. D. 549. —v. Humphrey, 14 Q. B. D. 141, 152. 2 But Belshaw v. Moses, 49 Ala. 283, See Bonomi v. Backhouse, El. B. & E. appears opposed to this. Ante, p. 146, 646; s. c. 9 H. L. Cas. 503. note. 116 Mass. 389. 8 Darley Colliery Co. v. Mitchell, 5 See Odgers, Slander, 271, note, 817, 11 App. Cas. 127, overruling Lamb 320, 456 (Am. ed.) ; Root v. Loundes, v, Walker, 3 Q. B. D. 389; Bruneden 6 Hill, 518 ; Frazier v. McCloskey, 60 DOMESTIC JUDGMENTS IN PERSONAM. 163 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? We have then at least three different phases in which a ques- tion of the right of a second recovery for the same wrong, in view of other damages, has arisen; 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 person 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 sécond 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 N. Y. 387; Woods v. Pangburn, 75 damages which had not developed at 'N. Y. 495; Rockwell v. Brown, 36 the time of a former action the learned N. Y. 207; Swift v. Dickerman, 81 master of the rolls thought that the Conn. 285. rule of res judicata was not to be com- 1 Lord Coleridge, C. J. dissenting. | mended. But see the remarks of Bowen, 2 In regard to the right to sue for L. J. at p. 148, Brunsden v. Humphrey. 164 ESTOPPEL BY RECORD. 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 damage 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 should be remarked that an independant 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? 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.2 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 v. 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, 1 Comp. the remarks of Pearson, J. a lease rectified for mistake ; the mis- in Honstoun v. Sligo, 29 Ch. D. 448, take need not be set up in bar of an ac- 456, 457. tion of trespass by the lessor, based on 2 Eastmure v. Laws, 5 Bing. N.C. the lease. Houstoun v. Sligo, 29 Ch. D. 444, 448. 3 As in the case of a right to have 441 N. Y. 118, DOMESTIC JUDGMENTS IN PERSONAM. 165 an express and direct admission by him of the plaintiff's right to recover, aud 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} and in Davis v. 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 de- murrer was overruled and the defence held good.3 17N. Y. 352. doctrine has been reaffirmed in Dunham 212 N. Y. 184, 8 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 ad- vance with the interest and commis- sions, which is utterly inconsistent with the plaintiff's claim to recover it back. (2) No averment is to be ad- mitted to contradict a judgment or to dispute any legitimate inference dedu- cible therefrom. . . . To sustain this action to recover back the advance would be to open the judgment and inquire into its propriety and legality. That cannot be done collaterally.’ This v. Bower, 77 N. Y. 76; Blair v. Bart- lett, 75 N. Y. 150; Bellinger v. Craigue, 31 Barb. 534; Collins v. Bennett, 46 N. Y. 490. See Schwinger v. Ray- mond, 83 N. Y. 198. In Dunham ». 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. Bennett it was decided that after recovery for keeping a horse no action could be maintained against the keeper for using and con- verting the horse contrary to the agree- ment for keeping him. Whether the courts generally will be prepared to go this length remains to be seen. (a) This, it would seem, was not the object of the present suit; the purpose, as it would seem from the reporter's statement, was to recover damages for the violation of duty in occasioning the loss. of the bill, and in getting the plaintiff into a bad suit. Indeed the learned judge himself so states the nature of the proceeding on the next page of his opinion. 166 ESTOPPEL BY RECORD. 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.” In Massachusetts a contrary doctrine is held in case of judg- ment by default.2 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 plain- tiff’s demand. The plaintiff thereupon appealed to the Common 112 N. Y. 184. 2 Gardner, 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 notwithstanding must have established their title to the price stipu- lated by proof that the machinery was toade within the time and in the man- ner 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 indebted to the manu- facturers for the causes of action men- tioned in their complaint.” As the cause of action and the indebtedness of the defendants were by the complaint made dependent on a full performance of the contract by the parties who in- stitnted the suit, the concession of the defendants was equivalent to an ad- mission on the record to that effect; and the report of the referee, followed by the judgment of the court, conse- quently estops the parties to that suit from ever after questioning 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 plain- tiff had some years before erected build- ings on his wife’s land. Upon her death her heir at law recovered judgment for the land in a real action against the plaintiff, and entered into possession under the judgment. The plaintiff subsequently brought the present suit against the heir to recover the value of the buildings. But the action was not sustained. Tenney, J. said it was the plaintiff's duty in the former action to defend and protect all his rights. Whether he had then set up his rights by betterment claim or otherwise did not appear, and was of no importance. The judgment and possession were a bar to the present suit. 3 Bodurtha v. Phelon, 18 Gray, 413. This is clear after what has been seen, ante, pp. 70 et seq. DOMESTIC JUDGMENTS IN PERSONAM. 167 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, It was said how- ever 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 have lately followed the above- cited decision in a like case, with the New York authorities before them.? The latter were distinguished on the ground that judgment had in them been given by confession after answer ; which was an adjudication against the existence of a right of cross action.$ The doctrine of the New York cases has been denied in a case 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 before a justice of the peace in an action against the present plaintiff to recover for his services in attending the plaintiff for her arm. To that action the plaintiff, then defendant, did not appear though duly served with notice. the demurrer was sustained.® 1 Burnett v. Smith, 4 Gray, 50. 2 Bascom v. Manning, 52 N. H. 132. 8 Quere if judgment by default after plea would not be in effect the same thing; and quere if judgment by con- fession without plea would even in New York bar a cross action? Ante, pp. 70-74. Indeed it is doubtful whether judgment by confession is as effective as judgment by default. Ante, pp. 69 et seq. 4 Sykes v. Bonner, Cin. Sup. Ct. Rep. 464. See also as to counter-claims in Ohio, under statutes, Witte v. Lock- wood, 39 Ohio St. 141. 5 Mr. Justice Hagans for the court said: ‘In looking into the justice's record it appears that the judgment against the plaintiff for the professional services of the defendant was taken by default, and on the testimony of the defendant himself only. It was cer- A demurrer was entered to the plea; and And recent well-considered deci- tainly not necessary, in order to entitle the plaintiff in that case to recover, that he should prove that he was not guilty of any negligence in his profes- sional treatment. It was enough to show simply that he performed the ser- vices at the defendant’s request, and their value, and the fact that the amount was due. There were no plead- ings and no issues. There is nothing in the record to show that the question of negligence was involved. Now it is argued on the authority of Gates v. Preston, 41 N. Y. 118, and of Bellinger v. Craigue, 31 Barb. 534, Davis v. Tall- cot, 12 N. Y. 184, White v. Merritt, 7 N. Y. 852 (which is a case exactly like the present, except that there the de- fendant, before the magistrate, cor- sented in writing to a judgment), that the judgment recovered for the services before the magistrate is a direct admis- 168 ESTOPPEL BY RECORD. sions of the courts of Wisconsin and of Indiana have also re- jected the doctrine of the New York cases.1 The English courts maintain the same rule as that declared in the case just under consideration? In Mondel v. Steel the plaintiff sued for the breach of-a contract in not building a ship according to specification. The defendant pleaded that he had previously brought an action for a balance due him by the 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. sion on the record by the plaintiff in this case of all the facts which the plaintiff before the magistrate would have been bound to prove on a denial of the cause of action alleged there; and that the recovery by the plaintiff there was dependent on a full performance of his duties in the treatment of his pa- tient; and that the plaintiff here is es- topped from questioning that fact in any controversy on the same agreement for services. We do not see how the plaintiff in the case before the magis- trate was bound to prove that he was guilty of no negligence in his treatment of the arm before he could recover for his services therein. It was enough to prove the services and their value. We are inclined to think with Judge Dan- iels, who dissented in Gates v. Preston, that the question of malpractice was not necessarily in issue before the justice, . . « The merits of this case, under the circumstances, could not necessarily be involved without an issue on the ques- tion 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 en- larged by argument or implication to matters, so far as the record shows, which were not actually heard and de- termined.’ Thmsen v. Ormsby, 32 Penn. St. 198; Mallett ». Foxcroft, 1 Story, 474; Spooner v. Davis, 7 Pick. 147. 1 Ressequie v. Byers, 52 Wis. 650 (suit against a physician for damages on account of negligence, after 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. 2 Mondel v. Steel, 8 Mees. & W. 858; Davis v. Hedges, L. R. 6 Q. B. 687; Houstoun v. Sligo, 29 Ch. D. 448. DOMESTIC JUDGMENTS IN PERSONAM. 169 In Davis v. Hedges the plaintiff brought an action for the non-performance and improper performance of certain work; in bar of which the defendant relied upon a judgment in his own favor in an action for the price of the work. In that action, as in Sykes v. Bonner, supra, the defendant had not alleged the improper performance. on grounds stated in the note? 1 The court by Hannen, J. began by quoting the language of Parke, B. in Mondel v. Steel, just cited, which was as follows: ‘Formerly it was the prac- tice, 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 contract, to allow the plaintiff to recover the stipulated sum, leaving the defendant to a cross action for the breach of war- ranty or contract ; in which action as well the difference between the price contracted 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 differ- ent practice, which had been partially adopted before in the case of King v. Boston, 7 East, 481, n., began to pre- vail, and being attended with much practical convenience has been since generally followed ; and the defendant is now permitted to show that the chat- tel, by reason of the non-compliance with the warranty in the case, and the work, in consequence of the non-per- formance 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 go conven- ient is established ; and it is competent for the defendant in all of those not to set off, by a proceeding in the nature of a cross action, the amount of damages which he has snstained by breach of the contract, bat simply to defend The court held the action maintainable Mr. Justice Lush, who con- himself by showing how much less the subject-matter of the action was worth by reason of the breach of con- tract ; and to the extent that he ob- tains, or is capable of obtaining, an abatement of price on that account, he must be considered as having received satisfaction for the breach of contract, and is precluded from recovering in another action to that extent, but no more.’ Mr. Justice Hannen then pro- ceeds 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 pre- cluded from suing for special damage resulting from the breach of contract. ‘But,’ continued the learned justice, ‘it leaves undecided the question whether he was bound to obtain the abatement in the action in which he was a defend- ant, or might recover it in across action. The expression of Parke, B. which was a good deal relied on in the argument, that ‘‘to the extent that he obtains, or is capable of obtaining, an abatement of price, he must be considered as having received satisfaction 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 contract, the person to whom the article is sold, or for whom the work is done, may pay the full price without prejudice to his right to sue for the breach of warranty or contract, and 170 ESTOPPEL BY RECORD. curred in all except the dictum (mentioned in the note) in re- gard to allowing a division of the action, drew the distinction clearly between the case before the court and the cases of Mar- riott v. Hampton,! Hamlet v. Richardson,? and Brown v. Mc- Kinally ;8 cases in which the defendants had been compelled to pay money under judgments which subsequent evidence, then inaccessible, showed should never have been recovered. ‘In these cases, said he, ‘the sole ground of action was the pay- ment; and what the plaintiffs sought by the action was to undo that payment and to place themselves in statu quo. In the 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 showld not. It appears from the pas- sages above cited from the judgment in Mondel v. Steel that the present prac- tice of allowing the defence of the in- feriority of the thing done to that con- tracted for to be applied in reduction of damages was introduced (on the same principle that the statutes of set-off were passed) for the benefit of defend- ants. It would greatly diminish the ben- efit, and in some cases altogether neutral- ize it, if the defendant was not allowed an option in the matter. The hypothe- sis 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 con- tracted for has been done; and the right to bring an action for the price, unless there is some stipulation to the contrary, arises. On the other hand the extent to which the breach of warranty or breach of contract may afford a de- fence is usually uncertain ; it may take some time to ascertain to what amount the value of the article or work is dimin- ished by the plaintiff's default, It is un- reasonable 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 alto- gether incapable of discovery until some time after the day of payment has arrived. Surely the right to redress for the diminution of value, when dis- covered, ought not to depend on the accident whether the contracting party in the wrong had or had not issued a writ for the price.’ The learned judge proceeds to mention another inconven- ience that would result from a differ- ent rule from the one declared ; to wit, that it would tend to complicate and increase litigation, from the fact that defective performance of work gener- ally involves consequential and recur- ring 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 reduction; or he might, as in the present case, claim no reduction at all, and afterwards sue for his entire cause. 17T. R. 269, 29 Bing. 644. 8 2 Esp. 278, DOMESTIC JUDGMENTS ;IN PERSONAM,. 171 present case the cause of action is the breach of contract; that cause of action existed before and was independent of the payment.’ The case of Houston ». Sligo! 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 asa trespasser. It was held that A was not bound to set up the mistake and the actual facts in answer to the action, 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 judgment 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 v. 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 there is an independent cause of action 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- 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 fora 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 indepen- dent 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 1 29 Ch. D. 448. related causes of action do not require 2 Comp. Green Bay Canal Co. v. it. Gregory v. Hobbs, 93 N. Car. 1, 4, Hewitt, 62 Wis. 316. and cases cited. 8 Statutes permitting the joinder of 172 ESTOPPEL BY RECORD. two claims may be. Every one has the right to try his own case. The defendant in the first action may not then be able to prove the facts which he relies upon in the second suit; and he is justified in reason in not raising an issue upon them.) The contrary doctrine would often work manifest injustice. 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 1 Quoted with approval in Ressequie v, Byers, 52 Wis. 650, 656, and in Go- ble wv. Dillon, 86 Ind. 327. See also Green Bay Canal Co. v. Hewitt, 62 Wis. 316. 2 Barker v. Cleveland, 19 Mich. 230. The case was an action by Cleveland against Barker to recover the price of a quantity of cranberries; as a bar to which a verdict and judgment in favor of Barker against Cleveland were plead- ed in an action for breach of the con- tract in respect to the purchase of the cranberries. The court below found that there had been a valid contract of sale; and that the judgment interposed was nota bar. Chief Justice Cooley in delivering judgment began by saying that whatever fact became the subject of judicial controversy in the suit for the breach of warranty, and was relied on by the plaintiffs therein in support of their action, was necessarily compre- hended within the judgment rendered, and was thereby, by legal inference, conclusively settled between the parties to the adjudication. Jennison v, W. Springfield, 13 Gray, 544. ‘When a party,’ continued the learned judge, ‘declares upon a contract of warranty contained in a sale of chattels he neces- sarily affirms the validity of the con- tract. The warranty does not stand independent of the sale, but is insepa- rably connected with and forms a part of it. It is only one of the stipulations in the main contract ; and itcan 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 war- ranty, also affirmed, of necessity, the contract of sale ; and that the existence and validity of that contract were there- fore necessarily within the issue in that case and are now res adjudicata. To constitute the judgment in one case a bar to another action it is not 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 de- fendants in the other therefore their judgment should not conclude them, if the point in controversy were the same in both cases. Nor is it important that in one case it was one stipulation of a contract which was sought to be en- férced, while the other suit involved a different stipulation ; the validity or invalidity of the contract being ad- judged in the one case, it is settled for the other also. Bettsv. Starr, 5 Conn. 550; Doty v. Brown, 4N. Y. 71; Wil- liams v. Fitzhugh, 44 Barb. 321; Walker v, Chase, 53 Maine, 258; Sawyer ». Woodbury, 7 Gray, 502; Birckhead ». Brown, 5 Sandf. 134 ; Castle v. Noyes, 14 -N. Y. 829. And it is immaterial whether the point was actually litigated in the first suit or not if its determina- tion was necessarily included in the judgment. Bellinger v. Craigue, 31 Barb. 587. As we understand counsel DOMESTIC JUDGMENTS IN PHERSONAM. 173 the vendor of goods is not bound to set off their value in an ac- tion by the purchaser for damages by reason of the failure of the they claim that the question of the pay- ment of the purchase price was neces- sarily covered by the issue in their suit upon the warranty ; that the court was required to pass upon it in order to de- termine 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 unques- tionably the judgment in the case be- fore us is erroneous. We have no doubt that had Barker and Bewick proceeded in that case upon the theory of the total rescission of the contract and re- covered a judgment, such judgment must have beenheld conclusive. When a vendee puts an end to the contract of sale, for the failure of the vendor to perform, and brings snit for the recov- ery of damages, the object of the suit is to place the plaintiff, so far as the law can accomplish that result, in statu quo. It is obvious that in such a case the inquiry is of the first importance, how much has been paid on the contract, since such payment constitutes usually the first and leading item of damages. The purpose of such a suit is to recover back the sums which the plaintiff has paid out upon and in consequence of a contract the benefit of which he has lost through the non-performance by the other party. Freeman ». Clute, 8 Barb. 424, The issue therefore ne- cessarily covers and the trial adjusts all questions of payment of the pur- chase price; and the vendor is for- ever precluded from maintaining a suit for the same or any unpaid portion thereof. But we do not understand that an inquiry concerning the amount of damages sustained by a breach of war- ranty necessarily involves the question of the payment of the purchase price. If the contract is a valid one, it is im- material to the plaintiff's action in sueh a case whether he bought for cash or upon a credit not yetexpired. The ob- ject of the suit is foreign to the ques- tion of payment. He sues ‘to recover the difference between the actual value of the articles received on the contract and what their value would have been had they answered the warranty ; and unless the vendor defends on the ground of non-payment of the purchase price the court does not concern itself with that question. The parties in such a case are at liberty to settle their contro- versies in one suit or by cross action ; but whether one suit is brought or two the damages are measured in the same way. If the vendee, instead of bringing a cross action, sets up the breach of war- ranty by way of recoupment, the ven- dor is entitled to recover the purchase price; while the vendee will have awarded to him, by way of reduction, such damages as he can show he has sustained by a breach of the promise of warranty. Thornton v. Thompson, 4 Gratt. 121. . . . If 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 standard. If the vendee recovers in that suit, he is conclusive. ly presumed to recover the full differ- ence between 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 warranty, 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 controversy." 174 ESTOPPEL BY RECORD. 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 ven- dor to rely upon the contract price in a suit by the purchaser. 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 seems to us conclusive against the sound- ness of the New York cases, unless the distinction taken in New Hampshire between a judgment by confession? and one by de- fault or on trial without alleging the defence be correct. In the case of White v. Merritt the court seem to have confused the case of an action to recover money paid under a judgment, and that of an action for breach of contract and fraudulent repre- sentations, The distinction has already been pointed out ;? the former is a direct attempt to impeach a judgment collat- erally, 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 disproved, he 1 See ante, p. 70. 2 Ante, p. 170; post, p. 179. DOMESTIC JUDGMENTS IN PERSONAM. 175 cannot say that the second suit is necessarily inconsistent with the first judgment. Such an argument however, — like the view taken by the courts of New York, that the former judgment has shown that the ser- vices or property (according to the case) were of value, while the second suit declares or may declare the same to be worthless, — is only plausible; for a judgment on default is not equivalent either in principle or on authority to a judgment upon an issue fought out. Judgment on default is good for the primary pur- pose of a judgment for a plaintiff; it gives him the right to have the sum adjudged collected; 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 con- clude defences in confession and avoidance, in a different action.! And if the view here presented, that the cross demand is an in- dependent cause of action, is correct, it cannot matter that the former judgment 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. 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 is not perhaps inconsistent with holding that fraud may not be a ground of impeaching judgments in collateral proceedings ; since in the first case supposed there is no neces- sary impeachment of the judgment.5 The plea of fraud in re- 1 Howlett v. Tarte, 10 C. B. Nn. 8. 813 ; Cromwell v. Sac, 94 U. S. 351, 356 ; Hanham v. Sherman, 114 Mass. 19; ante, p. 71. And see especially ante, p. 70, of judgment confessed. 2 In some states cross decrees of di- vorce can be had. Stelphen v. Houd- lette, 60 Maine, 447 ; Stilphen ». Stil- phen, 58 Maine, 508. 8 See 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 inde- pendent cause of action, it is not barred by the judgment first rendered. Brown v. Gallaudet, 80 N. Y. 413. # White v. Garden, 10 Com. B. 927. 5 See Jackson v. Somerville, 13 Penn. 176 ESTOPPEL BY RECORD. spect of a judgment will be considered hereafter! But if the 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.2, 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 plaintiff’s 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 St. 359. But see Homer v. Fish, 1 Woodbury, 7 Gray, 499 ; Howell ». Pick. 435. In Melick v. First National Goodrich, 69 Ill. 556. Bank, 52 Iowa, 94, it was held that 8 See Haynes v. Ordway, 58 N. H. confession of judgment on a promissory note obtained by fraud of which the confessing party was ignorant may be set aside by him. 1 Under Collateral Impeachment of Judgments, post, p. 192. * O'Connor v. Varney, 10 Gray, 231 ; Burnett v, Smith, 4 Gray, 50 ; Sargent v, Fitzpatrick, 4"Gray, 511 ; Sawyer 2. 167. * Ante, p. 170, note, 5 Ante, pp. 161-164, § Judgment for the plaintiff in a suit for non-performance of a contract does not amount to an affirmance of the con- tract 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. DOMESTIC JUDGMENTS IN: PERSONAM. 17T he fails, intentionally or not, to produce sufficient evidence to sus- tain his action. In the latter case he will of course be barred, 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 sume 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.6 But the evidence not used in 1 Clark v. Wiles, 54 Mich. 328; Miller v. Manice 6 Hill, 114, 121; Cromwell v. Sac, 94 U.S. 351, 352; Shoemaker v. Atkins, 6 Baxter, 318. See Stark v. Starr, 94 U.S. 477, 485. In Miller v. Manice Chancellor Wal- worth 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 sub- mitted to them, followed by the judg- ment 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 author- ized a recovery therein. Where a gen- eral declaration 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 ac- tion, 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 action, 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 second suit would have authorized a recovery in the first action in case it had been produced upon the trial thereof.’ Staf- ford v. Clark, 1 Car. & P. 403; 8. o 9 J. B. Moore, 724; Eble v. Bingham, 7 Barb. 494; Jones v. Weathersbee, 4 Strob. 50. 2 See Lockyer v. Ferryman, 2 App. Cas. 519. 3 See e. g. Lockyer v. Ferryman, supra; Newington v. Levy, L. R. § C. P. 607; Hall v. Levy, L. R. 10 C. P. 154; Cromwell v. Sac, supra, * Dundas v, Waddell, 5 App. Cas, 249, 5 Cromwell v. Sac, 94 U. S. 351, See In re May, 28 Ch. D. 516, in re- gard to newly-discovered evidence. 12 178 ESTOPPEL BY RECORD. the first action, whether then at hand or not may be used in another suit upon a different demand, though that demand be of the same nature and grow out of the same transaction as the one first sued upon! Thus in the recent case of Cromwell v. Sac, an action by an innocent holder for value of municipal bonds (irregularly issued in fact) against the maker, it was held that the fact that the plaintiff bad omitted in a former action upon other bonds of the defendant, issued at the same time and under the same circumstances, to produce evidence that he was an innocent holder for value, whereby judgment went against him, would not preclude him in the present action from bringing for- ward such evidence 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 meaning; and this, it is apprehended, jis universally true? And on 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 v. 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 between the same parties for the same demand. The plaintiff replied that the count upon which he recovered before was for money laid out and expended, and did not embrace the demand now sued upon; that upon that count he endeavored to introduce in evidence a receipt for the money now claimed, but that. the evidence was rejected as inadmissible upon the count for money laid out and expended without proof that the sum was paid at the defendant’s request ; 1 Ibid. ; Davis v. Brown, 94 U. S. 3 Stewartv. Lansing, 104 U.S. 505, 510. 423. See Lumber Co. v. Buchtel, 101 8 Stewart v. Lansing, supra. U. S. 638. 411 Mass. 445. DOMESTIC JUDGMENTS IN PERSONAM. 179 which fact was not in evidence. The replication was demurred to, and the demurrer was sustained. The chief justice said that it was apparent from the pleadings that this very demand had been tried and determined ; and that though the court may have erred in rejecting the evidence offered, this was no way to remedy the case. Exceptions might have been filed, or a new trial had, or a continuance; but as this was not done, and as the plaintiff had permitted a general verdict to go against him without striking out the count to which the evidence was appli- cable, the court must presume that the very matter now in dis- pute had been tried. It was true that the cases of Ravee ». Farmer! and Golightly v. Jellicoe? had established the principle that where a demand had not been submitted, it should not be barred by an award or report on a rule or submission of all de- mands. But in those cases no evidence was offered to support the demand made the subject of the second suit; while in the present case the very evidence now relied upon was offered, and an adjudication had upon it. The plaintiff 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 adjudication of the matter of set-off so as to prevent the party from enforcing it in chancery ; though it would be otherwise if the law court had actually passed upon the merits of the set-off. 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 »v. Hampton Though the contrary 14T. R. 146. 2 Tbid. in note. 3 Hobbs v. Duff, 23 Cal. 596 ; ante, security for any person. I cannot there- fore consent even to grant a rule to show cause, lest it should seem to imply a p. 164. 47 T. R. 269, overruling Moses », 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 recovery by process of law there must be an end of litigation ; otherwise there would be no doubt. It often happens that new trials are applied for on the ground of evi- dence supposed to have been discovered after the trial, and they are as often re- fused ; 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 180 ESTOPPEL BY RECORD. doctrine of Moses v. Macferlan, just cited, has been followed in one or two cases,! the rule above stated in Marriott v. Hampton 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 recovered the money of the plaintiff? It is. How did the defendant obtain the money? By fraud. ... This state of things differs the case entirely from those cited. In all the cases cited there was nothing to negative the bona fides.’ 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 v. 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 due. Stempel v. Thomas, 89 Ill. 146. recover the same sum, if the only ques- 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. 1 Lazell v. Miller, 15 Mass. 207; Smith v. McCluskey, 45 Barb. 610. The plaintiff is not estopped in an ac- tion for money had and received from collections made by the defendant, by a judgment for the defendant in a former suit upon a special contract to tion submitted in the former action was concerning the special contract. Gage v. Holmes, 12 Gray, 428. 2 Kirklan v. Brown, 4 Humph. 174; Flint v. Bodge, 10 Allen, 128; In re May, 28 Ch. D. 516. 3 Cadaval v. Collins, 6 Nev. & M 330; s.c. 2 Harr. & W. 64. 4 Marriott v. Hampton, 7 T. RB. 269 ; Snowdon v. Davis, 1 Taunt. 359 ; Knibbs v. Hall, 1 Esp. 84; Brown v. McKinally, ib. 279. 5 1 Comst. 496; 8. c. 1 Denio, 407. DOMESTIC JUDGMENTS IN PERSONAM. 181 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- 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 éxtin- 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, or a judgment taken upon either, the debt in its original or in- ferior condition was extinguished or swallowed up in the higher security ; and that all the memoranda by which such inferior condition was evidenced lost their vitality. It had never been applied, he said, and never should be, to the 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. 1 See also Butler v. Miller, 5 Denio, 159. 2 6 Mass. 390. 182 ESTOPPEL BY RECORD. 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 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 satis- faction of the debt, but did not aver that it had been so accepted; nor did it allege that the note had produced a satisfaction 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? 1 3 East, 251. 2 Lord Ellenborough said: ‘I have always understood the principle of tran- sit in rem judicatam to relate only to the particular cause of action in which the judgment is recovered operating as a change of remedy from its being of a higher nature than before. But a judg- ment recovered in any form of action is still but a security for the original cause of action until it be made productive in satisfaction to the party ; and therefore till then it cannot operate to change any other collateral concurrent remedy which the party may have. If indeed one who is indebted upon simple contract give a bond or have judgment against him upon it, the simple contract is merged in the higher security. So one may agree to accept of a difterent security in satisfaction of his debt ; but it is not stated here that the note and bill were accepted in satisfaction, and in them- selves they cannot operate as such un- til the party has received the fruits of them. And then, although they were not originally given in satisfaction of the higher demand, yet, ultimately pro- And it is immaterial whether the failure to sue 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 wonld not operate as an extinguishment of the original one, can- not operate as such by being pursued to judgment unless it produce the fruit of a judgment.’ Lawrence, J.: ‘The judg- ment recovered on the bill is in itself no satisfaction until payment be ob- tained upon it.’ 8 Davies v. New York, 78 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; Bur- ritt vx. Belfy, 47 Conn, 323; Marlbo- rough v. Sisson, 31 Conn. 832; Pinney v. Barnes, 17 Conn. 420; Smith »v Jones, 15 Johns, 229; Willard v. Sper- ry, 16 Johns. 121; Phillips . 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 DOMESTIC JUDGMENTS IN PERSONAM. 183 for the entire demand was intentional or the result of mistake. An action was brought in Pennsylvania? for failing to accept a v. Comings, 6 Cush. 103; Stein ». Prairie Rose, 17 Ohio St. 471 ; Erwin v. Lynn, 16 Ohio St. 539 ; South Ala- bama R. Co. v. Henlein, 56 Ala. 368 ; Oliver v. Holt, 11 Ala. 574; O'Neal v. Brown, 21 Ala. 482. This is not true in the case of contracts for services where the employer prevents perform- ance; the injured party being per- mitted to sue for his wages as they become due, from time to time, in sep- arate actions. Thompson v. Wood, 1 Hilt. 98. See Goodman v. Pocock, 15 Q. B. 576 ; Planché v. Colburn, 8 Bing. 14; Derby v. Johnson, 21 Vt. 17; Moulton v. Trask, 9 Met. 577; Wil- helm v. Caul, 2 Watts & S. 26. Soa party may make a voluntary compro- mise or satisfaction of his claim in the course of an action embracing only part of an entire demand, without merging the whole. O’Beirne v. Lloyd, 43 N. Y. 248. This subject was considered by Mr. Justice Dewey in delivering the opin- ion 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 judg- ment thereon for the same cause of action are said to be absolutely con- clusive as a bar to a second action. But it 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, 1 Wickersham v. Whedom, 33 Mo. 561. where the plaintiff in the former action had in different counts declared on a promissory note and for goods sold, and the defendant being defaulted the plaintiff, upon executing his writ of in- quiry, gave no evidence on the count for goods sold and took his damages for the promissory note only, it was held that the judgment was no bar to his recovering in a subsequent action for the goods sold. But in that case there were two distinct demands set forth in distinct counts and not in the least blended together. It is also true, as held in the case of White v. Moseley, 8 Pick. 356, that where there are dis- tinct torts, committed consecutively, but in different localities, and the plain- tiff institutes his action for one only, such former suit and judgment thereon, although the action might properly have embraced both the torts, yet constitutes no bar to a second action for the other act. On the other hand the case of Trask v. Hartford and New Haven Railroad, 2 Allen, 331, strongly asserts and applies the principle that a judg- ment in a civil suit upon a certain al- leged cause of action is conclusive upon the parties in relation to it, and that another suit for the same cause cannot be maintained for any purpose whatever. In that case the subjects of damages in the different actions were wholly dis- tinct; 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 dam- ages caused by such act was held a bar to a second action. It wag said by the court in that case: ‘‘ It would be unjust, as well as in violation of the fixed rule of law, to allow the plaintiff to subject the defendants to the hazard and ex- 2 Carvill v. Garrigues, 5 Barr, 152. 184 ESTOPPEL BY RECORD. residue of certain goods under an entire contract; and the de- fence was that the plaintiff had brought an action for the other pense of another suit to obtain an ad- vantage which he lost either by his own carelessness 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 v. Tutop, 6 T. R. 607, in the fact that there the causes of action were gu the face of them distinct and inde- pendent, and were sought to be enforced as such by separate counts, That case pnly shows that a party may omit to assess his damages on one of several dis- tinct counts for acknowledged distinct auses of action; and if he does so, a judgment for damages upon the other ‘causes of action will not bar a second guit for the causes of action for which no damages were assessed. . . . The gase 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 embraced in the declaration, or set forth as the cause of complaint in the first action. It dif- fers also in the fact that there the torts were committed on different localities, the one on the premises of the plain- tiff, 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 oe 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- missible, it being a distinct cause of ac- tion, White v. Moseley, 5 Pick. 230. In the trial of the second action the ruling maintaining it was based entirely upon the assumption that the acts of the de- fendants were separate torts, and there- fore 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 com- binedly a tort by raising and then shut- ting down the gate of the plaintiffs, instead of two distinct counts for sepa- rate causes of action, comes within the principle there decided. The like in- quiry will also arise as to the effect of the difference in the circumstances we have alluded to, in the case of White v. Moseley, in distinguishing that case from this. If this shall be taken to have been but one cause of action, al- though damages might probably have been assessed for various distinct acts, then the case we have cited of Trask v. Hartford and New Haven Railroad, which is abundantly sustained 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 griev- ance complained of except as shown by the record of the proceedings in the two actions. We turn therefore to the declaration in the first action. We find there that the tort complained of was that on divers days the defendant en- tered upon the real estate of the plain- tiffs 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 shutting the gate took away the water from their mill. Here the acts causing the damages are stated as a series of connected acts occurring while the de- fendant 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 plaintiff’s real estate without right, and denying all the acts alleged ag 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 DOMESTIC JUDGMENTS IN PERSONAM. 185 portion of the goods, and recovered judgment and received full satisfaction. This was held a good defence; the ground being that as the contract was entire the plaintiff could not separate it into parts and bring an action for one part at one time and for another at another time.? The case is different where there has been a fraudulent con- cealment 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 damages occasioned to the plaintiffs by the raising of the gate in the reser- voir dain, and make report thereof to the court.” They did subsequently re- port that the damages sustained by the plaintiffs in this case amounted to the sum of $125, and judgment was there- upon entered for that sum. It is now said that this judgment is not a bar to the present action because the court did not submit to the assessors this specific ground of damage, and did not direct them to assess damages for shutting down the plaintiff’s gate. This is true; but it is equally true that they did not direct the assessors to assess damages for causing the water to flow down and waste their reservoir, and at times flood their mill, all of which were alleged as injuries, The order seems to have first declared 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 plaintiff's 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 the company in not presenting plaintiffs to ask for a recommittal for that cause, and under an enlarged rule. But the plaintiffs were content to take these damages as the damages for the entire trespasses that were set forth in their declaration. But however this may be, we are of opinion that the judg- ment 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 complained of was an illegal entry upon the plaintiffs’ land, and by various acts . . . render- ing their mill valueless. 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 in- jury to the mill. It is true that the declaration does not restrict them to the proof of a single entry; but it does connect all these acts with each and every entry. It fails to state them as separate causes of action, or to al- lege them to have occurred at different times.’ 1 Smith v. Jones, 15 Johns. 229; Farrington v. Payne, ib. 481. 2 Johnson v. Provincial Ins. Co., 12 Mich, 216. - 186 ESTOPPEL BY RECORD. the sum in the original proceeding. 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 indepen- dent 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.2 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 of action and one only, however numerous the items of damage. So every agreement express or implied affords one and but one ac- tion. Nor is the case of a contract contaiuing several stipula- tions 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, allowing separate judgments.* So it is said that when the part of a con- tract to be performed by the one party consists of several dis- tinct and separate items, and the price to be paid by the other is set against each item to be performed or left to be inferred by law, the contract will generally be treated as severable But it 1 Eldred v, Hazlett, 88 Penn. St. 16. not severable. This last decision is ‘The revival of the original judgment [by scire facias] is but a continuation of it.” Ibid. at p. 32. 2 Burritt v. Belfy, 47 Conn. 323. 8 Secor v. Sturgis, 16 N. Y. 548; Burritt v. Belfy, 47 Conn. 328. 4 Burritt v. Belfy, supra ; Woods ». Russell, 5 Barn. & Ald. 942; Denny v. Williams, 5 Allen, 1, 4; Knight v. New England Worsted Co., 2 Cush. 271; Perry v. Harrington, 2 Met. 368 ; Badger v. Titcomb, 15 Pick. 409, de- nying Guernsey ». Carver, 8 Wend. 492, which holds that u running con- tract for goods soli at different times if all are due is an entire demand and reaffirmed in Bendernagle v. Cocks, 19 Wend. 207. See also Bancroft v. Win- spear, 44 Barb. 209; Andrews v. Du- rant, 1 Kern. 85. 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 plain- tiff constituted but one entire demand, is overruled by Secor v. Sturgis, 16 N. Y. 548, and Guernsey v. Carver somewhat modified. See Burritt » Belfy, supra. 5 2 Parsons, Contracts, 517; citing especially Johnson v. Johnson, 3 Bos. & P. 162; Mayfield v. Wadsley, 3 Barn. DOMESTIC JUDGMENTS IN PERSONAM. 187 is not enough that goods bought are bought by weight or meas- ure, a price being fixed to the pound, yard, or bushel, to entitle the vendor to bring more than one action. Remittent or even constant tort obviously stands upon a different footing; an action may, as we have seen, be main- tained 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. The plaintiff in a judgment by default cannot prevent the de- fendant from bringing suit by volunteering his case and allowing 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 & C. 357; Robinson v. Green, 3 Met. 1 2 Parsons, Contracts, 519; Clark 159; and generally Mayor v, Pyne, 3 v. Baker, 5 Met. 452. Bing. 285 ; Perkins v. Hwt, 11 Wheat. 2 Ante, pp. 159-163; Kilheffer ». 237, 251; Withers v. Reynolds, 2 Barn. Herr, 17 Serg, & R. 319; Smith v. El- & Ald. 882; Sickels v. Patterson, 14 liott, 9 Barr, 345; both cases being Wend. 257; McKnight v. Dunlop, 4 actions for continuance of a nuisance, Barb. 36, 47; Snook v. Fries, 19 Barb. after « judgment in damages for an 813; Carleton v. Woods, 28 N. H. earlier stage of the same. 290; Robinson v. Snyder, 25 Penn. St. 8 Minor v. Walter, 17 Mass. 237. 203. 188 ESTOPPEL BY RECORD. 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. Thus when a purchaser under judicial 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.1 A former judgment or verdict is also 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 »v. Walker the plaintiff brought an action of slander. The defendant gave evi- dence 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 re- cover 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 slander- ous were spoken by the defendant. The court held that the judgment was conclusive against the defendant both in regard 1 Haralson v. George, 56 Ala. 295. _testator’s capacity to make the will) ; 2 See Brigham v. Fayerweather, 140 Mass. 411, 413, in regard to judgments in rem. 8 Williams v. Williams, 63 Wis. 58, where there was a default. 4 Perkins v. Walker, 19 Vt. 144; Pray ». Hegeman, 98 N. Y. 351, 358; Faught v. Faught, 98 Ind. 470 (judg. ment establishing the dispositions of property under a will establishes the Shinn v. Young, 57 Cal. 525; Brady v. Huff, 75 Ala. 81 (judgment for plain- tiff in forcible entry and detainer estab- lishes the plaintiff’s previous possession); Norwood v. Kirby, 70 Ala, 397 (that such judgment establishes the relation of landlord and tenant between the par- ties); School District v. Stocker, 42 N. J. 115; Tuska » O'Brien, 68 N. me 446 ; ante, p. 103, DOMESTIC JUDGMENTS IN PERSONAM. 189 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 vender 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 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 plaintiffs title to the possession and right to receive the mesne profits from the date of the demise in the declaration.2? And no defence could be alleged against the ac- tion for mesne profits which would have been a bar to the action of ejectment. 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 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; so vice versa a recovery or bar in an action of debt is a good bar in an action on the case on assumpsit.’ 1 Man v. Drexel, 2 Barr, 202. 2 Kille v. Ege, 82 Penn. St. 102; Aslin v. Parkin, 2 Burr. 668; Van Alen v. Rogers, 1 Johns. Cas. 281; Benson v. Matsdorf, 2 Johns. 369 ;° Mulkern, 1 Ex. D. 31. In some of the states the action of ejectment: is con- sidered as more than a mere possessory action, and is conclusive of title. See Payne v. Payne, 29 Vt. 172. Jackson v. Randall, 11 Johns. 405; Emerson v. Thompson, 2 Pick. 473, 487. This is not true now in England. The judgment is conclusive of the right to mesne profits only from the date of the writ, a change wrought by the Com- mon Law Procedure Act. Harris: » 8 Slade’s Case, 4 Coke, 92 b, 94b; Stowell v, Chamberlain, 60 N. Y. 272; Taylor v. Castle, 42 Cal. 367 ; Ware v. Percival, 61 Maine, 391 ; Hatch v. Cod- dington, 32 Maine, 92; Hardin 9. Pal- merlee, 28 Minn. 450. 190 ESTOPPEL BY RECORD. 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 action 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 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 jus- tice 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 de- fendant.2 Sq 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.6 In the case cited a former suit for judicial separation had been dismissed, in which the ground of complaint alleged was cruelty. In order to avoid the effect of the decree the petitioner now added a charge of adultery to that of cruelty, and prayed for a dissolution of the bonds of matrimony. But the court held the former decree a bar 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 1 Hitchin v, Campbell, 8 Wils. 240 ; 8 Jones v. Richardson, 5 Met. 247. Buckland v. Johnson, 15 C. B. 145; 4 Eastmure v. Laws, 5 Bing. N. C. 8. c. 26 Eng. L. & E. 828. 444, ante, p. 164. 2 Routledge v. Hislop, 2 El. & E. 5 Finney v. Finney, L. R. 1 P. & D. 549, 483, DOMESTIC JUDGMENTS IN PERSONAM. 191 in a court of law! The point has been frequently so decided? The case first cited was this in brief: The defendant’s testator 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 conveyed it to the complainant. The executors of the purchaser at the execution sale being about to dispose of the land, the complain- ant sought to restrain the sale in chancery and compel the executors to convey to him; the ground being that the levy on the land and the sale were unauthorized. The suit was dis- missed. The court said it was possible that the plaintiffs in the suit at law were not entitled to a levy on the land; but the defendant, the 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 collateral 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 chancery. 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 eject- ment, or if facts existed of which a party was prevented from availing himself by fraud, or by accident unmixed with negli- gence on his part, he will be entitled to have any judgment ren- dered against him at law enjoined ;® if on the other hand the 1 Soe converso. Clark v. Wiles, 54 845; Yarborough v. Avant, ib. 526; Mich. 323 ; ante, p. 94. 2 Hendrickson v. Norcross, 4 C. E. Green, 417; Baldwin v. McCrea, 38 Ga. 650 ; Broda v. Greenwald, 66 Ala. 538 (judgment on an account stated be- . tween, parties, followed by an attempt in equity to surcharge and falsify) ; Strang v. Moog, 72 Ala. 460; Wetumpka v. Wetumpka Wharf Co., 63 Ala. 611; Alabama Warehouse Co. v. Jones, 62 Wetumpka v. Wetumpka Wharf Co., 63 Ala. 611; Parker v. Judges, 12 Wheat. 561; Burn »v. Carvalho, 4 Mylne & C. 690. * Jenkins v. Harrison, 66 Ala. 345. 5 Yarborough v. Avant, 66 Ala. 526. See Pendleton v. Dalton, 92 N. Car. 185 (dismissal of bill for specific per- formance no bar to recovery of money paid on contract of purchase) ; Beere Ala. 550; Mayor v. Lord, 9 Wall. 409; , Fleming, 13 Ir. C. L. 506; ante, pp. Tilson v. Davis, 32 Gratt. 92, 104. 8 Jenkins ». Harrison, 66 Ala. 55, 56. 6 Embrey v. Palmer, 107 U. 8. 3, 11; 192. ESTOPPEL BY RECORD. defence in question could by the exercise of reasonable diligence have been made at law, no injunction will be granted. 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.2 But that of course is not saying that parties not then in existence are not bound. 4, Collateral Impeachment of Judgments. Having completed the consideration of the first three divisions of domestic judgments, we come now to the fourth, in which it is intended to show under what circumstances and in what par- ticulars a domestic judgment is liable to impeachment in a collateral action. We have already seen that strangers may impeach judgments in collateral actions; we are now to ascer- tain if parties or those who might have been parties ever have the like privilege. And first of contesting the jurisdiction. In the case of judgments of the superior courts parties and privies are in general, according to most of the authorities, held estopped in collateral actions to deny the jurisdiction of the court in which the former judgment was recovered unless it appear from the face of the record that the court had not ac- quired jurisdiction.’ That is, in such cases there is a conclusive Hendrickson v. Hinckley, 17 How. 448 ; Marine Ins. Co. v. Hodgson, 7 Cranch, 382; Pearce v. Olney, 20 Conn. 544; Dobson v. Pearce, 12 N. Y. 156. But an issue of fraud tried at law is conclu- sive in equity. Wilkins v. Judge, 14 Ala. 135. See Strang v. Moog, 72 Ala. 460. 1 Embrey v. Palmer, supra; Phos- phate Sewage Co. v. Malleson, 4 App. Cas. 801, 814; Dundas v. Waddell, 5 App. Cas. 249. ° 2 Wisconsin v. Torinus, 28 Minn. 175, 180; Newington ¥. Levy, L. R. 7 C. P. 180; ante, p. 180, in regard to partition. 3 Hahn v. Kelly, 34 Cal. 391 ; Morse v. Preshy, 25 N. H. 299; Carleton ». Washington Ins, Co., 35 N. H. 162; Wandling » 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 Conn. 190, and cases cited ; Pardon v. Dwire, 23 Ill. 572; Wingate v. Hay- wood, 40 N. H. 437; Clark v. Bryan, 16 Md. 171; Callen ». Ellison, 13 Ohio St. 446; Kennedy v. Georgia Bank, 8 How. 586 ; McCormick v. Sullivant, 10 Wheat. 192, holding the samo to be true of the United States courts, as not being courts of inferior jurisdiction. Contra in New York. Ferguson 0. Crawford, 70 N. Y. 258, And in prin- ciple this appears to be right. A de: cision is a judgment ¢f the court had jurisdiction, otherwise not. Hence the jurisdiction ought always to be open to inquiry, unless: upon general appearance DOMESTIC JUDGMENTS IN PERSONAM, 193 presumption of law that the steps required of the plaintiff to obtain jurisdiction were taken; as for instance that due service or publication was made, or appearance entered. But there is authority for the position that this presumption is not conclu- sive 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. The presumption of jurisdiction just mentioned prevails how- ever only in regard to judgments of the superior courts? in pro- ceedings carried on according to the course of the common law. In the case of proceedings not according to the common law a different doctrine is generally held to prevail. One of the most important cases upon this subject is Hahn v. Kelly, above cited. In that case the record of the former judgment recited ‘that the summons and complaint in this case have been duly served on the defendants according to law and the order of the judge of this court.’ It was a case of publication under the statute, and service without the jurisdiction of the court, which matters also appeared in the record; and it was claimed that the court must presume a legal service notwithstanding the fact that the proof failed to show it, or tended to show the contrary ; in other words that though the affidavits concerning publication and service failed to state all the facts which were made essential by the statute to that mode of proceeding, the court must presume that some other affidavit was actually made, in view of which the court entertained jurisdiction, which affidavit for some. reason there has been an actual adjudication of the question. This result has been reached with regard to judgments ren- dered in a sister state. Thompson ¥. Whitman, 18 Wall. 457. See chapter 6. An attorney of record, who repre- sented the plaintiff by bringing suit and taking judgment for him, cannot urge on his own behalf as a creditor the in- validity of such judgment for want of process. Kennedy v. Redwine, 59 Ga. 327. See Jones v. Hawkins, 60 Ga. 52, 56. But that is not estoppel by record. 1 Griffith v. Clarke, 18 Md. 457; Moore v. Toppan, 8 Gray, 411 ; Whit- ney v. Porter, 23 Ill. 445; Graham ». Long, 65 Penn. St. 383. Contra Hort- man v. Osgood, 54 Penn. St. 120; Sim- mons v, McKay, 5 Bush, 25; Blake v. Douglass, 27 Ind. 416. This point is considered ante, pp. 100-103. 2 See Mulligan v. Smith, 59 Cal. 206, 233. 13- 194 ESTOPPEL BY RECORD. had not been made part of the judgment roll by.the clerk. The court denied this position, holding that the record could not be enlarged by a presumption which would change the effect of its actual averments; but it was said that if the record averred nothing indicating a want of jurisdiction, the same presumption would prevail as of a proceeding according to the course of the common law.! 1 Mr. Justice Sanderson speaking for the court in regard to the plaintiff's position said: ‘ Within certain limits this is undoubtedly true; but thus broadly stated does it not go too far and invoke presumption where none may exist? Is it according absolute verity to the record under all circum- stances, or is it impeaching the record under possible circumstances upon the ground that it misrepresents what ac- tually took place? Undoubtedly if the record is silent as to what was done in respect to some material matter, we will presume that what ought to have been done was done. If there is no proof of what was done in obtaining service in the record, we will presume that legal service was in fact made ; but when the record shows what was done for the pur- pose of obtaining service, how can we presume that something different was in fact done? Would that not be to join issue with the record, and dispute what it says, — which we have agreed cannot be done? When the record speaks at all it must be understood to speak the truth as to the particular fact of which it speaks ; for by the law of its creation it can tell no lies, neither direct nor circumstantial. This is so not only when the record speaks in favor of the jurisdiction, but when it speaks against it. Pushed to its logical results, this doctrine, without some qua- lification, becomes equivalent to a rule that the judgment of a court of superior jurisdiction cannot be attacked at all in a collateral action, notwithstanding a want of jurisdiction may appear upon the face of the record... . At least it is equivalent to saying that no judg- ‘found to exist. ment can be attacked collaterally, un- less the record shows affirmatively, upon its face, that this is or that was not done, or that no service of summons was had upon the defendant, — lan- guage which, we venture to say, had never yet been found in any record. What do the cases mean when they speak of a want of jurisdiction appear- ing upon the face of the record? Do they mean a positive and direct state- ment to the effect that something which must have been done, in order to give the court jurisdiction, was not done? Or do they mean that a want of juris- diction appears whenever what was done is stated, and which, having been done, was not sufficient in law to give the court jurisdiction? If the former, they are a delusion. . .. For we venture to say that no case can be found, or will arise hereafter, where the conditions contemplated by such a rule will be No court has ever yet so far stultified itself as to render a judgment against a defendant, and at the same time deliberately state that it had not acquired jurisdiction over his person. Suppose in a case of attempted personal service the officer should return that he had served the summons upon A. B.,*the son of the defendant, by delivering to him personally a copy, and also a copy of the complaint, and the remainder of the record is silent upon the question of service. Could we presume, in the face of such a rec- ord, that he served it on the defendant also? Undoubtedly not. There would be a want of jurisdiction upon the face of the record within the rule in hand ; and the judgment would be declared a DOMESTIC JUDGMENTS IN PERSONAM. 195 The weight of authority is clearly opposed to this last state- ment ;? unless there be ground for a distinction based upon the nullity whenever and wherever pre- sented in support of a legal claim or right. We consider the true rule to be that legal presumptions do not come to the aid of the record except as to acts or facts touching which the record is silent. Where the rec- ord is silent as to what was done, it will be presumed that what ought to have been done was not only done but rightly done ; but when the record states what was done, it will not be presumed that something different was done. If the record merely shows that the sum- mons was served on the son of the de- fendant, it will not be presumed that it was served on the defendant. If the affidavit of the printer shows that the summons was published one month, it will not be presumed that it was pub- lished three. To avoid any misappre- hension we deem it proper to add that so far we have assumed, for the purposes of the argument, that the record, aside from that portion of it which is denom- inated the proof of service, is silent upon the question of service. But it may happen that other portions of the record may also speak upon that ques- tion. If so, what they say is not to be disregarded. On the contrary in de- termining the question whether a want of jurisdiction is apparent upon the face of the record we must look to the whole of it, and report the responses of all its parts. To illustrate ; Suppose that por- tion of the judgment roll denominated the ‘‘ affidavit or proof of service” shows that personal service was made upon the son of the defendant, and the remainder of the roll says nothing about service. We then have a want cf jurisdiction appearing upon the face of the record. But suppose that the judgment states that the defendant appeared, or that personal service was made upon him, or something else that is equivalent, as it frequently does, the opposite result ‘follows ; for the record cannot lie, and it appears that the father as well as the son had been served, which may well have been the case. So in the case of aservice by publication if the affidavit of the printer states that the summons was published one month, and yet the court in its judgment states that it was published three, or that service has been had upon the defendant, it will be pre- sumed that other proof than that con- tained in the judgment roll was made ; for not to so presume would be to deny the record that absolute verity which must be accorded to it.’ 1 Morse v. Presby, 25 N. H. 299; Carleton v. Washington Ins. Co., 35 N. H. 162; Embury »v. Conner, 3 Comst. 511; Huntington v. Charlotte, 15 Vt. 46 ; Clark v. Bryan, 16 Md. 171; Bum- stead v. Read, 31 Barb. 661 ; Arthur v. State, 22 Ala. 61; Harris y. Hardeman, 14 How. 334. The case of Tibbs v. Allen, 27 Ill. 119, perhaps supports the doctrine of the California case. It was there adjudged, in an appeal instead of in a collateral action, that the absence of an affidavit of the non-residence of the defendants from the record was not sufficient ground for reversal ; the pro- ceeding being one of notice by publica- tion. So Falkner v. Guild, 10 Wis. 563, also a case of statutory proceed- ings but involved in a collateral action. Paine, J. speaking 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 pre- sumed 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 pre- sumption, even in courts of general ju- risdiction. But without entering into the inextricable labyrinth of cases on 196 ESTOPPEL BY RECORD. fact that the general powers of the court, and not merely its mode of acquiring jurisdiction, are limited. But it is very the subject we will only say that we ean see upon principle no reason for the ‘distinction. The general presumption in favor of the regularity of the pro- -eeedings of such courts is founded on the character of the court itself. And that character is the same whether it act under a special statute or under the common law. I cannot see that a dif- ference in the source of its authority to act can make any rational distinction as to the presumption in favor of the reg- ularity of its action.’ See also Lang- worthy v. Baker, 23 Ill. 484. The danger of the suggestion in Hahn v. Kelly is shown in Galpin 2. Page, U. S. Circuit Court, Cal. 1874 (see s. c. 1873, 18 Wall. 350). Mr. Justice Field of the Supreme Court of the United States there said: ‘The tribunals of,one state have no jurisdic- tion, and can have none, over persons or property without its territorial lim- its. Their authority is necessarily cir- cumscribed by the limits of the sover- eignty creating them. Any exertion of ‘authority beyond those limits would be deemed, as stated in D’Arcy v. Ketchum, 11 How. 174, in every other forum an illegitimate assumption of power, and be resisted as mere abuse. But over property and persons within those limits the authority of the state is supreme except as restrained by the Federal Constitution. When therefore ‘property thus situated is held by parties resident without the state, or absent from it, and thus beyond the reach of the process of its courts, the admitted jurisdiction of the state over the prop- erty would be defeated if a substituted service upon the parties were not per- mitted. Accordingly, under special cir- cumstances, upon the presentation of particular proofs, substituted service in lieu of personal service is allowed by statute in nearly all the states so .agy to subject the property of a non- resident or absent party to such dis- position by their tribunals as may be necessary to protect the rights of their own citizens. In this state the statute in terms allows a constructive or substi- tuted service in all cases, whether upon contract or for torts, where the person on whom the service is to be made is a non-resident of the state or is absent from it, whether the action be directed against property within the state, or merely for the recovery of a personal judgment against the defendant. But except so far as the statute authorizes, upon such substituted service, a per- sonal judgment against « non-resident as a means of reaching property situated at the time within the state, or affect- ing some interest therein, or determining the status of the plaintiff with respect to such non-resident, it cannot be sus- tained as a legitimate exercise of legisla- tive power. A pure personal judgment, not used as a means of reaching prop- erty at the time in the state or affect- ing some interest therein, or determin- ing the status of the plaintiff, rendered against a non-resident of the state not having been personally served within its limits and not appearing to the ac- tion, would not be a judicial determina- tion of the rights of the parties but an arbitrary declaration by the tribunals of the state as to the liability of a party over whose person and property they had no control. The validity of the statute can only be sustained by re- stricting its application to cases where, in connection with the process against the person, property in the state is brought under the control of the court and subjected to its judgment, or where the judgment is sought simply as a means of reaching such property or affecting some interest therein, or to cases where the action relates to the personal status of the plaintiff in the state. Aliens at peace with the United States are allowed access to the courts of the states, and unless the statute be limited in its ap- DOMESTIC JUDGMENTS IN PERSONAM. 197 doubtful if any such distinction can be properly made; for the court is still presided over by men skilled in the law, and its plication as stated we must accept the conclusion that personal judgments for torts by one alien against another, neither of whom has ever been within our borders, may be recovered without personal service, by publication, and subsequently enforced against any prop- erty belonging to the defendant that may by chance be brought into the country. It would certainly be a strange applica- tion of the statute if an inhabitant of Asia could recover in that way in our courts a personal judgment for an al- leged tort committed against him in his own country by one of his country- men. An attachment of the property of a non-resident is allowed by the law of this state in all actions upon con- tracts, express or implied. This remedy, with the ordinary power of a court of equity to enforce mortgages and other liens and to take property into its cus- tody where there is danger of its removal beyond the state or of being wasted, and the information imparted to third par- ties by filing a notice of lis pendens where an interest in real property is the subject of the litigation, affords sufficient protection to citizens of the state without the assumption of any territorial jurisdiction over non-resi- dents. Be this as it may, any such assumption can find no support in any principle of natural justice or constitu- tional law. ‘‘ Where a party is within a territory,” says Mr. Justice Story in Picquet v. Swan, 5 Mason, 43, ‘‘he may justly be subjected to its process and bound personally by the judgment pronounced on such process against him, Where he is not within such territory, and is not personally subject to its laws, if on account of his supposed or actual property being within the territory pro- cess by the local laws may by attach- ment go to compel his appearance, and for his default to appear judgment may be pronounced against him, such a judg- ment must upon general principles be deemed only to bind him to the extent of such property, and cannot have the effect of a conclusive judgment in per- sonam for the plain reason that, except so far as the property is concerned, it is a judgment coram non judice. . The principles of the common law (which are never to be lost sight of in the construction of our own stat- utes) proceed yet further. In general it may be said that they authorize no judgment against a party until after his appearance in court. He may be taken on a capias and brought into court or distrained by attachment and other process against his property to compel his appearance ; and for non-appearance be outlawed. But still, even though a subject and within the kingdom, the judgment against him can take place only after such appearance. So anxious was the common law to guard the rights of private persons from judgments ob- tained without notice and regular per- sonal appearance in court.” ‘‘ Juris- diction is acquired,” says the Supreme Court in Boswell’s Lessee v. Otis, 9 Howard, 348, ‘‘in one of two modes: first, as against the person of the defend- ant by the service of process; or secondly, by a procedure against the property of the defendant within the jurisdiction of the court. In the latter case the de- fendant is not personally bound by the judgment beyond the property in ques- tion. And it is immaterial whether the proceeding against the property be by attachinent or a bill in chancery. It must be substantially » proceeding in rem.” A substituted service is usually made in the form of a notice published in the public journals, as in this state. “*But such notice,” says Cooley (p. 404) in his treatise on Constitutional Limita- tions, ‘‘is restricted in its legal effect and cannot be made available for all purposes. It will enable the court to give effect to the proceeding so far as it is one in rem, but when the res is dis- 198 ESTOPPEL BY RECORD. proceedings are still had with deliberation and solemnity. And it has been laid down as well settled that the judgments of posed of, the authority of the court ceases. The statute may give it effect ao far as the subject-matter of the pro- ceeding is within the limits and there- fore under the control of the state ; but the notice cannot be made to stand in the place of process so as to subject the defendant to a valid judgment against him personally. In attachment pro- ceedings the published notice may be sufficient to enable the plaintiff to ob- tain a judgment which he can enforce by sale of the property attached, but for any other purpose such judgment would be ineffectual. The defendant could not be followed into another state or country and there have recovery against him upon the judgment as an estab- lished demand. The fact that process was not personally served is a conclu- sive objection to the judgment as a per- sonal claim unless the defendant caused his appearance to be entered in the at- tachment proceedings. Where a party has property in a state and resides else- where, his property is justly subject to all valid claims that may exist against him there ; but beyond this, due pro- cess of law would require appearance or personal service before the defendant could be personally bound by any judg- ment rendered.” In Cooper v. Rey- nolds, 10 Wall. 308, similar doctrines are laid down by the Supreme Court of the United States. In that case the plaintiff had sued the defendants in Tennessee for false imprisonment, and upon affidavit that none of them were to be found in his county sued out a writ of attachment against their prop- erty. Publication was ordered by the court notifying them to appear and plead, answer or demur, or that the suit would be taken as confessed, and proceeded in ex parte as to them. Pub- lication was had, and the defendants hav- ing made default, judgment was entered against them, and the attached prop- erty was sold under it. The purchaser having been put into possession, the original owner brought ejectment for the premises. In considering the char- acter of the attachment suit the court speaking through Mr. Justice Miller said : ‘‘ Its essential purpose or nature is to establish, by the judgment of the court, a demand against the defendant, and to subject his property lying within the territorial jurisdiction of the court to the payment of that demand. But the plaintiff is met at the commence- ment of his proceedings by the fact that the defendant is not within that terri- torial jurisdiction and cannot be served with any process by which he can be' brought personally within the power of the court. For this difficulty the statute has provided a remedy. It says that upon affidavit being made of that fact a writ of attachment may be issued and levied on any of the defendant's property, and a publication may be made warning him to appear, and that thereafter the court may proceed in the case whether he appears or not. If the defendant appears, the cause becomes mainly w suit in personam, with the added incident that the property at- tached remains liable, under the con- trol of the court, to answer to any de- mand which may be established against the defendant by the final judgment of the court. But if there is no appear- ance of the defendant, and no service of process on him, the case becomes in its essential nature a proceeding in rem, the only effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff. That such is the nature of this proceeding in this latter class of cases is clearly evinced by two well-established propositions : First, the judgment of the court, though in form a personal judgment against the defendant, has no effect beyond the property attached in that suit. No general execution can be issued DOMESTIC JUDGMENTS IN PERSONAM. 199 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 every- - thing which does not distinctly appear by the record to be within the jurisdiction will be presumed to be without it. In the case then of inferior courts, and (according to the weight of authority) of superior courts when acting under limited powers, or not proceeding according to the course of the common law, the jurisdiction may be collaterally impeached in case all for any balance unpaid after the at- tached property is exhausted. No suit can be maintained on such a judgment in the same court or in any other ; nor can it be used as evidence in any other proceeding not affecting the attached property ; nor could the costs in that proceeding be collected of defendant out of any other property than that attached in the suit(a). Second, the court in such a suit cannot proceed unless the officer finds some property of defendant on which to levy the writ of attachment. A return that none can be found is the end of the case, and de- prives the court of further jurisdiction though the publication may have been duly made and proven in court.” The writer of the present opinion thought some of the objections taken to the pre- liminary proceedings in the attachment suit referred to were well founded, and dissented from the judgment of the court ; but in the doctrine laid down in the above citation he always has concurred. It is in our judgment the true doctrine, and the only doctrine which is consistent with any just pro- _ tection to the citizens of other states. Such is the constant intercourse be- tween citizens of different states at the present time that the greatest insecurity to property would exist if purely per- sonal judgments obtained ex parte, without personal citation, upon mere publication of notice, which in the great majority of cases would never be seen by the parties interested, could be made available for the seizure of prop- erty afterwards brought within the state. That law would be intolerable, if valid, which would permit citizens of another state to come into this state and recover personal judgments for all sorts of torts and contracts upon mere service by pub- lication against citizens of different states who have 1 never been within the state or possessed any property therein. If such judgments could be upheld, they would become the frequent instruments of fraud in the hands of the unscrupulous, and be sprung on the property of the un- suspecting defendants when the transac- tions giving rise to the judgments have passed from their memory, or the evi- dence respecting the transactions has perished. We do not think it within the competency of the legislature to invest its tribunals with authority hav- ing any such reach and force ; certainly no presumption in favor of their juris- diction can arise when a judgment of this character is produced against a non- resident who has never been within the state, and did not appear to the action. Hare & Wallace’s Notes to Smith’s Lead- ing Cases, vol. 1, p. 838; Picquet v. Swan, 5 Mason, 535 ; Monroe v. Doug- lass, 4 Sand. Ch. 182.’ ! Carleton v. Washington Ins. Co., 85 N. H. 162, 167; Morse v. Presby, 25 N. H. 299, 302, and cases cited. Comp. Commonwealth »v. Blood, 97 Mass. 538. (a) Pennoyer v. Neff, 95 U. 8. 714. 200 ESTOPPEL BY RECORD. 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 be spread upon the record, these ‘will probably be taken to be conclusive in the courts of the same state‘ In all cases where the record taken together shows affirmatively that the court had not jurisdiction of the cause, that is where the record contains express averments respecting jurisdictional facts which show that in law jurisdiction was not acquired, the judgment is null and void.5 And this is true though the party impeaching the judgment for want of jurisdic- tion be the one who instituted the proceedings alleged to be void. And when ‘the original proceedings were properly com- menced, and jurisdiction obtained by the attachment 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 judgment a nullity, though the defect may be sufficient cause for reversal in a court of error.? - But the rule that the jurisdiction of inferior courts is open to inquiry is subject to the following qualification: If the inferior court has, on general appearance of the parties if non-residents, passed upon the jurisdictional facts and found them sufficient, and the record is consistent with the finding, the parties and 1 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 v, Allred, 57 Ala. 628 ; Todd v. 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 juris- diction. See the cases just cited, 2 Harris v. Willis, 15 C. B. 709. In this case it was held that a plea of a judgment in admiralty, ‘after due pro- ceedings had,’ and ‘in due form of law,’ was insufficient to show that the court had jurisdiction. 8 McCormick v. Sullivant, 10 Wheat. 192; Wandling v. Straw, 25 W. Va. 692. 4 Secombe v. Railroad Co., 23 Wall. 108. But recitals of jurisdiction are at best only prima facie evidence in any case in New York. Ferguson v. Craw- ford, 70 N. Y. 253. 5 Penobscot R. Co. v. Weeks, 52 Maine, 456; Parish v. Parish, 82 Ga. 653 ; Mayo v. Ah Loy, 82 Cal. 477; Mercier v. Chace, 9 Allen, 242; Bruce v. Cloutman, 45 N. H. 37; Gay ». Smith, 88 N, H. 171. 5 Mercier v. Chace, 9 Allen, 242. 7 Carleton v. Washington Ins. Co., 35 N. H. 162, explained in Bruce v. Cloutman, 45 N. H. 87. DOMESTIC JUDGMENTS IN PERSONAM. 201 their privies are deemed estopped in collateral actions to litigate the matter again ;! and if the parties reside within the jurisdic- tion of the court, it matters not whether they were personally served with process or appeared, so long as the steps required by the statute for obtaining jurisdiction 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 surrogate had decided that the publi- cation was regular; and his judgment appeared on the record of the proceedings.” 1 Sheldon v, Wright, 5 N. Y. 497; Dyckman v. New York, ib. 434; Mun- cey v. Joest, 74 Ind. 409, 412. An ad- judication of the question who are par- ties to a suit binds all who were served with process. Anderson v, Wilson, 100 Ind. 402, 407. 2 Mr. Justice Foot in delivering judgment said that the case differed in one particular from that of Dyck- man v. New York just cited. In that case, @ summary proceeding, Dyckman had appeared and litigated the merits of the question ; while in the present case the appellant had not appeared. ‘The question then arises,’ said he, ‘does his omission to appear place him in a more favorable condition for litigat- ing the jurisdictional fact ; or in other words can a party to a judicial proceed- ing, by lying by and omitting to appear, acquire a right to open the proceeding at any time, and litigate in a collateral action a jurisdictional fact? It will be perceived at once that if the right de- pends on appearance or non-appearance, the fact 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 « notice is in general more difficult to prove after a consider- able lapse of time than a notice by pub- lication. . . . It cannot be therefore that the acknowledgment or denial of the right of a party to a summary or other judicial proceeding to disregard the record of it and litigate collaterally a jurisdictional fact depends on his ap- pearance or non-appearance.’ He then proceeded to state that the surrogate’s decision upon the regularity of the pub- lication conclusively determined the question of jurisdiction. Referring to the language upon the question of juris- diction used in the cases of Borden v. Fitch, 15 Johns. 121, 141, Mills v. Mar- tin, 19 Johns. 7, 33, and Latham v, Edgerton, 9 Cowen, 227, 229, that ‘the want of jurisdiction is a matter that al- ways may be set up against a judgment,’ he said that the judges only intended to say that the want of jurisdiction might always be set up against a judgment when that fact appeared on the record, or was presented in some other unexcep- tionable manner. The principle in Bor- den v. Fitch was opposed by no case within his knowledge, and it was sim- ply this ; that when a form or mode of notice of a judicial proceeding is pre- scribed 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 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 insti- 202 ESTOPPEL BY RECORD. In the case of Porter v. Purdy,! in which the same point was considered, there had not been in point of fact an adjudication. The proceedings in the case sought to be impeached were had under the statute authorizing the appointment of a certain number of freeholders to assess the expense of a 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 cognizance of a cause is a conclusive finding of the facts constituting juris- diction ;* 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 author- ity. 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 tute an inquiry respecting the jurisdic- v. Pound, 22 Ill. 399. But see Goudy tional fact. He rested his opinion v. Hall, 30 Ill. 109, holding that such ‘solely on the conclusiveness of the judgment of the surrogate.’ This doc- trine is well established. See Shawhan v. Loffer, 24 Iowa, 217; Bonsall v. Isett, 14 Iowa, 309 ; Segee v. Thomas, 3 Blatchf. 11; Hungerford ». Cushing, 8 Wis. 324; Bridgeport Savings Bank v. Eldredge, 28 Conn. 556; Bolton » Brewster, 82 Barb. 389; Porter ». Purdy, 29 N. Y. 106; Kipp ». Fuller. ton, 4 Minn. 478; Galena & C. R. Co. adjudication is prima facie evidence, a case referred to in Secrist v. Green, 3 Wall. 744, as declaring the law of Illi- nois. 1 29 N. Y. 106. 2 See also Van Steenbergh v. Bige- low, 83 Wend. 42. 8 Cox v. Thomas, 9 Gratt. 323 ; Clary v. Hoggland, 6 Cal. 685 ; Washington Bridge Co. v. Stewart, 8 How. 413, * Wiley v. Pratt, 23 Ind. 628, DOMESTIC JUDGMENTS IN PERSONAM. 2038 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- thority! Chief Justice Ray stated the rule thus: Where a judgment is recovered in a court of general jurisdiction against a defendant, and the record shows that an attorney of the court appeared for the defendant and filed an answer, the jurisdiction of the court cannot be controverted unless it be by proof of fraud or that the defendant was not a citizen of the state nor during the pendency of the proceedings within the jurisdiction of the court in which the judgment was rendered, and neither had been notified of the pendency of the suit nor had given authority to the attorney to enter an appearance for him? Our next inquiry is whether a judgment may be collaterally impeached for fraud, and if it may be, then under what circum- stances. The early case of Meadows v. Duchess of Kingston? a proceeding in equity to avoid the probate of a will, presented the question of the coticlusiveness 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 referred to the sister and heir of the Duke of Kingston brought an action in chancery against the Duchess of Kingston, praying that a will made by the duke might be declared void by reason of fraud and imposition on the part of his pretended wife the duchess. The will had given her all his property under the description of his wife. The fraud and imposition alleged were that the defendant had deceived the duke before their marriage into the belief that she was single, whereas she was declared at that time and still to be the lawful wife of one Hervey. The bill then charged that the relation of ‘wife’ was an essential consideration of the gift expressing the cause of the 1 Wright v. Andrews, 130 Mass. 149. See also White v. Jones, 38 Ill. 159; 2 But see Wandling v. Straw, 25 W. Va. 692, taking a position difficult to understand. The rule has been so determined 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. Baker v. Stonebraker, 34 Mo. 172; Finneran v. Leonard, 7 Allen, 54 ; Wat- son v. Hopkins, 27 Texas, 637 ; Brown v. Nichols, 42 N. Y. 26. But see Warren v. Lusk, 16 Mo. 102. 8 Amb. 756. 4 20 How. St. Tr. 358. 204 ESTOPPEL BY RECORD. bequest; and it was insisted that the cause and motive, by reason of the imposition, 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. other way.! 1 Apsly, Ch. said: ‘By ‘conclu- sive” 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, sen- tence, or judgment shall be received as conclusive evidence of the matter so determined. In Noell v. 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 import 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 di- recto, according to the distinction in Blackham’s Case, 1 Sulk. 290. In the case of Robins v. Crutchley, 2 Wils. 122, the sentence was not ex directo; here the question was direct, “ married or not.” It was said that fraud in ob- taining the sentence might be given in evidence. In Barnesley v. Powell, Amb. 102, Lord Hardwicke took a distinction between frand upon the testator, and fraud after his death. ‘In the former cease,” he said, ‘‘this court would not meddle.” . . . Fraud upona court in obtaining judgment or sentence can only But the court decided the be examined by the court where the fraud was committed, or another court having concurrent jurisdiction in ques- tions of marriage.’ On a subsequent day the chancellor mentioned another case (Rex v. Vincent, 1 Strange, 481) upon the subject. It was a case of an indictment for forging a will; and on the trial the forgery was proved. But on the defendant’s producing a pro- bate of it, that was held to be conclu- sive evidence in support of the will. He also referred to another case, Prudam v. Philips, 2 Strange, 961, note, in which a question of marriage arose. The de- fendant 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 distinction between the case of a stran- ger who cannot come in and reverse the judgment, and therefore must of neces- sity 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 judg- ment had been fraudulently obtained. DOMESTIC JUDGMENTS IN PERSONAM. 205 It will be observed that the complainant in this case had to face the presence of two judgments, one the general probate of the will and the other the specific decree that the lady in ques- tion 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 exclu- sive jurisdiction of the Court of Probate the probate of a will, and doubtless the refusal of probate, in this country as in Eng- land have always been beyond the reach of the Court of Chan- cery. 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 gener- ally 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 in some of the states;? and indepen- dent of statutory modification 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 Ecclesiastical 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.? 1 Allen v. Macpherson, 1 H. L. Cas. 191 (affirming 1 Phill. 133, and revers- ing 5 Beav. 469) ; Hindson v. Weather- ill, 5 DeG. M. & G. 301 ; Jones v. Greg- ory, 2DeG. J. & S. 83. 2 The 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. 3 See upon this subject Broderick’s Will, 21 Wall. 503; Crosland v. Mur- dock, 4 McCord, 217; Bogardus 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 Mil- ler (La.), 187, 144; Lewis v. Lewis, 5 Miller (La.), 387, 393 ; Dubois v. Du- bois, 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 DeG, M. & G. 801; 1 Jarman, Wills, 26, note 2, Bigelow’s ed. 206 “ESTOPPEL BY RECORD. 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 relations, 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 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 1 Broderick’s Case, 21 Wall. 503 ; Ellis v. Davis, 109 U. S. 485, 494; Wolcott v. Wolcott, 140 Mass. 194; Trexlor v. Miller, 6 Ired. Eq. 248; Allen v. Macpherson, 1 H. L. Cas. 191; Meluish v. Milton, 8 Ch. D. 27. 2 Marriot v. Marriot, Gilb. 208, 209; Allen v. Macpherson, 1 H. L. Cas. 191; 8. c. 1 Phill. 133. § 1 Story, Equity, § 440. 4 Barnesley v. Powell, 1 Ves. Sr. 284, 5 Kennell », Abbott, 4 Ves. 802. See Allen ». Macpherson, supra. The fraud alluded to by Lord Hardwicke, 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. This however appears not to mean that other courts could not consider it when the judgment was brought in issue collaterally; such a judgment could be treated as no judg- ment at all, as will be seen later. ® 1 Story, Equity, § 440. DOMESTIC JUDGMENTS IN PERSONAM. 207 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 judgments for fraud, to pass on from the special view of judgments of the Court of Probate, was directly before the court in the Duchess of King- ston’s Case. Lord Chief Justice De Grey in pronouncing the opinion of the court said: ‘In civil suits all strangers may falsify for covin, either fines or real or feigned recoveries; and even a recovery by a just title, if collusion was practised to prevent a fair defence; and this whether the covin is apparent upon the record, as not assoining or not demanding the view, or by suffer- ing judgment by confession or default; or extrinsic, as not plead- ing a release, collateral security, or other advantageous pleas.’ ? There are many cases which support this doctrine? The case first cited was a suit in chancery, and came before the court upon exceptions to the master’s report. The question was how far a sentence of the Ecclesiastical Court of nullity of marriage was binding in chancery on a child of the alleged marriage, who 1 Buchanan v. Matlock, 8 Humph. 890; Tupper v. Phipps, 3 Atk. 360. Contra Myers v. O'Hanlon, 13 Rich. 196. 2 *In criminal proceedings,’ he con- tinued, ‘if an offender is convicted of felony on confession, or is outlawed, not only the time of the felony, but the felony itself, may be traversed by a pur- chaser whose conveyance would be af- fected 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, fraudulently obtained, to defeat an execution at law against the first ; and the fact being admitted by demurrer, the court pronounced against the fraudulent administration. In an- other instance an administration 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 question 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.’ 3 Perry v. Meadowcroft, 10 Beav. 122; Meadowcroft v. Huguenin, 4 Moore, P. C. C. 386; Bandon wv Becher, 8 Clark & F. 479. By a re- cent English statute (28 & 24 Vict., ch, 144, § 7) it is provided that any person may intervene in a divorce case, before the decree is made abso- lute. See Bowen v. Bowen, 8 Swab. & T. 530. 208 ESTOPPEL BY RECORD. was en ventre sa mére at the time of the sentence. The facts in substance were that a marriage which had been solemnized between A and B was dec:ared void by the Ecclesiastical 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 insufficient to constitute fraud. The opinion however was expressed that the complain- ant was not estopped to prove fraud if he could. Whether parties may set up fraud has been a subject of con- 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. They do however say in the course of their 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 Manuf. 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 say there is no doubt that a judgment may be collaterally impeached by a third person not party or privy to it, upon the ground of collusion with intent to defraud him. This case is therefore merely in accord with the English cases above presented.® In Edgell v. Sigerson ® the court plainly state that if the judg- 1 The fraud in any case, even for the Barb. 520 ; Fisk v. Miller, 20 Tex. purpose of annulling a judgment, must 579; Carr 2. Miner, 42 Ill. 179. be actual positive fraud, — ‘ malus ani- * 45 N. H. 110. mus.’ Patch v. Ward, L. R. 8 Ch. 203. 5 To the same effect Mitchell v. Kint- See Payne v. O'Shea, 84 Mo. 129. zer, 5 Barr, 216 ; Callahan v. Griswold, 2 Field v. Flanders, 40 Ill. 470. 9 Mo. 775; Atkinson »v. Allen, 12 Vt. 8 See People v. Phoenix Bank, 7 619; De Armond v, Adams, 25 Ind. 455. Bosw. 20; People v. Townsend, 87 6 20 Mo. 494. DOMESTIC JUDGMENTS IN PERSONAM. 209 ment there relied on as an estoppel were obtained by fraud, it was void; but this was a dictum. The question actually before the court was whether in pleading under the new practice, to avoid the estoppel of a judgment, it was sufficient to allege that it was obtained by fraud without stating the facts constituting the fraud. Counsel did not deny that fraud was a proper ground of impeachment; the question went by default. In the case of Jackson v. Summerville! the judgment was founded on a forged deed; and the question was whether it could be impeached on this ground. The court admitted that a judgment rendered by a court of competent jurisdiction, upon the point in issue, could not be overturned in a collateral pro- ceeding ; but they 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 by the parties or their privies for fraud.3 There have been dicta to the same effect in other cases not already cited* But there have been many decisions to the contrary.6 The point was directly raised in a recent case in the Supreme Court of Iowa® The offer to prove that the judgment had been procured by fraud 118 Penn. St. 359. Allen, 448; McRae v. Mattoon, 18 Pick. 2 See Otterson v. Middleton, 102 53; Christmas ». Russell, 5 Wall. 290; Penn. St. 78, 88. Kelley v. Mize, 3 Sneed, 59 ; Kirby v. 8 Hall v. Hamlin, 2 Watts, 354; Fitzgerald, 81 N. Y. 417; Hammond State v. Little, 1 N. H. 257. v. Wilder, 25 Vt. 342, 346; Smith v. * See Smith v. Keen, 26 Maine, 411; Smith, 22 Iowa, 516. But concerning Thouvenin v. Rodriques, 24 Texas, judgments rendered in foreign lands see 468 ; Hartman v. Ogborn, 54 Penn. St. Cammell v. Sewell, 3 Hurl. & N. 617. 120. And see the chapters on Foreign Judg- 5 Anderson v. Anderson, 8 Ohio, 108; ments, Boston & W. R. Co. v. Sparhawk, 1 § Smith v. Smith, supra. 14 210 ESTOPPEL BY RECORD. was rejected in the court below ; exceptions were taken, and the ruling was sustained on appeal. The court said: ‘If a judg- ment can be attacked for fraud in any case, it can only be by a direct proceeding”! And in a late case in Tennessee the same doctrine was held even in regard to a judgment rendered by a justice of the peace. The attempt there was to rectify a judg- ment obtained 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 successful in equity than at law when the judgment is not attacked by a direct proceeding to set aside or to enjoin or other- wise 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.6 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 ». Becher’ appears however to suggest the true ground to be taken, 1 Mason v. Messenger, 17 Iowa, the original parties upon whom it is un- 261 doubtedly binding ; a fraudulent judg- 2 Kelley v. Mize, supra. See also Van Doren v. Horton, 1 Dutch. 205. 3 Boston & W. R. Co. v. Sparhawk, supra, 4 Upon the limits to this doctrine see ante, p. 102; Bigelow, Fraud, 175. 5 See besides the cases ahove 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; Bigelow, Fraud, 174. 6 In Thompson’s Appeal, supra, the court say: ‘Where a collusive judg- ment comes into collision with the in- terests 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 ment, 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 va- cate 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 because it was a fraud upon the debtor. To enable them to do so it must have been a fraud upon them- selves ; and this proposition the learned judge so states in his opinion. See also Lewis v. Rogers, 16 Penn. St. 18: ‘Creditors can attack a judgment col- laterally only for collusion.’ Gibson, 7 3 Clark & F. 479. DOMESTIC JUDGMENTS IN PERSONAM. 211 though the contest there was between third persons. In this case the court say that ‘a sentence is a judicial determination of a cause agitated between real parties, upon which a real interest has been settled; in order to make a sentence there must be a real interest, a real argument [where there was any at all], a real pros- ecution, a real defence, a real decision. Of all these requisites not one takes place in the case of a fraudulent and collusive suit.’ Now a judgment concocted in fraud, or a judgment fraudu- lently obtained after a valid compromise of the cause or after payment of the demand, or where jurisdiction has been fraudu- lently obtained, is no judgment at all in the proper sense, and it should seem that the injured party and his privies ought to be able to avail themselves of the facts as well in a collateral as in a direct proceeding.) So too of the case of a collusive judgment ; such a case differs entirely from a judgment rendered upon fraudulent or perjured evidence. In the latter case there is a real issue fought out, and hence a real judgment; in the former there is a sham issue with a miserable judgment.” Clearly the fact that perjured evidence was produced, even upon a conspiracy, is no ground for impeaching a judgment col- laterally. No decision would be safe if a judgment could be collaterally attacked on such grounds. It has been held indeed that in an action upon a judgment obtained against several de- fendants one of them may show that the judgment was obtained by conspiracy between the plaintiff and the other defendants ;4 but there is the best of authority the other way.6 The case of 1 The writer has examined this sub- Woodbridge, 3 Day, 30; Gelston v. ject in his work on Fraud, pp. 170-177. 2 Hence the significance of cases re- lating to decrees of divorce in which it is said that fraud (in the evidence) is not enough to avoid them, — collusion must be shown. Meddowcroft v. Hu- guenin, 4 Moore P. C. 386. See Perry v. Meddowcroft, 10 Beav. 122 ; Duchess of Kingston’s Case, ante, p. 207, and Everest & Strode, p. 428 ; post, p. 220, note 4; Thompson’s Appeal, supra, p. 210, note 4. 8 Engstrom v. Sherburne, 137 Mass. 152; Greene v. Greene, 2 Gray, 361; Homer v. Fish, 1 Pick. 485; Peck ». Codwise, 1 Johns. Ch. 195; Flower ». Lloyd, 10 Ch. D. 827 (C. A.), a foreign judgment, denied however as such in Abouloff v. Oppenheimer, 10 Q. B. D. 295. 4 Spencer v. Vigneaux, 20 Cal. 442. The judgment in question was by default as to the one innocent defendant, a fact not considered by the court. See infra, p. 212. Still the plea was the plainest impeachment of the judgment ; it did not confess and avoid as in Howlett v. Tarte, infra. & Engstrom v. Sherburne, 137 Mass. 158 ; Castrique v. Behrens, 3 El. & E. 212 ESTOPPEL BY RECORD. 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 prop- erty sold thereunder upon a sham demand. It was held that the action could not be maintained. Judgments of inferior courts may no doubt be impeached for fraud of the first kind above mentioned, at all events in cases where no appeal lies.} The estoppel in any case however only precludes an impeach- ment of the judgment; and there is ground for a distinction between the case of a judgment obtained by perjured evidence, or even by fraudulent practices, and the case of a judgment reg- ularly obtained but based upon a cause of action to which a defence of fraud might have been made, If for example judg- ment 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 judg- ment, as we have elsewhere suggested? The judgment affirms the contract indeed; but the party defrauded may also do this, and still sue for the deceit practised upon him’ Of course this would be otherwise if an issue on the question of fraud had been joined and decided in the former action. Perhaps judg- ment by default after issue joined, without other contest by the defendant, deserves consideration by the courts in regard to the effect of the judgment. Can there be an estoppel in this case any further than when there is a default without plea? 709; s.c. 30 L: J. Q. B. 163, post, p. ‘247, note. 1 Gurnsey v. Edwards, 26 N. H. 224 ; Robbins v, Bridgewater, 6 N. H. 524; Gear v. Smith, 9 N. H. 63; Sanborn 2, Fellows, 22 N. H. 473 ; Harlow v. Pike, 8 Green]. 438. 2 Ante, p. 175. And comp. pp. 164- 175. See especially Howlett v. Tarte, 10 C. B. w. 8. 818, 827, 828 ; Cromwell v, Sac, 94 U. S. 851, 357. 5 See Bigelow, Fraud, 176-178 ; Wanzer ». De Baun, 1 E. D. Smith, 261; Michigan v». Phoenix Bank, 33 N. Y. 9, 25 ; Cadaval v. Collins, 4 Ad. & E. 858 ; Whitaker v. Merrill, 28 Barb. 526 ; Jackson v. Summerville, 18 Penn. St. 359 ; Homer v. Fish, 1 Pick. 435. * See Howlett v. Tarte, 10 C. B, n. 8. 813. The language of that case is very striking, and has been quoted with ap- proval by the Supreme Court of the United States. Cromwell v. Sac, 94 U. 8. 851, 357. DOMESTIC JUDGMENTS IN REM. 218 CHAPTER IV. DOMESTIC JUDGMENTS IN REM. WE proceed now to the consideration of judgments which avail against all persons, to wit, judgments in rem; the general distinction between which and the class just under considera- tion and the grounds, such as appear, upon which the distinc- tion 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, the subject of the preceding chapter, and to foreign judgments in rem. The latter, as we shall see, stand substantially upon the same footing with the present class of judgments, with cer- tain 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 judgment in rem is an adjudication of prize, or an acquittal thereof? in the Admiralty ; it has often been determined that such deci- sions are condlusive upon all persons, not only of the title or the change of property, but also of the necessary facts upon which the condemnation was pronounced.* Questions of the conclu- 1 Ante, pp. 43 et seq. Bradstreet v. Neptune Ins. Co., 3 Sum. 2 Ante, p. 45; post, p. 235, 3 Cushing v. Laird, 107 U. S. 69, 80; The Apollon, 9 Wheat. 862. 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. * De Mora v. Concha, 29 Ch. D. 268 ; Hughes v. Cornelius, 2 Show. 282 ; s.c. Ld. Raym. 473; Skin. 59; Carth. 32; Croudson v, Leonard, 4 Cranch, 434; 600. Great doubt is raised by De Mora v Concha, in the Court of Appeal, whether Hughes v. Cornelius can be sustained in holding that a finding in a prize case, not necessary to the judg- ment, can conclude strangers. Indeed it is almost left a doubt, by De Mora v. Concha whether special findings in any proceeding in rem, as distinguished from the judgment itself, can operate beyond the parties contesting the particular 214 ESTOPPEL BY RECORD. siveness of sentences of this character have however 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 vessel 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 they had of the collision, and of its attendant circum- stances, was the transcript of the proceedings of the District Court; but this 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 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 needs further consideration® point, and of course their privies. D.268. A judge willindeed he very apt Comp. the New York cases, post, p. 232. See however Cushing v. Laird, 107 U. S. 69, 80. 1 Under Foreign Judgments in Rem. 2 Street v. Augusta Ins. Co., 12 Rich. 13. 8 New England Ins. Co. v. Dunham, 1 Lowell, 258; s. c. 3 Cliff. 332. And comp. Brigham v. Fayerweather, 140 Mass. 411; De Mora v. Concha, 29 Ch. 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. As- soc., 2 Woods, 638. But whether a judge would do this against objection based upon an offer to produce evi- dence not before him in the other case queere ? DOMESTIC JUDGMENTS IN REM. 215 There has been much discussion of the question, what consti- tutes a judgment in rem by the English law.! The case of Hart v. M’Namara? 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. 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.® That the record of condemnation of goods in the Exchequer, as a title or as a justification of acts done under it, is conclusive 1 Ante, p. 45. See also Simpson v. Merchants’ Ins. Co., 8 Peters, 495. Fogo, 29 L. J. Ch. 657; s. c. 32 L. J. Both were revenue cases. There can be Ch. 249, and 1 Hem. & M. 195; Cam- mell v. Sewell, 3 Hurl. & N.617;38.¢. 5 Hurl. & N. 728; Castrique v. Imrie, L. R. 4H. L. 414, 427. 2 Reported in note, 4 Price, 154. 8 De Mora v. Concha, 29 Ch. D, 268, See also Brigham v. Fayerweather, 140 Mass. 411. Hart v. McNamara is sup- ported by Magoun v. New Eng. Ins. Co., 1 Story, 157. But see Carrington v. no real distinction between revenue and prize cases; but the latter are now considered, so far as established in re- gard to findings, as exceptions. 4 Ante, p. 45; post, p. 285; De Mora v. Concha, 29 Ch. D. 268; Brig- ham v. Fayerweather, 140 Mass. 411. 5 Ante, p. 45. ® Candee v. Lord, 2 Comst. 269 ; ante, p. 144. 216 ESTOPPEL BY RECORD. 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 maintained.? 12 W. Black. 977. 2 ‘The only possible ground,’ said the learned judge above named, ‘that the plaintiff can rely on in the present case, which is unaccompanied with mis- behavior or any unwarrantable violence, is that the goods were not in truth lia- ble to be seized by the laws of the cus- toms ; although by the plaintiff's de- fault they have been condemned in the Exchequer. But I take this condem- nation 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 eredit which the law gives to any judg- ment in a court of record having com- petent jurisdiction of the subject-mat- ter ; the jurisdiction in this case of tne Court of Exchequer is not only compe- tent, but sole and exclusive. And though it be said that no notice is given to the owner in person and that there- fore he is not bound by the condemna- tion, not being a party to the suit, yet the seizure itself is notice to the owner, who is presumed to know whatever be- comes 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 Excheq- uer, and could be examined nowhere else. He had notice by the two procla- mations, according to the course of that court. He had notice by the writ of appraisement, which must be publicly ex- ecuted on the spot where the goods were detained. And having neglected this opportunity of putting in his claim and trying the point of forfeiture, it was his own laches, and he shall be forever con- cluded 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 directly the identical goods that are condemned, if he is allowed to recover obliquely damages equivalent to their value, 2. Because, the property of the goods being changed and irrevo- cably vested in the crown by the judg- ment of condemnation (as is clear be- yond any dispute, and conceded on the part of the plaintiff), it follows, as necessary consequence, 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.(v) The spirituous liquors that were seized were therefore at the (a) The record of condemnation is conclusive, not only that the goods were liable to seizure at the time of the sentence, but also that they were so liable at the time they were imported. Whitney v. Walsh, 1 Cush. 29, DOMESTIC JUDGMENTS IN REM. 217 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 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 time of the seizure the goods and chat- tels of his Majesty, and not of the plaintiff as in his declaration he has necessarily declared them to be; since neither trespass nor trover will lie for taking of goods unless at the time of the taking the property was in the plaintiff.’ 1 18 Johns. 561, 583. 2 “T entertain no doubt,’ said the chancellor, ‘it is equally well settled as the other, and that if the condemna- tion is a bar to the action on the one hand, the acquittal is a bar to the de- fence on the other. It would be mon- strously 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 sen- tence of acquittal to be conclusive against him? The most obvious dic- tates of justice will teach every man of common understanding that the rule, to be just, should be equal and impar- tial in its operation.’ He then proceeds to state that the authorities are on the same side (12 Viner, 95, A. b. 22,1; Cook v. Sholl, 5 T. R. 255), with one exception. Buller N. P. 245. ‘The reason,’ he goes on to say, ‘assigned in Buller's N. P. why an acquittal is not conclusive in a collateral action, as well as a condemnation, is that an acquittal ascertains no fact, as a conviction does, This is the reason assigned. Thus, it is said, if a party be indicted for bigamy and convicted, it must have been a full proof that he was twice married, and could not have been on any other ground; but if he was acquitted it might have been because he had reason to believe his first wife was dead, though she was not dead; or it might have been for many other reasons, without supposing the second to have been a lawful marriage. All this may be true in that and like cases ; but in a case in the Exchequer, where the goods are themselves seized and libelled as for- feited to the government, and which is termed a proceeding in rem, the question of forfeiture is the only question that can be made ; and a decree of acquittal does ascertain the fact that they were not forfeited, Indeed in the next pre- ceding 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. 3, 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 coun- cil of war founded on a petition of the plaintiff against him ; and the acquittal, being the sentence of a court of exclu- sive jurisdiction in a case arising under martial law, was held to be conclusive evidence for the officer in the action for the assault and battery.’ 218 ESTOPPEL BY RECORD. 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 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. Jf 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 as much as a sentence of condemnation ; it ascertained and fixed the fact that the property was not liable to the asserted claim of forfeiture. A decree establishing a person’s pedigree is, in establishing a title or a right, of the like conclusive character, as 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 pro- duced decrees of their family pedigree by the Court of Nobility of Grodno, and another of the Court of Kobryn, in the Russian province of Lithuania. The jurisdiction of these courts having been proved, the Supreme Court of the United States held that the proceedings were in rem and evidence against all the world of the matters of pedigree adjudicated. 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 legitimacy of other children by the 1 3 Wheat. 246, cited and approved v. New Eng. Ins. Co., 1 Story, 157; in Coffey v. United States, 116 U.S. Slocum v. Mayberry, 2 Wheat. 1. 486, 444; Williams v. Suffolk Ins. Co., £14 How. 400. 8 Sum. 270, 275. See also Magoun DOMESTIC JUDGMENTS IN REM. 219 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 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. In Hood v. Hood* the plaintiff brought a writ of dower against the defendant, who claimed under an assignee in bankruptcy of the plaintiff'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 their 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 their former decree that a finding, as distinguished from the decree, would operate against all persons. The court only desired to know whether their for- mer decree dismissing the wife’s libel was rendered upon the 1 Kearney v. Dean, 15 Wall. 51; Blackburn v. Crawfords, 3 Wall. 175. 2 Bunting v. Lepingwell, 4 Coke, 29, commonly cited as ISunting’s Case. See 2 Wils. 123 ; Duchess of Kingston’s Case, Everest & Strode, Est. 424. And see the last cited work, p. 89. 8 Hood v. Hood, 11 Allen, 196; 110 Mass. 463 ; Burlen v. Shannon, 3 Gray, 387, 389; 8. c. 99 Mass. 200; Smith v. Smith, 13 Gray, 209, 210. See Perry v. Meddowcroft, 10 Beav. 122; Med- dowcroft 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 di- vorce have more frequently arisen in cases of foreign decrees ; and the reader is referred to the chapter on Foreign Judgments in Rem for further informa- tion. 4110 Mass, 463. 5 11 Allen, 196. 220 ESTOPPEL BY RECORD. merits or not. Besides there had been no finding in Illinois in regard to fraud; there was no appearance there by the wife. Indeed the language of the court in Hood v. Hood, as given above, is perfectly clear 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 peti- tion 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? 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 1 Burlen v. Shannon, 3 Gray, 387, 889; Smith v. Smith, 18 Gray, 209, 210. 2 Gill v. Read, 5 R. I. 343. See Needham v. Bremner, L. R. 10. P. 583, where, in a similar case, there had been no decree of divorce because both par- ties had been found guilty of adultery, The finding was held no estoppel. 8 Indeed it has been decided upon great consideration that a decree of di- vorce for desertion is not conclusive, between the wife and a stranger, of the lawful marriage of the parties to the divorce cause, in a case not contested. Williams v. Williams, 63 Wis. 58. This was on the ground that the ques- tion of marriage would not be much considered in such acase. Besides by the laws of Wisconsin an ordinary de- eree of divorce was held not to have the same effect as a decree in an action for af- firmance or annulment of marriage. Ibid. 4 Meddowcroft v. Huguenin, 4 Moore P. C. 886. See Perry v. Meddowcroft, 10 Beav, 122, Fraud not amounting to collusion was in the first case held to be insufficient ground to impeach the judgment. The Duchess of Kingston’s Case, ante, p. 85, Everest & Strode, Estoppel, App. B, so much cited, was an indictment for bigamy, to which the defendant pleaded a sentence of the Ec- clesiastical Court in 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 conclu- sive against the crown, but in any event that it might be impeached for fraud and collusion. Formerly decrees of di- vorce themselves in the Ecclesiastical Court were not conclusive 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 jacti- tation do not stand upon the footing of decrees of or against divorce. See Ever- est & Strode, Estoppel, 84; ante, p. 86, note. The Duchess of Kingston’s Case con- tains in the arguments and opinion » review of nearly all the early cases, to wit: Jones ». Bow, Carth. 225; Bunting DOMESTIC JUDGMENTS IN REM. 221 benefit of one of our statutes against divorces fraudulently ob- tained 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 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 found4 The finding of such fact is not 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 v. Lepingwell, 2 Coke, 355, and 4 Coke, 29; Kenn’s Case, 4 Coke, 136 ; Black- ham’s Case, 1 Salk. 290; Hatfield v. Hatfield, 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 », 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 ». Ather, 2 Wils. 23; Rex v. Vincent, 1 Strange, 481; Rex v. Grundon, 1 Cotvp. 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 v. Cook, Cro. Jac. 535 and 625; Furs- man v. Fursman (no report named) ; Robins v. Crutchley, 2 Wils. 118; Roach v. Garvan, 1 Ves. 157 ; Lloid ». Maddox, Moore, 917 ; Prudham »v. Phil- lips, 2 Amb. 762, and other cases. 1 Not upon orders of distribution. 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. Butterfield v. Smith, 101 U.S. 570 ; Ritchey v. Withers, 72 Mo. 556. Further of the effect of decrees in pro- bate 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 Lawrence v. Englesby, 24 Vt. 42; Farrar v. Olmstead, ib. 123 ; Steen v. Bennett, ib. 303 ; Loring v. Steineman, 1 Met. 204. See Nelson v. Boynton, 54 Ala, 368, 376; Deslonde v. Darring- ton, 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. Fayerweather, 140 Mass. 411. 8 Whicker v. Hume, 7 H. L. Cas. 124; De Mora v. Concha, 29 Ch. D. 268 (C. A.). 4 De Mora v. Concha, supra. 5 Ibid. 6 Brigham ». Fayerweather, 140 Mass. 411. But see Goodman v. Winter, 64 Ala. 410 ; Williams v. Saunders, 5 Cold. 60, 74, dictum; Archer v. Morse, 2 Vern. 8, only a question of jurisdiction however. 222 ESTOPPEL BY RECORD. 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. That it does not establish the testator’s mental capacity inter omnes has lately been decided in Brigham ». Fayerweather2 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 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- 1 Newman v. Waterman, 63 Wis. contradictor” on behalf of one of them 612, 626, dictum, but clear law. 2140 Mass. 411. 3 Comp. De Mora v. Concha, 29 Ch, D. 268. * De Mora v. Concha, supra ; Brig- ham v. Fayerweather, supra. See Wil- liams v. Williams, 63 Wis. 58. 5 De Mora v. Concha, at pp. 275, 305. 6 Ante, p. 48. 7 ‘Where two litigants both claim under a third person, it seems that such third person can never be a “‘legitimus against the other of them. We conceive it to be plain that if a man appointed an executor, and after his death a ques- tion arose between the residuary lega- tee and his next of kin as to whether there was an intestacy (entire or partial), the executor would no more represent the residuary 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. 805. Fry, L.J. DOMESTIC JUDGMENTS IN REM. 223 istration. That was a petition for appointment as administrator as matter of right; alleging that the respondent claimed to be administrator of the same estate, but that he had not been legally appointed, that 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 they 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 defend- ant was a proper person to be appointed administrator, and whether a request by only a part of the next of kin was sufficient to warrant the grant of letters, were questions properly arising before the court; and if the petitioner felt aggrieved, he should have appealed. In 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 v, Walker, . 1 In the case of Loring v. Steineman, 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 concerned incidentally only, accord- ing to their respective rights and inter- ests ; asin a question of prize the ju- risdiction of the Court of Admiralty extends to the question whether prize or not, and by adjudicating upon that question settles it definitely in regard to all persons interested in that ques- tion, whether they have notice or not. And we think the distribution of an in- testate estate is analogous. The subject- matter, the property, is within the juris- diction of the court, and the judgment, by determining who are entitled to dis- tributive shares, and extending to the entire estate, determines that no other persons are entitled, and is necessarily conclusive because nothing further re- mains to be distributed.’ See also Litchfield v. Cudworth, 15 Pick. 23; Vanderpoel v. Van Valkenburgh, 6 N. Y. 190; Bogardus v. Clark, 4 Paige, 628 ; Fry v. Taylor, 1 Head, 594 ; Cecil v. Cecil, 19 Md. 72. And the same doctrine and reasons apply to proceed- ings in insolvency. Merriam v. Sewall, 8 Gray, 316, 327. Letters of adminis- trations are considered in collateral ac- tions as not even prima facie evidence of death or of next of kin, except be- tween the parties. De Mora v. Concha, 29 Ch. D. 268, 286, 297; Morin ». St. Paul Ry. Co., 83 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 Buf- falo v. Walker, 8 Barr, 177. See Cabot v. Washington, 41 Vt. 168. This is not true in Connecticut. Bethlehem ». Watertown, 47 Conn. 237. And see Renovo v. Half-Moon, 78 Penn. St. 301. This subject has undergone searching 224 ESTOPPEL BY RECORD. 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; the second is by discharging the order, in which case the adjudication is conclusive only between the parties litigant ; the third is by quash- ing it, in which case the order is not conclusive upon any one. An order of removal, the learned chief justice said, was con- firmed after an unsuccessful objection to it, for want of merits, or for want of form, or for want of regularity ; it was discharged or vacated after a successful objection to it on the merits; and it was quashed for informality or irregularity of proceeding. The order to quash was like a reversal on a writ of error, leaving the parties where they began.! 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 consideration in the decision of a probate case, and serious question made whether findings in orders of removal are bind- ing upon strangers except perhaps in the same class of cases. De Mora v. Concha, 29 Ch. D. 268. Comp. also Brigham v, Fayerweather, 140 Mass. 411. 1 See Rex v. Bradenham, Burr. Sett. Cas. 394, concerning which Chief Jus- tice Gibson says that the expression ‘quashed on the merits ’ was inadvert- ently used for ‘ discharged.’ 2 Succession of Gorrisson, 15 La. An. 27. See also Cailleteau v. Ingouf, 14 La. An. 628. 8 Pitman v, Albany, 34 N. H. 577. DOMESTIC JUDGMENTS IN REM. 225 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 stat- ute which declared it final. It was not a proceeding relating to private transactions, or a controversy between individuals or particular parties. The adjudication was not directly for the 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 sufficiently adverted to the fact that pro- ceedings in attachment, 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 litigation, and those who claim through them.? ' A distinction may be noticed between those judgments which incidentally establish reputation, custom, a public ferry, and mat- 1 Ante, pp. 46, 47. Penn. §t. 50; Woodruff v. Taylor, 20 2 Mankin v. Chandler, 2 Brock. 125, Vt. 65°; The Bold Buccleugh, 7 Moore Marshall, C. J.; Megee v. Beirne, 39 P. C, 267, 282. 15 226 ESTOPPEL BY RECORD. ters of the like character, 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 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 ac- tion 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 ex- istence of the ferry would be proved merely to establish the right as 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 de- terminate 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.2 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 con- sequently the former recovery relied on was no bar to the pres- ent action. Dr. Lushington has however expressed a contrary view even in regard to foreign decrees, in a dictum in a recent case.3 1 Pim v. Curell, 6 Mees. & W. 234; Carnarvon v. Villebois, 13 Mees. & W. 813; Neill v. Devonshire, 8 App. Cas. 185, 147 ; ante, p. 34, note 6. 2 Toby v. Brown, 6 Eng. 308. 8 The Griefswald, Swabey, 430. FOREIGN JUDGMENTS IN REM. 227 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 exami- nation of the cases relating to foreign judgments in rem, and then of those upon the other and more extensive division; calling 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 judg- ments in rem, and the reasons, such as have from time to time been advanced, why they are deemed conclusive against all persons. 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 judgments, 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 appeal ;? or 1 Ante, pp. 43 et seq. 160; Lothian v. Henderson, 3 Bos, & 2 Bernardi v. Motteux, 2 Doug. 574. P. 499; De Mora v. Concha, 29 Ch. D. See Bolton v. Gladstone, 5 East, 155, 268, 301. 228 ESTOPPEL BY RECORD. 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 impeachment 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. It was an action of trover for a ship and goods. Upon a special verdict it was found that the owner of the ship in question, and the master, were denizens of England, and that the mate and nearly all the crew were Englishmen; that the vessel was taken during a war between 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 servants of the former master, took and converted her to their own use. Upon the production of the sentence of the Admiralty the court refused to allow the verdict to be argued, but ordered judgment to be entered for the plaintiff; for, it was said, the sentence of a Court of Admiralty ought to bind generally, according to the law of nations, notwithstanding the fact that the verdict had falsified the sentence in respect 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 condition. For ‘suppose a decree here in the Exchequer, and the goods happen to be carried into another nation, should the courts abroad unravel this? It is but agreeable with the law of nations that we should ‘take notice and approve of the laws of their countries in such particulars. If you are aggrieved, you must apply yourself to the king and council; it being a matter of government, he will ‘recommend it to his liege ambassador if he see cause; and if not remedied, he may grant letters of marque and reprisal.’ 1 Walker v. Witter, 1 Doug. 1. 59; 2 Ld. Raym. 893, 935; T. Raym. 2 2 Show. 232; 8, c.Carth. 32; Skin. 473. FOREIGN JUDGMENTS IN REM. 229 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 matter of legal obligation, of 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.2 The case cited was of a British ship which had been captured by an Algerine corsair and sold by the Dey of Algiers to a merchant of Minorca, and by him sold to the present holder. Upon the arrival of the ship in English waters a warrant was applied for by the former owner to arrest the ship; but the court, refusing the warrant, directed a monition to issue 1 See 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 Wiiliams v. Jones, 13 Mees. & W. 628, 633: ‘Where a court of compe- tent jurisdiction has adjudicated a cer- tain 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 main- tained. It is in this way that the judg- ments of foreign and colonial courts are supported and enforced,’ This passage is quoted with approval again in Rou- sillon 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. It surely can- not be from motives of comity that the courts of England enforce the judg- ments of French courts, when the latter refuse to do likewise with the judg- ments of English courts. 2 Upon the doctrine of comity in re- gard to foreign judgments see the acute treatise of Mr. Piggott on Foreign Judg- ments (London, 1879, 1881). 8 The Helena, 4 Ch. Rob. 3. 230 ESTOPPEL BY RECORD. calling upon the possessor to show cause why the ship should not be restored to the former owner. It was contended in his behalf that the seizure by the Algerine corsair was not a lawful capture, so as to convert the property. But the court held the contrary.! 1 Sir William Scott in delivering judgment said: ‘This ship appears to have becn taken by the Algerines, and it is argued that the Algerines are to be considered in this act as pirates, and that no legal conversion 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 governments, with whom we have regular treaties, acknowledging and confirming to them the relation of legal states. So long ago as the time of Charles 2, 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 fol- lows : ‘ Pirates that have reduced them- selves 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 solemnities 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 re- spect continue, and began to raise up her drooping towers till the knowing Cato gave counsel for the total extirpa- tion ; out of the ruins of which arose Tunis, the revenging ghost of that fa- mous city, and now what open hostility denied, by thieving and piracy contin- ues; 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 dis- turb the mightiest nations on the west- ern empire; and though the same is small in bigness, yet it is great in mis- chief; the consideration of which put fire into the breast of the aged Louis 9 to burn up this nest of wasps, who hav- ing equipt out a fleet in his way for Palestine, resolved to besiege it ; where- upon a council of war being called, the question was whether the same should be summoned, and carried it should not ; for it was not fit the solemn 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 legation. So that now (though indeed pirates), yet having acquired the reputation of a government, they can- not 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. As to the mode of confiscation which has taken place on this vessel, whether by formal sentence or not, we must presume it was regu- larly done in their way and according to the established custom of that part of the world. That the act of capture and condenination was not a mere private act of depredation is evident from this circumstance, that the dey himself ap- pears 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 purchaser. There might perhaps be cause of confis- cation 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, conceiving (as some other people have foolishly imagined) that there is no other law of nations but that which is derived from positive compact and FOREIGN JUDGMENTS IN REM. 231 The condemnations of foreign Admiralty Courts in prize cases have also been held conclusive of the fact for which the property was condemned, or to speak with more precision, of the fact which was the ground of the condemnation. 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 warranty that the vessel was neutral property, and therefore bound to conduct not inconsistent with neutrality.2 Mr. Justice Washington stated it to be the well-established law, both of this country and of England, that the sentence of a foreign court of competent jurisdiction, condemning property on the ground that it was not neutral, is so conclusive of the breach of neutrality that it can never be controverted in any other court of concur- rent jurisdiction? convention. Had there been any de- mand for justice in that country on the part of the owners, and the dey had re- fused to hear their complaints, there might perhaps have been something more like a reasonable ground to induce this court to look into the transaction, but no such application appears to have been made. The dey intervened in the transaction as legalizing the act. The transfer appears besides to have been passed in a solemn manner before the public officer of the Spanish govern- ment, the Spanish consul; and in the subsequent instance the property is again transferred to the present posses- sor 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 alle- gation of an offence in the nature of a libel, and that there was no statement of facts ex directo upon which the sen- tence professed to he founded, it was held that the sentence was not conclu- sive of the cause of seizure and condem- nation. Bradstreet v. Neptune Ins. Co., 3 Sum. 600 ; Sawyer v. Maine Ins. Co., 12 Mass. 291. 1 4 Cranch, 434. 2 See also Bradstreet ». Neptune Ins. Co., 3 Sum. 600; Peters v. Warren Ins. Co., ib. 889; Baxter v. New Eng. Ins. Co., 6 Mass. 277. 8 * All the world,’ he said, ‘ are par- ties in an admiralty cause. The pro- ceedings 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 emphatically a party, and in every instance has an opportunity to contro- vert the alleged grounds of condemna- tion by proving, if he can, the neutrality of the property.’ Remarking on the case of Hughes v. Cornelius, already cited, he said: ‘The authority of the case of Hughes v. Cornelius, the earli- est we meet with as to the conclusivo- ness of a foreign sentence, is admitted ; but its application to a question arising under a warranty of neutrality between the insurer and the insured is denied. It is true that in that case the only 232 ESTOPPEL BY RECORD. ! The courts of England at an early period adopted this expres- sion of the rule in Hughes v. Cornelius, with the qualification that the record should show clearly the ground of the condem- nation.! And the same doctrine has been held in 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 condemna- tion purports to have been founded; and that these matters may be disproved in a collateral action. Some doubt perhaps is left by the recent case of De Mora v. Concha* whether Hughes ». Cornelius would now be followed in England ® in regard to the conclusiveness inter omnes of findings and grounds of the judg- ment, as distinguished from the judgment itself, at least if not necessary to it. point expressly decided 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 peculiar to the sen- tences 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 de- cree of an English court acting upon the same subject ; and we have seen that by the general rule of law the lat- ter, 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 sen- tence 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 considera- tion ? That the vessel was seized whilst attempting to break a blockade, in con- sequence of which she lost her neutral character ; and the change of property produced by the sentence of condemna- tion is a consequence of the matter decided, that she was in effect enemy property. Can the parties to that sen- tence 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 de- cided from which this consequence flowed ?’ 1 Lothian v. Henderson, 3 Bos. & P. 499; Baring v. Clagett, ib. 201; Fer- nandez x. Da Costa, Park, Ins. 170; Bernardi v. Motteux, 2 Doug. 574; Bol- ton v. Gladstone, 5 East, 155; Hobbs v. Henning, 17 C. B. n. s, 791; Dal- gleish v. Hodgson, 7 Bing. 495. 2 See Magoun v. New Eng. Ins. Co., 1 Story, 157 ; Dempsey v. Ins. Co. of Penn., 1 Binn. 299, note; Baxter w New England Ins. Co., 6 Mass. 277; Stewart v. Warner, 1 Day, 142. 3 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. 4 29 Ch. D. 268 (C. A.). 5 And in America there is a similar doubt. Brigham v. Fayerweather, 140 Mass, 411. 6 Comp. Williams. v. Williams, 63 FOREIGN JUDGMENTS IN REM. 238 It is furthermore immaterial that the sentence of condemna- tion was erroncous, or that it was even made under a decree subversive of the law of nations, one for instance like the Milan decree, which had been repudiated by the United States 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 be taken in an appellate court. The inquiry, it is 1aid 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 authority 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 con- cludes all the world? But if the judgment was contrary to the ‘natural principles of justice, it will be held void, as we shall see.® Wis. 58, decree of divorce for desertion, not contested, held not conclusive of Marriage. 1 Williams v. Armroyd, 7 Cranch, 423; Imrie v. Castrique, 8 C. B. N. 8. 405. Affirmed, L. R. 4H. L. 414. See Richards v. Barlow, 140 Mass. 218, 221 ; post, pp. 254, 255. 2 Castrique v. Imrie, L. R. 4 H. L. 414, Blackburn, J. 3 In the case of Imrie v. Castrique, just cited, there had been an adjudi- cation in # French Admiralty 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 impeach the decree contended that it had been con- temptuously thrown aside by the court in France. Upon this point Cockburn, C. J. said: ‘It is alleged that the French courts have shown a contemp- tuous disregard of the law of England, the only law applicable to the case, first, in holding that upon’ the mere contract of the master for necessaries 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 transfer appearing on the ship's papers ; propositions which, though in accordance with the French law, are wholly incorrect with reference to the law of this country. With regard 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 pro- ceedings contained in the special case, confined himself to the production of his bill of sale, conceiving that that alone was sufficient to establish his right to the ship. The distinction be- tween 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 can- not therefore be said that the court in 234 ESTOPPEL BY RECORD. A leading American case! may at first seem in conflict with the rule in the class of cases to which Imrie v. Castrique, above referred to, belongs, to wit, that it is no ground for collaterally impeaching a foreign judgment in rem that it was decided upon an erroneous view of the law. In the American case alluded to the effect of a judgment in an English Vice-Admiralty Court was under consideration, in which an American ship had been con- demned for breach of blockade at Cadiz. The Supreme Court of the United States said that the facts did not amount to a cause of condemnation, and therefore that there was no breach ot the warranty of neutrality. The real question in the case was, Had there been a breach of the warranty that the vessel was Ameri- can? and the court in determining this question proceeded to inquire whether, upon any sound view of the law, there had been a breach of blockade. Having determined that the facts stated in the sentence were not sufficient to establish such breach, the point really in controversy was of course decided, that the sentence could not be conclusive of a breach of neu- trality. The conflict is therefore only apparent. Had the suit been trover to recover the vessel, or some other action in which this particular 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 inapplicable ; it sim- ply misconceived it. The law of Eng- land put forward by French advocates was probably expounded in a very im- perfect manner, and without the produc- tion 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 mercan- tile community ought to be. But in deciding that the transfer of property 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 he- cause it was not indorsed on the certifi- . cate of registry, the court professed to be acting on the law of England, not to be setting up the law of France as over- riding it. All that can be said therefore is that they have misconceived the Eng- lish law, and that the judgment was erroneous. But the result of the au- thorities on this subject clearly estab- lishes that a judgment in rem of a foreign tribunal, turning on a question of English law, cannot though erroneous be questioned by a court in this country any more than if, turning on the law of the country to which the tribunal be- longed, it had been erroneous with refer- ence to the latter.’ See Cammell 2. Sewell, 5 Hurl. & N. 728 ; Simpson ». Fogo, 1 Hem. & M. 195; s.c. 9 Jur. Nn. 8. 403; Lang v. Holbrook, Crabbe, 179; post, pp. 254, 255. 1 Fitzsimmons v. Newport Ins. Co., 4Cranch, 185. See also Lang v. Hol- brook, Crabbe, 179. FOREIGN JUDGMENTS IN REM. 235 the question to be decided would have been whether the vessel had broken the blockade, the sentence must have been conclu- sive of the matter; for Chief Justice Marshall in delivering the opinion refers to a case as already argued in which that precise point had arisen, in which case the court declared in favor of the conclusiveness of the sentence The proximity of the two cases, and the subsequent decisions of the court, show clearly that had the action been trover between the immediate parties, the sentence must have been held an estoppel. But even had the sentence proceeded upon a correct view of the laws of block- ade, it is difficult to see how it could have been conclusive of the nationality of the vessel, a point immaterial to the decree in ordinary cases of the kind? This point will be noticed presently? 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 grounds thereof. Foreign decrees confirming marriage or granting divorce, when pronounced by courts of competent jurisdiction, are also, in re- gard 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 hav- ing 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.’ ® 1 Croudson v. Leonard, 4 Cranch, 434. 2 See De Mora v. Concha, 29 Ch. D. 268 ; Cushing v. Laird, 107 U.S. 69, 80. 3 See post, pp. 239-241. # Ante, pp. 45, 213. 5 Ante, pp. 219-221. 6 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 ; Bur- len 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 accepted in the courts of England. In the case of Sinclair v. Sinclair, 1 Hagg. Con. 294, the validity of a sentence of di- vorce pronounced in a foreign country was alleged in bar of proceedings in the Ecclesiastical Court. Lord Stowell said: ‘Something has been said on the doctrine of law regarding the respect due to foreign judgments; and un- doubtedly a sentence of separation, in @ 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 of marriage is neces- 236. ESTOPPEL BY RECORD. 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 domic?] there, the decree will be respected in 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 3? enforced.2 Perhaps the same rule would be held by the courts sarily and universally binding on other countries. Adultery and its proots are nearly the same in all countries. The validity of marriage however must de- pend in « 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 solemnized 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 subjects of that coun- try would be universally binding. For instance the marriage alleged by the husband 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 England.’ See also Scrimshire v. Scrim- shire, 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 under- gone very elaborate discussions at a very recent period; and the grounds upon which it rests have been greatly shaken.’ Warrender v. Warrender, 9 Bligh, 89 ; 8. c. 2 Clark & F. 488. Story, Confl. Laws, § 595. See also ib. §§ 215-230, aud cases considered; Dolphin v. Robins, 7-H. L. Cas. 390 ; Shaw v. Gould, L. R. 3H. 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; 8. c. 8 App. Cas. 48; Story, Confi. Laws, p. 312, note, 8th ed. In re- gard to the requisites to the jurisdiction of the courts of one state to pronounce a decree of divorce between parties mar- ried in another state, see Kerr v. Kerr, 41 N. Y. 272, and cases infra. 1 Of course the decree can have no binding effect out of the state unless the defendant, if not domiciled there, was served with process within the state, or appeared generally for de- fence. People v. Baker, 76 N. Y. 78; Kinnier v. Kinnier, 45 N. Y. 585; Hunt ». 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. Magin- nis, 1 Gill & J. 463. 2 Van Fossen v. State, 37 Ohio St. 317; Smith v. Smith, 13 Gray, 209; Sewall v, Sewall, 122 Mass. 156 ; Loud v. ‘Loud, 129 Mass. 14, 18 ; Cheever v. FOREIGN JUDGMENTS IN REM. 237 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.2 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 ac- tual domicil* though there was a finding thereon Nor does it show, except between the actually litigating or fully represented parties, 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 authorities 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 Wilson, 9 Wall. 108 ; Burlen v. Shan- non, 99 Mass. 200 ; Story, Confl. Laws, p- 308, note, 8th ed. 1 See Van Fossen v. State, 37 Ohio St. 317. 2 Nelson v. Oldfield, 2 Vern. 76; Williams v. Saunders, 5 Cold. 60; Tompkins v. Tompkins, 1 Story, 547; and comp. Whicker v. Hume, 7 H. L, Cas. 124, 1483; De Mora v. Concha, 29 Ch. D. 268, 309 (C. A.). 3 Tbid. 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; Town- send v. Moore, 8 Jones, 147; Clark ». Dew, 1 Russ. & M. 103; Montgomery v. Clark, 2 Atk. 378; Allen ». Dundas, 8 T. R. 125; Ex parte Jolliffe, 8 Beav. 168 ; Archer v. Mosse, 2 Vern. 8; Nel- son v. Oldfield, ib. 76; Plume ». Beale, 1P. W. 388. 4 Whicker v, Hume, 7 H. L. Cas. 124 ; De Morav. Concha, 29 Ch. D. 268. 5 De Mora v. Concha, supra. 6 Brigham». Fayerweather, 140 Mass. 411. In regard to the executor's repre- senting legatees see De Mora v. Concha, 29 Ch, D. 268 ; ante, p. 222, 7 4 Johns, 34. 238 ESTOPPEL BY RECORD. 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. 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.2 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. 1 ‘Goods taken from pirates,’ he con- tinued, ‘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 vindi- cate his property. What that reason- able time shall be every government will determine for itself. A sale ac- cording 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 rec- ognize. ... 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 na- tions. The sale in this case was a pro- ceeding under a municipal regulation, and every government prescribes its own rules relative to wrecks and prop- erty 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 pro- ceeds placed in the hands of the gov-. ernment. We have a similar statute in this state ; and I believe it was never doubted but that the purchaser would obtain a valid title, which would be everywhere respected.’ See The Til- ton, 5 Mason, 465. 2 See 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; Denison v. Hyde, 6 Conn. 508; Townsend v. Moore, 8 Jones, 147 ; Cal- vert v. Bovill, 7 T. R. 523; Christie »v. Secretan, 8 T. R. 192. 3 Maley v. Shattuck, 3 Cranch, 458 ; FOREIGN JUDGMENTS IN REM. 239 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 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. Chief Justice Marshall in delivering 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 character. 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 enemy’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 correctness, leaves the fact of real title open to investigation.’ Barlen v. Shannon, 99 Mass. 200; De cil being held by the Court of Appeal Mora v. Concha, 29 Ch. D. 268(C. A.), not conclusive upon third persons. The one of the most striking and instruc- masterly case of Brigham v. Fayer- tive examples to he found ; the finding weather, 140 Mass. 411, goes still further, of a domestic court of a foreigner’s domi- it will be seen. 240 ESTOPPEL BY RECORD. By the expression ‘conclusive as to its own correctness’ the chief justice undoubtedly meant, conclusive that there had been a breach of blockade, or that search had been resisted, to use the examples given by him. And 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 blockade. The class of cases of which Maley v. Shat- tuck is a representative decide, not that the sentence is incon- clusive 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. 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 inference of international law that a ship which is seeking to break a block- ade, 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 par- ticular vessel is concerned. That vessel has arrayed itself in hostility to the blockading force; in this sense it is properly condemned as enemy property. In this sense of the term the sentence is conclusive and can- not be disputed; for in its essence the sentence simply means that there has been a breach of blockade. It makes no differ- ence what flag the vessel sails under, even though its colors are those of a nation in close alliance with that of the captor; by attempting to break a blockade the vessel becomes an enemy, and liable by the laws of nations to capture and condemnation as prize of war. It must be clear then that the sentence can- not ordinarily be conclusive upon the vessel’s nationality, so as to prove beyond contradiction that there has. been a breach FOREIGN JUDGMENTS IN REM. 241 of warranty in an insurance policy that the vessel belonged to a neutral power. In a word the sentence is conclusive of the breach of neutrality, but not conclusive of the vessel’s nationality.? This supposes that the condemnation did not specifically find that the vessel seized belonged to the country at war with the captor, but merely that it was in law enemy property. If the sentence should clearly show a finding upon a definite issue of the precise fact that the vessel or property belonged to the par- ticular enemy, it has been maintained that it would be conclu- sive of the question though the fact might not be essential to the adjudication? But grave doubt has recently been raised whether this doctrine can be sustained at all Further foreign judgments in rem raise no estoppel con- cerning findings stated obscurely or with ambiguity.* 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 sen- tence was not an estoppel. The case of Christie v. Secretan,5 an action upon a policy of insurance on a vessel captured and con- demned as prize, also raised a question of this sort. 1 De Mora v. Concha, 29 Ch. D. 268; Bernardi v. Motteux, 2 Doug. 574; Calvert v. Bovill, 7 T. R. 523 ; Christie vy. Secretan, 8 T. R. 192; Russel vw Union Ins. Co., 4 Dall. 421; 8. a 1 Wash, C. C. 409 ; Lambert v. Smith, 1 Cranch C. C. 361; Fitzsimmons »v, Newport Ins. Co., 4 Cranch, 185 ; Cush- ing v. Laird, 107 U. S. 69, 80. 2 Bernardi v. Motteux, 2 Doug. 574; Hughes v. Cornelius, 2 Show. 232, note. 3 De Mora v. Concha, 29 Ch. D. 268. ® # Upon this point Mr. Justice Story remarks (Bradstreet ». Neptune Ins. Co., 3 Sum. 600): ‘I do not under- stand that in construing a foreign sen- tence which is to be held conclusive in rem as to the facts and grounds of the sentence stated therein, this court is bound to make out such facts and grounds by argument and inference and conjecture. The facts and grounds The defence ought to appear ex directo in order to estop the parties in interest from de- nying or questioning them. I agree with the doctrine of Lord Ellenbor- ough, 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 professes ex directo to decide they are bound to respect and admit to be conclusive. But if the sentence be ambiguous, or indeterminate, as to the facts on which it proceeds, or as to the direct ground of condemnation, the sentence ought not to be held conclusive, 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 consistency or validity to the sen- tence.’ 5 8T. R, 192, 16 242 ESTOPPEL BY RECORD. 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 in- deed necessary that the ship should have such papers, to hold the insurer liable ; and that if the ship had been condemned for the want of such papers, it would have been conclusive against the owner. In regard to the sentence of condemnation he said that they could only look at the ground of it, and not at any of the previous reasons stated. The express ground was that the ship belonged to the enemies of France, and that did not nega- tive any fact or circumstance that the plaintiff was bound to prove in order to maintain his 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 belonging 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 1 See Calvert ». Bovill, 7 T. R. 523. 2 8 Mass. 536. 8 Mr. Chief Justice Parsons distin- guishes this case from that of Baxter v, New England Ins. Co., 6 Mass. 277. He said that the decree in that case, ‘after having expressly and distinctly alleged that the vessel had violated a blockade de facto by egress, proceeds to allege 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 ofethe 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 res- cue declares that for such cause, or otherwise, the vessel is liable to condem- nation. Now we know no rule of con- struction by which it can be maintained that these words amount to a direct al- legation that the rescue was even one of FOREIGN JUDGMENTS IN REM. 2438 ‘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 never, we conceive, to prove a specific verdict from a record ambiguous on its face, In other words parol evidence cannot be received to explain a patent ambiguity. 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 (if the litigation concerns a particular property), and over the parties. the final causes of the condemnation. There had been, as appears from the de- cree, an inquiry relative to the violation of the blockade of the West India Isl- ands, with respect to which perhaps the judge was not fully satisfied. Ad- mit that he was fully satisfied that a rescue had actually taken place; yet he might not hold himself obliged under all circumstances to condemn expressly for that cause. The natural construc- tion 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 has been rescued.’ 1 Story, 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 Par- sons, Ship. & Adm. 77, and cases cited. This subject came under consideration in 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 profeyses to decide must be considered. But although the general power by which a court takes jurisdic- tion of causes must be inspected in order to determine whether it may rightfully do what it professes to do, it is still a question 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 jurisdic- tion 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 examin- able. Is the question whether the ves- sel condemned was in a situation to subject her to the jurisdiction of that court also examinable? This question in the opinion of the court must be an- swered in the affirmative. Upon prin- ciple it would seem that the operation of every judgment must depend on the power of the court to render that judg- ment ; or in other words on its jurisdic- tion over the subject-matter which it has determined. In some cases that jerisdiction 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 244 ESTOPPEL BY RECORD. 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 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 v. Blood this was held to be true of a judg- ment 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 for- eign court over the subject-matter was a special authority not: recognized by the common Jaw, and that its proceedings there- fore stood on the same footing with those of courts of limited and inferior jurisdiction.® 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 ; 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 prop- erty. Upon principle then it would seem that to a certain extent the capa- city 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 principle to authority we find that in the courts of England, whose decisions are particularly men- tioned because we are best acquainted with them, and because, as is believed, 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 conclu- sive with respect to what it professes to decide is uniformly qualified with the limitation that it has in the given case jurisdiction of the subject-matter.’ The Flad Oyen, 1 Ch. Rob. 135, and other cases. : 1 Sawyer v. Maine Ins. Co, 12 Mass. 291; Bradstreet v. Neptune Ins. Co., 3 Sum. 600, 2 Commonwealth v. Blood, 97 Mass, 538 ; The Griefswald, Swabey, 430. This work does not profess to deal with what constitutes jurisdiction ; if the reader desires to pursue the inquiry, he is referred to the following authori- ties: Dodd v. Una, 40 N. J. Eq. 672; School Trustees v. Stocker, 13 Vroom, 116; Hudson v. Guestier, 4 Cranch, 293 ; 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 Parsons, Ship. & Adm. 75-78, and cases cited. If the foreign court had jurisdiction when the suit was begun, it will be pre- sumed, in the absence of evidence to the contrary, that it had jurisdiction to theend. Lockhart v. Locke, 42 Ark. 17. 3 See also Burlen v. Shannon, 99 Mass. 200. The same rule was in Bar- ringer v, King, 5 Gray, 9, 11, intimated to be true of the record of a judgment rendered by the Supreme Court of an- other state in an action of contract against a resident of Massachusetts. FOREIGN JUDGMENTS IN REM. 245 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- 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.3 The parties are nat estopped to show the want of authority in the foreign court 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 legitimate 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 com- mission, 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 mat- ter 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 commander; 1 Gunn v. Howell, 35 Ala. 144; Wyatt v. Rambo, 29 Ala. 510 ; Hudson v. Guestier, 6 Cranch, 281, 284; Grig- non v. Astor, 2 How. 319, 340. See ante, pp. 200-202. 2 Walling v. Beers, 120 Mass. 548, See next chapter. 8 Personal judgment, without ser- vice or appearance, against a foreigner will not be enforced as a judgment in rem, though no distinction is made in the foreign country between such judg- ments. The Mecca, 6 P. D. 106, re- versing 5 P. D, 28. 4 Snell v. Faussatt, 1 Wash. C. C. 271; The Griefswald, Swabey, 480; The Henrick & Maria, 4 Ch. Rob. 48; The Flad Oyen, 1 Ch. Rob. 135; 1 Par- sons, Ship. & Adm. 77, and cases cited. 5 Snell v, Faussatt, supra. ® The Kierlighett, 8 Ch. Rob. 96. See The Christopher, 2 Ch. Rob. 209. 246 ESTOPPEL BY RECORD. 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 consul to request the Prussian authorities there to detain the offending ves- sel for satisfaction. The master of the Prussian vessel soon after this applied to the Prussian legation to have a mixed court ap- pointed 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 pro- ceedings, 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 ac- tion 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 fabricated or otherwise fraudulent testimony, or what is the same thing by reason of a fraudulent suppression of evidence, is not clear; though it is clear that any judgment fraudulently obtained in any other way than as a result of a consideration by the court of the very question of fraud would be open to collateral im- peachment. High authority may be cited, in regard to judg- ments in personam of foreign countries, to the effect that fraud of the former kind, i. e. the fraudulent production or suppression of evidence, will not afford ground for impeaching the judg- ment ;1 but this in turn has also been denied by high authority 1 Flower v. Lioyd, 10 Ch. D. 827, rens, 80 1, J.Q. B. 163; 8,0. 2 EL & E, 333, by James and Thesiger, L. JJ. in 709; Field and Hoffman, JJ. in United the Court of Appeal ; Castrique v,Beh- States v. Flint, Bigelow, Fraud, 171, FOREIGN JUDGMENTS IN REM. 24T and the contrary actually decided! We cannot but think, though with becoming diffidence, that the view first stated is the better.? It is so settled with regard to judgments of courts of our sister states.8 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 Cas- trique v. Behrens, supra, Crompton, J. for the Queen’s Bench said : ‘It is averred, and we must on thedemurrer 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 admitted on this demurrer that Troteaux, the French holder of the bill of exchange, by the fraudulent pro- curement of the defendants, falsely rep- resented to the French courts that he was holder for value, when he was not. It is not necessary to say what would be the effect if it were stated that, by the contrivance of the defendants, the proceedings were such that the plaintiff had no opportunity to appear in the French court and dispute the allega- tions. Inthe present case it is quite consistent with the averments in the declaration that the plaintiff had notice of the proceedings in France, and pur- posely allowed judgment to go by de- fault, 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 Abou- loff v. Oppenheimer, infra. 1 Abouloff v. Oppenheimer, 10 Q. B. D. 295 (C. A.) ; Huntv. Hunt, 72 N. Y. 217, 227 (dictum). See Ochsenbein v. Papelier, L. R. 8 Ch. 695; Price v, Dewhurst, 8 Sim. 279, 302. In Abouloff v. Oppenheimer a dis- tinction is taken between the court’s being misled and being mistaken (comp. the case of a perverse disregard by a foreign court of the law of the country which should govern. Simpson v. Fo- go, 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; Ark- wright v. Newbold, 17 Ch. D. 301, 320; '1 Story, Equity, p. 210, note (13th ed.) ; cases in regard to innocent misrepresen- tations sought to be enforced. 2 Christmas v. Russell, 5 Wall. 290 ; post, Foreign Judgments in personam. 5 Thid. 248 ESTOPPEL BY RECORD. CHAPTER VI. FOREIGN JUDGMENTS IN PERSONAM. 1. Judgments of Courts of general Jurisdiction. 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 judg- ments 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 hold- ing them conclusive of the matters adjudicated, and again reced- ing 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 was joined upon the first plea, and a verdict was given for the 11 Dong. 1. FOREIGN JUDGMENTS IN PERSONAM. 249 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 im- proper; and that though the plaintiffs had called the judgment a record, it was clear that they did not mean that sort of record to which implicit faith was given by the courts of Westminster 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 judg- ments were good grounds of action, still they were examinable on the merits; and among other cases he referred 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 ob- served however that the question was not raised in the case whether foreign judgments were conclusive; the plaintiffs only insisting that they were prima facie evidence, as this was suffi- cient 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. 2 1 Eq. Cas. Ab. 83, pl. 3; Isquierdo v, Forbes, H. 24 Geo. 3, B. R. 8 1 Doug. 5, note. 250 ESTOPPEL BY RECORD. be a new trial. Lord Kenyon there said: ‘I cannot help enter- taining very serious doubts concerning the doctrine of Walker v. 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 Tam quite lost ina 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 v. Hunter1 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 v. Witter was decided in the House of Lords in 1834.8 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. 408, 411. ‘It is in judgments are obligatory ; not as con- one way only,’ he said, ‘that the sen- clusive, but as matter in pais, as consid- tence or judgment of the court of a for- eign 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 perhaps in the country in which it was pro- nounced, nor as obligatory to the ex- tent to which by our law sentences and eration prima facie sufficient to raise a promise. We examine it as we do all other considerations of promises, and for that purpose ye 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. 96, 97. 2 Arnott v. Redfern, 8 Bing. 353. 8 Houlditch v. Donegal, 8 Bligh, N. 8, 301. FOREIGN JUDGMENTS IN PERSONAM. 251 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 ina 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 judg- ment 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 judgments of 13 Sim. 458. 8 6 Clark & F, 1. 21 Camp. 63; 8. c. 9 East, 192. £ 4 Bing. 686. 252 ESTOPPEL BY RECORD. courts of other countries are inconclusive; and it will be ob- served that in none of them is there an express and authoritative 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 », Jamineau.? Gold v. Canham* also proceeds upon this view; and the more recent 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 1844/7 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 recent 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 1 4 Maule & 8. 20. 7 Henderson v. Henderson, 6 Q. B. 2 Cas. temp. Hardw. 85, 89. 288. 3 Mosely, 1. 8 16Q. B. 717. 41 Cas. in Ch. 311 ; also reported in 8 De Cosse Brissac v. Rathbone, 6 note to Kennedy v. Cassillis, 2 Swanst. Hurl. & N. 301; Scott v. Pilkington, 2 813, 325. Best & S. 11; Vanquelin v. Bouard, 15 5 8 Sim. 458. C. B. N. 8. 841, 6 Ferguson v. Mahon, 11 Ad. & E, 179. aa FOREIGN JUDGMENTS IN PERSONAM. 258 found among the cases to the effect that they are only prima facie ground of suit. Several of the cases have been already 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 is bad,— provided the judgment was not otherwise subject to impeachment’ 1 2 Best & 8.11. N. 8. 95; Robertson v. Struth, 5 Q. B. ? See Taylor v. Shew, 39 Cal. 586. 941; Hamilton v. Dutch East India Co., 3 See also Crawley v. Isaacs, 16 Law 8 Bro. P. C. 264 ; Becquet v. MacCar- T. n. 8. 529; Doglioni v. Crispin, L.R. thy, 2 Barn. & Ad. 951; Burrows », 1H. L, 801; Barber v, Lamb, 8 C. B. Jemino, 2 Strange, 733; Ferguson v. 254 ESTOPPEL BY RECORD. 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 occasion to reaffirm also the doctrine of the late cases above presented.? Mahon, 11 Ad. & E. 179; Ricardo », Garcino, 12 Clark & F. 368; Bank of Australasia v. Hardin, 9 C. B. 661; Cammell v. Sewell, 3 Hurl. & N. 617; 8. c. in error, 5 Hurl. & N. 728; Ker- sall v. Marshall, 1 C. B. N. s. 241; General Nav. Co. v. Guillou, 11 Mees. & W. 877; Frayes v. Worms, 10 C. B. N. 8. 149; Simpson v. Fogo, 1 Hem. & M. 195; Obicini v. Bligh, 8 Bing. 335. 1 Godard v. Gray, L. R. 6 Q. B. 139. See ante, p. 233; Imrie v, Castrique, 8 C. B. x. s. 405, 417 ; Castrique ». Imrie, L.R. 4H. L. 414, 437; Simpson v. Fogo, 29 L. J. Ch. 657; s. 0. 82 L. J. Ch. 249, and 1 Hem. & M. 195; Dent v». Smith, L. R. 4 Q. B. 414. So in regard to judgments rendered in courts of our sister states. Richards v. Barlow, 140 Mass, 218, 221. 2 Mr. 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 pro- ceedings to be founded on a mistaken notion of the English law, it would not be conclusive. For this he cites Novelli v. Rossi, 2 Barn. & Ad. 757, which does not decide that point, and no other authority ; but the great learn- ing and general accuracy of the writer makes his unsupported opinion an au- thority of weight, and accordingly it has been treated with respect. In Scott v. Pilkington, 2 Best & S. 11, 42, the court expressly declined to give any opin- ion on the point not then raised before them. But 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 mate- tially 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, But the doctrine as laid down by Mr. Smith does apply here; and we must express an opinion on it, and we think it cannot be supported, and that the de- fendant can no more set up, as an ex- cuse relieving him from the duty of paying the amount awarded by the judgment of a foreign tribunal having jurisdiction over him and the cause, that the judgment proceeded on a mis- take as to English law, than he could set up as an excuse that there had been a mistake as to the law of some third country incidentally involved, or as to any other question of fact. It can make no difference that the mistake appears on the face of the proceedings, That no doubt greatly facilitates the proof of the mistake ; but if the prin- ciple be to inquire whether the defend- ant is relieved from a prima facie duty to obey the judgment, he must be equal- ly relieved whether the mistake appears on the face of the proceedings or is to be proved by extraneous evidence. Nor can there be any difference between o FOREIGN JUDGMENTS IN PERSONAM. 255 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 v. Gray in regard to error apparent on the record of proceedings has not been fully accepted ;* 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 cleri- cal 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 governing law; but the test of conclusiveness should arise upon the question whether it attempted to do so or contemptuously refused,> 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; and the judgments of foreign countries, and before the mistake made by the foreign tribunal as to English law, and any other mistake. No doubt the English court can without arrogance say that, where there is a dif- ference 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 en- force 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 proceed- ing on a mistaken view of English law could be enforced in Scotland and not in England.’ 1 As in Godard v. Gray, in regard to mistake. 2 As in Meyer v. Ralli, 1 C. P. D. 358, also as to mistake. 8 Smith’s L. C. 448, 2d Eng. ed., quoted by Blackburn, J. supra; Simp- son v. Fogo, 1 Hem. & M. 195 ; Liver- pool Credit Co. ». Hunter, L. R. 3 Ch. 479, 484. See Castrique v. Imrie, L. R. 4H. L. 414, 445. * Onthecontrary see Reimers v. Druce, 23 Beav. 145 ; Messina v. Petrococchino, L. R. 4 P. C. 144; Meyer v. Ralli, 1 C. P. D. 358, 370. See also Simpson ». Fogo, supra, Wood, V. C.; Becquet v. MacCarthy, 2 Barn. & Ad. 951, 957. 5 See Castrique v. Imrie, L. R. 4 H. L, 414, 445. 256 ESTOPPEL BY RECORD. adoption of the Constitution and for a short time afterwards in many instances, judgments rendered in the sister colonies and states, 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 judgments inconclusive are recent decisions. Only two of them however are direct adjudications to that effect, namely, Burnham v. Web- ster and Rankin v. Godard. The other recent cases (Middlesex Bank v. Butman and Taylor v. Barron) support the position only by dicta; and all of the cases cited are founded on the early English dicta now overruled. And 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 authorities 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 »v. 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 1 Hitchcock v. Aicken, 1 Caines, 460; Taylor v. Bryden, 8 Johns. 178 ; Pawl- ing v. Bird, 13 Johns. 192 ; Bartlett v. Knight, 1 Mass. 400; Buttrick v, Al- len, 8 Mass. 273 ; Bissell v. Briggs, 9 Mass. 462; Winchester v. Evans, Cooke, 420; Glasgow v. Lowther, ib. 464; Taylor 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 v. Tucker, 1 Bibb, 361 ; Pritchet v. Clark, 3 Har. (Del.) 717 ; Clark v. Parsons, Rice, 16; Bim- eler v. Dawson, 4 Scam. 536 ; Burnham v, Webster, 1 Woodb. & M. 172 ; Mid- dlesex Bank v. Butman, 29 Maine, 19; Taylor v. Barron, 30 N. H. 78 ; Rankin v. Godard, 54 Maine, 28. 2 2 Barb. 602. 3 4 Sand. Ch. 126. © 26 N. Y. 146, 5 In 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 principles and decisions which we have made as to judgments from the FOREIGN JUDGMENTS IN PERSONAM. 257 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! We have elsewhere borrowed the sug- gestion of Mr. Baron Parke in Williams v. 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. courts of other states of the Union should be applied to foreign judg- ments.’ The court rely 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 differ- ent 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 de- stroyed. The merits of the cause as for- merly 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 slan- der, for conversion of property, for a malicious prosecution, or for a criminal conversation ; is the defendant to be at liberty to retry the whole merits, and to make out, if he can, a new case upon new evidence? Oris 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 cireum- stances 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 be 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 doctrines of the local administration of justice? Is it to act upon the rules of evidence acknowledged in its own juris- prudence, or upon those of the foreign jurisprudence? These and many more questions might be put to show the in- trinsic difficulties of the subject. In- deed the rule that the judgment is to be prima facie evidence for the plain- tiff 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 cir- cumstances it would be equivalent to granting a new trial,’ 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. 139, 148 ; ante, p. 229. As to the circumstances under which a duty to obey the foreign judgment arises sea Rousillon v. Rousillon, 14 Ch. D. 351, 370. See also Copin »v. Adamson, LR. 9 Ex. 345, 17 258 ESTOPPEL BY RECORD. 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 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! as early as 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 ren- dered 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 1 Provincial Act of 14 Geo. 8, ¢, 2, 2 Bissell v, Briggs, 9 Mass. 462. FOREIGN JUDGMENTS IN PERSONAM. 259 which such acts, records, and proceedings shall be proved, and the effect thereof.’ ! 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 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 records 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? had heen 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 colonies and states were only prima facie evidence? though this rule 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.5 1 Const. U. S., art. 4, § 1. strong v. Carson, 2 Dall. 302 ; Curtis t. 2 7 Cranch, 481. Gibbs, 1 Penn. (N. J.) 399; Green v. 8 Hitchcock ». Aicken, 1 Caines, Sarmiento, Peters C. C. 74; Blount 460; Pawling v. Bird, 13 Johns, 192; ». Darrach, 4 Wash. C. ©. 657; Tur- Winchester v. Evans, Cooke, 420; and ner v. Waddington, 3 Wash. C. C. other cases cited ante, pp. 255, 266. 126. 4 Noble v. Gold, 1 Mass. 410, note ; 5 See cases cited below passim ; and Bissell v. Briggs, 9 Mass. 462; Arm- see Insurance Co, v. Harris, 97 U. 8. 260 ESTOPPEL BY RECORD. Mills v. Duryee was an action of debt upon a judgment of the Supreme Court of New York, in the Cireuit Court for the District of Columbia. The defendant pleaded nil debet, which upon general demurrer was held bad. On appeal to the Supreme Court of the United States counsel for the plea contended that the true construction of the constitutional provision and acts of Congress confined their operation to evidence only, and did not alter the rules of pleading. The ‘effect’ to be given to the copies of records was their effect as evidence; for it was not con- tended that an execution could issue there upon such a record. Counsel further argued that nul tiel record could not be pleaded because there was no way of procuring and inspecting the origi- nal 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 Congress was referred to as making the authenticated exemplification equiva- lent to the original record in its proper state, and as communi- cating 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. Mr. Justice Story delivered the opinion of the court, sustaining the decision below in overruling the plea. He 831. Judgments of the courtsof record district, stand upon the footing of judg- of the District of Columbia, at least ments of a state court. Embrey v. judgments of the Supreme Court of the Palmer, 107 U. 9. 8, 10, FOREIGN JUDGMENTS IN PERSONAM. 261 adopted the view of the plaintiff's counsel that the effect of the Constitution and acts of Congress was to give the authenti- cated exemplitication the conclusivenesss of the highest or record evidence; to which the proper plea was nul tiel record. It will be observed that the court base their 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, ie. 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. 1 ‘Congress,’ he said, ‘have de- clared the effect of the record by declar- ing 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 pre- scribed 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 exemplification would be in any other court of the same state. Had this judg- ment 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 judgment 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 The learned was rendered. But it has no founda- tion. The right of a court to issue execution depends upon its own powers and organization. Its judgments may he complete and perfect, and have full effect, independent of the right to issue execution.’ In conclusion the learned judge says: ‘Were the construction contended for by the plaintiff in error to prevail, that judgments of the state courts ought to be considered prima facie evidence only, this clause in the Constitution would be utterly unim- portant and illusory. The common law would give such judgments pre- cisely the same effect. It is manifest however that the Constitution contem- plated a power in Congress to give a conclusive effect to such judgments. And we can perceive no rational inter- pretation of the act of Congress unless it declares a judgment conclusive when a court of the particular state where it is rendered would pronounce the same decision.’ 262 ESTOPPEL BY RECORD. judge was not alone in thus construing the opinion of the majority of the court. Other courts of high character at first supposed that the Supreme Court of the United States had pro- nounced the same rule.!_ If this was the intention, the rule has been modified, as we shall see, by later decisions of the same court, which hold that there is no estoppel in ordinary cases to deny the jurisdiction of the court which rendered the judg- ment 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 jurisdic- tion2 Whatever the court really meant to declare upon that point, they were 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 2. Duryee, has undergone minute examination ; this we shall now see. Ina subsequent case before the same court the question arose whether, under the Constitution and act of Congress, the statute of limitations of Georgia could be pleaded to an action in that state founded on a judgment rendered in South Carolina. It was the opinion of the court that the provisions upon the'subject 1 Commonwealth v. Green, 17 Mass. ® Shumway v. Stillman, 4 Cow. 292; 515, 546; Hall v. Williams, 6 Pick. 232, s.c. 6 Wend. 447. 243. See Carleton v. Bickford, 13 Gray, 43 Wheat. 234, 591. 5 See Griffin v. Eaton, 27 Ill. 379, 2 D'Arcy v. Ketchum, 11 How. 165; holding that if technicalities have been Christmas v. Russell, 5 Wall. 290; abolished in the sister state, they must Cheever v. Wilson, 9 Wall. 108; Thomp- not be used to defeat the judgment son v: Whitman, 18 Wall. 457; post, elsewhere. p- 288. FOREIGN JUDGMENTS IN PERSONAM. 263 were intended only to preclude inquiry into the subject-matter of the judgment; and that therefore the statute of limitations, not being a plea to the merits, was an admissible plea.’ 1 McEImoyle v. Cohen, 13 Peters, 812. See Jones v. Drewry, 72 Ala. 311 (on-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 cout of a state is not to be regarded in the courts of her sister states as a foreign judg- ment, or as merely prima facie evidence of a debt to sustain an action upon the judgment, it is to be considered only distinguishable 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 judgment is a record, conclusive upon the merits, to which full faith and credit shall be given, when authenticated as the act of Con- gress has prescribed. It must be ob- vious, when the Constitution declares that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state and provides that Congress may by general laws prescribe the mauner in which such acts, records, and pro- ceedings shall be proved, and the effect thereof, that the latter clause, as it re- lates to judgments, was intended to pro- vide the means of giving to them the couclusiveness of judgments upon the merits when it is sought to carry them into judgments by suits in the tribunals of another state. The authenticity of a judgment, and its effect, depend upon the law made in pursuance of the Con- stitution; the faith and credit due to it as the judicial proceeding of a state is given by the Constitution independently of all legislation. By the law of 26th of May, 1790, the judgment is made a debt of record not examinable upon its merits; but it does not carry with it into another state the efficacy of a judg- ment 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 permit. It must be conceded that the judgment of a state court can- not be enforced ont of the state by an execution issued within it. This con- cession admits the conclusion that . . 4 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 Con- stitution intended to accomplish by that section, if we reflect how unsettled the doctrine was upon the effect of foreign judgments, or the effect rei judicata throughout Europe, in England, and in these states, when our first Confedera- tion was formed. On the continent it was then and continues to be a vexed question, determined by each nation ac- cording to its estimate of the weight of authority to which different civilians and writers upon the law of nations are entitled. . . . In these states when colonies the same uncertainty existed. When our Revolution began and inde- pendence was declared, and the Confed- eration was being formed, it was seen by the wise men of that day that the powers necessary to be given to the con- federacy, and the rights to be given to the citizens of each state in all the states, would produce such intimate re- lations between the states and persons. that the former would no longer be for- eign 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 ta the uncertainty upon the subject of tha effect of judgments obtained in the dif- ferent states. . . . What faith and credit then is given in the states to the judgments of their courts? They are 264 ESTOPPEL BY RECORD. 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! 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 that it was immaterial whether the verdict was given upon that ground or upon the plea of payment. The judgment was con- elusive 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- record evidence of a debt, or judgments ef record, to be contested only in such way as judgments of record may be ; and consequently are conclusive upon the defendant in every state except for such causes as would be sufficient to set aside the judgment in the courts of the state in which it was rendered. In other words, as has been said by a com- mentator upon the Constitution: “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 judg- ment ; 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 successfully pleaded to an administration decree ob- tained in Virginia. 1 David v. Porter, 51 Towa, 254. The judgment in question in this case (rendered in Nebraska) was however deemed to be merely ‘dormant’ in Nebraska, and an action upon it was allowed. 2 Sweet v. Brackley, 53 Maine, 346. 8 Commonwealth v. Green, 17 Mass. 514. * State v. Candler, 3 Hawks, 393. FOREIGN JUDGMENTS IN PERSONAM. 265 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 another stute, 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 it is held that the Constitution has no reference to matters sub- sequent to the judgment, such as issuing and returning execu- 1 McElImoyle v. Cohen, 13 Peters, 312; Cameron v. Wurtz, 4 McCord, 278; Brengle v. McClellan, 7 Gill & J. 434; Harness v. Green, 20 Mo. 316. 2 Engel v. Scheuerman, 40 Ga. 206. So Pearce v. Olney, 20 Conn. 544, 3 Post, pp. 298-295. 4 Indiana v. Helmer, 21 Iowa, 370; Healy v. Root, 11 Pick. 389. In the ease first cited for this proposition the action was based upon a judgment ren- dered in another state in accordance with a statute of that state prescribing proceedings to enforce the support of bastard children by the father. To the objection that this was 4 proceeding to enforce » mere police regulation of another state the court replied: ‘There is much truth in the legal proposition upon which this claim rests; but the error is in its application. If the mother of a bastard child, begotten and born in the state of Indiana, had come to Iowa and sought legal proceedings to compel the defendant, its father, to support it and to give bond therefor and otherwise comply with the require- meuts of the statutes of Indiana, the answer of the defendant, that the sub- ject-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. Mon- sergh, 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 pen- alty provided by statute of such sover- eignty for the wrongful act of a defend- ant therein. Both are alike matters of local internal police, and enforceable alone by the sovereignty making the regulation and providing the penalty. But where the local jurisdiction has at- tached, and the courts of that state or sovereignty have properly taken cogni- zance of the matter, and rendered judg- menf for such penalty, such judgment is entitled to ‘‘ full faith and credit” in every other state. . . . And the courts of such other state will not inquire into the facts upon which it was based, nor whether the cause of action would have been enforced by them.’ 266 ESTOPPEL BY RECORD. tion thereon, and that the same faith is not due to these as to the judgments of sister states. The parties may indeed insist that the judgment shall only have its proper effect of res judicata? The case first cited for this was an action upon a joint judgment of a sister state, from the record of which it appeared that a defendant 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 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 they 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 Jands in Alabama only, 1 Carter v. Bennett, 6 Fla. 214. 2 Smith v. Smith, 17 Ill. 482; Can- dee 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. ® See also Suydam ». 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 re- spective persons or property, and a judgment in such case against one in one state ia no bar to a recovery against the others in another state.’ FOREIGN JUDGMENTS IN PERSONAM. 267 so that those set off could not amount to a full satisfaction of the widow's claim. 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 ques- tion 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 Louisiana, valid by the laws of that state, against one of several joint debtors, the others not being served or within the jurisdiction of the court, is valid in New Hamp- shire, when suit is brought upon it, though such a judgment would be void by the laws of the latter state? In like man- ner the record of a judgment in a sister state in favor of the plaintiff establishes conclusively, not only the right of action, but also the right of the plaintiff to sue in the capacity in which he brought the original suit. For only such pleas as would be good to an action upon the judgment in the sister state may be pleaded elsewhere. A plea to the capacity of the plaintiff to sue for example as a lunatic, by next friend, would be a plea in abatement, proper only in the original action; and if not then pleaded, it could not be pleaded to a suit upon the judgment in that state or consequently in any other. 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 1 Renaud v. Abbot, 116 U. S. 277, reversing Wilbur v, Abbot, 60 N. H. 40; Hanley v. Donoghue, 116 U. S. 1, 3, citing Maxwell v. Stewart, 22 Wall. 77; Insurance Co. v. Harris, 97 U.S. 831; Green v. Van Buskirk, 7 Wall. 139 ; Cooper v. Reynolds, 10 Wall. 308. See also Richards v. Barlow, 140 Mass. 218, 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. 2 Renaud v, Abbot, 116 U. S. 277; Hanley v. Donoghue, ib. 1. Such laws are valid. Ibid. 8 Cook v. Thornhill, 13 Tex. 293; Wayland v. Porterfield, 1 Met. (Ky.) 638. So a judgment for a party, ren- dered in another state, is conclusive evidence of the existence of that party at the time of the rendition of the judgment. Cook v. Steuben Bank, 1 G. Greene (Iowa), 447. * Goodrich v. Jenkins, Wright, 348 ; 8. 0. 6 Ohio, 44. 268 ESTOPPEL BY RECORD. 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.? On the other hand a judgment rendered in a sister state will not bar an independent demand though springing from the same ground as the former suit.2 Thus the fact that a decree of di- vorce 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 dismissed so far as it prays for divorce. But a decree for alimony in this second suit will preclude the husband from contesting the claim in a third suit, 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 de- cree; 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 de- cree 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 sup- port and maintenance of the wife, and as the propriety of so doing had not been adjudicated 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 1 Baker v. Rand, 13 Barb. 152, ments. The application of the rule to 2 Thid. cross demands is there considered. 8 See ante, pp. 164-176, in regard to * Rogers v. Rogers, 15 B. Mon. 364. this rule as applied to domestic judg- See McCall v. Carpenter, 18 How. 297. FOREIGN JUDGMENTS IN PERSONAM. 269 Kentucky to subject certain property of the husband to the pay- ment 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 therefore void. In regard to this question it was held, in accordance with a familiar doctrine, that as the hus- band had appeared in the Ohio suit and contested the claim of the wife, the court had jurisdiction both of the person and sub- ject-matter;1 and the wife prevailed. 1 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 comprehensive, 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 undertook to modify or change it, its action was revisory ; it was exercising an appellate jurisdiction which did not belong to it ; and conse- quently its decree was void for want of jurisdiction. We suppose the position will not be controverted that so far as the courts of any of the states might attempt to change or alter the judg- ments or decrees of another state upon the ground that the decision of the case was erroneous, they would be assuming the exercise of a jurisdiction that does not belong to them, and their action in the premises would be wholly invalid. In illustration of this principle we will suppose that an issue had been made and fairly tried in a court of competent jurisdiction in this state, and a final judgment rendered between the parties on the matters involved in the issue, and that afterwards one of the parties had attempted to relitigate the same matters, between the same parties, in one of the courts of a sister state, hav- ing 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 virtually assumed, in sustaining the right of one of the parties to retry the same matters which had been previously decided, a revisory jurisdiction 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 undertakes 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 correct- ness of this doctrine is conceded, its applicability in the present case is the point to be determined. . . . Nothing was alleged [in the first suit] by either party in relation to the husband’s es- tate, nor was there any claim for a por- tion thereof presented by the wife in the event that the husband should suc- ceed 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 attributed to it of absolving the 270 ESTOPPEL BY RECORD. 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 as- sets 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 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- husband and his estate from all lia- bility to contribute anything towards the support of the wife.’ After show- ing that the statute upon the subject did not have this effect he proceeds : ‘Whether the wife, having failed to present her claim for » portion of the husband’s estate to the court granting the divorce, would be thereby precluded from asserting it in a subsequent 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 un- dertake to retry an issue which had heen previously decided by a court of competent jurisdiction in this state. If it were conceded 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 precluded from asserting it in another action, it would not follow that the decree ren- dered by the court in Ohio would for that reason be invalid, or be void for want of jurisdiction. The most that could be urged against it on that ground would be that it was erroneous ; until reversed however, or if it be irre- versible, it is entitled to the same con- sideration 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 de- cision ; and whatever may be correct concerning the first position, that the court in Ohio had rightly entertained 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 provi-. sions of the Constitution and act of Congress. : 1 Davis v. Connelly, 4 B. Mon. 136. FOREIGN JUDGMENTS IN PERSONAM. 271 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 liability, 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. The judgments of courts in sister states are conclusive of the law applied to the particular case, so far as the effect of a par- ticular judgment is concerned. The case of Rocco v. Hackett ® well illustrates the principle. That case was a suit in New York upon a judgment rendered in Massachusetts, on service and appearance, in an action upon a prior judgment in Massa- chusetts rendered without either service or appearance, the defendant being a non-resident. The court said that they were not at liberty to inquire upon what views of the law that court proceeded ; or whether, if they had to pass upon the same ques- tions, they would have rendered the same judgment. They could no more say that that court erred in holding the previous judgment, obtained without actual service of process on the person of the defendant, valid and binding, and disregard their .. } Destrehan v. Scudder, 11 Mo. 484, 2 Stedman v, Patchin, 34 Barb. 218. 3 2 Bosw. 579. : 272 ESTOPPEL BY RECORD. adjudication upon that question, than in any case where it ap- peared that a judgment was recovered on demurrer to a com- plaint they would hold the judgment open to inquiry because they might deem the complaint insufficient in law to warrant a judgment. Nor can error of fact in the enrolment be set up collaterally against the judgment. In the case of Hassell v. 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 for; and that the mistake and real intention of the court appeared clearly both from the whole record and the matter adduced in evidence at the present trial. But the court replied that the alleged mistake could not be noticed in the courts of another state; nor could such courts reform a decree of a sister state so as to make it speak the unexpressed intention of another court. Again in a case in the Supreme Court of Iowa? the defendant to an action upon a judgment rendered in a sister state endeav- ored to show that the judgment was void because rendered upon a contract 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 other 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 errone- ous, and until set aside in the state where rendered it was not liable to impeachment elsewhere.* 1 See Imrie v. Castrique, 8 C. B, 354; McLendon v. Dodge, 32 Ala. n. 8. 405; 8. c. in error, L. R. 4H. L. 491; Gunn v, Howell, 85 Ala. 144; 414. Hassell v. Hamilton, 33 Ala. 280 ; Tay- 2 33 Ala. 280. lor v, Kilgore, ib. 214; Hart v. Cum- 8 Milne v. Van Buskirk, 9 Iowa, mins, 1 Clarke (Ia.), 564; Struble v 658. Malone, 3 Clarke (Ia.) 586; Milne »v. 4 See ante, p. 102; also Weyr v Van Buskirk, 9 Towa, 558; Indiana Zane, 3 Ohio, 306 ; Goodrich r. Jenkins, v. Helmer, 21 Iowa, 370 ; Barringer v. Wright, 348 ; Riley », Murray, 8 Ind. Boyd, 27 Miss, 473; Conway v. Ellison, FOREIGN JUDGMENTS IN PERSONAM. 273 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, 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 Lou- isiana, 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 14 Ark. 360; Buford v. Kirkpatrick, ton v. Noyes, 6 Johns, 296; Compher 8 Eng. 33. », Anawalt, 2 Watts, 490. 1 Rogers v, Burns, 27 Penn. St. 525 ; 2 De Ende v. Wilkinson, 2 Pat. & Cyphert ». McClune, 22 Penn. St. 195; H. 663; Rogers v. Rogers, 15 B. Mon. Coxe v. Nicholls, 2 Yeates, 546 ; Den- 364, 18 274 ESTOPPEL BY RECORD. 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 Kentucky, and conclusive between the parties in all her tribunals. Such was the decision of the highest court of the state, and it was undoubtedly correct; and if so, it was not competent for any state to authorize its courts to open the merits and review the case, much less to enact that such a judgment shall not receive the same faith and credit that by law it had in the state courts from which it was taken.’! 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 plaintiffs 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 * Christmas v. Russell, 5 Wall. 290. Phillips v. Godfrey, 7 Bosw. 150. FOREIGN JUDGMENTS IN PERSONAM. 275 defendant for the balance of the account. The court upon the first point ruled that though jurisdiction could only be enter- tained 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.! The effect of a judgment of a sister state in insolvency, under a law of that state, arose in Vermont in the recent case of Hall v. Winchell? 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 judgment} but he alleged that the cause of action arose and the promises for the breach of which the plaintiff 1ecovered 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 property in Vermont. The defendant demurred; and the demurrer was sustained? _ 1 In regard to the second objection it was held that the judgment 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 liability of the defendant for damages for mis- representing their quality. The plain- tiffs were not bound to recoup but might avail themselves of the right of suing for this wrong. 2 38 Vt. 588. 8 The court by Wilson, J. said : ‘It appears to be well settled.in this state that a judgment rendered in one state, by a court having jurisdiction of the suit, will: operate as u merger of the cause of action, and be a bar to the fur- ther prosecution 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 institu- tion of the proceedings in insolvency, is of no importance. Either of them was a debt due to the plaintiff, within the meaning of the statute. The plain- tiff’s counsel insists that. the attachment in this state, prior to the commencement of the proceedings in insolvency which resulted in the defendant's discharge, should except his debt from the opera- tion of the discharge ; but we think the language of the statute does not justify such conclusion. The statute makes 276 ESTOPPEL BY RECORD. 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 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 would 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 judgment 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 plain- tiff on the other notes, but in regard to the one now in question the defendant had gone without day or had been discharged, 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.2_ The rule in such cases is thus stated by Mr. Justice Nelson: 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 be- tween the same parties upon the same matter directly in ques- tion in another court or suit; but is no evidence of a matter which comes collaterally in question merely, nor of matter inci- dentally cognizable or to be inferred by argument or construc- tion fron the judgment.* Secondly, if it does not appear from no such exception. It is a law of dis- claim presented against a suit in a sis- charge ; it does not merely take away the remedy in that state, but it fully and absolutely discharges the debt everywhere. Courts here should give the same operation and effect that was intended by the legislature of that state.’ 1 Sarchet v. Sloop Davis, Crabbe, 185, and cases cited; McElmoyle », Cohen, 13 Peters, 312; Matoon »v. Clapp, 8 Ohio, 248. So of a counter- ter state, but dismissed for want of prosecution. Rankin v. Barnes, 5 Bush, 20. 2 Burnham v. Webster, 1 Woodb. & M. 172; Baker v. Rand, 13 Barb. 152, 160, 161, and cases cited. 3 Lawrence v. Hunt, 10 Wend. 80, 83. * Duchess of Kingston's Case ; Jack- son v% Wood, 8 Wend. 9;8.c, 3 Wend. 27, FOREIGN JUDGMENTS IN PERSONAM. 277 the record that the verdict and judgment in the former suit were directly upon the point or matter sought to be put again in litigation in the second action, the fact may be shown ali- unde, provided the pleadings in the first suit were such as to justify the evidence of those matters, and that it also appeared that when proved the verdict or judgment 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 the Court of Chan- cery ; and this court will not, subject to the limits pertaining to domestic judgments,’ permit one who has had his claims inves- tigated in another state to raise the same questions for reinves- tigation on the same facts. Therefore an answer to a bill filed in Vermont that a decree was pronounced in Massachusetts, dismissing a bill in chancery for the same cause, between the same parties, the court having jurisdiction, 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 attor- ney of any court of record in the United States to confess judg- ment.’7 Nor is it necessary to the conclusiveness of the record that it state in detail all the proceedings in the case. It will be sufficient if it shows the subject-matter of the suit, jurisdiction over the parties, and the final judgment. 1 See Bailey v. O'Connor, 19 N. H. 202. This subject has been considered at length in the chapter on Domestic Judgments in personam. 2 Frayes v. Worms, 10 C. B. N. 8. 149; Plummer vr. Woodburne, 4 Barn. & C. 625 ; Douglas v. Forrest, 4 Bing. 686. ‘ % Ante, pp. 190, 191. 4 Brown v. Lexington & D. R. Co., 2 Beasl. 191; Low v. Mussey, 41 Vt. 893 ; Munson v. Munson, 30 Conn. 425. See Pennington v. Gibson, 16 How. 65; Nations v. Johnson, 24 How. 195, 203. 5 Low v. Mussey, supra. 6 Harness v. Green, 19 Mo. 323. T Randolph ». Keiler, 21 Mo. 557. 8 Knapp v. Abell, 10 Allen, 485, per Gray, J. See Grignon v. Astor, 2 How. 340 ; Hockaday v. Skeggs, 18 La, An. 681. 278 ESTOPPEL BY RECORD. 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. Mr. Chief Justice Buchanan speaking for the court said that though the rule was that foreign judgments 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 jude- ments.2 But the federal courts were not foreign to the state courts. The Constitution and laws of the United States were 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 attri- butes of a domestic court placed it upon a ground very different from that of a foreign court. The point is well settled? 1 Barney v. Patterson, 6 Har. & J. the chain of title thus destroyed. Rider 182, v. Alexander, D. Chip. 267; McCall v. ® Taylor v. Phelps, 1 Har. & G. 492. Carpenter, 18 How. 297. But where the judgment through which 8 Chicago R. Co. v. Wiggins Ferry title is claimed is void, as for want of Co., 108 U. S. 18; Embrey v. Palmer, jurisdiction, the fact may be shown and 107 U. 8. 3, 10 ; Thompson v. Lee Co., . FOREIGN JUDGMENTS IN PERSONAM. 279 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. ss 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 pro- ceedings 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 justice as understood in civilized countries, or by the law of the state in which it was rendered? 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 rendered 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 dec- laration set out a summons to the defendant, therein described as formerly of Dunkirk and now of London, which summons was returned, ‘served, &c., by nailing up a copy of the declara- tion at the court-house door’ Judgment was afterwards given by default. It was alleged and there was parol proof that this 22 Iowa, 206 ; Womack v. Dearman, 7 tries. Scott v. Pilkington, 2 Best & Port. (Ala.) 513. 8.11. 1 Embrey v. Palmer, 107 U. S. 3, 8 Embrey v. Palmer, 107 U. 8. 3; 10 McElmoyle v. Cohen, 13 Peters, 312, 2 Merchants’ Ins. Co. v. De Wolf, 326. 83 Penn. St. 45. And the same is 4 Buchanan v. Rucker, 9 East, 192; true of the judgments of foreign coun- s. c. 1 Camp. 72. 280 ESTOPPEL BY RECORD. ‘mode of summoning absentees was warranted 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 ‘Lords.2 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 epinion 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 judgment ‘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 1 In delivering the opinion of the ‘eourt 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 under- stood 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 @ person who for aught appears never was present within or subject to the jurisdiction. Supposing however that the act had said in terms that though @ 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 construed does not war- rant such an inference; for “ absent from the island” must be taken only to apply to persons who had been pres- ent there and were subject to the juris- diction of the court out of which the pro- cess issued ; and as nothing of that sort was in proof here to show that the defend- ant was subject to the jurisdiction at the time of commencing the suit, there is no foundation for raising an assumpsit in law upon the jugment so obtained.’ 2 Don v. Lippman, 5 Clark & F. 1. 5 4 Bing. 686. FOREIGN JUDGMENTS IN PERSONAM. 281 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 rule 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 probable that if upon appearance between citizens an issue had been joined 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 1 See Schibsby v. Westenholz, L. R. 6 Q. B. 155, reaffirming the doctrine of the above cited cases. See also Copin v. Adamson, L. R. 9 Ex. 345, 2 Such appearance would not, ipso facto, give the court jusisdiction over the defendant for all purposes, Wall- ing v. Beers, 120 Mass. 548. See Wright v. Andrews, 180 Mass. 149; Bissell v. Briggs, 9 Mass. 462, 468, 469; Wright v, Boynton, 37 N. H. 9; Lincoln v. Tower, 2 McLean, 482 ; Cun- _ ningham v. Goelet, 4 Denio, 71 ; Gen- eral Nav. Co. v. Guillon, 11 Mees. & W. 877, 894; Schibsby v. -Westenholz, L, R. 6 Q. B. 155, 162; Chichester », Chichester, 10 P. D. 186. . General ap- pearance is a waiver of defective notice. Frew v. Taylor, 106 Ill. 159, 162 ; Peo- ple v. Sherman, 83 Ill.. 165; Hale ». People, 87 Ill. 72; Harbaugh v. Albert- son, 102 Ind. 69, 75. See King v. Penn, 43 Ohio St’ 57. In regard to adju- dication respecting the jurisdiction see Segee v. Thomas, 3 Blatchf. 11; Bon- sall v. Isett, 14 Iowa, 309 ; Shawhan ». Loffer, 24 Iowa, 217; Hangerford v. Cushing, 8 Wis. 324. 8 Hall v. Odber, 11 East, 124; Plummer v. Woodburne, 4 Barn. & C. 625; Smith v. Nicolls, 7 Scott, 147; 8. c. 5 Bing. N. C. 208; Bank of Australasia v, Harding, 9 C. B. 661. 282 ESTOPPEL BY RECORD. 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 jurisdiction of courts of the sister states has until recently been in consider- able 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 declar- ing 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.2 But however general the language 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 ex- plicitly 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 unimpeachable. The deci- sion must be considered with reference to the facts in the case. We purpose now to consider first those cases in which the rec- ord 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 per- sonal service by the officer upon one of the defendants, and ‘not to be found in the county’ concerning the other. The record stated an appearance of the party served, by Ais attorney; but in a subsequent part of the record it was recited that the defend- ants (naming them) appeared by ¢heir 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 1 3 Cranch, 881. 2 Commonwealth v, Green, 17 Mass, 544; Gleason v. Dodd, 4 Met. 333. * Hall v. Williams, 6 Pick. 232. FOREIGN JUDGMENTS IN PERSONAM. 283 therein. The plaintiff replied the record as an estoppel; but the court overruled the replication on demurrer. In a case in Alabama similar to Hall v. Williams, just referred 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 trial2 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 consistent with this recital that the plaintiff and one defendant came by attor- ney; and it was not, as the cases go, disputing the record to show that one deféndant 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 1 Parker, C. J. said : ‘If it appeared by the record that the defendants had notice of the suit, or that they appeared vin defence, we are inclined to think that it could not 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 mis- take or otherwise, the aggrieved party must resort to the authorities where the judgment was rendered for redress ; for he could not be allowed to contra- dict 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 allowed to avoid the effect of the judgment here by showing that he was not within the jurisdiction of the court which ren- dered it ; for it is manifestly against first principles that a man should be condemned .. . without an opportu- nity to be heard in his defence.’ In re- gard to the recital of the appearance 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 Wil- liams. There is nothing therefore in the record which is contradicted by the second and third pleas, and the rep- lication by estoppel is therefore bad and the plea good, which settles the case in favor of the defendants.’ 2 Puckett v. Pope, 3 Ala. 552; Cat- lin v, Gilders, ib. 536, 3 Wright v. Andrews, 130 Mass. 149. 4 Aldrick v. Kinney, 4 Conn. 380. 284 . ESTOPPEL BY RECORD. 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 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 plaintiff’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? 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: ‘This evidence does not contradict the record but explains it. The appearance was the act of the counsel, and not the act of the court. Had the entry been that L. P. Perry came personally into court and waived process, it could not have been contro- verted. But the appearance by counsel, who had no authority to waive process or to defend the suit for L. P. Perry, may be explained. An appearance by counsel under such circumstances, to the prejudice of a party, subjects the counsel to damages; but this would not sufficiently protect the rights of the defend- ant. He is not bound by the proceedings, and there is no other principle which can afford him adequate protection.’ 1 Robson v. Eaton, 1 T, R. 62. 2 Shelton v. Tiffin, 6 How. 163. FOREIGN JUDGMENTS IN PERSONAM. 285 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 presumed in the domestic courts.2 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 require the plaintiff in the judgment to prove the jurisdiction (in the silence of the record) where there was nothing to show that the defend- ant 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. The court said that the record stated a conclusion only, and not the fact upon which it was based. In view of the non-residence of the defendant it could be held to mean no more than that such notice had been given, actual or constructive, as according to the law of the state would warrant a judgment in rem. There are some apparent exceptions to this rule, as in the 1 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. Nos- ler, 1 Clarke (Ia.), 588; Lawrence », Jarvis, 32 Ill. 304; Harshey v. Black- marr, 20. lowa,'161. The last-named case contains a very exhaustive discus- sion of the doctrine by Dillon, J. But see Warren v. Lusk, 16 Mo. 102. 2 Wright v. Andrews, 1380 Mass. 149. 3 Ante, pp. 202, 203. 4 Downer v. Shaw, 22 N. H. 277; Barringer v. King, ‘5 Gray, 9, 11; Com- monwealth v. Blood, 97 Mass. 538. 286 ESTOPPEL BY RECORD. 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? 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 acquired jurisdiction over the defendant at first, retained the same through- out notwithstanding the fact that there was no personal ser- vice 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 so as to dispense with personal notice. He must appear and make himself a party to the record; otherwise the court, though having had personal jurisdiction over his in- testate, will not acquire it over him. And he may show the facts in a suit in another state upon the judgment though the record contain a recital that he came in8 1 Delano v. Jopling, 1 Litt. 117; 2 Robinson v. Ward, 8 Johns. 86; ib. 417; Adams v, Rowe, 2 Fairf. Holt». Alloway, 2 Blackf. 108. 89 ; Poorman v. Crane, Wright, 347. 8 Gleason v. Dodd, 4 Met. 338. In FOREIGN JUDGMENTS IN PERSONAM. 287 Parties and privies then will not be precluded from inquiring into the jurisdiction, — 1. When the record is silent upon the subject ; 2. When it recites simply an appearance of the defendant by attorney ; 3. When it is ambiguous or obscure. the case just cited, a suit upon a judg- ment for costs rendered against a plain- tiff in another state, the record recited that the plaintiff's administrator, de- fendant in the suit for costs, ‘came in,’ upon a suggestion of the death of his intestate. In the present suit upon the judgment he denied any appearance either personally or by attorney ; and the question was whether he were con- cluded 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 administrator, being appointed un- der the laws of the same state, with- out commencing a new suit may come in and prosecute the existing suit in the same manner as if he had com- menced a new one. We understand the record to state that in pursuance of these provisions of law Dodd, claiming to be administrator 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 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 administrator 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 author- ized attorney, is necessary to give the court jurisdiction ; and we think that it is. The administrator 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 compellable to appear, on summons, and has in fact been sum- moned. By the death of the original plaintiff the suit is suspended and must remain so unless an administrator, qual- ified to act in the state where the suit is pending, shall thus come in. Until this is done the court have no jurisdiction of the person of such administrator. We think then it is clear that as to this fact, thus necessary to give the court jurisdiction, the judgment is not con- elusive.’ In commenting upon the concluding remark of the court in a case already referred to (Hall v. Wil- liams, 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 evidence 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 arrested and gave bail, or was person- ally 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 conclusive- ness of judgments as to matters tending to show that the court had jurisdiction does not extend to such recitals, but only to specific averments of fact, such as an arrest, personal service, or per- sonal appearance.’ 288 ESTOPPEL BY RECORD. 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 affords at most but prima facie evidence of jurisdiction; and the de- fendant is now permitted to overturn it! This of course is final authority for the state courts; though the position taken is encountered by some of the best reasoning to be found in the books.? It is a universal rule of law that a judgment of one state or country can have no effect upon the residents of another, be- yond property of theirs seized and disposed of, unless they were personally notified by service of process within the state of the forum, or afterwards appeared generally in defence of the action; and this too regardless of any statute making publication or other notice not personal a substitute for the service of process? And under the decisions of the Supreme Court of the United States above referred to the fact of non-residence and want of personal notice by service within the state in which the judg- ment was rendered 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 are not bound. Indeed it is laid down that judgment rendered against several non-residents jointly is in other states invalid 1 Thompson v. Whitman, 18 Wall. 457; Knowles v. Gaslight Co., 19 Wall. 58; Pennoyer v. Nefi, 95 U. S. 714; Hanley v. Donoghue, 116 U.S. 1, 3; Kingsbury v. Yniestra, 59 Ala. 320; Napton v. Leaton, 71 Mo. 358; Wright v, Andrews, 180 Mass. 149. See Kerr v. Kerr, 41 N. Y. 272; Starbuck ov. Murray, 5 Wend. 148; Carleton 2. Bickford, 18 Gray, 591; Bodurtha v. Goodrich, 3 Gray, 508; Rape Heaton, 9 Wis. 328. 2 Wilcox v. Kassick, 2 Mich. 165; Lincoln v. Tower, 2 McLean, 473 ; Wil- son v. Jackson, 10 Mo. 330 ; Bradstreet v. Neptune Ins. Co., 3 Sum. 600 ; West- cott v. Brown, 13 Ind. 88 ; Lawrence v. Jarvis, 32 Ill. 304; Lapham ». Briggs, 27 Vt. 26; Hall v. Williams, 6 Pick. 232; Shelton v. Tiffin, 6 How. 163. 8 Galpin v. Page, 18 Wall. 350; Durant v. Abendroth, 97 N. Y. 182; ante, p. 196. 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 avail- ‘able against other property than that attached. Ibid. ; Boswell ». Otis, 9 How. 348; Cvoper v. Reynolds, 10 Wall. 308; Durant v. Abendroth, 97 N. Y. 132, 141; Schwinger v. Hickok, 53 N. Y. 280; ante, p. 196, note. 4 Board of Public Works 2. Colum- bia College, 17 Wall. 521. FOREIGN JUDGMENTS IN PERSONAM. 289 against all if jurisdiction over any one of them by service 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 éhem will be held obligatory in other states.2 And in England it is held that judgments bind resi- dents in the same manner as citizens. But a law which should make citizens or residents of the state bound, without service of process or general appearance, by a judgment, beyond prop- erty 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 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 1 Wright v. Andrews, 130 Mass. 149. to the mode of acquiring jurisdiction, though she in fact reside elsewhere. 2 Galpin v. Page, 18 Wal. 350, ante, p- 196; Hood v. Hood, 11 Allen, 196; Don v. Lippman, 5 Clark & F. 1; 8chibsby v. Westenholz, L. R. 6 Q. B. 155 ; Douglas v. Forrest, 4 Bing. 686 ; ante, p. 289. See Burlen 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 Hood v. Hood, 11 Allen, 196. See also Dolphin v. Robins, 7 H. L. Cas. 390; Story, Confl. Laws, § 46. 3 Rousillon v. Rousillon, 14 Ch. D. 351; Schibsby v. Westenholz,L. R. 6 Q. B. 155. * That includes judgments of divorce. Ante, p. 219. 5 Foote v. Newell, 29 Mo. 400. ® Menlove v. Oakes, 2 McMull. 162, 19 290 ESTOPPEL BY RECORD. 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. 1 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 dis- pute that as against the defendant [not served] the judgment was anything more than one in form, and that in sub- stance it concluded nothing against the person not served. For the provision against every other defendant that it shall be evidence only of the extent of the plaintiff's demand, after the liabil- ity of such defendant shall have been established by other evidence, plainly shows that it was intended only as a final judgment against the defendant served, and that everything was left open 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 evidence? This was putting the plain- tiff to prove his case from the begin- ning. When this is so, there can be nothing 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 judgment on such proof establishes only the amount of the plaintiff's demand, not its justice ; this may be disputed in an action upon the judgment. After referring to the decisions of the courts of New York (Carman v. Townsend, 6 Cow. 695; s. c. 6 Wend. 206 ; Halliday v. McDou- gall, 22 Wend. 270) in support of the above-stated view Mr. Justice O’Neall proceeds : ‘But be this as it may, it is very clear that the judgment thus ob- tained in New York can have no extra- territorial effect. For as against the party not served it cannot be regarded as a judgment further than as a mere means by which the partnership effects in New York are made liable to the joint debt. In this respect it is analo- gous to judgments in attachment, or FOREIGN JUDGMENTS IN PERSONAM. 291 A case precisely similar occurred in 1846 in the Supreme Court of Connecticut! involving the same statute. It was urged ag 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 evidence of liability, but on grounds of local policy, as a con- venient 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- erty in Vermont, and that he was then living out of that state. The court held that the action must fail in the absence of any- thing in the record showing personal notice to the defendant in Vermont, or appearance in the suit. “They said that the state of Vermont might assert jurisdiction over property situated within its territorial limits though the owner was not a resident of the state; and that so far the proceedings in that state were 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® decrees pro confesso against absent de- § * Mervin v. Kumbel, 23 Wend. 293. fendants in equity.’ See Buckner +. 8 Downer v. Shaw, 22 N. H. 277. Archer, 1 McMull. 85; Lesterjette »v. 4 Hall v. Williams, 6 Pick. 232, 241, Ford, ib. 86, note, cited by court. cited by the court. 1 Wood v. Watkinson, 17 Conn. 500. 5 Ante, pp. 46, 47. 292 ESTOPPEL BY RECORD. 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 claimed to be also a creditor of Smith, and demanded an apportionment of the avails of the property, and that the court thereupon ordered an apportionment; that there was a law of Canada that when the proceeds of property sold on ex- ecution were thus paid into court, any person 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 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 1 20 Vt. 65. FOREIGN JUDGMENTS IN PERSONAM. 293 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.2. Indeed judgments of the kind under consid- eration cannot be sued upon even in the court in which they were rendered,’ unless there be clear statutory authority for such @ proceeding. Whether the judgments of a sister state may be attacked for fraud in the courts of any other state has been a subject of con- flicting opinion. The books contain many cases giving affirma- tive answers to the question. Among the cases to the contrary a decision of the Supreme Court of Ohio may be mentioned.5 The facts as they appear in the report of the case were these: The suit was debt upon a judgment recovered in Virginia. 1 Galpin v. Page, 18 Wall. 350, ante, p. 196, note; Wright v. Andrews, 130 Mass. 149; Lincoln ». Tower, 2 Mc- Lean, 473; Westerwelt v. Lewis, ib. 511 ; Steel v. Smith, 7 Watts & S. 447; Miller v. Miller, 1 Bail. 242 ; Chamber- lain v. Faris, 1 Mo. 5173; 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. Rou- sillon, 14 Ch. D. 351. 2 Buchanan v. Rucker, 9 East, 192; 8. c. 1 Camp. 65; Smith v. Nicolls, 7 Scott, 147; s.c. 5 Bing. N. C. 208; The Becquet v, MacCarthy, 2 Barn. & Ad. 951; Vanquelin v. Bouard, 15 C. B. N. s. 341; Meeus v. Thellusson, 8 Ex. 638. See also the authorities cited in the notes to the preceding pages. 3 Cooper v. Reynolds, 10 Wall. 308 ; Galpin v. Page, ante, pp. 196 et seq.. See also ante, p. 288, note 3. Such judgments become exhausted with the disposition of the property attached. Cooper v. Reynolds, supra. ‘ * Holt v. Alloway, 2 Blackf. 108; Borden v, Fitch, 15 Johns. 121; An- drews v. Montgomery, 19 Johns. 162; Shumway v. Stillman, 4 Cow. 292; Hunt v. Hunt, 72 N. Y. 217. See Lucas v. Bank of Darien, 2 Stewt. 280. 5 Anderson v. Anderson, 8 Ohio, 108. 294 ESTOPPEL BY RECORD. 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. Is- sue of fact was joined upon the first, and a demurrer was entered to the second and third pleas; and the demurrer was sustained. In a case in the Court of Chancery of New York? the com- 1 ‘Jt is remarkable,’ said the court, ‘that this question has never received a precise determination. The books abound so fully in the general doctrine that fraud avoids all judicial acts, and the proposition is so often asserted in terms which import that a judgment may for that cause be impeached col- laterally, 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 divorce ; the defendant to the petition residing in another state, and having no notice of the proceedings. It is however said by the court that as the decree was obtained by false and fraudulent repre- sentations, it was void; and Fermor’s Case, 3 Coke, 77, is relied upon as the only authority. . .. But it is impor- tant to examine Fermor’s Case. It was a bill in chancery to annul a fine ; that is it was a proceeding directly instituted to get rid of a judgment at law. Richard Fermor the plaintiff de- mised land to the defendant Thomas Smith for twenty-one years. After- wards Smith fraudulently levied a fine to bar the plaintiff of the inheritance. And it appears to have been a great question then whether the plaintiff could be relieved even in- chancery ; for it is said that it was debated two days before all the judges of England and the barons of the Exchequer, when it was finally determined in his favor. So that Fermor's Case, so far from being an authority in support of the position that a judgment may be impeached col- laterally, is an authority the other way. . . . With regard even to foreign judgments there appears now to be the strongest inclination to depart from the doctrine that they are only prima facie evidence.’ After referring to cases al- ready considered, holding to the conclu- siveness of foreign judgments (Tarleton v. Tarleton, 4 Maule & S. 20; Boucher v. Lawson, Cas. temp. Hardw. 89 ; Mar- tin v. Nicolls, 3 Simons, 458), he pro- ceeds to say : ‘If such is the view which is now taken of the efficacy of foreign judgments, what shall we say of the at- tempt to impeach collaterally a judg- ment of a sister state, which has all the force and validity of a domestic judg- ment? That it cannot be vindicated either upon principle or authority, and that although loose dicta in abundance 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 determina- tion of the question at the time of the decision of this case, The point had been raised several years earlier in Mas- sachusetts, and the same rule had been declared. McRae v. Mattoon, 18 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 sec- ond 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 successful player. The doctrine of this case was recently held by the Su- preme Court of Connecticut. Sanford v. Sanford, 28 Conn. 6, 28. 2 Bicknell v, Field, 8 Paige, 440. FOREIGN JUDGMENTS IN PERSONAM. 295 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 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 sustained on appeal. Chancellor Walworth said that if the judgment had been. 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 alsa 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 1 Pearce v. Olney, 20 Conn. 544; Engel v. Scheuerman, 40 Ga. 206. Seo Dobson v. Pearce, 12 N. Y. 156. 2 Rogers v. Gwinn, 21 Iowa, 58. 296 ESTOPPEL BY RECORD. 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 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 telieving 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 should hold as the appellant insists we should, we would be giving to the judgment of the court of one sister state a greater force and effect than we would give to a like judgment rendered by our own courts.’ 8 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- 1 In Luckenbach v. Anderson, 47 Penn. St. 123, a suit upon a judgment rendered in New York, the defendant, a resident of Pennsylvania, offered to prove that he had been deceived and decoyed into New York for the purpose of procuring 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 v. White, 17 Towa, 560; Potter v. Parsons, 14 Towa, 286. 2 He cited Harshey v. Blackmarr, 20 Towa, 161; 5 Am. Law Reg. N. 8. 889; 2 Story Eq. §§ 194, 195; Pearce v. Olney, 20 Conn. 544; Dobson v. Pearce, 12 N. Y. 156; Milne v. Van Buskirk, 9 Towa, 558. 3 As to that see ante, p. 267, note 1. FOREIGN JUDGMENTS IN PERSONAM. 297 necticut came to the same conclusion,! and sustained the injunc- tion. The court said that this was no attempt to impeach the validity of the judgment of another state; that the court of equity did not presume to direct or control the court of law; but it 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.2 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. The dicta and decisions to the contrary may now perhaps be considered as overruled, and the doctrine established 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 judginent 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.t 1 Pearce v. Olney, 20 Conn. 544, See Dobson v. Pearce, 12 N. Y. 156, 2 Christmas v. Russell, 5 Wall. 290; Hanley v. Donoghue, 116 U. 8. 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, 8 Christmas v. Russell, supra, was based on the doctrine that fraud is no ground for the impeachment of a do- mestic judgment ; and it would seem to follow from the doctrine of Hampton ». McConnell, 3 Wheat. 234, that if the law of any state is otherwise, and a plea of fraud good as to a home judg- ment, 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. S. 1, 4. Comp. Ferguson v. Crawford, 70 N. Y. 253, where the rule that recitals of jurisdic- tion 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. 4 It has been held that equity will restrain a party from proceeding at law 298 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. Indeed the doctrine of the authorities concerning the impeach- ment of judgments of the sister states for fraud is based upon a merely supposed prevailing rule concerning the right to allege fraud against a domestic judgment! But if a settled rule should obtain throughout the country in accordance with what appears to be the preferable view, viz. that fraud may be collaterally shown against a domestic judgment, there would be no reason why it should not be shown against a judgment rendered ina sister state. However this may be, fraud will at all times no doubt 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 ques- tions of fraud relating to domestic judgments. ‘ Where is litiga- tion 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 [col- lateral] action on the ground that perjury had been committed upon a judgment of a sister state before he has made any attempt to enforce it ; and this too though the attack was di- rectly upon the merits of the case. Winchester v. Jackson, 8 Hayw. 305 ; s. 0. Cooke, 420. For what constitutes the fraud which may be availed of, see ante, p. 211; and see Cammell] v. Sew- ell, 3 Hurl. & N. 617; Patch v. Ward, L. R. 3 Ch, 203. ! Ante, pp. 206-211. 2 See Cammell v. Sewell, 3 Hurl. & N. 617. 3 Ochsenbein v. Papelier, L. R. 8 Ch. 695. 4 Dunlap v. Cody, 81 Towa, 260; Pfiffner v. Krapfel, 28 Iowa, 27; Wan- zer v. Bright, 52 Ill. 35; Luckenbach », Anderson, 47 Penn. St. 128, ante, p- 296, note 1. 5 United States v. Flint, U. S. Cire. Ct. Col. 1876, Bigelow, Fraud, 171, note. FOREIGN JUDGMENTS IN PERSONAM, 299 in the first action, or that false answers had been given to inter- rogatories, or a misleading production of documents, 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 sustained in the United States in regard to judgments of the sister states, at all events.‘ 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. 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- tiff of the right of suing in England upon his original cause of 1 Flower v. Lloyd, 10 Ch. D. 827, D. 295 (C. A.); Hunt v. Hunt, 72 333 (C. A.). N. Y. 217; ante, p. 247, note. 2 Castrique v. Behrens, 3 El. & E. £ Christmas v. Russell, 5 Wall. 290; 709; s.c.3 L. J. Q. B. 163; United Hood v. Hood, 11 Allen, 196; 110 States v. Flint, supra ; 2 Story, Equity, Mass. 463. pp. 878, 876 (18th ed.); Hood » 5 7 Scott, 147; 5. c. 5 Bing. N. C. Hood, 11 Allen, 196 ; 110 Mass, 463. 208. § Abouloff v. Oppenheimer, 10 Q. B. 300 ESTOPPEL BY RECORD. 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 theretore 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 origi- nal ground of action, or bringing an action of assumpsit upon the foreign judgment.’ This was the line of argument advanced by the other members of the court; and the case has been uniformly followed in England.) The same doctrine was held in Texas prior to the admission 1 Bank of Australasia v. Harding, 9 v. Woodburn, 4 Barn. & C. 625; 8. C. C. B. 661; Robertson v. Struth, 5 7 Dowl. & R. 25; Obicini v. Bligh, 8 Q. B. 941. Seealso the earlier cases of Bing. 335. Hall v. Odber, 11 East, 118 ; Plummer FOREIGN JUDGMENTS IN PERSONAM. 801 of that state into'the Union! And the court of Massachusetts have 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 differ- ent rule in relation to the judgments of the sister states. The case of Bank of the United States v. 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 plaintiffs 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. Aud 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.4 1 Wilson v. Tunstall, 6 Tex. 221; Frazier v. Moore, 11 Tex. 755. 2 Wood v. Gamble, 11 Cush. 8. 8 7 Gill, 415. 4 After considering and overruling several objections to the form of a plea, as that it should have been pleaded puis darrein continuance, 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-ex- aminable and could not be controverted with respect to the merits of the origi- nal demand ; that the parties were pre- cluded 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 attribnted 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 enti- tled in the. state where it was pro- 302 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 justice said that the effect of 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 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 nounced ; and that it has all the opera- tion and force in Maryland that could be claimed for it in Pennsylvania as conclusive in relation to the merits of the claim and the subject-matter of the suit, — it follows as an irresistible con- clusion, upon the undoubted principles of the common law, that it must oper- ate here as an extinguishment of the original demand. We think it there- fore to be clear, upon the true exposi- tion 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 as- sumpsit upon the cause of action exhib- ited in the record if the judgment. set forth in the plea had been obtained in Pennsylvania prior to the commence- ment of the suit.’ The court added that, though the judgment in question was obtained after the present suit was instituted, the defendants were author- ized in specially pleading the matter. In McGilvray v. Avery, 30 Vt. 538, the defendant was sued simultaneously upon the same cause of action in New Hampshire and Vermont. 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. FOREIGN JUDGMENTS IN PERSONAM. 303 upon the question whether the judgment should be affirmed, reversed, or moditied, 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,3 the plaintiff sued in assumpsit, and it appeared from facts agreed that a recovery in Maine upon the same cause of action had been obtained by the plaintiff against the same defendants. The record did not show any notice or ‘appearance by either defendant; but it did state that one of them was a resident of New Hampshire. After holding that in such case there would be no presumption in favor of notice to or appearance by this non-resident defendant the court held that the judgment in Maine was not an estoppel against the suit in New Hampshire in respect of the last-mentioned party.’ 1 Case v. Case, Kirby, 284; Sloan’s Appeal, 1 Root, 151; Curtiss v. Beards- ley, 15 Conn. 523. 2 See Scott v. Pilkington, 2 Best & 8. 11. 3 Rangely v. Webster, 11 N. H. 299. * The court said : ‘If the judgment is to be regarded asa mere nullity, when an attempt is made to enforce it by an action here, the question arises, Must it not be considered equally a nullity when the defendants set it up as a bar or answer to an action upon the original note upon which that judgment was rendered? Can it be treated by one party as valid, while as it respects the other party, in reference 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 judg- ment is void, while at the same time, if the action were brought upon the original demand, it may be legally as- serted by the same party that the de- mand has passed into judgment, and that the action cannot be maintained for that cause?. .. To maintain the position that in the case of an action upon the judgment the judgment is void and may be so treated, but that when the action is upon the original demand the same judgment is valid, is to maintain that the form and man- ner of the action adopted determine the character of the former judgment, its validity or invalidity, instead of the facts and circumstances attending its recovery.’ The question had been de- termined the same way a few years ear- lier. Whittier v. Wendell, 7 N. H. 3804 ESTOPPEL BY RECORD. The rule then in regard to judgments rendered 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, other- wise not.1 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? There is another rule which seems deducible from the cases, and that is that if the judgment in question was given for the 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? 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 judg- ment for the plaintiff cause no estoppel to a fresh suit, while the opposite rule prevails where it is in favor of the defendant? The distinction (bearing in mind the fact that the doctrine 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 257. To the same effect is Kane v. Cook, 8 Cal. 449. 1 Baxley v. Linah, 16 Penn. St. 241; Barnes v. Gibbs, 2 Vroom, 317 ; Brown v. Lexington & D. R. Co., 2 Beasl. 191 ; Rogers v. Odell, 39 N. H. 457; Child v. Eureka Powder Works, 45 N. H. 547; North Bank v. Brown, 50 Maine, 214 ; Cincinnati R. Co. v. Wynne, 14 Ind. 385; Lapham ». Briggs, 27 Vt. 26; Nichol v. Mason, 21 Wend. 339. But the doctrine of extinguishment, which results from the Constitution and act of Congress, must be taken with some qualification. A judgment in one state cannot extinguish a judg- ment in another state. Weeks v. Pear- son, 5 N. H. 324. In this case the plaintiff had first brought his action in New Hampshire. He then sued in New York on the judgment there rendered. Not having satisfied the same, he sued again in New Hampshire, on the first judgment. The defendant pleaded in bar the judgment rendered in New York ; but the court held the plea bad. 2 But it is held in Louisiana, under the Code, that a judgment of a foreign country extinguishes the original cause of action, so that suit must be brought upon the judgment. Jones v. Jamison, 15 La. An. 35. 8 Frayes v. Worms, 10 C. B. N. 8 149; Plummer v. Woodburne, 4 Barn. & C. 625; 5. c. 7 Dowl. & R. 25. FOREIGN JUDGMENTS IN PERSONAM. 805 cause of action; and this without injury to the rights of the de- fendant. 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. 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 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.2 A case before Lord Mansfield may be stated in illus- tration of this principle? Le Chevelier was assignee in bank- tuptcy 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 1 Smith v. Nicolls, 7 Scott, 147,166, Hanna, 5 Johns. 101; McDaniel v. Tindal, C. J. Hughes, 8 East, 367; Wilkinson v. 2 Taylor v. Phelps, 1 Har. & G. 492, Hall, 6 Gray, 568; Barney v. Douglas, 502; Le Chevelier v. Lynch, 1 Doug. 19 Vt. 98 ; Kimball v. Gay, 16 Vt. 131; 170; Phillips v. Hunter, 2 H. Black. Chase v. Haughton, ib. 594. 402; Holmes v. Remsen, 4 Johns. Ch, 8 Le Chevelier v. Lynch, 1 Doug. 460; 8. c. 20 Johns. 229; Embree v. 170. 20 3806 ESTOPPEL BY RECORD. was due before the bankruptcy, the foreign creditor was only entitled to his share of the dividend under the commission of bankruptcy, and could not attach the money in the hands of Lynch because the right to the money owing by Lynch was vested by the assignment in him, the assignee, for the benefit of all the creditors. But Lord Mansfield, while admitting the proposition to be true generally, said that if after the bankruptcy and before payment to the assignee money owing to the bank- rupt 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 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 nothing for the process to operate upon; and that the courts of Georgia could not construe their statutes in such a way as to injure 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 113 Mass, 153. FOREIGN JUDGMENTS IN PERSONAM. 307 was made would govern its performance. And the plea was allowed.} Tn a subsequent case in the same state? involving the same general question it appeared that no execution had issued against the garnishee in the sister state; and an examination of the statute of the state having convinced the court that the. judg- ment operated only as a lien on the fund (a promissory note) in the hands of the garnishees, and that even that was provisional, to take effect only in case other funds first chargeable should prove insufficient to pay the debt, it was held that the defend- ants’ 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 1 ‘The question then,’ he contin- tion of the court. In this case a true ued, ‘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 con- tract was made. That it was the evi- dence 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 ap- pear that he aided in the procurement of such a judgment by withholding facts essential to the right determina- disclosure appears to have been made; and although 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 competent jurisdiction has so declared it.’(2) 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. 8 Prescott v. Hull, 17 Johns, 284. (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, 308 ESTOPPEL BY RECORD. the suit in Vermont was brought he had assigned the note to A and L, for whose benefit the present suit was prosecuted. The. court held that the replication would have been good had it averred that the debt was assigned for a valuable consideration ; the suit being prosecuted in the interest of the assignees who were not before the court in Vermont and were not parties to the proceedings there. The court would presume that the rights of the assignee would have been recognized and protected had the assignment been known at the trial in Vermont. The pro- ceedings were therefore inter alios; and it was not drawing them into question to hold that the assignees were not concluded. 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 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 v. 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 judg- ment rendered in a foreign country the learned judge proceeded to consider the particular case before him of a judgment of a sister state. He said : ‘The par- ties to these judgments are not the same. Neither are they privies. (1 Green). Ev. § 523.) . . . Privies are divided by Lord Coke into three classes: first, pri- vies in blood; second, privies in law; and third, privies by estate. The doc- trine of estoppel however so far as it applies 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 sime subject-mat- ter. Thus an heir who is privy in blood would be estopped by a verdict against FOREIGN JUDGMENTS IN PERSONAM. 309 The doctrine of this case is well settled.1 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.2_ 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, readopt the language quoted from Stacy v. Thrasher, and say that for the same reasons they hold that a judgment against an executor appointed in one state would not be conclu- sive against another qualified in another state. his ancestor through whom he claims. An executor or administrator suing or ‘sued as such would be bound by a ver- dict against his testator or intestate, to whom he is privy in law. . . . An ad- ministrator under grant of administra- tion 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 receive their authority from different sovereign- ties, and over different property. Each is accountable to the ordinary from whom he receives his authority. Nor does the one come by succession to the other into the trust of the same prop- erty encumbered by the same debts as in the case of an administrator de bonis non, who may be truly said to have an official privity with his predecessor in the same trust, and therefore liable to the same duties. Yare v. Gough, Cro. Jac. 3; Snape v. Norgate, Cro. Car. 167; Dykes + Woodhouse, 3 Rand. 287. [But see Coleman v. McMurdo, 5 Rand. 51; ante, pp. 140, 141.]...A judgment may have the “effect” of a lien upon all the defendant's lands in And the same the state where it is rendered, yet it cannot have that effect on lands in an- other state, by virtue of the faith and credit given to it by the Constitution and act of Congress, The laws and courts of a state can only affect per- sons within their jurisdiction. Conse- quently both as to the administrator and the property confided to him a judgment in another state is res inter alios acta. It cannot be even prima facie evidence of a debt ; for if it have any effect at all, it must be as a judg- ment, and operate by way of estoppel.’ 1 See Dent v. Ashley, Hempst. 54; Taylor v. Barron, 35 N. H. 484; Grout v, Chamberlin, 4 Mass. 613 ; Talmadge v. Chapel, 16 Mass. 71; Pond v. Make- peace, 2 Met. 116; Low v. Bartlett, 8 Allen, 259; Hill v. Tucker, 18 How. 466; McLean v. Meek, 18 How. 16; Rosenthal v, Renick, 44 Il). 202; Latine v. Clements, 3 Kelly, 426. 2 Latine v. Clements, supra; Hill v, Tucker, supra. 8 Ante, pp. 140, 141. * Hill v. Tucker, supra. 5 See also Jackson v, Tiernan, 15 La. 485. 810 ESTOPPEL BY RECORD. 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.? 2. Judgments of foreign Courts of inferior or limited Jurisdiction. We have hitherto had under consideration the judgments of superior courts, or courts of record, of other states and countries ; the judgments of courts of the sister states of limited jurisdic- tion, particularly those of justices of the peace, remain to be examined. Are these within the Constitution and act of Con- gress 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- chusetts2 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 received 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 they yielded rather ‘to the authority than to the reasons’ of the court at Washington? 1 Low v. Bartlett, 8 Allen, 259; were supposed by the Congress which Rosenthal v. Renick, 44 Ill. 202. passed the act providing the manner of 2 Warren v. Flagg, 2 Pick. 448. authenticating records to have related 8 “Certainly we think,’ continued to the proceedings of courts of general Chief Justice Parker, ‘the judicial pro- jurisdiction, and not those which are ceedings referred to in the Constitution merely of municipal authority; (a) for it (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 FOREIGN JUDGMENTS IN PERSONAM. 311 A few years later the Supreme Court of New Hampshire adopted the same rule upon a similar issue! 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 is required that the copy of the record shall be certified by the clerk of the court, and that there shall be also a certificate of the judge, chief justice, or presiding magistrate, that the attestation of the clerk is in due form. This is founded upon the supposition that the court whose proceedings are to be thus au- thenticated is so constituted as to ad- mit of such officers; and the act has wisely left the records of magistrates who may be vested with limited judicial au- thority, varying in its objects and ex- tent 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 . Bickford, 6 N. H. 567; Taylor v, Barron, 30 N. H. 78. clerk, and the seal of the court annexed, if there be a seal, together with a cer- tificate 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 pro- ceedings, 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), extended these provisions to ‘all records and exemplifications of office books . . . not pertaining to a court.’ 312 ESTOPPEL BY RECORD. 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. And when the act provided that the records and judicial proceedings, authenticated as aforesaid, shall have faith, &., it evidently designed to omit.and leave unprovided for the proceedings of such courts as did not admit of such authentication. But the plea in the case did not show that there had been a trial on the merits of the claim, or that there was a trial at all; and on this ground it was overruled. The court refrained from expressing an opinion 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 Hampshire? The court of South Carolina have 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. But this case has been overruled, and 1 It 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 commissioner of an in- solvent estate in Vermont where the intestate resided, and the administrator having appealed from the commission- er’s decree allowing the same, the case had_ been tried on its merits, and judg- ment finally rendered in the Supreme Court of Vermont in favor of the ad- ministrator, 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 al- lowance. Goodall v. Marshall, 14 N. H. 161. 2 Clark v. Parsons, Rice, 16; Law- rence v. Gaultney, Cheves, 7. See also Snyder v. Wise, 10 Barr, 157. 8 D. Chip. 59. FOREIGN JUDGMENTS IN PERSONAM. 818 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 say: ‘When the subject came to be examined upon principle, and in connection with the statutes that give large jurisdiction to justices, this court felt constrained to decide that though a justice has no clerk yet where the law requires him to keep records he must be considered as his own clerk; and if he has no seal, he may use a common seal, or may certify that he has no seal of office, a3 an excuse for omitting to attach one to his copies of record.’ What the doctrine in New York is does not appear to have been determined. In the case of Thomas v. Robinson,? in which a 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 to the question of jurisdiction.3 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.4 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 have 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 v. Harding, just referred to, as authority for the doc- 1 Starkweather v. Loomis, 2 Vt. 573; 4 Beal v. Smith, 14 Tex. 305. Blodget v. Jordan, 6 Vt. 580 ; Carpen- 5 Silver Lake Bank v. Harding, 5 ter v. Pier, 30 Vt. 81. Ohio, 545. 2 3 Wend. 267. 6 Stockwell v. Coleman, 10 Ohio *8 See also Cole v. Stone, Hill& D. St. 33, 360. 314 ESTOPPEL BY RECORD. 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- 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, 7 there be a seal; &c. 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 also 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- 1 May 26, 1790 (1 Stat. at L. 122). A seal is not required ; the justice may 2 It seems to us that there isno good act as his own clerk, as was suggested ground for the objection that judgments in Starkweather v. Loomis, 2 Vt. 578 ; of justices of the peace cannot be au- and there can be no impropriety in de- thenticated in the manner prescribed. nominating him ‘judge.’ FOREIGN JUDGMENTS IN PERSONAM. 815 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 infe- rior courts must be embraced in this broad language ;} and ‘full force and effect’ can mean nothing less than the force and effect which would be given in the domestic courts. It is quite cer- tain however that the judgments of all courts, whether of record or not, which possess the necessary machinery for carrying out the act of Congress in regard to authentication are conclusive 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. 1 The clause in the Confederation, from which the one in the Constitution was taken, contained, after ‘judicial proceedings,’ the words, ‘of the courts and magistrates 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 ‘magistrates,’ that no distinction was intended to be drawn between the judgments of the superior and those of the inferior courts, by the framers of the Constitution, in omitting the phrase referred to in the Confedera- tion. 2 18 Cal. 242. 8 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- missioner. (2) And we are not aware (a) A similar fact in Bank of Australasia v. Nias, 16 Q. B. 717, is mentioned as having force in favor of the conclusiveness of the judgment. 316 ESTOPPEL BY RECORD. 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 rendered, or for the plaintiff with satisfaction, will bar all fur- ther litigation for the same cause of action in the domestic courts if 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. 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 ex- tended 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 doubtless en- titled to some weight ; but we are not prepared to hold it as conclusive of the general question adjudicated by him.’ 1 So 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, 8 Wend. 267; Cleveland v. Rogers, 6 Wend. 488; Sheldon v. Hopkins, 7 Wend. 435 ; Pelton v. Plat- ner, 13 Ohio, 209 ; Foster v, Glazener, 27 Ala. 391; Gunn v. Howell, ib. 663 ; Shivers v. Wilson, 5 Har. & J. 130; Thatcher v. Powell, 6 Wheat. 119; Shufeldt v. Buckley, 45 Il. 223; Drag- goo v. Graham, 9 Ind. 212; Cone v. Cotton, 2 Blackf. 85, note; Martin v. Kennard, 3 Blackf. 430; Grant v. Bled- soe, 20 Tex. 456; Beal v. Smith, 14 Tex. 305. # Ante, pp. 200-202. 6 Commonwealth zv. Blood, 97 Mass. 588 ; ante, pp. 193-199. PART IL. RIGHTS ARISING FROM ESTOPPEL BY DEED. | PART II. RIGHTS ARISING FROM ESTOPPEL BY DEED. CHAPTER VII. PRELIMINARY VIEW.— THE SEAL. ‘We now enter upon the consideration of a class of rights arising from estoppel totally distinct from that under consid- eration in the preceding pages, so distinct 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- ing link between them, just referred to, there is a wide differ- ence as regards the character of the operation by which the ‘indisputable admission’ is made. In the case of a judgment 1 The objection to calling an estop- pel an admission arises from the fact that an admission is evidence in favor of a stranger ; while in most cases the fact admitted under an estoppel, like the estoppel itself, is res inter alios to- wards a stranger, and hence inadmissi- ble even as evidence. A true judgment in rem may avail a stranger, as we have seen ; so an estoppel in pais by conceal- ment or denial of one’s title to or rights in property could be used against one by astranger, —e. g. acreditor of the pur- chaser, — 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 administra- tor was not evidence against his suc- cessor in the administration, a judg- ment, being also an admission, was not evidence, 820 ESTOPPEL BY DEED. 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 between themselves upon the facts that shall thenceforward be unques- tioned. The one case arises from the judgment 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 scornfully upon such a person who professed to have a seal, and affirming that the time was when only the king and his great men had seals.6 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 of the effect of the instrument as matter of evidence. In the Dialogue of the Exchequer, a work of the year 11768 it is di- rectly affirmed that the acts and records of the Exchequer derived their conclusive effect from the image of the king stamped upon the seal there kept and used.’ 1 In the case of a judgment against tee of the releasing party see Cobb »v. the defendant the whole proceeding of Fisher, 121 Mass. 169. course, as well as the result, is nolens 3 A.D. 1066. volens as to him. # A. D. 1154-1189, 3 See Coke, Litt. 352a; Comyn’s 5 Placita Anglo-Normannica, 175, Digest, Estoppel (A. 2); Stratton v. 177; History of Procedure in England, Rastall, 2 T. R. 366; Lampon v. 317. Corke, 5 Barn. & Ad. 606,611. That § Ante, p. 85, note. a mere writing releasing rights of action 7 Stubbs’s Select Charters, 176, 2d concerning land though valid does not ed. affect the land in the hands of a gran- PRELIMINARY VIEW. —THE SEAL. 821 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 a 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 in- strument should no longer depend upon the addition 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 designed to furnish a basis of action by the parties; in other words whether they intended to bind themselves by contract that the facts should be as stated! Other cases of estoppel by deed which stand or may well stand upon grounds independent of the seal, 1 That the estoppel prevails in Ten- nessee 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 then arise only upon proof that the re- cital had been acted upon by the party alleging it. In this particular the es- toppel would resemble an estoppel in pais. Indeed the courts in recent times appear inclined to treat the estop- pel by deed as resting on contract, a perfectly intelligible basis. Carpenter ‘ ». Buller, 8 Mees. & W. 209, 212, where Parke, B. says that a recital in an in- strument not under seal may be such as to be conclusive. See Delaney v. Dutcher, 23 Minn. 373; Stewart ». Metcalf, 68 Ill. 109. But it should be clear that the recital ina simple con- tract 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. 21 822 ESTOPPEL BY DEED. such as the effect of a warranty of title by a grantor of land con- veying 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 consideration of such cases under the head of Es- toppel by Deed. It should perhaps be added that the reader must not be misled into supposing that the author means to imply that, in this letting down of the physical properties of the seal any more than in the loss of the idea from which it origi- nally 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 legislature? 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 state- ments 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.3 An estoppel by deed* may be defined in strict sense to bea right based upon a preclusion against the competent parties to a valid sealed instrument, and their privies, to deny its force and effect by any evidence of inferior solemnity. Taking this 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- 1 Jones v. Morris, 61 Ala, 518. 2 See e. g. Cobb v. Fisher, 121 Mass, 169 ; Snow v. Moses, 53 Maine, 546. 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 he is not permitted to dispute its provisions. Hill v. Den, 54 Cal. 6; Noe v. Splivalo, ib. 207 ; Hyde ». Baldwin, 17 Pick. 303 ; post, ch. 19. * Attested, if of land, in a contest 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, 8 Kern. 509. 5 An estoppel in pais may be set up in bar of an estoppel by deed. Platt v. Squire, 12 Met. 494, PRELIMINARY VIEW. — THE SEAL. 823 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 relation of landlord and tenant and the like, so far as the estoppel upon the tenant is concerned, being for the most part equitable, will be considered under Part III., Estoppel in Pais. The subject will however be incidentally presented as occasion may require in the present Part II, and particularly under Estates by Estoppel. First then concerning the doctrine of estoppels by deed in relation to parties and privies. 824 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 1 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 explain 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 ejectment by Struthers against one Clark and his tenants. It appeared that Clark, being owner of the land in question, conveyed it by deed to certain persons some of whom subsequently joined in a mortgage with him to a stranger, which mortgage contained a recital that he (Clark) was the owner of eleven twenty-fourths of the land. Before this mortgage was recorded, 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 1 A distinction has been made in re- Thompson, 129 Mass. 398; Smith ». gard 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. Taun- ton, 119 Mass. 404. But the distinction is not sound. See post, p. 359, note 3. The rule that one who receives a con- veyance of land subject to a mortgage, which he thereby assumes, conclusively admits the binding force of the mort- gage in favor of the mortgagee (Free- man v, Auld, 44 N. Y. 50; Johnson v, . Graham, 34 Mich. 302 ; Hill v. Minor, 79 Ind. 48, 55; Price v. Pollock, 47 Ind. 362; post, ch. 10) is commonly based on the ground of implied cove- nant with the mortgagee. But even on grounds of estoppel the rule is sustain- able, since the admission or representa- tion is intended for the mortgagee. 2 Millard v. McMullin, 68 N. Y. 346 ; Glasgow v. Baker, 72 Mo, 441. % Sunderlin v. Struthers, 47 Penn. St. 411, PRELIMINARY VIEW. —- PARTIES AND PRIVIES. 825 the recital in the mortgage as an estoppel. But the court held the defence of the tenants good This doctrine is also illustrated by a case in Ohio? An ac- 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 ob- served, had never possessed himself of the title which he relied upon; he did not claim under it, but by a title adverse to it and paramount. 1 Mr. Justice Agnew in delivering the opinion of the court said: ‘There was an interval of time between the date of the last deed and the date of the mort- gage during which the tenancy was wholly gone. How was the tenancy revived? Only by the simple declara- tion 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 cer- tificate, 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 reinvest Clark with title to these eleven parts; and even more, it was laid upon the jury with a binding 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 evi- dence or law his naked declarations or those of a stranger could be used, first to renew or restore the tenancy, and then to estop, it is difficult to perceive, The effect of it is to let into possession one who has shown no title whatever, con- trary to the first principle of the law of ejectment, ‘and thus to ou8t persons hold- ing 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 concurring He could not make the release available as a grant, opinion forcibly replied to the argu- ment of the plaintiff that it was a case of estoppel in pais. ‘Nor was the recital,’ he said, ‘an admission or decla- ration 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 plaintiff had been in- duced to purchase by anything said by these mortgagors at the sale, or by rep- resentations made by them to him pre- viously, they would have been bound by their declarations, and precluded from averring the contrary to the preju- dice of his title. But it is an unprece- dented extension 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 priv- ies to his deed, but to all mankind, to make good every introductory recital 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. Rensselaer, 10 Ohio, St. 63. 826 ESTOPPEL BY DEED. 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 associ- ates and proprietors, were such strangers and wrong-doers as to deprive them of the right to assert the estoppel. But a party is not estopped by a deed to him under which he does not claim The plaintiff in the case referred to brought an action for dower, claiming under a mortgage deed by her late hus- band to one Ware, which by assignment to I K and sundry mesne conveyances was traced to the defendant. Counsel on her be- half 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 I 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- i J * Osgood v. Abbott, 58 Maine, 73, 2 Kidder v. Blaisdell, 45 Maine, 461. PRELIMINARY VIEW.— PARTIES AND PRIVIES. 827 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.1 The plaintiff as admin- istratrix of the estate of her husband executed a deed of real es- tate 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? 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.* 1 Wright v. De Groff, 14 Mich. 164 ; Doe d. Hornby v. Glenn, 1 Ad. & E, 49; Smith v. Penny, 44 Cal. 162; Hall v. Matthews, 68 Ga. 490; Gould- smith r+. Coleman, 57 Ga. 425; Trent- man v. Eldridge, 98 Ind. 525, 531. 2 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 foreclose a mortgage securing it, though she hed joined her husband in executing the mortgage. Trentman ¥. Eldridge, 98 Ind. 525, 581. 31 Hurl. & C. 686. 4°*TIn our opinion,’ said Channel, B. speaking for the court, ‘the plaintiff, who sues as administrator of his mother, 828 ESTOPPEL BY DEED. 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.2 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.? 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 stran- ger.’ But it is held that a lease exe- cuted by one as agent of the lessor es- tops him from setting up any claim to the land inconsistent with the lease. Blanchard v. Tyler, 12 Mich. 339. 1 98 Ind. 525. 2 Heard v. Hall, 16 Pick. 457. 8 ¢On this principle,’ said Mr. Jus- tice Wilde, ‘the case of Poor v. Robin- son, 10 Mass. 131, was decided, a case in most respects precisely similar to the present. In that case the demandants claimed as children and heirs of Thomas Poor, their father ; and the tenant pro- duced a deed of release from two of the demandants, by which they released and quitclaimed unto him all the right of which the testator, their father, died seised in and to sundry lots of land in- eluding the demanded premises. It appeared that the testator was disseised 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 children, the executors, and thus far the title to the tenant was confirmed, 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. Robinson 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 import 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 cove- nants that he is lawfully authorized and empowered to make sale of the granted premises ; that is, of the whole estate. Most certainly he was not so authorized ; PRELIMINARY VIEW.— PARTIES AND PRIVIES. 829 Further in order to work an estoppel upon the parties toa deed they must be sui juris. Hence at common law a married woman, according to the weight of authority, is not estopped at law or in equity by her covenants of warranty,! or by her re- citals,? except in regard to her equitable separate estate? The case first cited was an ejectment; the plaintiff giving in evidence a deed from the defendant and her husband by which they con- veyed the premises in fee to the plaintiff, with warranty. The defendant offered to prove an outstanding title, but it was ob- jected 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 common 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. subsequently acquired interest. some states;* and in Indiana and this covenant operates to avoid cir- cuity of action by way of rebutter, and estops the petitioner from setting up his title from Pitts Hall.’ 1 Goodenough v. Fellows, 53 Vt. 102 (equity); Trentman v. Eldridge, 98 Ind. 525, 531; Carithers v. Stuart, 87 Ind. 427 (a striking case) ; Jackson v. Vanderheyden, 17 Johns. 167 ; Spar- row v. Kingman, 1 Comst. 242; Wal- lace v. Miner, 6 Ohio, 367; Wight v. Shaw, 5 Cush. 56; Lowell v. Daniels, 2 Gray, 161, overruling Fowler +. Shearer, 7 Mass. 21; Barker v. Circle, 60 Mo. 258 ; Bank of America v. Banks, 101 U. S. 240 ; Wood ». Terry, 30 Ark. 385; Harden v. Darwin, 77 Ala. 472; Gonzales v. Hukil, 49 Ala. 260; Patter- son v, Lawrence, 90 Ill. 612; Strawn v. Strawn, 50 Ill. 38. The last-named case holds that though the wife release dower and join in the warranty, she will not be estopped to claim an interest distinct from that of dower ; and the deed not being an estoppel upon the wife, is not But the deed could not operate as an estoppel to her A contrary doctrine prevails in it is said (upon a supposed but an estoppel upon the husband’s heirs against the widow. McLeery v. Mc- Leery, 65 Maine, 172. 2 Bank of America v. Banks, 101 U.S. 240. 8 Jones v. Reese, 65 Ala. 184 ; Howell v. Hale, 5 Lea, 405; Powell’s Appeal, 98 Penn. St. 403, 418. So by estoppel in pais by conduct. Saratoga Bank ». Pruyn, 90 N. Y. 250, 255. The dis- tinction (apart from statutes) between the wife’s separate estate of courts of equity and other general estate of her own must be 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 statutory separate estates see Kelly v. Turner, 74 Ala, 518 ; Harden v. Darwin, 77 Ala. 472. 4 Dukes v. Spangler, 35 Ohio St. 119, 127 ; Hill v. West, 8 Ohio, 222 ; Massie v. Sebastian, 4 Bibb, 483. See Strong v. Waddell, 56 Ala. 471 ; Cowles v. Marks, 53 Ala. 499; also cases cited infra, p. 330 fi ESTOPPEL BY DEED. mistaken analogy to the case of releasing dower at common law)? that estoppel may arise against a married woman irrespective of covenants of warranty.2 Under recent statutes a married woman may now bar herself in Massachusetts by a warranty deed from claiming under an after-acquired title ;? and this would probably be true in many other states. And at common law a wife join- ing 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 it6 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? 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. 278. In Strong v. Waddell it was held that a married woman purchasing land and executing 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 purchaser from her vendee. Merriam ». Boston R. Co., 117 Mass. 241. 1 No doubt however a married woman under the statutes might be barred by recitals as well as by warranty. 2 King v. Rea, 56 Ind. 1, 19, explain- ing Nicholson v. Caress, 45 Ind. 479, and denying Jackson v. Vanderheyden, supra. See also Reeves v. Howes, 104 Ind. 485. 3 Knight v. Thayer, 125 Mass. 25. 4 Doane v. Willcutt, 5 Gray, 828, $32 ; Bruce v. Wood, 1 Met. 542; Ray- mond v. Holden, 2 Cush. 264; Lufkin ». Curtis, 18 Mass. 223; Lithgow v. Kavenagh, 9 Mass. 161; Powell v, The purchase was made for the benefit of Monson & M. Co., 3 Mason, 347; post, chapter 12. 5 Cook v. Toumbs, 36 Miss. 685. ® Houston v. Turk, 7 Yerg. 138. But both infants and married women may sometimes be bound by an estoppel in pais, according to many authorities. See post, Part ITT. 7 The state may of course be estopped by judgment. Cunningham v. Shank- lin, 60 Cal. 118; Newport Bridge Co. v. Douglass, 12 Bush, 673 ; Taylor ». Wallace, 31 Ohio St. 151. See Boyd v. Alabama, 94 U.S. 645. So also against inconsistent acts in pais. Chope v. De- troit Plankroad Co., 87 Mich. 195; Vardier v. Railroad Co., 15 S. Car. 477, 483. See Reid v. State, 74 Ind. 252. But the United States cannot be es- topped by proceedings against its ten- ants or agents, though they notify the government to defend. Carr v. United States, 98 U. S. 433, § 8 Pick. 224, PRELIMINARY VIHW.— PARTIES AND PRIVIES. 331 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 com- monwealth,’ said the chief justice, ‘to the very persons now defending 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 this is perhaps the better opinion! But in North Carolina and in some other states a different doctrine prevails; and it is there held that an estoppel does not operate against the state, or its assignee Clearly the state cannot be estopped by unauthorized 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 v. 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 not.® 1 Carver 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. Carpen- ter, 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 v. Hawes, 2 Black, 554; Railroad Co. v. Schurmeir, 7 Wall. 272; Land Co. v. Saunders, 103 U. 8. 316; State v. Brewer, 64 Ala. 287. 2 State v. Bevers, 86 N. Car. 688; It was held that Den d. Candler v. Lunsford, 4 Dev. & B. 407; Wallace v. Maxwell, 10 Ired. 110; Doe-d. Taylor v. Shufford, 4 Hawks, 116; State v. Graham, 23 La. An. 402 ; People v. Brown, 67 Il. 485 ; Alexander v. State, 56 Ga. 478. See Crane v. Reeder, 25 Mich. 303 ; Farish v. Coon, 40 Cal. 88. 8 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 authority. 4 2 Taunt. 279. 5 Mansfield, C. J. said: ‘There is 832 ESTOPPEL BY DEED. 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 were the court.? 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,” and that plea denies not only the existence but the efficacy of the supposed 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 of demise. Then the question comes whether the assignee of the lease may be allowed to contro- vert the title of the lessor when the lessee under whom he derives could not controvert the title of the lessor; so . that the assignee should have a better right than he from whom he derives it. Exclusive of all the dicta it would be a very odd thing in the law of any coun- try if A could take, by any form of conveyance, a greater or better right than he had who conveys 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 es- topped, 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 distinguish 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 re- covery was void because there was no tenant to the pracipe ; but it was an- swered for the heir that the devisor was tenant on the record and therefore estopped from disputing the recovery, and the devisee consequently was es- topped. 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 de- fendant is as much estopped from plead- ing this plea as if he had been the original lessee.’ 117 Pick, 14. 2 ‘We do not consider the doctrine of collateral warranty,’ said Mr. Jus- tice 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 an- cestor has descended upon her, and, as the case finds, with assets of greater PRELIMINARY VIEW. — PARTIES AND PRIVIES. 838 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, acknowledging receipt of payment, and took judgment for a portion of the pur- chase-money which became a lien on the land. Subsequently 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. There has been some question among the authorities in regard to the effect of an acceptance of a conveyance of real estate in value than the land. This is a case of lineal warranty with assets, so far as the daughter, sole heir and wife of the demandant, is concerned. She at the time of her marriage was un- doubtedly liable, and her liability de- volved upon the husband and wife. If he were to be considered a purchaser, for the valuable consideration of mar- riage, of all that came to the wife, it was cum onere. He and his wife be- came and were seised of the real estate in her right ; and he took the personal estate absolutely, 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 demandant 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 dis- seise 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, remain- der 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 ». Erring- ton, 6 Bing. N. C. 79. 1 Waters’s Appeal, 35 Penn. St. 523. 2 Woodward, J. said : ‘ Estoppels 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 ejther in blood, in law, or by estate. Not in blood, for no relation- ship is alleged ; nor in law, for the legal relation between debtor and creditor is one of antagonism rather than of con- fidence 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 implied, of Waters’s deed cannot operate in favor of Spencer’s creditors as an estoppel by deed ; and we do not understand any such effect to have been intended by what was said of the deed in Altman v. Klingensmith.’ 6 Watts, 445, 834 ESTOPPEL BY DEED. 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.* If 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 ;3 not indeed because of any estoppel, but be- cause 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 grantee 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 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 1 Bancroft v, White, 1 Caines, 185; Campbell v. Knights, 24 Maine, 332; Bowne ». Potter, 17 Wend. 164; Sher- wood v. Vandenburgh, 2 Hill, 303; Kimball v. Kimball, 2 Greenl. 226; Nason v. Allen, 6 Greenl. 243; Hains v. Gardner, 10 Maine, 383; Gayle v. Price, 5 Rich. 525; Dashiel v. Collier, 4 J. J. Marsh. 602. See also Hitch- cock 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; Gammon v. Freeman, 31 Maine, 248. 8 Kimball v. Kimball, 2 Greenl. 226 ; Wedge v. Moore, 6 Cush. 8; Gayle ». Price, 5 Rich. 525; Dashiel v. Collier, 4 J.J. Marsh. 601. 4 Kimball v. Kimball, supra, secus. 5 Gayle v. Price, supra. 8 4 Coke, Litt. 352 a; Campbell ». Knights, 24 Maine, 332 (the recital did not go so far); Wiece v. Marbut, 55 Ga. 613. PRELIMINARY VIEW. — PARTIES AND PRIVIES. 835 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 subsequently 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 in- strument 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 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 1 Carpenter v. Buller, 8 Mees. & W. 209. 2 Blight v. Rochester, 7 Wheat. 535 ; Robertson v. Pickrell, 109 U. S. 608, 615 ; Cooper v. Watson, 73 Ala. 252. The old estoppel (Coke, Litt. 352 a) tested on tenure and dependence. 8 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. Ma- tathon Bank, 58 Wis. 546. 4 See post, p. 346. 5 Blight v. Rochester, 7 Wheat. 535 ; Robertson v. Pickrell, 109 U.S. 608, 615; Grosholz v. Newman, 21 Wall. 481; Osterhout v. Shoemaker, 3 Hill, 513; Sands v. Davis, 40 Mich. 14; Averill v. Wilson, 4 Barb. 180; Wat- kins v. Holman, 16 Peters, 25, 54; So- ciety for Prop. of Gospel v Pawlet, 4 Peters, 480, 506; Riddle v. Murphy, 7 Sere. & R. 235; Huntington ». is estopped against the other.’ Pritchard, 11 Smedes & M. 827; Gwinn v. Smith, 55 Ga. 145; Kansas Pacific Ry. Co. v. Dunmeyer, 24 Kan. 725; Voorhies v. White, 2 Marsh. 27 ; Win- lock v. Hardy, 4 Litt. 272; Weil ». Uzzell, 92 N. Car. 515; Gaylord ». Respass, ib. 553 ; Wilcoxon v. Osborn, 77 Mo. 621, 629; Den d. Johnson ». Watts, 1 Jones, 228; Doe d. Worsley ». Johnson, 5 Jones, 72 ; Kerbourgh v. Vance, 6 Baxter, 110. Contra, dictum in McClure v, Englehardt, 17 Ill. 47 (and some early cases there cited), over- ruled in Owen v. Robbins, 19 Ill. 545. See Campau v. Campan, 37 Mich. 245. ® Long v. Wilkinson, 57 Ala. 259. See Cooper v. Watson, 73 Ala. 252, showing the true rule. ™ To speak of a person being estopped to deny, against subsequent creditors influenced by his conduct, that he is a stockholder in a corporation by privity (Fisher v. Seligman, 75 Mo. 18, 23) is misleading. Supra, p. 333, note 2. 336 ESTOPPEL BY DEED. But if the grantee assert no other right or title than that from the common grantor, he will be precluded from denying that ‘his grantor had title when he conveyed! This however, 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 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 mortgage 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? 1 Curlee v. 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 Ived. 280; Kinsman v. Loomis, 11 Ohio, 475; Robertson v. Pickrell, 109 U. S. 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. Prichard, 11 Smedes & M. 327; Brock v. Young, 5 Ala. 584; Pollard v. Cocke, 19 Ala. 188; Long v. Wilkinson, 57 Ala. 259 ; Hasselman v. United States Mortg. Co., 97 Ind. 365 ; Ketchum vw. Schicketanz, 73 Ind. 137. See also Board v. Board, L. R. 9 Q. B. 48; Staton v. Mullis, 92 N. Car. 623, 628 ; Armstrong v. Wheeler, 62 Conn. 428. The authorities merely declare that a plaintiff's case is made out prima facie when it appears that the defendant claims under the same com- mon grantor; and the question is one of the burden of proof only. They dis- tinctly show that the defendant may overturn the plaintiff’s case by showing If the second mortgagee get nothing, a paramount title under which he (the defendant) claims against that of the common grantor. A questionable dis- tinction 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 possession there is an estoppel upon his associate to set up an outstanding 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 ; Born- heimer v. Baldwin, 42 Cal. 27. This distinction 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. 2 Cowell v. Springs Co., 100 U.S. 55, citing Gill v. Fauntleroy, 8 B. Mon. 185; Miller v. Shacklefor, 4 Dana, 287, 288; Fitch v. Baldwin, 17 Johns. 161. We shall have occasion to recur to this subject in other connections hereafter. 8 Cook v. Parham, 63 Ala, 456. In PRELIMINARY VIEW. — PARTIES AND PRIVIES. 3387 it is simply because the claim of the first has exhausted the estate.1 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 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,” or (2) the derivation of rights by one person from and 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 subordinately to his position! that case the first mortgagee had for- tified his claim by judgment for the debt, but that made no difference ; there was no privity. The recitals or cove- nants of the earlier mortgage could not fall upon the later mortgagee as they would fall upon an heir. 1 So a purchaser from a mortgagor 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 existing against the first. Weyh v. Boylan, 85 N. Y. 394. 2 This case embraces both the privies in blood and the privies in law of Coke, See Coke, Litt. 352a, 352b. Privity in estate as applied to the law of estop- pel is well explained in 20 Am. Law Rev. 407 et seq. '8 Shay v. McNamara, 54 Cal. 159; Campbell v. Hall, 16 N. Y. 575; Doo v. Derby, 1 Ad. & E. 783. Marrying the widow of a mortgagor, the widow being in possession, creates no estoppel, such as bound the mortgagor, to dispute the validity of the mortgage. Gorton v. Roach, 46 Mich. 294. On the other hand tenant in dower and tenant by the curtesy are privies in law with the de- cedent, and so far as they hold in that title are bound by the estoppels that bound the decedent. Coke, Litt. 352 b; Doe v. Skirrow, 2 Nev. & P. 128. 22 388 ESTOPPEL BY DEED. CHAPTER IX. PRELIMINARY VIEW. — LIMITATIONS OF THE DOCTRINE. HAvING 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!) should be a valid instru- ment; a void instrument though under seal does not work an estoppel at law or in equity.2, For example if the officers of a corporation make a mortgage which the corporation itself has no power to make, they may deny their authority to execute the deed2 In the case cited the trustees of a certain turnpike 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 eject- ment to recover possession of the toll-houses and gates. The 1 Nourse v. Nourse, 116 Mass. 101. no estoppel against her after her hus- ? Caffrey v. Dudgeon, 38 Ind. 512; band’s death); James v. Wilder, 25 Merriam v. Boston R. Co., 117 Mass. Minn. 305; Sherlen v, Whelen, 41 Wis. 247; Conant v, Newton, 126 Mass.105; 88. But see Wilson v. Western Land Pells v. Webquish, 129 Mass. 469; Co., 77 N. Car. 445, holding that a Mason v. Mason, 140 Mass. 63 (that a deed executed in violation of an injune- conveyance by a wife — though sui juris tion may still estop the grantor. —in the lifetime of her husband of 8 Fairtitle ». Gilbert, 2 T. R. 169. her dower interest is void, and creates See post, ch. 16. PRELIMINARY VIEW. — LIMITATIONS OF THE DOCTRINE. 839 trustees objected that the act did not warrant them in mort- gaging this property, and judgment of nonsuit was given in the court below against the plaintiff. Ona 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 interest; 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 reason why the trustees should not be estopped; this was a public act of Parlia- ment, 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 opposition 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 more recent case.? The case cited was an ejectment 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 character of the defendant; counsel relying on the above-cited dictum 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 pre- sumption 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 pur- pose were in any particular state of protection on such a 1 See Doe d. Baggaley v. Hares, 4 2 Doe d. Levy v. Horne, 3 Q. B. Barn. & Ad.. 483. 757, 766. 340 ESTOPPEL BY DEED. 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 registration 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? 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.* 1 It would seem from the concluding remark of the chief justice that he al- together 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 doctrine.’ 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 v. Boston Rt. Co., 117 Mass. 241. 8 Mr. Justice Patteson said: ‘I do not say whether in a different case this covenant would have been an estoppel or not. But the question 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 section. 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, In like 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 stat- ute from beginning to end. They insert a covenant that the land is of the re- quisite value ; they might equally well put in a statement that the annuity was given by marriage settlement, or with- out regard to pecuniary consideration, 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 ; Housatonic 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. Wil- liams, 1 Doug. (Mich.) 546, holding that such deed works an estoppel). 4 Wellborn v, Finley, 7 Jones, 228 ; Chapman v. Abrahams, 61 Ala. 108. See Albany Ins. Co. v. Bay, 4 Comst. 9. PRELIMINARY VIEW. — LIMITATIONS OF THE DOCTRINE, 3841 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 subject 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, how- ever broad its language. Recitals are generally made for the, purpose of indicating or of carrying into effect the general ob- ject 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. That this limitation prevails, preventing the estoppel from having a collateral effect, appears from many cases;° and its effect appears to be to put the estoppel on grounds of contract, a point already referred to. 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 con- tended that the recital though admissible in evidence was not conclusive; and he proposed to show that the admission was 1 North v. Henneberry, 44 Wis. 306. 209; Fraser v, Pendlebury, 31 L. J. 2 United States v. Hodson, 10 Wall. C. P. 1; 8. c. 10 Weekly R. 104; 395 ; Daniels v. Tearney, 102 U.S. 415, Southeastern Ry. Co. v. Warton, 6 420. Hurl. & N. 520; Carter v. Carter, 3 3 Hazard v. Irwin, 18 Pick. 95; Par- Kay & J. 617, 645; Young v. Rain- tridge v. Messer, 14 Gray, 180. cock, 7 C. B. 310; Stroughill v. Buck, * See Weed Sewing Machine Co.» 14 Q. B. 781; Bank of America v. Emerson, 115 Mass. 554. Banks, 101 U. S. 240, 247. 6 Carpenter v. Buller, 8 Mees. & W. § Ante, p. 269, note. 342 ESTOPPEL BY DEED. made under a misapprehension. On the other hand it was con- tended that the plaintiff was estopped by his admission in the recital, and that the evidence was therefore inadmissible. But the court ruled otherwise.1 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 plaintiffs property was levied on. The plaintiff claimed it and purposed 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 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 grow- ing out of it 1 In delivering judgment Parke, B. said: ‘All the instances given in Comyn’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 ad- missions are contained. By his con- tract 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, supra, Williams, J. said: ‘It is clear from Carpenter ». Buller that these estoppels 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,’ 21 Ark. 319. 3 ‘No plausible reason has been of- fered,’ said Mr. Justice Scott in deliver- ing judgment, ‘to sustain the idea that the appellee ought to be estopped by the recitals in the delivery 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 is not the case here. The condition 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 contemplation 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; Jemison v. Cozens, 3 Ala.. 636. PRELIMINARY VIEW.— LIMITATIONS OF THE DOCTRINE. 9848 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 v, 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-mér- 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 value out of the stock, to remain in the paper-mill fora 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 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 were 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 1 6 Ex, 557. 844 ESTOPPEL BY DEED. jointly by the grantors, and does not embrace land owned in severalty within the general limits mentioned in the deed 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 com- plete said crossdam, road, dike, and canals, and to keep up and maintain said dam, road, and dike, and to keep open and main- tain said canals forever.” The court held that the action could not be maintained. The deed, it was said, did not describe 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 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 in- tend you should do injury by the act to my land, but only to that which I owned with others.’ 2 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- 1 Francis v. Boston & R. Mill Corp., 4 Pick. 365. 2 ‘Suppose the case,’ the court ob- served, ‘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.’ PRELIMINARY VIEW.-— LIMITATIONS OF THE DOCTRINE. 845 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 him2 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 stich cases as per- fectly as in leases by indenture ; though it was otherwise 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 Lord Coke, that one who accepts an estate from another is estopped to deny the latter’s title ;* and the contrary statement occurs almost as fre- quently. 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, including cases of covenants or stipulations from a grantee to restore or surrender possession on the termination of a life estate, and recitals de- claring a reversion to be in a grantor,’ we proceed to inquire of the true doctrine respecting the power of a grantee, holding 1 Cooper v. Watson, 73 Ala. 252 ; Gardner v. Greene, 5 R. I. 104; Spar- row v. Kingman, 1 Comst. 242; Great Falls Co. v. Worster, 15 N. H. 414, 450; Winlock v. Hardy, 4 Litt. 272. 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 relation be- tween the parties to it whereby the de- fendant would be estopped. We know that a tenant cannot deny the title of his landlord, nor can a person who enters upon land in virtue of an executory con- tract-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.’ 2 Atlantic Dock Co. v. Leavitt, 54 N. Y. 35 ; infra, p. 346. 3 Coke, Litt. 47 b. See Part III. 4 Coke, Litt. 352 a. § Robertson v. Pickrell, 109 U. 8S. 608, 615 ; Atlantic Dock Co. v. Leavitt, 54.N, Y. 35. These relations are treated of in Part III. 846 ESTOPPEL BY DEED. 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.2 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 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 tiine he accepted the deed was seised of the premises. Nor 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 See ante, pp. 335-337. Wilkins v. May, 3 Head, 173 ; Woburn 2 Robertson v. Pickrell, 109 U. S. 608, 615; Munford ». Pearce, 70 Ala. 452; Small v. Reeves, 14 Ind. 163; Marsh v. Thompson, 102 Ind. 272, 275; Sebrell v. Hughes, 72 Ind. 186. 8 Bush v. Marshall, 6 How. 284; Seavey v. Kirkpatrick, Cooke, 211; Mitchel v. Barry, 4 Hayw. 136. # Ante, p. 345; Ives v. Sawyer, 4 Dev. & B. 51; Den d. Worsley v, John- son, 5 Jones, 72; Ray v. Gardner, 82 N. Car. 146 ; Caldwell v. Neely, 81 N. Car. 114; Ketchum v. Schicketanz, 73 Ind. 187 ; Rochell v, Benson, Meigs, 3 ; v. Henshaw, 101 Mass. 193. 5 Fitch v, Baldwin, 17 Johns. 161, 166; Beebe v. Swartwout, 3 Gilman, 162, 179 ; Furness v. Williams, 11 Ill. 229. ® Atlantic Dock Co. v. Leavitt, 54 N. Y. 35. 7 Mattison v. Aussmuss, 50 Mo, 551; Grosholz v. Newman, 21 Wall. 481; Merryman v. Bourne, 9 Wall. 592, 600; Blight v. Rochester, 7 Wheat. 535; Osterhout v. Shoemaker, 3 Hill, 513; Averill v. Wilson, 4 Barb. 180; Collins v. Bartlett, 45 Cal. 371; Donahue v. PRELIMINARY VIEW. — LIMITATIONS OF THE DOCTRINE. 847 intestate with intent to defraud creditors is not estopped by taking under the deed and acting upon it to object, as one of Klassner, 22 Mich. 252; Sands v. Davis, 40 Mich. 14. See Campau v. Campau, 37 Mich. 245. The subject was con- sidered by the Supreme Court of New York in Averill v. Wilson, 4 Barb. 180. ‘It is very evident,’ said Mr. Justice Paige for the court, ‘that no relation of landlord and tenant, not even in a qualified form, exists between a grantor and grantee. If the vendor has actually executed a conveyance, his title is ex- tinguished in law as well as in equity. The vendee acquires the property for himself ; and he is under no obligation to maintain the title of the vendor. He holds adversely to his grantor, and may treat him as a stranger to the title. The property having become the prop- erty of the vendee by the sale, he has a right to fortify his title by the pur- chase of any outstanding title which may protect him in the quiet enjoy- ment of the premises. (a) Chief Justice Marshall, in Blight’s Lessee v. Roches- ter, 7 Wheat. 535, says that ‘‘no prin- ciple of morality restrains him from doing this; nor is either the letter or spirit of the contract violated by it.” In Osterhout ». Shoemaker, 3 Hill, 513, Bronson, J. says: ‘‘ Although a tenant cannot question the right of his land- lord, a grantee in fee may hold adversely to the grantor; and there can be no good reason why he should not be at liberty to deny that the grantor had any title. There is no estoppel where the occupant is not under an obligation ex- press 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 re- ceive 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 alle- giance to the grantor, and he does him no wrong when he treats him as an utter stranger to the title.” [See also Wat- kins v. Holman, 16 Peters, 25, 54; Society for Propagation of Gospel v. Pawlet, 4 Peters, 480, 506; Voorhies v. White, 2 Marsh. 27 ; Winlock v. Hardy, 4 Litt. 272; ante, p. 845.]. . . Where a grantor who has no title conveys with warranty, any estate subsequently ac- quired 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 es- topped by his deed from averring he had no title when he conveyed ; but the warranty interposes 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 technical estoppel, from asserting his title subsequently acquired. But it is his warranty which ° rebuts and bars him of this newly ac- quired title and passes it to his grantee, 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 indemnity 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 inconsistent in the principle that a grantee in a war- ranty deed is not estopped from contro- verting 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 lat. (a) This had been done in the present case. 348 ESTOPPEL BY DEED. the creditors of the estate, that the deed was fraudulent.1 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, Massachu- setts, and other states in actions by the grantee and mortgagor against the grantor and mortgagee on the latter’s covenants of seisin and against encumbrances.? The defendant cannot plead ter ; 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 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. 2 Hubbard v. Norton, 10 Conn. 422; Sumner v. Barnard, 12 Met. 459; Ran- dall v. Lower, 98 Ind. 255, 259 ; Con- nor v. Eddy, 25 Mo. 72; Lot ». Thomas, 2 N. J. 407; Haynes v. Ste- vens, 11 N. H. 28; Hardy v. Nelson, 27 Maine, 525; Brown v. Staples, 28 Maine, 497. See Gilman v. Haven, 11 Cush. 830. 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. 885. ‘ 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 si- multaneous. Unless all principles of common sense are discarded we must suppose that the deed of the defendants conveying the land in fact preceded that of the plaintiff, which was given to s¢- cure the consideration 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 to him. ... If then we must consider the plaintiff's deed as subsequent to that of the defendants, it can be no es- toppel, 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 purchased in another title, or removed the encum- brance. The contrary is not so clearly implied as to become one of those pre- sumptions of law which cannot be re- butted. To create that legal certainty requisite 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 improbable but surely is not impossible. 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 per- fect 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 plaintiff 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 plain- tiff had proved such a deed when he gave his, then the defendants could not recover anything upon their covenants in the mortgage deed. If they have PRELIMINARY VIEW.—— LIMITATIONS OF THE DOCTRINE. 349 in bar or rebutter of the action the plaintiff’s covenant in the mortgage deed. 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 ;! 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 limitation of the doctrine under consideration. And such a case occurs where the deed is encountered by another instrument of equally high rank, inconsistent with the same, and made between the same parties.t ‘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 occa- sioned by his being deprived of the land by virtue of the mort- since gained such title and removed such encumbrance, then only nominal damages can be recovered ; and unless the court can see that the same dam- ages must be recovered 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, 8 Ohio St. 344; Ward v. McIntosh, 12 Ohio St. 2388. * And this would seem to be all that is meant by the broad declaration . . that a man who accepts or acts under a deed cannot dispute the facts which it recites.’ 2 Smith’s L. 0. 712, 6th Am. ed., citing Chautauque Co. Bank v. Ris- ley, 4 Denio, 480 ; Denn v. Cornell, 3 Johns. Cas. 174; Springstein v. Scher- merhorn, 12 Johns. 357 ; Funk v. New- comer, 10 Md. 301, 316; Ward v. Mc- Intosh, 12 Ohio St. 231. See also upon this subject Chiles v. Boothe, 3 Dana, 567; Cutter », 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 or- der of court was defective, and that no title was passed by the deed. 8 Coke, Litt. 352 b; 12 Hen. 7, p. 4; 6 Hen. 4, p. 7; Branson v. Wirth, 17 Wall. 82, 42; Tibbets ». Shapleigh, 60 N. H. 487, 491. The rule was ap- plied to estoppel in pais in thé last case. See ante, p. 322, note 5. 4 Brown v. Staples, 28 Maine, 497. 850 ESTOPPEL BY DEED. gage 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 pur- pose of those covenants. It has been decided that a covenant 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 pay- ment 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 estoppel.5 1 Watts ». Welman, 2.N. H. 458. —s Irving, 4 Hurl. & N. 7425s. c. 6 Hurl. 2 Platt v. Squire, 12 Met. 494, & N. 185; Morton v. Woods, L. R. 8 8 Lainson v. Tremere, 1 Ad. & E. Q. B. 658; 8. co. 4 Q. B. 293 ; Whee- 792. See Carpenter v. Buller, 8 Mees. lock v, Henshaw, 19 Pick. 341; Pelle- & W. 209. treau v. Jackson, 11 Wend. 110, 118; 4 Carpenter v. Buller, supra; ante, Jackson v. Sinclair, 8 Cowen, 548, 586; pp- 341, 342. Hannon v. Christopher, 34 N. J. Eq. 5 Coke, Litt. 352 b; Pargeter v. 459, 465. Harris, 7 Q. B. 708; Cuthbertson », PRELIMINARY VIEW. — LIMITATIONS OF THE DOCTRINE. 3851 And this simply means that all parts of the deed are to be con- strued together; and that if an ‘allegation in the deed which alone would work an estoppel upon the parties is explained 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 6, 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 par- sonage for sixty years to commence at such time as the parson- age should come to the hands of the bishop or his successors 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 nothing in the parsonage during the life of the incumbent who survived the bishop. And the nature of the bishop’s interest appearing 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 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 gectment be brought upon a lease which shows upon its face that the lessor has no legal reversion, there 1 Hannon v. Christopher, 34 N. J. 8 See Coke, Litt. $52 b. Fq. 459. 47Q. B. 708. 2 Dyer, 244 a, 852 ESTOPPEL BY DEED. 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 the plaintiff? The lease negatives the existence of this in the lessor.2 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 docs 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 another 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.’ 1 Saunders v. Merryweather, 3 Hurl. & C. 902. 2 Morton v. Woods, L. R. 4 Q. B. 293, 308, 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 dis- tress. 4 Morton v. Woods, supra; Jolly v. Arbuthnot, 4 De G. & J. 224. 5 Jolly v. Arbuthnot, 4 De G. & J. 224; 8. c. 28 Law J. Ch. 547; Morton ». Woods, supra. 6 ‘But even if any of the decisions or dicta were to lead to the conclusion that when the truth appears [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 « 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 alto- gether depend upon the fact whether it is so expressed that it can be readily seen and understood by the person who ought to be influenced by it, or in man- ner 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.’ T Gouldsworth v. Knights, 11 Mees. & W. 337, 348, explaining Whitton ». Peacock, 2 Scott, 630 ;s. c. 2 Bing. N.C. 411; Cuthbertson v. Irving, 4 Hurl. & N. 742; s. c. 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 posses- sion 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 PRELIMINARY VIEW. — LIMITATIONS OF THE DOCTRINE. 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 form, he would have stated the lessor to have been seised in fee, which ac- cording to the cases might have been traversed ; and if it had and it had ap- peared upon the evidence that the les- sor had no legal estate or interest whatever in the premises but only an equity of redemption, the question is 853 how ought the issue upon the traverse 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.’ 854 ESTOPPEL BY DEED. 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.’ 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 3 in actions concerning the direct purpose of the deed Tf the deed is collateral to the purposes of the action, 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 made for the purpose of fortifying or establishing 1 2 Black. Com. 298. Webb v. Herne Bay Com., L. R. 5 Q. B. 2 Burrill, Law Dict. ‘ Recital.’ 8 Not if itis void. Conant v. New- ton, 126 Mass. 105. Recital cannot es- top one to allege non est factum. Manuf. Co. v. Elizabeth, 42 N. J. 249; Hudson v. Winslow, 6 Vroom, 437. 4 Usinav. Wilder, 58 Ga. 178 ; Lucas v. Beebe, 88 Ill. 427 ; Pinckard v. Mil- mine, 76 II]. 453 ; Mix v. People, 86 Ill. 829 ; George v. Bischoff, 68 Ill. 236; Insurance Co. v. Bruce, 105 U. S. 828; School District v. Stone, 106 U. S. 183 ; In re Romford Canal Co., 24 Ch. D. 85; 642 ; Green’s Appeal, 97 Penn. St. 342; Redwood v. Tower, 28 Minn. 45. 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 no existence in fact. Goodman v. Ran- dall, 44 Conn. 321. Noris one estopped by recitals of a person under whom he does not claim. Graves v. Colwell, 90 Ill. 612. 5 Carpenter v. Buller, 8 Mees. & W. 209 ; ante, p. 341. RECITALS. 855 | the title or claim in question in the litigation. General recitals do not operate to estop the parties from adducing contrary evi- dence ; certainty is of the essence of an estoppel. We propose now to consider each of these classes of recital in further detail; and first concerning 1. Particular Recitals. Particular recitals appear to be declarations such as would be evidence by way of admission? or otherwise of some fact in dis- pute. 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. Such a recital was be- fore the Queen’s Bench in Lainson v. Tremere* The action was upon a bond the condition of which declared by way of recital that by indenture of lease between the plaintiff’s testator and the defendant the testator demised premises to the defendant 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. estopped.6 1 Jackson v. Allen, 120 Mass. 64, 79 ; School District v. Stone, 106 U.S. 183 ; Lainson v. Tremere, 1 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. 2 Sutton v. Casselleggi, 5 Mo. App. 111. See Carrigan v. Bozeman, 18 S. Car. 376. The date of a sealed in- strument though commonly but prima facie evidence may become conclusive when it is of the essence of the instru- meut, and that has been accepted and acted on as valid and binding ; as where a deed executed upon a proper occasion is dated back to give it effect. See Kelley v. State, 25 Ohio St. 567. So But the court held the defendant to be of a bond executed in fact on Sunday but dated otherwise, and then falling for value into the hands of an innocent party. 3 Calkins v. Copley, 29 Minn. 471; School District v. Stone, 106 U. S. 183 ; Zimmler v. San Louis Water Co., 57 Cal. 221 (that the recital should be ‘so certain 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. 41 Ad. & E. 792, 5 Lord Denman who delivered the judgment said that the authorities were clear that if there was uw condition to perform the covenants of an inden- ture, the obligor was estopped to deny the existence of the indenture; or in 856 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 obtained 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 performance by the defendants. The latter pleaded that the invention was not a new one, and that the plaintiff was not the first or true in- ventor 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 defendant contended 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 Abridg- ment, 872b. He proceeded thus: ‘The whole lease being set out, the defendant contends that the actual lease is to be taken as a further de- scription 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 con- tract 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, 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. Farrer, as follows: ‘‘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 re- cognizance 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 acknowledged a thing in the nature of a recognizance, but upon the special matter it appears to the court it was not any recogni- zance 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 in- congruity in saying that different sums are to be recovered according as the proceeding is on the bond or the lease. This however is occasioned by the de- fendant having executed two apparently inconsistent instruments.’ 1 Bowman v. Taylor, 2 Ad. & E. 278. RECITALS. 357 that the pleas were consistent with the deed. The court de- cided that the pleas were bad, directly affirming the doctrine of Lainson v. Tremere, above presented.? 1 Taunton, J. said: ‘The law of estoppel is not so unjust or absurd as it has been too much the custom to rep- resent. The principle is that where a man has entered into a solemn engage- ment by deed under his hand and seal as to certain facts, he shall not be per- mitted to deny any matter which he has so asserted. The question here is whether there is a matter so asserted by the defendant under his hand and seal that he shall not be permitted to deny it in pleading. It is said that the alle- gation in the deed is made by way of Tecital ; but I do not see that « state- ment such as this is the less positive because it is introduced by a ‘‘ whereas.” Then the defendant has pleaded that the supposed invention in the declara- tion and letters-patent mentioned was not nor is a new invention. These words, ‘‘was not nor is a new inven- tion,” must be understood in the same sense as the words ‘“‘had invented,’’ in the recital of the deed set out in the declaration, and must refer to the time of granting the patent; and if the in- vention 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 improve- ments, in the sense in which the deed uses the words, Then the plea directly negatives the decd, and comes within the rule that a party shall not deny what he has asserted by his solemn in- strument under hand and seal.’ The same judge thus distinguished the case from Hayne v. Maltby, 3 T. R. 438: ‘Here there is an express averment in the deed that the plaintiff is the in: ventor of the improvements ; there the articles of agreement averred nothing as to the originality of the invention, but merely stated that the plaintiffs were the assignees of the patent, which they might have been though the as- signor 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. 852 b. It is not denied however 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 improve- ments and obtained a patent for the invention ; and then it proceeds to demise of the very subject-matter 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. Tremere, 1 Ad. & E. 792 [supra], is a direct authority to show that there may be an estoppel by way of recital.’ The doctrine of these eases 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 Commis- sioners Martin, B. said: ‘This is an action upon an instrument under seal whereby the defendants have contract- ed to do certain acts; and in order to excuse themselves from performing them they ought to make out a clear legal defence. Now the instrument it- self states [by recital] that the defend- ants were authorized to borrow money for the purposes of the acts ; and that in pursuance of the acts they had bor- rowed the money for which this bond was given, The first of these pleas in effect states that the money was not 858 ESTOPPEL BY DEED. Where a recital is intended to be an agreement of both parties to admit a fact, it estops both parties; but it may be a question of construction whether the recital is so intended. If a proper construction of the recital shows that but one of the parties agreed to admit the fact, the other party will not be estopped by it Stroughill 7. 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 de- fendant 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 un- satisfied. The action was for a breach of this covenant, the plaintiff alleging that the money was not due when the cove- nant 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 defend- ant had made advances; for as this fact was material for the validity to the plaintiff of the securities on which he had ad- vanced 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. borrowed for the purposes of the acts ; but I think that the defendants are es- topped from setting up any such de- fence. It has been argued that the doctrine of estoppel does not apply here ; but the case of Hill v. The Proprictors of the Manchester 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 re- gards that transaction there shall be no question aboutthem. But the whole matter is opened when the statement is made for the purpose of concealing an illegal contract ; 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 v. The Proprietors of the Manches- ter 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. 810 ; Blackhall v Gibson, 2 L. R. Ir. 49. RECITALS. 859 If the parties to a deed bound the land conveyed upon a street, they are in an action concerning the boundary of the land estopped to deny the existence of the street. 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 west- wardly on a way or street. Chief Justice Parker said that by this description the grantor and his heirs were estopped from denying 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 since been closed, but only that there shall be a way of reasonable width.* 1 Parker v. Smith, 17 Mass. 418; The evidence taken altogether, includ- Donohoo v. Murray, 62 Wis. 100, 103 ; ing monuments as well as the admission 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 re- ferred to therein and recorded in the registry of deeds. Fox v. Union Sugar Refinery, 109 Mass. 292; Morgan ». Moore, 3 Gray, 319; Lunt v. Holland, 14 Mass. 149; Davis v. Rainsford, 17 Mass, 207; Parker v. Bennett, 11 Allen, 888; Murdock v. Chapman, 9 Gray, 156; Sheen v. Stothert, 29 La. An. 630. _ ® See O’Linda v. Lothrop, 21 Pick. 292; Tufts ». Charlestown, 2 Gray, 271; Loring v. Otis, 7 Gray, 563. ® Tobey v. Taunton, 119 Mass. 404. 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 distinction taken by the court or upon any other the recital or the whole evidence amounted to an estoppel in favor of a stranger. * Walker v. Worcester, 6 Gray, 548. In the case cited the plaintiff 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 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 860 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.3 In Cutler v. Bower? again an action was brought upon a covenant to pay the sum of £2,200 by instalments in an inden- ture. The deed recited the grant of letters-patent to the plaintiff in 1841 for a certain invention, and also recited a deed dated July 23, 1842, by which the plaintiff granted the defendant the sole use of the patent subject to the payment of a certain royalty. The deed then recited that the defendant had agreed with the plaintiff for the absolute purchase of a half-interest in the patent subject to the indenture last mentioned, but with the benefit of one half of the royalty thereby reserved. It was then recited that in consideration of £2,200 for the purchase of half 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 pass- ing, indicated by the use of the word ““street.””’ 1 44.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.). 8 Parkinson v. Sherman, 74 N. Y. 88; Green v. Kemp, 13 Mass. 515; Housatonic Bank v. Martin, 1 Met. 294, 807; Johnson v. Thompson, 129 Mass. 398; Tuite v. Stevens, 98 Mass. 305 ; Howard v. Chase, 104 Mass. 249 ; Smith v. Graham, 34 Mich. 302 ; Com- stock v. Smith, 26 Mich. 306; Ken- nedy v. Brown, 61 Ala. 296; Bunkley v. Lynde, 47 Ala. 211; Jackson ». Thompson, 6 Cow. 178; Lee v. Clark, 1 Hill, 56. 411Q. B. 973. RECITALS. 861 patent and half the royalty the plaintiff assigned and transferred the patent to a trustee for the defendant. The defence pleaded was that the plaintiff was not the first inventor, and that the patent was void. The court said that as there had been no eviction, the consideration had not wholly failed. The defendant was at all events bound by the indenture of July 23 to the roy- ‘alty 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 v. Laming.’ The action was covenant to recover a certain sum stipulated to be paid as liquidated damages for the breach of a covenant concerning the use of certain patents. It appeared that there had been a dispute between the parties about their rights under certain patents, which was finally adjusted by their entering into an agreement under seal, reciting that a certain patent had been granted to the defend- ant, and a certain other patent had been granted to the plaintiff, and that, to put an end to their differences respecting them, the parties covenanted that the defendant should have the exclusive use of the patent granted to the plaintiff under certain limita- tions, and that the plaintiff should have the exclusive use of the patent granted to the defendant 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, distinguishing the case from Hayne ». Maltby? The sureties in an administration bond, or a guardian bond, or the like are estopped by its recitals to deny that their principal 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.t So also if the bond recites 1 9 Ex. 256. son v. Woodman, 73 Maine, 163 ; Jones 23T. R. 438. v. Gallatin, 78 Ky. 491; State v. Mills, 3 Cutler v. Dickinson, 8 Pick. 886; 82 Ind. 126. See aiso Father Matthew Bruce v. United States, 17 How. 437; Soc. v. Fitzwilliams, 84 Mo. 406; Teu- Shroyer v. Richmond, 16 Ohio St. 455; tonia Bank v. Wagner, 33 La. An. 732. Norris v. State, 22 Ark. 524 ; William- * Cox v, Thomas, 9 Gratt. 312 ; Cecil 862 ESTOPPEL BY DEED. or stipulates that all the signers are principals, none of them can say against the obligee that he was a surety,! except—and the exception is probably confined to the case of a recital as distin- guished from an express stipulation upon showing that the obligee, at the time of the act done by him in prejudice, as alleged, of the supposed surety’s rights, knew that that party was a surety? It hag also been held in a suit upon a replevin bond that the obligors will not be permitted to deny that the property was that of the defendant in the attachment where the bond recited that the .property had been ‘attached as’ his;? but a contrary doc- trine has also been held with much apparent soundness, so far as the question turns alone upon the recital.4 However it is certain that if the recital is specific (as when it alleges that a writ was issued against the goods, chattels, lands, and tenement of the defendant, and a certain piece of property was levied upon by virtue of the writ), the obligor cannot deny that the property belonged to the defendant in the attachment® unless before forfeiture he surrendered the property in accordance with the terms of the bond.é In like manner where a deed described land as the premises on which the grantor resided, the parties were held estopped to v, Early, 10 Gratt. 198. Nor will a surety be permitted to say that his principal was dead at the time the in- strument was executed. Collins v. Mit- chell, 5 Fla. 364. So too the execution of a mortgage to a corporation estops the mortgagor to dispute the existence of the corporation. Franklin v. Twogood, 18 Iowa, 515; Lehman v. Warner, 61 Ala, 455 ; post, ch. 16. 1 Menaugh v. Chandler, 89 Ind. 194. 2 This appears to be the effect of the better authorities, for there is want of harmony in the cases. See 1 Parsons, Notes and Bills, 233, 234, where the cases are reviewed. The rule above stated would be accepted everywhere in equity, and it is apprehended that it is the true rule at law as well. 3 Bursley v. Hamilton, 15 Pick. 40. 4 Decherd v. Blanton, 3 Sneed, 373. But the question does not, it seems, turn alone upon the recital. The officer has been induced to deliver the property to the obligors upon the assurance that they make no claim to it, so that there arises an estoppel in pais. See Dezell v. Odell, 3 Hill, 215; Dewey v. Field, 4 Met. 381; Horne ». Cole, 51 N. H. 287; Dresbach v. Minnis, 45 Cal. 223 ; post, ch. 18. 5 Gray v. MacLean, 17 Il. 404; Mi- chell v. Ingram, 88 Ala. 395; Dezell 2. Odell, 3 Hill, 215 ; Dresbach v. Minnis, 45 Cal. 223; Dewey v. Field, 4 Met. 381; post, ch. 18. 6 Page v. Butler, 15 Mo. 73. See also Sponenbarger v. Lemert, 23 Kan. 55; Haxtun v. Sizer, ib. 310; Staples v. Fillmore, 43 Conn. 510; Trueblood v. Knox, 73 Ind. 810. RECITALS. 863 deny that the premises were the homestead of the grantor! So of a recital that land was formerly owned by A B?2 And a recital in a chattel mortgage that the property mortgaged is personal estops the mortgagor to say it is real property, whatever the fact may be® So too a widow by executing a release in which she styles herself widow and sole devisee is estopped to deny that she has elected to take under her husband’s will.4 And a deed which recites that the defendant has bargained, sold, and delivered certain property estops him to dispute the delivery5 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 descrip- tion of land, some of which are found to be inapplicable to the premises, these may be rejected and the other unambiguous 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 v. Laming, where the defendant was held estopped to deny the validity of certain patents by reason of the recitals of a deed executed between him and the plaintiff. And there is cg 1 Williams v. Swetland, 10 Iowa, 51. 8 Doane v. Willcutt, 16 Gray, 368 ; 2 Stevenson v. Saline Co., 65 Mo. 425. 8 Ballou v. Jones, 87 Ill. 95. 4 Dundas v. Hitchcock, 12 How. 256. 5 Nevett v. Berry, 5 Cranch C. C. 291. 6 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. Wright v. Tukey, 3 Cush. 299; Whit- ing ». Dewey, 15 Pick. 428 ; Winn » Cabot, 18 Pick. 558 ; Thatcher v. How- land, 2 Met. 41. ® Hovey », Woodward, 83 Maine, 470. See Kidder v. Blaisdell, 45 Maine, 461; Great Falls Co. ». Wor- ster, 15 N. H. 414, 450; Housatonic Bank v. Martin, 1 Met. 294, 307; Blackhall v, Gibson, 2 L. R. Ir. 49, 57. 364 ESTOPPEL BY DEED. 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 admitting the validity of acts or instruments which in law were invalid, will preclude the parties in an action upon the deed from contesting the same? So too in the absence of fraud or mistake 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 recital which they know is not correct and bind themselves accordingly.* It is held that where a party makes a deed confirming a former 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. In the case cited in order to prove the bankruptcy of one Shelton, and the assignee- ship, 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 former, executed a settlement of the land upon himself after a certain event. The latter deed was silent respecting the bankruptcy. It was contended that the defendant had recognized and adopted the former deed by the latter. But the court held otherwise. Lord Denman said that there was no authority for such a gen- eral proposition that a party claiming like the defendant adopted the statements of an anterior deed which went to make up his title. 1 1 Story, Contracts, § 571, 5th ed. 2 And there may be an estoppel in pais upon a man’s liability in law; as in the case of the conduct of an in- dorser of a note or bill whose liability has in truth never been fixed. Libbey v. Pierce, 47 N. H. 809. See St. John v. Roberts, 81 N. Y. 441. But this would probably be true only of conduct under- stood to be an affirmation of fact, as that the indorser had received notice of dishonor. If understood to be a con- clusion of law from a comparison of facts, propositions, or the like, quere if the party would be estopped 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 adjudica- tion estops the parties from disputing, not only the facts found by the jury, but the legal conclusions of the court. § Blackburn v. Ball, 91 Ill. 434. 4 Ibid. 5 Doe d. Shelton v. Shelton, 3 Ad. & Ei. 265, 283. RECITALS. 865 According to the current of authority definite 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 foot- ing with recitals in ordinary deeds, and hence will estop the municipality, just as they would a private corporation or citizen, 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.2 This however has nothing to do in any case with the right of a corporation, municipal or other, to deny its entire power to do an act in question; the re- cital is binding only upon the assumption that the corporation 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 because, as we have said, the certainty essential to every estoppel is want- ing.* And it is perfectly consistent with a recital of intention 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 1 Cromwell v. Sac, 96 U. S. 51; Block v. Commissioners, 99 U. S. 686; Hackett v. Ottawa, ib. 86 ; Orleans », Platt, ib. 676, 682; Lyons v. Munson, ib. 684; Buchanan v. Litchfield, 102 U. S. 278 ; Menasha v. Hazard, ib. 81; Tipton v. Locomotive Works, 103 U. S. 523; Harter v. Kernochan, ib. 562; Jas- per v. Ballou, ib. 745 ; Insurance Co. x. Bruce, 105 U. S. 328 ; School District v. Stone, 106 U. 8. 183 ; Webb v. Herne Bay Com., L. R. 5 Q. B. 642; post, ch. 16. 2 Starin v. Genoa, 23 N. Y. 439; Cagwin v. Hancock, 84 N. Y. 532 ; On- tario v. Hill, 99 N. Y. 324. 3 Northern Bank , Porter, 110 U.S. 608. See Carroll v. Smith, 111 U. 8. 556. Further see ch. 16. # Muhlenberg v. Druckenmiller, 103 Penn. St. 631. 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 in- tention of the parties that a certain state of facts should be affirmed as the in- ducement to the deed. See Van Rens- selaer v. Kearney, 11 How. 297; post, ch. 11. 5 See Denman v. Nelson, 31 N. J. Eq. 452, 6 2 Barn. & Ad. 278, 866 ESTOPPEL BY DEED. 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 es- toppel. In the present case there was a want of that certainty 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 complete appointment of the person as collector.? The distinction between a conveyance by general and one by particular description is further illustrated by Doe d. Butcher ». Musgrave.2 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 thereto, and all and every the rights, rents, profits, emoluments, privileges, 110 C. B. 35. 2 Maule, 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 appoint- ment of Lee as collector they did not mean that; he was fully armed with authority to collect the sum assessed. He had been appointed to collect, and was the person who was intended to be armed with power to collect and en- force payment 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 ques- tion, whether the defendants are es- topped by the recitals in the bond from setting up this defence, it is to be ob- served that it is a rule that estoppels must be certain to every intent. And here it is at least doubtful whether the recital that Lee had been duly nomi- nated and appointed a collector for the year ending the 5th of April, 1847, and that duplicates of the assessment had been delivered and given in charge to him, with a warrant or warrants for collecting the same, should be referred to the assessments under schedule (A) or schedule (D). I therefore think there is no estoppel.’ 31 Man. & G. 625. RECITALS. 367 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.2— 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 the sale of the goods and chattels of one Chris- 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 un-. der 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 1 ‘A preliminary objection,’ said the gage deed. If the house had been in- chief justice, ‘has been taken on be- half of the lessor of the plaintiff, that as between her and the defendant, as mortgagee and mortgagor, the defend- ant is estopped by the mortgage deed from denying that he has the title he therein assumed to have, or from set- ting up title in any one else. I entirely concur in that as a general proposition ; 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 description contained in the mort- eluded in the mortgage by a particular description, the defendant 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 can- onry of him, the defendant, of the king’s free chapel at Windsor, and all glebe and other lands, messuages, ten- ements, and hereditaments belonging thereto,’ ‘2 Noble v. Cope, 50 Penn, St. 17. 368 ESTOPPEL BY DEED. 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 between these facts and the recital in the bond. Estoppel excluded facts inconsistent with itself, but not such as agreed with it. The sheriff moreover had not recognized an absolute right in the de- fendant 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 con- tended 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.” 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- 17 Barr, 185. 2 Mr. Justice Bell speaking for the court said: ‘How far the encroach- ment infringed on the original 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 inferentially that the defendant could not at once have possessed himself of the whole one hundred and fifty-nine feet conveyed. Without laboring 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 ex- tent. It was certainly competent to the plaintiffs to show that it interfered not with the defendant’s possession be- yond one inch, and if so, to prove it did not interfere at all ; for the inquiry once entered upon there was nothing in the deed itself to limit a point at which it should be stayed.’ 8 34 Maine, 394. RECITALS. 869 véyarices' 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 thé amount of property replevied estop a4: surety to show how much of the property in the writ was in fact réplevied? 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 works mentioned in the deed: There was 4 plea by way of estoppel in confession dnd 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’ 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 otherwise? 1 Miller v. Moses, 56 Maine, 128 ; State v. Neuert, 2 Mo. App. 295. 2 Southeastern Ry. Co. v. Warton, 6 Hurl. & N. 520; Carpenter v. Buller, 8 Mees. & W. 209. , 8 The learned baron above named said: ‘Every deed must be construed according to that which, looking at the’ document itself, appears to be the in- tention of the parties. It is true that in construing a deed the court cannot Jook at collateral matters, but the in- tention of the deed as’ appearing upon the face of it must be regarded. If in the present case it had appeared 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 unan- swerable. But when the whole deéd is’ looked at, no such intention appears. The parties intended to refer certain: matters to arbitration. They intro- duce 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 mu- tually satisfied every other account, claim,- or demand which the said par- ties have-or hath against each other: arising out of the-said: contract, or any’ 24 370 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 observed 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 other account, matter, or thing what- soever, as they the said Southeastern Railway Company and the said Charles Warton and Henry Warden do hereby severally admit and acknowledge ; but the claims of the said Charles Warton and Henry Warden, contained and set forth in the said schedule, as well as the amount claimed thereby, are 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 arbitra- tion shall be confined to the matters specified in the schedule ; and the ad- mission is made for the purpose of that deed. Ido 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 Car- penter 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, according to circumstances. Here | collect from the deed that it was not the intention of the parties to prevent 4 the plaintiffs from bringing such an ac- tion as the present.’ Channell, B. ob- served : ‘If we could see the parties had agreed to release all other claims in con- sideration of the agreement to refer, then there might be an estoppel ; but that does not appear to have been their meaning. On these grounds the plain- tiffs are entitled to judgment. It was said that this is not a question of inten- tion. It may be that when a deed con- tains a recital of a particular fact in express terms the effect of the recital cannot be got rid of by showing what the intention of the parties was. But when the language is general we may collect the intention from the terms of the whole deed; and in that way we have endeavored to arrive at the true construction of the deed in the present case.’ 1 Reed v. McCourt, 41 N. Y. 485; 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 ; Com- ings v. Wellman, 14 N. H. 287, 298. 2 Carpenter v. Buller, 8 Mees. & W. 209. 8 Dyer v. Rich, 1 Met. 180 ; Cady v. Eggleston, 11 Mass. 282, 285 ; Kimbro v. Hamilton, 2 Swan, 190. See Wash- ington Co. Ins. Co. v. Colton, 26 Conn. 42, RECITALS. 871 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 recited that it was then made and so made at their request, and this was conclusive that the deed was then made, and the date 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? in the Supreme Court of North Carolina it was held that there was no estoppel to either party to a deed of bargain and sale to show that one of the bargainors, recited to be a feme covert, was in fact a feme sole at the time the deed was 1 Hays v. Askew, 5 Jones, 63 ; South- eastern Ry. Co. v. Warton, 6 Hurl. & N. 520; Blackhall v. Gibson, 2 L. R. Tr. 49, 57. 2 3 Dev. 108. 3 Henderson, C. J. speaking for the court said: ‘Recitals in a deed are es- toppels when they are of the essence of the contract ; that is where unless the facts recited exist the contract, it is pre- sumed, would not have been made. As if A recites that he is seised in fee of certain 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 con- tract 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 averring and proving that he is seised executed.? The doctrine of this by purchase from D, unless it appear that the seisin in fee by purchase from C was part of the contract, and with- out which it would not have been made. For ordinarily the seisin only is of the es- sence of the contract, and how and from whom derived are but circumstances. So of every other recital. And this distinc- tion reconciles the many apparent con- tradictions in the books, some declaring that recitals 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 de- scription, more unfavorable to the de- fendant 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- 872 ESTOPPEL BY DEED. ease seems to be supported also by the. cases now to be-presented, which hold that the acknowledgment. of receipt of the considera- tion in a deed is not. conclusive. Mr. Justice. Cowen, as. we shall see, expressly: bases. the rule upon the principle. abowe: set forth 3. Acknowledgment of Receipt of Consideration in a Deed. Tt has been settled for many years, after some conflicting decisions, that the acknowledgment in a deed of conveyance of the receipt of the consideration is not conclusive between the parties, but may be explained, enlarged, or disputed.? The.doc- trine is discussed in Shephard ». Little, decided by the Supreme Court of New York. The action was assumpsit for money: had and received. The plaintiff offered to prove at the trial that, being in possession of a lease of the value of $500, and that being in debt to a third person in a smaller sum, the defendant agreed to advance him the amount necessary to pay the same, taking in consideration an assignment.of the lease, which he. was to sell and pay the plaintiff the difference. between the sum so advanced and the sum realized fromthe sale of the. lease; -that he, the plaintiff, thereupon assigned the lease by deed to the defendant; the assignment stating the consideration to be $500 in hand paid. The. defendant. objected to the. introduction of this evidence; but the court held that.it was admissible; revers- ing the decision of the Common Pleas.® 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 receive 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 con- duce to the contract. It is therefore mere matter of evidence, and like. all other evidence may be rebutted by con- trary proof. . . . But the case does not rest upon general reasoning. If A. 8, 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. Soif 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 con- cluded by this recital.’ Perkins, s. 41, note. 1 Post, p. 373, note 3. 2 Shephard »v. Little, 14 Johns, 210; Barter v. Greenleaf, 65 Maine, 405; Mobile Ry. Co. v. Wilkinson, 72 Ala, 286. 3 Mr. Justice Spencer thus stated RECITALS. 378 It will be seen however that the courts have gone still further in many instances, and allowed the parties to prove an altogether different consideration from that expressed in the deed! 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’ the opinion of the court: ‘The case of Schermerhorn ‘», Vanderheyden, 1 Johns, 139, is referred to to show that the court below decided correctly. If that case is well understood it warrants no such conclusion. The case of Pres- ton uv. Merceau, 2 Wm. Black. 1249, was cited and relied on by the court. In that case it was decided that parol evidence was inadmissible to prove an additional rent payable to a tenant be- yond that expressed in a written agree- ment for a lease, and Blackstone, J. said: ‘‘Here is a positive agreement that the tenant shall pay £26; shall we admit proof that it means £28 12s. 6d.%” But he added, as to collat- era] matters it might be otherwise ; he might show who is to put the house in repair, or the like, concerning which nothing is said. But he cannot shorten the term, or alter the rent. In Maig- ley v. Hauer, 7 Johns. 341, we refused to admit parol evidence of a considera- tion of a different nature from that ex- pressed in the deed of conveyance. The evidence offered in this case steers clear of the principles adopted in the cases cited. Here the plaintiff does not at- tempt to set up a different considera- tion from that expressed in the deed of assignment. He merely offered to show that it was not paid, and that the amount to be paid him for the assignment was to depend on an event subsequently to hap- pen, to wit, the sale by the assignee of the property assigned. ... The date of a deed, and whether the considera- tion was paid or not, are facts open for inquiry by parol proof. If notes of hand, which are of no higher nature than verbal promises and are classed among parol contracts, were given for the consideration money of a convey- ance of land, could there be any doubt that such notes would be recoverable when the deed expressed that the con- sideration was paid in land? Yet it is certain that between the contracting parties you may inquire into the consid- eration of a note. If so, then you could show that they were given for the land conveyed; and by showing that the consideration was confessed to be paid by the deed a recovery would be de- feated by the higher proof arising from the deed. But this is not the case ; and though when one species of considera- tion is expressed you cannot prove an- other or different one, and although you cannot by parol substantially vary or contradict a written contract, yet these principles are inapplicable to a case where the payment or amount of the consideration becomes a material in- quiry.” See Abbott v. Marshall, 48 Maine, 44. 1 Irvine v. McKeon, 23 Cal. 472; Coles v. Soulsby, 21 Cal. 47. 216 Wend. 460. 8 Mr. Justice Cowen who delivered the judgment, after showing that there had been much conflict on the subject both in New York and elsewhere, said: ‘A party is estopped by his deed. He is not to be permitted to contradict it ; so far as the deed is intended to pass a right or to be the exclusive evidence of a contract it concludes the parties to it. But the principle goes no further. A deed is not conclusive evidence of every- thing which it may contain. For in- stance it is not the only evidence of the date of its execution, nor is its omission 874 ESTOPPEL BY DEED. 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? In 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 of a consideration conclusive evidence that none passed ; nor is its acknowl- edgment of a particular consideration an objection to other proof of other and consistent considerations. And by anal- ogy 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 rule which we have laid down, it may be explained or contradicted. It does not necessarily and undeniably prove the fact. It creates no right ; it extinguishes none. A release can- not be contradicted or explained by parol, because it extinguishes a pre- existing right; but no receipt can have the effect of destroying per se any subsisting right; it is only evi- dence of a fact. The payment of the money discharges or extinguishes the debt ; a receipt for the payment does not pay the debt; it is only evidence that it has been paid. Not so of a written release ; it is not only evidence of the extinguishment, but it is the ex- tinguisher itself. (a) The acknowledg- ment of the payment of the considera- tion in a deed is a fact not essential to the conveyance. It is immaterial whether the price of the land was paid or not ; and the admission of its pay- ment in the deed is generally merely formal.’ 1 Wilkinson v. Scott, 17 Mass. 249; Gale v. Coburn, 18 Pick. 397 ; Clapp v. Tirrell, 20 Pick. 247 ; Livermore v. Al- drich, 5 Cush. 431; Preble v. Baldwin, 6 Cush. 550 ; Clark v. Deshon, 12 Cush. 589 ; Paige v. Sherman, 6 Gray, 511; Miller v. Goodwin, 8 Gray, 542. 2 See Rex v. Scammonden, 8 T. R. 474. 5 Levering v, Shockey, 100 Ind. 558 ; Turner v, Flinn, 72 Ala. 632. (a) * In speaking of a written release as an extinguisher of itself I do not un- derstand him to mean the releasing clause in a conveyance which usnally accom. panies an acknowledgment of the receipt of the money, but an absolute, separate, and distinct release.’ Miller, J. in Stackpole v. Robbins, 47 Barb. 212, RECITALS. 375 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 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, accepted 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 per- mitted to defeat the operation of the grant by showing that the consideration was not paid. Between the vendor and the pur- chaser the consideration was to be treated as fully paid, and the vendor was estopped from denying it.? 1 MeMullin v. Glass, 27 Penn. St. 151. 2 Compare certain of the doctrines stated in the chapter on Acknowledg- ment of Receipt in Parol, post. The general rule that an acknowledgment of receipt in a sealed instrument may be controverted is, we apprehend, only a rule of interpretation, and not a rule of Jaw, even in cases where there are no extraneous circumstances to make the admission binding. There is no reason why the parties should not be able to agree that there shall be no disputing the admission ; and if the parties should by apt terms in the instrument prom- ise not to question the receipt the courts could not fail to consider the acknowl- edgment as binding. A bond in use among money lenders in London in the thirteenth century furnishes an exam- ple. The admission of receipt we im- agine would be considered by the courts as something more than prima facie evi- dence. ‘The form by which the Caur- sines bound their debtors : ‘ To all who shall see the present writings — the prior and convent of ——, health in the Lord. Be it known to you that we have received on loan at London, for the purpose of usefully settling matters concerning us and our church, from such an one and such an one, for them- selves and their partners, citizens and merchants of the city of » 104 marks of good and lawful money ster- ling, each mark being computed at 13 shillings and 4 pence sterling. For which 104 marks we, in our own name and in the name of our church, do declare that we are quit, and do pro- test that we are fully paid, altogether renouncing any exception of the money not being reckoned, and paid, and handed over to us, and also the excep- tion that the said money has not been converted to our own uses and to the uses of the church. And the aforesaid 104 marks sterling, in the manner and to the number aforesaid, to be reckoned to the said merchants, or to one of them, or to their certain emissary who shall bring with him these present let- ters, on the feast of St. Peter ad Vin- cula, namely, the first day of the month of August, at the New Temple, London, 876 ESTOPPEL BY DEED. , Indeed it ig not permitted a party to prove a different con- sideration from that named in his deed if such change would yary the legal effect of the instrament. Thus the grantor of a deed, who acknowledges receipt of payment of the consideration, will not be allowed, it is held, to disprove that fact and so estab- ’ lish a resulting trust in himself} in the year of our Lord’s incarnation and discharge in full,”’ &. Matthew one thousand two hundred and thirty- Paris’s Chronicle, the Historia Major, five, we promise by lawful covenant, and Giles’s transl., London, 1852. pind ourselves in our own name and in 1 Mobile Ry. Co. v. Wilkinson, 72 that of our church, that we will pay Ala. 286. TITLE BY ESTOPPEL. BIT CHAPTER ‘XI. TITLE BY ESTOPPEL. 1. History of the Subject. THE 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 in general terms in cases where a grantor without title makes a lease or conveyance of land by deed with warranty, and subse- quently by descent or by purchase acquires the ownership ; which after-acquired title of the grantor inures (in common phrase) by estoppel to the benefit of the grantee? 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. 1 Chapter IX. of Rawle on Cove- at the time of executing the deed. nants for Title is recommended for Doyle v. Coburn, 6 Allen, 71; Sillo- study in connection with the follow- way v. Brown, 12 Allen, 30, 33. The ‘ing pages. Title by estoppel is no- deed need not be attested to enable it where more ably handled. to raise an estoppel against the grantor, 2 ‘Touching estoppels, which is an on the covenants. Contra against a excellent and curious kind of learning,’ purchaser from him even with notice. &. Coke, Litt. 352 a. Chamberlain v. Spargur, 86 N. Y. 603 ; 8 Such covenants in a deed by a hus- Wood v. Chapin, 3 Kern, 509, under band would not bar the grantor from statutes. claiming statutory homestead, existing 878 ESTOPPEL BY DEED. 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 removed all disseisins, abatements, intrusions, and other wrongful and defeasible titles, and reduced the estate clearly to the feoffor, and through him to the feoffee, when the entry of the feoffor was lawful; which neither fine, recovery, nor bargain and sale by deed indented and enrolled would do when the feoffor was out of possession by disseisin. And the learned editor of the Touchstone, Mr. Preston, in a note to this passage says that to make a feoffment good and valid nothing was wanting but pos- session ; and when the feoffor had possession, though entirely naked, yet a freehold or fee simple passed by it against the feoffor by reason of the livery. The feoffinent passed not only all present estates and in- terests of the feoffor, but also barred and excluded him (and his heirs prior to the statutes de bigamis? and quia emptores 4) from all future estates, rights, and possibilities in favor of the feotfee* This effect of barring all future interests was produced, it has been said, by the presence of the word ‘dedi’ in the charter of feotfment, which word imported a warranty to defend the estate. 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 charte 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.’ 1 Page 203. ® Touchstone, 181. 2 4 Edw. 1, c. 6. ™ The subject is more fully explained 318 Edw. 1, . 1. by Blackstone. ‘By the feudal con- 4 Tonchstone, 204. stitution,’ he observes, ‘if the vassal’s 5 Ibid. 184; Coke, Litt. 883, 884. title to enjoy the fee was disputed, he We shall have something to observe on might vouch or call the lord or donor this word somewhat later. to warrant or insure his gift ; which if TITLE BY ESTOPPEL. 8719 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 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 Glou- cester passed a little earlier, the heir was in every case bound by the ancestor’s warranty. As a covenant real the warranty de- scended upon him and bound him even though he claimed title from a third person. These statutes were intended respectively to relieve the heir from such injustice, and to establish entails. The statute of Gloucester protected the son of tenant by the curtesy from the father’s warranty. He was now safe when he claimed title from his mother. The statute de donis went fur- ther, protecting the son generally from the father’s warranty in he failed to do, and the vassal was evicted, the lord was bound to give him another feud of equal value in recom- pense. And so by our ancient law if before the statute of quia emptores a man enfeoffed another in fee by the feu- dal verb ‘‘ dedi,” to hold of himself and his heirs by certain services, the law annexed a warranty to this grant, which bound the feoffor and his heirs, to whom the services (which were the considera- tion and equivalent for the gift) were originally stipulated to be rendered. . . . But in a feoffment in fee by the verb “‘dedi” since the statute of quia emp- tores 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. 1 Touchstone, 182. 880 ESTOPPEL BY DEED. the father’s feoffments of his own estate; but this was the ex- tent of the protection. The doctrine of warranty still prevailed in other cases ;1 and so when it happened that the son was heir also of one who was collateral to the title to the land in ques- tion, 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 war- ranty 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 stat- utes; and it was called collateral warranty. The warranty was collateral to the title; not necessarily, it should be observed, collateral to the blood. The father’s warranty might be col- lateral 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 An entail could so be effectually barred; and this evasion of the policy of feudalism, modified somewhat by mod- ern statutes,? was a recognized until within about fifty years of 1 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.). 2 No part of the law is more compli- cated than this subject of collateral warranty has been made, ‘If Little- ton,’ 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 war- ranty, of saying the warranty of the an- cestor doth not bind in this case be- cause it is restrained by the statute of Gloucester or the statute de donis, and it doth bind in this case as at the com- mon law because not restrained by either statute (for when he wrote, there were no other statutes restraining war- ranties ; there is now a'third, 11 H. 7), his doctrine 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 mode of assurance in England the present time.* doth bind or not, directly and a priori, because 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.’ 3 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. Alpaugh, 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 and 5 Anne prob- ably never prevailed in this country. Ibid. 4 Warranties and real actions gener- TITLE BY ESTOPPEL. 3881 And in either sort: of warranty, lineal or collateral, if the. war- rantor should implead the warrantee the latter (the. tenant), might. ’ show the. warranty and demand judgment. whether contrary to: the warranty the warrantor should be suffered to demand the: thing warranted ; and this was called a rebutter. This rebutter was given as a defence to the title to avoid circuity of action ;, since if the.demandant were to have recovered contrary to the: warranty, the. other party would recover the same: lands. or lands: of equal value: by force of the warranty.? 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 ancestor was bound and charged with the warranty in the. hands. of all persons to whom it should afterwards go, from the impetration of the writ; so that if the land warranted should afterwards. be recovered from the warrantee, he should be entitled to recover 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 unless first, the heir have assets from him, and then only'to the extent.of such assets? or unless secondly, the heir claim the land 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.* ally were abolished by 3 and 4 Will. 4, c. 27, § 39; ib. c. 74, § 14. See fur- was never im use in Massachusetts. Russ v. Alpaugh, 118 Mass. 369 ; Mar- ther in. regard to collateral warranty, Rawle, Covenants, ce. 1; Russ v. Al- paugh, 118 Mass. 369; Southerland v, Stout, 68'N. C. 446, © 1: Coke, Litt. 265 ; Touchstone, 182.. 2*Touchstone, 184. The remedy of recovering other lands in such a case ston v. Hobbs, 2 Mass. 4383, 438. 3 Carson v. New Bellevieu Cem. Co., 104 Penn. St. 575; Utterback v. Phil- lips, 81 Ky. 62. Without.warranty the heir is not bound. Bohon v. Bohon, 78 Ky. 408. * See Russ». Alpaugh; supra. 382 ESTOPPEL BY DEED. The policy of the law, it will thus be seen, is to prevent cir- cuity of action. If the heir, having assets from his father the grantor, were to be allowed to recover the land which the father had conveyed with warranty, though the title had come to him from his mother or from any other collateral source, he would be compelled at once to respond to his father’s covenant to the ex- tent of his assets (not exceeding of course the value of the land) ; so that he would be in no better position in a pecuniary aspect, which alone the law regards, after the litigation than before. The law therefore wisely holds him estopped, or more properly rebutted, from claiming the land. And the same would be equally true if he should claim the land as heir of his father (under a title acquired by the father after the conveyance), re- gardless of assets; for the land, if a recovery were permitted, would itself become assets. This is upon the supposition that the warranty is in the usual general form, for the grantor, his heirs and assigns; but if the warranty should be personal only, and not for the heir also, the 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. ot 2. Leases. — Where no Interest passes an Estoppel arises. One of the ‘curious’ doctrines of estoppel is this, that where no interest passes by a sealed lease, an estate by estoppel is created between the parties and those claiming under them TITLE BY ESTOPPEL. 883 in case of a subsequent acquisition of title by the grantor. Or in the example put in the case of Trevivan v. Lawrence! if a man makes 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 bargains and sells it to A, the heir or A shall be bound by this estoppel, and so shall the lessee and his assignee. For when an estoppel works on the interest of the land, it runs with the land into whose hands soever the land comes; and an ejectment is maintainable upon the mere estoppel. Mr. Preston? in speaking of this doctrine says that the lease first operates by way of estoppel; and finally when the grantor obtains an ownership, it attaches on the seisin and creates an interest, or produces the relation of landlord and tenant. There is a term 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 consid- ered 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 11 Salk. 276; 8. c. 6 Mod. 258; 2 the case of leasehold estates; and that, Ld. Raym. 1036. in the common conveyance with war- 22 Preston, Abstracts, p. 210, as ranty, the estoppel applies against the cited by Tindal, C. J.. in Webb e. grantor in respect of after-acquired in- Austin, 7 Man. & G. 701, 724. terests as well where he had an estate 8 Coke, Litt. 47 b; Doe d. Strode at the time of the grant as where he had v. Seaton, 2 Crom. M. & R. 728. But none. House v. McCormick, 67 N. Y. it is held that this rule applies only to 810, 384 ESTOPPEL: BY DEED. 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? 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 1 “Ts there any case,’ said Mr. for the life of B, makes a lease for years 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 giv- ing up possession at the end of the term? It 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 estate, had a right to grant a lease for twenty-one years determinable upon his life, and there- fore an interest passed ; and where an interest passes there is no estoppel. In Coke, Litt. 47 b, it is said : ‘* A, lessee 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 7% point of interest and determined by the death of B.” That case is similar to the present except that there the rever- sion was purchased by the lessor instead of the lessee. That shows that an inter- est passes, and then there is no estoppel.’ 2 Langford ‘wv. Selmes, 3 Kay & J. 220. 5 «Tn truth,’ said the learned judge, ‘the question in this case is whether of not-there is any reversion on which the TITLE BY ESTOPPEL. 885 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 hei of the lessor. And the following example is given: Where covenant was brought upon a lease tor years by the plaintiff as heir in reversion in fee to his father, purchaser of the ground rent would have a right to proceed for its recovery by distress or re-entry. As respects the reversion the case is in a singular position. Unquestionably a termor who grants alease longer than his term there- by parts with his whole interest ; and during the term of the original lease the tenant would hold of the owner in fee simple, who had granted the original lease ; but the argument is that on the subsequent 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 af- fected to demise to him, at a rent of £6, for a term greater than he was pos- sessed of at the date of the under-lease. There is no authority for such a propo- sition ; and the only argument in favor of it has been that, although there is not a complete estoppel where there is an interest which might be sufficient to effect the whole object of the deed, yet where the interest was ab initio insufli- cient, there, in order that the deed may not lose its effect, the parties are es- topped from saying that the actual inter- est 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 character. That was a case where a person having a reversionary interest made a grant, and it was supposed 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 impossible therefore to treat it as an authority), that there was no in- terest at all because there had been no attornment in respect of the original interest of the lessor which he purported to grant, and therefore the lessor hav- ing 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 per- fect 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 hav- ing accepted a lease cannot plead to an action by his lessor that the lessor nil habuit in tenementis. 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 intend- ed to be made.’ But if the devisee in his declaration allege the reversion to belong to the lessor and heirs, the de- fendant must traverse it ; for to confess and avoid would be to admit the exist- ing title in the devisee. Weld v. Bax- ter, 1 Hurl. & N. 568, in Exchequer Chamber, per Crompton, J.; s. c. 11 Ex. 816, 1 Sir E. V. Williams, in note to Walton v. Waterhouse, 3 Saund. 419. 25 886 ESTOPPEL, BY DEED. and breach being assigned for want of repairs the defendant 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.5 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 1 Brudnell v. Roberts, 2 Wils. 143. * See Langford ». Sel r & 2 Blake v. Foster, 8 T. R. 487. J. 220. e eae 8 ] Stephens’s Com. 612, 524, 7th 5 Abstracts, 217. ® Langford v, Selmes, supra. TITLE BY ESTOPPEL. 3887 In regard to the tenant the rule (as we shall see hereafter) is still broader. Thus while he cannot deny that the landlord 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 in fee, made before title accrued,.the interest inures to the grantee and gives him a title by estoppel ;? and the contrary if the conveyance was without warranty.t We shall devote the remainder of the present chapter to a minute examination of the limits of this rule. The proposition must be divided into two parts, according as it is to be applied between the grantor (and his heirs) and the grantee, and between this grantee and a subsequent grantee of the grantor to whom a conveyance of the same premises has 1 See post, ch. 14. 2 See post, pp. 403-405 ; Haney ». Ray, 54 Mich. 635. 8 But tenant in tail in remainder can- not, apart from statute, bar the entail by warranty deed. Allen v. Ashby School Fund, 102 Mass. 262. The stat- ute allowing tenant in tail in possession to bar the entail is another thing. See Holland v. Cruft, 8 Gray, 162; Whitta- ker cr. Whittaker, 99 Mass. 364. 4 Smith 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); Hannah ». Collins, 94 Ind. 201 (attempt to set-up tax title); Du- gan v. Follett, 100 Il 581; Wadhams v. Swan, 109 Ill. 46 ; Dobbins v. Cru- ger, 108 Ill. 188; Smith v. De Russy, 29 N. J. Eq. 407; Hart v. Gregg, 82 Ohio St. 502; Kelly v. Seward, 51 Vt. 436; Western M. Co. v. Peytonia Coal Co., 8 W. Va, 406. So too of an assignment, without warranty, of a mort- gage. Weed Sewing Machine Co. ». Emerson, 115 Mass. 554. See Merritt v. Harris, 102 Mass. 326; Forster v. Forster, 129 Mass. 559. A grantor, notwithstanding his warranty, could probably 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. Han- nah v. Collins, 94 Ind. 201. 888 ESTOPPEL BY DEED. been made after title accrued. The two cases, as we expect to show, stand upon a very different footing. First then upon the application, between grantor and grantee, of the above-stated tule. To determine whether the grantee will have against the grantor a title by estoppel upon the acquisition of title by the latter, in other words whether the grantor will be estopped from setting up the after-acquired interest against his grantee and thus from claiming the premises, will depend upon the nature of the deed. It is not always necessary that the deed should contain covenants of warranty to operate in this way; nor will it always operate in this way when it dces contain such covenants. Besides the deed must be voluntary; and hence a sheriff’s deed will not bar the judgment debtor from claiming the land under an after-acquired title, whether the deed be with warranty or not.! There is then in the first place a class of cases in which the grantor will be precluded from claiming his newly acquired title against his grantee though he entered into no covenants of 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 1 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 binding in regard to the existing title. Gorham v. Brenon, 2 Dev.174, See Eldridge v, Trustees of Schools, 111 Ill. 576, 580, holding that a deed made in obedience to an or- der of court is not made under coercion. Courts have no power to, make an order in the sale of a decedent's estate, 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. 2 The question is of course one of intention on the face of the deed. Han- non v. Christopher, 84 N. J. Eq. 459. The case of Smiley »v. Fries, 104 Il]. 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. TITLE BY ESTOPPEL. 389 Court of the United States! In this case the averment of the specific estate in question was not in so many words expressed, but the 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 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 cases said that the principle deducible seemed to be that, whatever the form or nature of the conveyance used to pass real property, if the grantor sets forth on the face of the instrument by way of recital or averment that he is seised or possessed of a particular estate in the premises, which estate the deed purports to convey, or (what is the same thing) if the seisin or possession of a particular estate is affirmed in the deed, either in express terms or by: necessary implication, the grantor and all persons in privity with him will be estopped ever afterwards from denying that he was so seised and possessed at the time he made the convey- ance. The reason was that the estate thus affirmed to be in the party at the time of the conveyance must necessarily have influ- enced the grantee in making the purchase, and hence the grantor 1 Van Rensselaer v. Kearney, 11 How. 297. 2 The following cases were cited: Goodtitle v. Bailey, 2 Cowp. 601 ; Bens- ley v. Burdon, 2 Sim. & 8. 524; 8. c. 6 Law J. Ch. 85; Right v. Bucknell, 2 Barn, & Ad. 278; Doe d. Marchant ». Errington, 8 Scott, 210 ; Rees v. Lloyd, Wightwick, 129; Bowman », Taylor, 2 Ad. & E. 278 ; Lainson v. Tremere, 1 Ad. & E. 792; Stowe v. Wyse, 7 Conn. 214 ; Penrose v, Griffith, 4 Binn. 231 ; Denn v. Cornell, 3 Johns. Cas. 174; Carver v. Jackson, 4 Peters, 1. To the same effect see Root v. Crock, 7 Barr, 378; McCall v. Coover, 4 Watts & 8S. 151; Bachelder v. Lovely, 69 Maine, 33 ; Magruder v, Esmay, 85 Ohio St. 221, 231. The grantor cannot in a court of equity allege that the land was held in adverse possession by another when he conveyed. Ruffin v. Johnson, 5 Heisk. 604, 890 ESTOPPEL BY DEED. and those in privity with him should in good faith and fair deal- ing be forever thereafter precluded from gainsaying it. And this principle has been applied to the conveyance (without regard to warranty) of a married woman.1 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 re- cital, 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.? 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 1 King v. Rea, 56 Ind. 1. p- 330. 2 See General Finance Co. v, Libera- tor Soc., 10 Ch. D. 15 ; Heath v, Crea- lock, L. R. 10 Ch. 30; Crofts v. Mid- dleton, 2 Kay & J. 194; Jacksonville R. Co. v. Cox, 91 Ill. 500. Release of dower is not conveyance, and the widow may of course set up a title which she has acquired since releasing. McLeery v. McLeery, 65 Maine, 172. 8 Gibson v. Chouteau, 89 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 ex- pressed warranty. The words ‘* bargain, sell, release, quitclaim, and convey” are words of release and quitclaim, merely. They carry the grantor’s in- terest 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 covenants implied in the words ‘ grant, bargain, and sell,” nor would these See ante, 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 representatives, and as being the same parcel of land conveyed to Pierre Chouteau, Jr. by Robert Wash, as trustee of Joseph Hert- zog, by deed recorded. The haben- dum 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 created by a location under a New Madrid certificate, what- ever that might be, and not a fee sim- ple, and that the grantee already had or claimed to have that inchoate right by virtue of a deed from Hertzog’s trustee, and the grantor releases, quit- claims, and conveys all his interest in the same land and title for the small consideration expressed. It is essen- tially a quitclaim deed, and nothing TITLE BY ESTOPPEL. 891 statutes in Illinois, Arkansas, California, and Alabama have received a like construction. 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 averments, to create an estoppel, must be positive and cer- tain. ... No seisin or possession of any particular estate is affirmed in the deed, either in express terms or by necessary implication, whereby an es- toppel might be created. In Van Rens- selaer v. Kearney, 11 How. 297, the deed expressly affirmed that the grant- or had seisin and possession of the es- tate conveyed, and undertook to convey and confirm the same to the grantee. This is not a deed of that character. It falls within the general principle, which is fully recognized in that case, that a deed of this character, which purports to convey and is understood to convey nothing more than the interest or estate of which the grantor is seised or possessed at the time, does not oper- ate to pass or bind an interest not then in existence. In French v. Spencer, 21 How. 228, also the deed expressly af- firmed the existence of the particular interest and estate conveyed, and em- powered the grantee to make the loca- tion and receive the patent for the land when that interest should be ripened into a complete title. This is clearly not such a deed ; nor does it purport to convey a fee simple absolute. To have this effect under the statute the deed must undertake to convey an indefeasi- ble 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 contain such positive and certain aver- ments of an absolute title in fee sim- ple as would amount to an express war- ranty, if contained in a covenant of In the last named state it is pro- 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 cove- nant 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 undertake 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 » 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 ex- pressly conveys only the right, title, and interest of the grantor, as the case was in Valle v. Clemens, 18 Mo. 486, We conclude therefore that the after- acquired, inchoate, equitable title to this location did not pass and inure to the grantee under this deed, and that neither the grantee nor these defendants there- by became 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 », 392 ESTOPPEL BY DEED. vided 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 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 ;2 but the question now is when the warranty will bar even the grantor. It is held that if a party having a vested and a contingent interest in property convey by deed with warranty ‘all his right, title, and interest’ therein, the deed passes only his vested in- terest; and he will not be estopped to claim an after-acquired interest in the property.2 In the case first cited one Soley con- veyed by the words quoted one eighth of an estate devised to him by his grandfather, one half of which devise was a contin- gent remainder; and it was contended that, though this last- named interest did not pass by the deed, still that when the estate afterwards became vested the deed operated by way of estoppel. The court however were of a different opinion. Chief Justice Shaw said that the deeds did not contain anything which Anderson, 10 Ala. 504; Carter v. Doe, 21 Ala. 72, 91; Blakeslee v. Mobile Life Ins. Co., 57 Ala. 205. 1 Jones v. Reese, 65 Ala. 134. For the English law see 44 & 45 Vict. ch. 41, § 19. 2 Ante, pp. 381, 382. 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 conveyance 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 war- ranty. 8 Blanchard v. Brooks, 12 Pick. 47 ; McBridge v. Greenwood, 11 Ga. 379; Graham v. Graham, 55 Ind. 28 ; Nichol- son v. Caress, 45 Ind. 479. See Avery v. Akins, 74 Ind. 283, 291. It is held that the effect of a warranty will de- scend upon subsequent remote grantors, though they may convey only their right, title, and interest, so as to bar them from setting up after-acquired titles against their grantees. ‘ Cove- nants of warranty may descend through the operation of deeds that are mere naked releases indefinitely from party to party.’ Powers v. Patten, 71 Maine, 683; Wilson v. Widenham, 51 Maine, 566 ; Brown v. Staples, 28 Maine, 497. TITLE BY ESTOPPEL. 893 prevented the petitioner from asserting his title to the contin- gent interest. The indenture which had been most relied upon contained no stipulation or averment that the petitioner’s share and property were of any particular proportion. It was mani- fest that the conveyance was fully satisfied by applying it to the vested interest. No allegation or averment was falsified by a denial of the claim to the land in controversy because there was no averment uf the nature or extent 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? The effect of a limited warranty in a grant of ‘right, title, and interest.’ was considered also in the case of Comstock v. Smith, which was a writ of entry. The demandants counted upon their own seisin within thirty years and a disseisin by the tenant. The tenant pleaded that before the demandants had 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 demandants 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;’ whereupon Waters conveyed the premises by deed to him. The demandants re- plied that the tenant was estopped by his deed to set up this defence ; to which on oyer of the deed there was a demurrer, which was sustained’ 1 Brown v. Jackson, 3 Wheat, 449. 2 13 Pick. 116. mands, he cannot be allowed to set up against his grantee or those claiming 8 “It is a well-settled principle of the common law,’ said Mr. Justice Wilde, ‘that if one conveys lands or other real estate with a general covenant of war- ranty against all lawful claims and de-' under him any title subsequently ac- quired either by purchase or otherwise. Such new title will inure by way of estoppel to the use and benefit of his grantee, his heirs and assigns. ‘This 394 ESTOPPEL BY DEED. Indeed it is settled in Massachusetts, Maine, and elsewhere that the covenant of warranty in a quitclaim deed of the principle is founded in equity and jus- tice as well as the policy of the law. It is just that a party should not be per- mitted to hold or recover an estate in violation of his own covenant ; and it is wise policy to repress litigation and to prevent a circuity of actions when better or equal justice may be adminis- tered 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 recover the value of the land, exact justice might not be obtained because the land might possibly not he estimated at its just value. If however the grantee were not entitled to recover the value of the land on the grantor’s covenant of warranty, then in such case it is obvious that this species of estoppel would not be appli- cable. 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 coex- tensive 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 covenant further would be to reject or do away the restrictive words of it, and to enlarge it to a gen- eral covenant of warranty against the manifest intention of the parties. . .. Now if Witers after the tenant’s quit- claim 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 demand- ants; the title of Waters being, as the plea avers, the elder and better title ; and this would also be no breach of the tenant’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 warrant and defend it against all claims and de- mands but only against those derived from himself; by which he must be understood 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- ant’s counsel that, admitting the tenant is not estopped by his covenant of war- ranty, he is nevertheless estopped by his conveyance to deny that he had any title in the land at the time of the con- veyance. This also is a well-established principle of the common law. Coke, Litt. 45, 47; Jackson v. Murray, 12 Johns. 201; Jackson 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 before the time of his conveyance he was in possession of the land under Waters, that afterwards the demand- ants disseised Waters, and being 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 es- topped to aver that they had no title in the land, nor is there any such aver- ment in the pleadings. The tenant at the time of his reconveyance might have had a valuable interest in the land by possession and improvements although Waters had a paramount title. This TITLE BY ESTOPPEL. 895 grantor’s right, title, and interest will be limited in effect to such estate as the grantor then had, however the covenant may be expressed! Thus in Hoxie v. Finney a deed of this kind contained a covenant that the grantor was lawfully 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 before 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 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 interest, whatever it was, passed to the demandants by the tenant’s deed; and it was all the title he had to convey or was expected to convey. If under these circumstances the demandants could now acquire without any consideration another title by estoppel, we should be compelled to admit that estoppels are as odious as they are sometimes said to be. But the doctrine of estoppel aids much in the administration of justice ; it becomes odious only when misunder- stood and misapplied.’ 1 Hoxie ». Finney, 16 Gray, 382; Doane v. Willcutt, 5 Gray, 328 ; San- ford v. Sanford, 185 Mass, 314; Allen v. Holton, 20 Pick. 458; Blanchard v. Brooks, 12 Pick. 47; Sweet v. Brown, 12 Met. 175; Kinnear v. Lowell, 34 Maine, 299; Locke v. White, 89 Ind. 492; Shumaker v. Johnson, 35 Ind. 33; White v. Brocaw, 14 Ohio St. 339 ; Holbrook v. Debo, 99 Ill. 372. See Merritt v. Harris, 102 Mass, 326; Russ v. Alpaugh, 118 Mass. 369. 2 Jones v. King, 25 Ill. 883; Mills v. Catlin, 22 Vt. 98; Steiner v. Baugh- man, 12 Penn. St. 106. See Calvert ». Sebright, 15 Beav. 156. 896 ESTOPPEL BY DEED. 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 unauthorized 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- ing a right 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 oS 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 1 Prouty v. Mather, 49 Vt. 415, 8 Brigham v. Smith, 4 Gray, 297. 2 Flagg v. Flagg, 16 Gray, 175. 4 Doane v. Willcutt, 5 Gray, 328. TITLE BY ESTOPPEL. 397 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 nota 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, have, 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 no bar. The propriety of such a construction has however been very properly doubted A similar covenant in Trull ». East- man ® was regarded as a covenant real, operating by way of re- butter against the future claims of the grantor, his heirs and assigns® A widow’s covenant 1 See also Wight v. Shaw, 5 Cush. 56 ; Miller v. Ewing, 6 Cush. 34 ; Smith ». Strong, 14 Pick. 128 ; Stearns v. Hen- dersass, 9 Cush. 497. 2 Harriman »v. Gray, 49 Maine, 537. 3 “As between the demandant and Joab Harriman,’ Appleton, J. remarked, ‘she would be estopped. But the re- lease to Joab does not inure to his gran- tees, and not inuring 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 language against all encumbrances, in a such as is found in the deed of Joab to James Harriman. Nor do the subse- quently acquired rights of Joab inure to the use of the grantee.’ Pike v. Gal- vin, 29 Maine, 183. # Rawle, Covenants, 414, 415, where it is said that Pike v. Galvin, and the subsequent case of Loomis v. Pingree, 43 Maine, 299, 314, have not elsewhere been followed. 5 3 Met. 121. 6 See also Miller v. Ewing, 6 Cush, 84; Jackson v, Bradford, 4 Wend. 619. 898 ESTOPPEL BY DEED. 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 flowing 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 pre- vent him from asserting his right thereto whether under a pres- ent 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 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 € 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 1 Hoppin v. Hoppin, 96 Ill. 265. The Bankruptcy Act of 1841 did not 2 Dean v. Colt, 99 Mass. 486, extinguish covenants of warranty in a 8 Gill », Grand Tower Co., 92 Ill, deed. Bush v. Cooper, 18 How. 82, 249. 5 Gibbs v. Thayer, 6 Cush. 30. 4 Goodel v. Bennett, 22 Wis. 565. TITLE BY ESTOPPEL. 899 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 warranted. In this case the purchase of the interest was only an extinguish- ment of an encumbrance; and by the doctrine of estoppel this purchase of the outstanding right of creditors inured to the - benefit of the plaintiff’s grantee. Improvements erected by the grantor in possession also inure to the benefit of the grantee.2 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. 1 Newcomb v. Presbrey, 8 Met. 406, 2 Humphreys v. Newman, 61 Maine, 40, 400 ESTOPPEL BY DEED. Covenants for quiet enjoyment in themselves are held to be as effectual by way of estoppel as words of conveyance.! 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, 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 covenants 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 recover it of the defendants, who claimed under the conveyance men- tioned. The court held that the plaintiffs were not estopped, by the covenants. 1 Long Island R. Co. ». Conklin, 29 session. Gardner v. Keteltas, 3 Hill, 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 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 pos- 330. But see Coe v. Clay, 5 Bing. 440, and the two cases just cited. 2 Smith v. Williams, 44 Mich. 240. 8 Chauvin v. Wagner, 18 Mo. 531. See Heath v. Crealock, L. R. 10 Ch. 80; General Finance Co. v. Liberator Soc., 10 Ch. D. 15. 418 Mo. 531. 5 Mr. Justice Gamble who delivered the opinion said that but one of the statutory covenants in the deed in TITLE BY ESTOPPEL. 401 There remain to be mentioned certain cases of implied war- ranty having a similar operation. D> question ran with the land, which was the covenant for further assurance. Collier v. Gamble, 10 Mo. 467. ‘The others,’ he proceeded to say, ‘ are broken as soon as made if in the one case there is not an indefeasible seisin or in the other there is an encumbrance. A right of action exists in either case upon the appropriate covenant, on the execution of the deed; but the dam- ages to be recovered may be enhanced by subsequent 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 damuified by the breach, which existed as soon as the covenant 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 man- ner that they would have been bound by a bond for the payment of money in which he bound his heirs. The cov- enants are not connected with nor do they run with the land. These cov- enants do not operate as the ancient covenant of warranty to transmit a sub- sequently acquired title to the covenan- tee, 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 Peters, 86; Kinsman v. Loomis, 11 Ohio, 478 ; Root v. Crock, 7 Barr, 380; Stow v. Wyse, 7 Conn. 214. The principle in these and similar cases would warrant the decision that the covenants con- tained in the words ‘‘ grant, bargain, and sell,” and which are to be regarded as if written out in the deed, should In the case of a partition of 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 conveyance... . If the plaintiffs are not estopped by the covenants of seisin or against en- cumbrances, are they affected by the covenant for further assurance? This covenant runs with the land. If Fran- cis D. Chauvin, the ancestor, had ac-: quired a further or better title to the premises after his conveyance, he would have been compelled specifically to exe- eute the covenant 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 compelled to execute the covenant. The present plaintiffs have never acquired any title to the property from their father. In respect to it there is no privity between them and their father. It was acquired four- teen years after his death. They are responsible as his heirs upon his cove- nants as far as they haveassets 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 property . when they acquired the title, their ob- ligation then as heirs, in respect to the assets descended, might have been held complete to make the assurance. [See Rector v. Waugh, 17 Mo. 13; Dean v. Doe, 8 Ind. 475; 2 Smith’s L. C. 742, 6th Am. ed. For the early common- law rule see Jourdan v. Jourdan, 9 Serg. & R. 268.] The duty to make an assurance could not devolve on them while the title was in their mother. The covenant provided by the statute, if written in the deed in the form ex-. pressed in the act, would simply con- tain 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 26 402 ESTOPPEL BY DEED. 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 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.2 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.2 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.* assurance, but certainly not until there is something to be done by which the grantee’s title can be secured. But nothing could be done by them until the title came to them by descent from their 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 ave to be held bound to make assurance because of equal assets descended from the father, it must be shown by the defendants.’ Sealed articles of agreement for the con- veyance of land, it may be observed, do not amount to a covenant for further assurance, and do not estop the obligor from claiming the land. Anonymous, 1 Hayw. 331. 1 Rountree v. Denson, 59 Wis. 522; Weiser v. Weiser, 5 Watts, 279; 1 Wash- burn, Real Prop. 481, 482; 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 war- ranty, the co-tenant grantee will have the benefit of the estoppel against his late associate, the grantor, should he at- tempt to set up an after-acquired title. Rountree v. Denson, 59 Wis. 522, Con- tra if the warranty is qualified so as to extend only to present interests. Doane v. Willcutt, 5 Gray, 328; s. c. 16 Gray, 368. 8 Walker v. Hall, 15 Ohio St. 355. 4 Mr. Chief Justice Brinkerhoff speaking for the court said: ‘Is the TITLE BY ESTOPPEL. 408 The case of a mortgage given back by the purchaser to the vendor of an estate stands upon a footing of its own. While plaintiff precluded from asserting her claim to dower in a portion of the lands partitioned among her and her co- devisees by the mutual warranty which the law implies as arising and subsist- ing inter se between parties to a parti- tion so long as the privity of estate continues between them? This is a serious question, and one not free from difficulty. That such warranty as a general rule exists at common law, is clear from the old books. “If the pur- party 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 between them continues.” Comyns's Dig. ‘ Par- cener,” C, 13; Coke, Litt. 173 b and 174 a. ‘Applying this common-law duty of co-tenants to aid each other in protecting what had been a common estate even after partition made, the Jaw holds it incompatible with their duty towards each other for either to become the demandant in a suit to re- cover any portion of the land by a paramount title and thus to place him- self in antagonism to his co-tenants and their common warrantor.” ‘* And where partition has been made by law, each partitioner becomes « warrantor to all the others to the extent of his share so long as the privity of estate continues between them. And inasmuch as a warrantor cannot claim against his own warranty, no tenant after partition made can set up an adverse title to the portion of another for the purpose of ousting him from the part which has been partitioned off to him.” 1 Wash- burn, Real Prop. 431, 482; Venable v. Beauchamp, 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 pur- chase of an independent, adverse, and paramount title by one co-tenant, and its assertion by him against another after partition, the operation of these rules is equitable and just. In such case it is but just that the purchaser of the adverse title should be held to have purchased for the common benefit of all parties to the prior partition, and that his rights under such purchase should be limited to a claim for contri- bution 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 v. Banning, 14 Ohio St. 828, I have not been able to find a case in which any exception to the applica- tion of these general rules has been recognized. But the cases in which the doctrine of implied warranty between partitioners has been invoked and ap- plied are few ; and all of them present the simple case of a voluntary pur- chase (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 Woodbridge 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 ripened in favor of the demandant a title which potentially existed in her at the time of the partition, but which was then inchoate and incapable of being asserted. In none of the other cases were the facts analogous to the facts in this; and the question as to whether the common-law doctrines of implied warranty between co-partition- ers 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 warranty and. 404 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; 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 v. 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 back to him. consequent estoppel between co-parti- tioners originated at common law ; and though based on considerations of nat- ural 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 practice of our courts ; it being superseded by proceedings in equity and under special statutes. And itseems to us that when the principles of the com- mon law are as here invoked as guides to proceedings in equity, they ought to be applied only so far as the ends of jus- tice will allow. The warranty under consideration is not a warranty in fact, but a warranty by implication 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 war- ranty 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 alien- ation by the husband, and decreeing contribution by all the co-partitioners to recompense Mrs. Hall for the loss of her equal proportion of the estate exclu- sive of the dower estate of Mrs. Walker will 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, deceased. Subsequently a spoliated will of the common ancestor was established and admitted to probate. And in an action by a devisee under the will who had been a party to the proceeding in parti- tion, to recover lands which the parti- tion had assigned to other parties, he was held not to be estopped by the pro- ceedings in partition. I think I am not mistaken in saying however that in that case the common-law doctrine of im- plied warranty between co-partitioners escaped the attention of the court. Had it been otherwise, 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. 2 Randall v. Lower, supra; Brown v. Phillips, 40 Mich. 264; Haynes v. Stevens, 11 N. H. 28; Smith v. Con- nell, 32 Maine, 128. The case of Hitch- cock v. Fortier, 65 Ill, 239, contra, is not well considered, and is denied in Randall v. Lower. ® And the purchaser could sue there- for notwithstanding the covenants of his mortgage. Ibid. ; Hubbard v. Nor- ton, 10 Conn. 422; Connor v. Eddy, 25 Mo. 72; Lot v. Thomas, 2 N. J. 407 ; Sumner v, Barnard, 12 Met. 459; Haynes v. Stevens, 11 N. H. 28; ante, p. 348. TITLE BY ESTOPPEL. 405 It was not good faith in the grantor to grasp for after-acquired property, when he himself had assumed to convey all the title which his mortgagor undertook to mortgage back; it was enough that the grantor got back what he had conveyed. That too was all that could in reason be considered to have been the inten- tion 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? These questions we propose now to examine, consid- ering the subject first as it stood before the statute of uses, and secondly as it has been modified by that statute. At common law (that is before the statute of uses) there were three assurances which operated to pass future interests to which the alienor had at the time no title,—the feoffment, the fine, and the common recovery, to which a fourth, the lease, may be added as possessing a 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 lat- 1 See Randall v. Lower, 98 Ind. 255, American Law Review for January, 260. 1875. The discussion, to be fully un- 2 The author published the sub- derstood, should be read entire. stance of the following pages in the 406 ESTOPPEL BY DEED. ter case all estates, whether in expectancy or possession, which stood in the way of a gift of the freehold were displaced 37 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 ‘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.’ 2 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 re- quired 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. Preston, ‘since his feoffment is a disseisin’ of the owner.2 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 désseised another acquired for all purposes, so long as he 1 Touchstone, 203 ; ante, p. 378. 8 2 Preston’s Abstracts, p. 211. 2 Touchstone, 204. * Coke, Litt. 270 a. TITLE BY ESTOPPEL. 407 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 in- terest against his feoffee would be repugnant to the estate con- veyed, as much so as if his conveyance had been rightful. But this effect of the conveyance has been commonly called an es- toppel. 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, &c. ; acts of a notorious character having the like conclusive effect of a deed. 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 war- rantia charte, 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.’3 1 Coke, Litt. 352 a. 2 Touchstone, 181, note; 2 Black. Com. 300. 8 Coke, Litt. 265 a; Touchstone, 182. 408 ESTOPPEL BY DEED. _ 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 effectual 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 set- ting up the conveyance against him and relying upon the livery of seisin. The word relied upon as creating the implied war- ranty (dedi) certainly possessed no inherent potency, as 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 warranty. Indeed the only reason why it was deemed necessary to fix a warranty inseparably upon the particular gift containing the words ‘dedi et concessi’ was because that gift was the gift of a fief, and with- out 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, Parliament 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 swch cases where the contest related to the passing 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 1 St. de bigamis, 4 Edw. 1, c. 6 are merely descriptive of the conveyance (A. D. 1276). Writers from Coke down intended, to wit, a feoffment. The war- have spoken of this statute as though ranty was annexed because a fief was the warranty was raised by reason of the given. words ‘dedi et concessi.’ These words TITLE BY ESTOPPEL. 409 by force of the warranty is only to say that they passed by force of the livery of seisin. If this is true, no argument can be based upon the operation of the feoffment warranty to show the effect of a warranty in our modern conveyances.! The fine also had the effect of passing future interests.2 The highest form of it (sur cognizance de droit come ceo) was indeed only an acknowledgment of record of a feoffment made; though it did not in all respects possess the efficacy of a feoffment# But the form of fine above mentioned had in some particulars even 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 par- ties 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-claim5 This particular fine also operated to bar estates tail,6 and therefore had the further tortious effect of a feoffment in displacing remainders and reversions ;7 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 — 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, meaning ap- parently their operation upon after-acquired interests. We find no suggestion in the books that this effect of the fine 1 See also the consideration of the 5 1 Stephen’s Com. 564, 565. The common-law warranty in 2 Smith’s L. references to this valuable work are uni- C. 731 (6th Am. ed.). formly to the 7th edition. 2 Doe d. Christmas v. Oliver, 10 6 1-Spence, ut supra. Barn. & C. 181; Weale v. Lower, Pol- 7 1 Stephen’s Com. 566. lexf. 66. 8 1 Spence, Equity, 165. 8 See Touchstone, 203. ® 1 Stephen’s Com. 563. #1 Spence, Equity, 164. 20 Tid, 410 ESTOPPEL BY DEED: in passing future estates arose otherwise than by virtue of the conveyance itself; and as the fine most commonly in use (that first mentioned) was simply a feoffment of record, it is but rea- sonable to presume that its operation by way of estoppel was the same as that of a feoffment. It was an acknowledgment in court on the part of the tenant that he had made livery of seisin to the cognizee; that is that he had had possession of a freehold estate and had delivered it to the cognizee; and he and his privies were precluded by the record from disputing the fact. Seisin in the cognizor was always essential to create a life estate or a fee. If a tenant for years for example levied the fine 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.2 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 void2 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 necessity 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 feoffment had been made. Concerning this method of assurance also we fail to find any the slightest evidence that the ‘transcendent effect of estop- pel’ was anything else than the operation of the assurance itself in its very nature. 1 2 Sanders, Uses, 15. 5 2 Sanders, Uses, 15; 1 Spence, 2 1 Stephen’s Com. 572; 1 Spence, Equity, 165. , Equity, 165. TITLE BY ESTOPPEL. 411 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 or livery of seisin, as fees themselves,’2 This method of assur- ance may therefore be passed over as already explained in its effeets upon after-acquired interests in what has been said con- cerning the feoffment. 2 It remains to consider the case of a demise of an estate for years. This being less than a freehold interest did not require livery of seisin;* and livery was never made except when the alienor conveyed with the estate for years the remainder to an- other.t 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.2 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 afterwards 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 1 1 Stephen’s Com. 512. 5 Coke, Litt. 49 a, 49 b. 2 1 Stephen’s Com. 254. See also 8 3 Washb. Real Prop. 498. Ibid. 172-174, where the feud is more 7 Coke, Litt. 47 b; Doe d. Strode v. fully explained. Seaton, 2 Cromp. M. & R. 728; Webb 8 1 Stephen’s Com. 512. v. Austin, 7 Man. & G. 701; ante, pp. £ Ibid.; Coke, Litt. 143 a. 382, 383. 412 ESTOPPEL BY DEED. demised is greater than the estate owned by the lessor; and the reason of it seems to be that the lessor, becoming assignee of the reversion, stands in the shoes of the assignor, who could not be bound by the lease 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 granting a further assurance.? In order then to show the operation of the lease upon after- acquired interests we must suppose that the lessor had no inter- est at all when the demise was executed. That the lease in such cases has always possessed the efficacy of passing the new estate as soon as acquired is clear. Thus Mr. Preston speaking of the old common-law assurances says: ‘An indenture of lease, or a fine sur concessit, for years, operates at first by way of. 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 commences by es- toppel, 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 considered as repre- senting 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 bargains and sells it to A, the heir or A shall be bound by this estoppel. In Bacon’s Abridgment there is a still stronger example, 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 1 2 Preston, Abstracts, 217. 4 Leases, O. See also Webb v. Aus- 2 2 Preston, Abstracts, 210. tin, 7 Man. & G. 701. 8 1 Salk. 276; 8. c. 6 Mod. 258; 2 5 See Bigelow, Fraud, 293-296, 306, Ld. Raym. 1036. 307. TITLE BY ESTOPPEL. 413 after-acquired title of the lessor which he (the purchaser) now sets up against the lessee, claim the right to eject the lessee. Now there cannot be a perfect tenancy without actual posses- sion,? but there may be a perfect grant by mere passing of title deeds. with it ordinary grants. Hence the case of the lease does not necessarily carry 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- 1 A 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 situation to give effect to an estate afterwards acquired to a subsequent purchaser, without the vonsent of the tenant. The tenant’s refusal to be cut off would con- stitute 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 having possession, could not convey with it the particular estate against the tenant’s will. He could in other words convey his seisin (which of course was not parted with by the lease for years), but he could not convey seisin and possession with- out having possession. The lease would therefore stand. 2 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 aterm is not necessary, the statute transferring the possession to the use. Touchstone, 267, note e But this, if intended as a universal prop- osition, seems to be inaccurate. Es- tates less than a freehold are not em- braced within the statute, and remain as they stood before. 8 Washb. Real Prop. 378. The statute carries the pos- session of present freehold estates to the grantee (cestui. que use) by declar- ing that the sezsin shall pass to him, and in no other way ; and if an interest less than a freehold be aliened, the pos- session does not pass since the seisin re- mains 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 possession as well as seisin remains in the alienor, and that an entry is necessary to give the tenant a possession. And the edi- tor of the Touchstone, unless his remark is limited, is inconsistent with himself ; for in the same note he says that a per- son having only an interesse 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 edi- tor be correct (and this he himself sug- gests), but an estate in possession. That there is no transfer of possession in such a case is stated in Coke, Litt, 270 a. ‘Before entry,’ says Coke, ‘the lessee has but interesse termini, an in- terest of a term, and no possession.’ There is one case however where the statute does transfer the possession to a lessee; but that is the case of a lease followed by a release of the rever- sion. 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 trans- ferring the seisin, and with it of course the possession. 414 ESTOPPEL BY DEED. 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 relation 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 injus- tice 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 want- ing, 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 assurances 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 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. 1 Because at common law the warranty required an estate to support it Rewle, Covenants, 413 (4th ed.). TITLE BY ESTOPPEL. 415 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 fora year or some other short term; and the release that followed was the instrument already described. It was void if the releasor had no estate; and it was void though he had an estate, if the lessee had not entered! And it would not have changed the case had the releasor added a warranty, since a warranty at common law was void without an estate? There was no livery of seisin connected with the conveyance; and it never had a tortious operation. Vice-Chancellor Leach, 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 The opinion of the vice-chancellor, it may be added, that a deed of release of itself estopped the releasor from claiming an after-acquired estate was soon after impugned and overruled.5 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 there- fore 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 reversions and remainders and incorporeal hereditaments, such as advow- sons, rents, and the like. There is no suggestion that it was 1 Coke, Litt. 270 a; 1 Stephen’s 369; General Finance Co. v. Liberator Com. 519. Soc., 10 Ch. D. 15, 22. 2 Rawle, Covenants, 418 (4th ed.) ; 6 See also Heath v. Crealock, L. R. Seymor’s Case, 10 Coke, 96. 10 Ch. 80; Crofts v. Middleton, 2 Kay 8 Bensley v. Burdon, 2 Sim. & S& &J. 194. 519. T Ante, pp. 894-896. *8L. J. Ch. 85. 8 1 Stephen's Com, 510, 511; 2 San- . 5 Right v. Bucknell, 2 Barn. & Ad. ders, Uses, 25. 278 ; Lloyd v. Lloyd, 4 Dru. & War. 416 ESTOPPEL BY DEED. ever used for any other purpose. Livery of seisin was of course inapplicable to it; and it results that it could never pass more than the interest which the grantor had. It never worked a dis- continuance when made by a tenant in tail of an advowson, com- mon, remainder, or any other inheritance lying in grant.? So too the grant of a rent-charge out of lands of which the grantor was not 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 it has come down to modern times, possessed of the same character- istics as distinguished it before the time of Henry 8, modified only by the statute of uses. This conveyance originated from an equitable construction adopted by the Court of Chancery. A bargain was made ora 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 transferrible by a formal conveyance under the name of a bargain and sale Courts of law in no respect recognized this conveyance, or the claim of the bargainee under it.6 The only redress the batgainee 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- 1 Stephen’s Com. 510, 511; 2 San- * Ibid., p. 48; 1 Spence, Equity, ders, Uses, 25. 452; 2 Washb. Real Prop. 292. 2 2 Sanders, Uses, 41; Coke, Litt. 5 Thid. 332. ‘6 1 Spence, Equity, 442; 2 Washb. 3 2 Sanders, Uses, 28. Real Prop. 360. TITLE BY ESTOPPEL. 41T gainor was afterwards disseised by another! This was not how- ever peculiar to conveyances by bargain and sale; it was equally true of all conveyances to uses? The trust thus raised was called a use; and this is defined to be the right in one person, the cestui que use, to take the profits of land of which another has the legal title and possession, coupled with the duty of defending the same, and of making estates thereof according to the direction of the cestui que use.2 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 Bar- gain 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 fol- lowing page: ‘All corporeal hereditaments of which the bar- gainor 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 1 1 Spence, Equity, 445; 2 Washb. leigh’s Case, 1 Coke, 121; 2 Washb. Real Prop. 360. Real Prop. 358. : 2 Thid. 4 2 Sanders, Uses, 48-59. 8 Tudor’s Lead. Cas. 252; Chud- & Page 50. 27 418 ESTOPPEL BY DEED. since the bargainee’s interest was not regarded at law, the bar- gainor, in whom the seisin was held to remain, could make livery before or after title acquired to one having no notice of the pre- vious bargain and sale; and this alienee would hold the premises both at law and in equity. Upon this point the statute of uses has effected a radical change, as will be seen later. In short the bargain and sale at common law was one of the ‘innocent con- veyances’ of the law, operating merely upon what the grantor might lawfully convey. It could not work a discontinuance, create a forfeiture, or destroy contingent remainders dependent upon particular estates.? A bargain and sale for a term of years however had a different effect, since this was a lease. Such a conveyance, as it did not create a trust and confidence repugnant to the ownership of the legal estate, was upheld 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 warranty, as we have attempted to show, was when applied between feoffor and feoffee simply an expression of the necessary effect of the feofiment 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 11 Spence, Equity, 445. % 2 Sanders, Uses, 54. 81 Spence, Equity, 448. TITLE BY ESTOPPEL. 419 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 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 convey- ance 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.1 , 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 es- tates 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 conveyances operate to pass future interests in any case by virtue of the conveyance ;? 1 Even since the statute equity may, set, 1 Ves. Sr. 889 ; Wright v, Wright, it seems, sometimes decree a convey- ib. 409. ance of the new interest though there 2 See Heath v. Crealock, L. R. 10 was no warranty. Whitfield v. Faus- Ch. 30; General Finance Co. v. Libe- 420 ESTOPPEL BY DEED. and that the only way in which such an object 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 in- deed 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 impeachment of our courts upon this point, and says that in most of the states it is held that the pres- ence 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. It will be found however that few of these cases required any decision of this question, and that the statements of the courts are for the greater part mere generali- ties, 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 convey- ance but acquiring a title afterwards by descent or purchase, does in fact pass an interest and a title from the moment such estate comes to the grantor.’ Now this can scarcely be considered a dictum, for the question required a solution of the state of the title, the point not arising between grantor and grantee. But the defendant was only a trespasser (asserting no legal claim to the particular locus), and not a subsequent purchaser without notice. And the learned rator Soc., 10 Ch. D. 15, 21, Jessel, 1 Rawle, Covenants, 404 (4th ed.). M. R. 23 Pick. 52, 60. TITLE BY ESTOPPEL. 421 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 statement of the authorities to the facts of the case does not clearly appear ; but this at all events was done in a subsequent case, where Mr. Justice Thomas said: ‘An examination of the whole opinion in that case [Somes v. Skinner] would lead us to infer that this statement was not made without some misgiving and distrust. The precise question now under consideration was not before the court, and what in that part of the case was decided was that where a title has 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 recon- sider 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 feoff- ments 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,’ say they, ‘the principle is well settled that an estoppel will not only bar a right or title, but will pass one to him in whose favor the estoppel works,’ But this propo- sition is narrowed to the facts of the case, for the court proceed at once to say: ‘If indeed an estoppel could not operate as a conveyance, or as a medium through which the title would pass to him in whose favor the estoppel works, we might frequently lock up the title in him and his heirs against whom the estoppel operated, and the party for whose benefit it was intended might 1 Blanchard v, Ellis, 1 Gray, 195, 201. 217 Ala. 770. 422 ESTOPPEL BY DEED. 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 ». 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.’ ? This was said in a contest between the grantee before title and a purchaser after title, and seems therefore to be an express decision that there is an actual transmission of the after-acquired estate. But the case of Blanchard v. Ellis, supra, was not cited by counsel or mentioned by the court; and it is not to be sup- posed that it was intended to overrule that well-reasoned case. And it would seem that Cole v. Raymond might be supported upon other grounds than those assumed. The grantor being seised of a life estate in the premises, conveyed them in fee to the defendants, who apparently went into possession ; and they 1 9 Gray, 217, 218, tion of reimbursing the first grantee in 2 If the second grantee himself ac- the amount of his outlay ; and this quire the new title from another source though the second grantee took with than his own estopped grantor, he will notice. Smith v. Hitchcock, 130 Mass. be allowed, it seems, even in Massa- 570. chusetts to keep the land upon condi- TITLE BY ESTOPPEL. 423 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 Massa- chusetts have recently reaffirmed the doctrine under criticism, 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 and a 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* 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 take 1 In 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 ». Patten, 24 Pick. 324; Russ v. Al- paugh, 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 dis- senting) ; McCusker v. McEvey, 9 R. I. . 525. Dissenting opinion of Potter, J. in 10 R. I. 606. In all of these cases however the question arose under the recording acts. See also McCarthy v. Mann, 19 Wall. 20, under an act of Congress. 4 5 Ohio, 198. 424 ESTOPPEL BY DEED. it subject to the burden which the existence of the fact imposes upon it’? Upon which it is to be observed that if this expres- sion of opinion was intended to cover more than the case before the court, it was soon afterwards disapproved in Buckingham », Hanna? where, referring to Douglass v. Scott and other cases, it is said: ‘The import of the language in these cases is certainly unmistakable. It supposes the after-acquired title to pass from the grantor to his heirs or assigns, but still conclusively bound by the estoppel.” We shall endeavor to show presently that the assigns, 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 have denied it in Buckingham v. Hanna* One Ramey mortgaged with warranty land to which he had no title, and subsequently obtained a patent for the land. It appears that one 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 mortgagee 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 Utica», Merse- M. R. ; Salisbury Sav. Soe. v. Cutting, reau, 3 Barb. Ch. 568. 50 Conn. 113 (where the question was 2 2 Ohio St. 551. not decided) ; Robinson v. Douthit, 64 ® See General Finance Co. v, Libe- Texas, 101, 106 (question not decided). rator Soc., 10 Ch. D. 15, 24, Jessel, 4 2 Ohio St. 551. TITLE BY ESTOPPEL. 425 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 v. 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 maintaining an action on the covenant against encumbrances and recovering the amount paid for the land, with interest. ‘Strictly speaking,’ said Mr. Justice Thomas, ‘there would seem to be no trans- mutation 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 circnity 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.2 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- 1] Gray, 195. the last very strongly against the notion 2 Coke, Litt. 265 a. that the covenant of warranty, however 8 The writer personally knows that broad, could have the effect of actually the opinion of this able judge was to transmitting an estate. 426 ESTOPPEL BY DEED. 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 reconvey the same in mortgage, and agreed that they would have patents for the same taken out in his name. Before this agreement was performed Wilson conveyed the land with covenants of warranty and for further assurance to the plaintiff Chew. Afterwards the patents were conveyed to Wilson, who gave back a mortgage of the lands as security for the purchase-money. The defendants claimed under this mortgage; and the court in an action of ejectment by Chew decided in their favor. We quote from the opinion which was delivered by Mr. Justice Gibson, afterwards chief justice: ‘What is the nature, he asks, ‘of the estate which Mr. Chew acquired by the conveyance from Judge [James] Wilson? When that conveyance was executed, the legal title was in Jeremiah Parker by patents from the 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 conveyance from Judge Wilson, and not as vesting the title in him of itself, as contended, by estoppel. The facts present the ordinary case of a conveyance 1 See to the same effect Burton v. Reeds, 20 Ind. 87; Noonan », Isley, 21 Wis. 139 ; Innis v. Lyman, 62 Wis. 191; Nichol v, Alexander, 28 Wis. 118; Tucker v Clarke, 2 Sandf. Ch. 96; Bingham v. Weiderwax, 1 Comst. 509 ; Woods v. North, 6 Humph. 309. Contra, Reese v. Smith, 12 Mo. 844, a remarkable case, in which the court compelled the grantee to take an after- acquired title, and enjoined a judgment at law on the covenants. Scott, J. dis: sented. 2 11 Serg. & R. 389. TITLE BY ESTOPPEL. 427 before the grantor has acquired the title; in which the convey- ance operates as an ayreement 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 cove- nant 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 par- ticular 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 con- sideration 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 v. Fausset.’} The court of Pennsylvania in Brown v. McCormick? seem 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 ease being a right against Wilson of security for the pur- chase-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 preferred to the second ; but the first grantee was put into possession, 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 1 1 Ves. Sr. 391. 2 6 Watts, 60. ® See also Bellas v. McCarty, 10 Watts, 26, 4 4 Wend. 619, 428 ESTOPPEL BY DEED. no title, but subsequently the title came to him by descent. The plaintiff claimed by virtue of a judgment and sheriffs sale of the land as the property of Price, after his father’s death ; and his claim was sustained. Mr. Justice Marcy who delivered the opinion said : ‘The judgment eo instanti the property descended became a lien upon it, and the title to it vested in the purchaser at the sheriff’s sale, unless the operation of the deeds to the de- fendant prevented it. When these deeds were executed, Price had no title or claim to the premises, and could therefore convey no right to them. Qui non habet, ille non dat. A grant by a person who has no estate, as an heir in the lifetime of his ances- tor, will not pass any estate! This position is well warranted 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 advowson, either in possession or right, or actual possibility, at the time of the grant. It is said in the Touchstone‘ that a bare possibility of an interest, which is uncertain, is not grantable. The expec- tancy 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 possi- bility . . . It is very clear both from reason and authority that no title passes by the deed of an heir apparent or presumptive to lands that may afterwards descend to him on the death of his ancestor; yet the heir may be barred by his deed from recovering such lands. Where the deed is by warranty, the warranty will rebut and bar the grantor and his heirs of a future right. This is not because a title ever passes by such a grant, but the principle of avoiding circuity of action interposes and stops the grantor from impeaching a title to the soundness of which he must answer on his warranty.’ The learned judge thought however that there was not even a rebutter in the case, on the ground that no action could be maintained upon a cove- 1 8 Preston, Abstracts, 25, 26. * Page 289, 2 Hob. 45. 5 Wright v. Wright, 1 Ves. Sr. 8 See Lord Hardwicke’s explanation 409. of this, 1 Ves. Sr. 391. TITLE BY ESTOPPEL. 429 nant of non-claim. There are other cases which support this view, but they need not be ‘stated.! 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 and his privies 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 purpose 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 seised2 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- 1 See Bivins v. Vinzant, 15 Ga. 521; 2 8 Washb. Real Prop. 376-380 ; 1 Way v. Arnold, 18 Ga. 181; Faircloth Cruise, Dig. 849; Tudor’s Lead. Cas. v. Jordan, 18 Ga. 350; Jacocks v. 258; Crabb, Real Prop. § 1646. Gilliam, 3 Murph. 47; s. c. 4 Hawks, 8 Ibid. ; Moore, 342; Croke, Eliz. 810; Dodd v. Williams, 3 Mo. App. 301; Sanders, Uses, 83. 278. 42 Rolle, Abr. 790, pl. 9. 430 ESTOPPEL BY DEED. 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 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 1 1 Cruise, Dig. 353. 2 See 2 Touchstone, 529, note; 1 Spence, Equity, 488, 484, note. See also the example given by Lord Hale, C. J. in Weale v. Lower, Pollexf. 65: ‘If a feoffment be made to the use of C and his heirs after the death of A and B, this is no remainder, but a future use, and the feoffee is seised in fee simple. . . . So if 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,’ 3 1 Sanders, Uses, 231. TITLE BY ESTOPPEL. 431 estoppel can be created by a covenant?’ And counsel could not. Warranty even in its palmy days, when collateral as well as lineal warranty flourished in all its vigor, never possessed the power of conveyance It was a well-established principle that it could not enlarge an estate, having no tortious effect; and therefore when employed in aid of a wrongful alienation, it only operated against the alienor and his representatives. It always took effect if at all in one of three ways, — by rebutter, voucher, or warrantia charte. It cannot, we apprehend, do more now. If title could actually pass when subsequently acquired, by the mere use of a warranty or other covenant, it would often be in the power of an heir to defeat the claims of the creditors of the 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? 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.4 1 Jessel, M. R. in General Finance Co. v. Liberator Soc., 10 Ch. D. 15, 18, Nisly, 2 Serg. & R. 515 ; Chew v. Bar- net, 11 Serg. & R. 389; Steiner v 24. Of course it was not intended to question the operation of a covenant by way of rebutter. 2 See 2 Smith’s L. C. 725 (6th Am. ed.). 8 Whitfield v. Fausset, 1 Ves. Sr. 889 ; Wright v. Wright, ib. 409 ; Tay- lor v. Dabar, 1 Cas. in Ch. 274; Noel v. Bewley, 3 Sim. 103 ; Smith v. Baker, 1 Younge & C. Ch. 223; Goodson ». Beacham, 24 Ga. 154; McWilliams ». Baugman, 12 Penn. St. 108; Chauvin v. Wagner, 18 Mo. 531; 2 Sugden, Vendors, 541. See however Bensley » Burdon, 2 Sim. & S. 519; 8. c. 8 L. J. Ch. 85, in which equity refused to interfere as against a purchaser with notice of the estoppel. The better opin- ion however is in favor of exercising the jurisdiction in such cases. 4 Allen v. Ashley School Fund, 102 Mass. 262. See Whittaker v. Whit- 432 ESTOPPEL BY DEED. 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 without notice takes it free from its 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 English enrolment act they were resorted to because they were secret.? And Mr. Rawle declares that even under the American registry acts a grantee is not bound to take notice of a conveyance made by his grantor before he had a title? There is the greatest force in this statement; and it is apprehended that experienced conveyancers would agree in affirming its correctness. 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 Abridgment® it is said that the reason why the feoffee takes subject to the lease is that, coming in under one who is estopped, he shall himself be estopped; and similar statements are sometimes made in cases of grantor and grantee. taker, 99 Mass. 364; Holland v. Cruft, 83 Gray, 162. Secus of course under the statute, in the case of such deed by tenant in tail in possession. 1 See Vredenburgh v. Burnet, 31 N. J. Eq. 229. : 2 1 Stephen’s Com. 534. 8 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 dissenting opinion of Potter, J. in McCusker v. McEvey, 10 R. I. 606. 5 Leases, 0. 6 See Armstrong v. Wheeler, 52 Conn. 428. The true ground of this case was not privity, but that the party who owned the right in question owned it not only against his grantor but also against everybody, especially purchasers TITLE BY ESTOPPEL. 433 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 v. Rochester, Averill v. 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 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 with notice, and hence against another and without notice takes clear of all grantee of his own grantor. secret claims against the assignor. Vre- 1 Coke, Litt. 352 a. denburgh v. Burnet, 831 N. J. Eq. 229. 2 3 Hill, 513. 6 Murphy v. Barnett, 1 Car. L. Rep. 8 7 Wheat. 535. 106; Ives v. Sawyer, 4 Dev. & B. 52; 4 4 Barb. 180. Den d. Love v. Gates, ib. 363 ; Den d. 5 See ante, pp. 335, 845. Compare Johnson x. Watts, 1 Jones, 228 ; Carver also the well-settled doctrine that an v. Jackson, 4 Peters, 1, 83. assignee of a mortgage taken for value T Collins v. Bartlett, 44 Cal. 371. 28 434 ESTOPPEL BY DEED. 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 cbmmon 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 defec- tive; had his conveyance been perfect in form, he must have prevailed without trying to impeach the ancestor's title. Nor in the present case does the second grantee seek to impeach the grantor’s title; his own claim requires him to uphold it. He seeks to show that, as his grantor is admitted to have had no title when the first deed was executed, the first grantee took nothing under it. ¢ 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 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 TITLE BY ESTOPPEL. 435 notice is not bound by an estoppel in pais resting on his ven- dor ;! the estoppel in such a case is not a conveyance, and 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 legal 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-: 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 1 Thistle v. Buford, 50 Mo, 278, rar v. Farrar, 4 N. H. 191; Trull ». 281 ; Shaw v. Beebe, 35 Vt. 204; Snod- Skinner, 17 Pick. 213. grass v. Ricketts, 13 Cal. 359; Dukes 2 8 Washb., Real Prop. 293, v. Spangler, 35 Ohio St. 119, 126; Far-. 7. 436 ESTOPPEL BY DEED. 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.2 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 has been added, 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 heads given by Mr. Rawle the point was not necessarily raised. The question was between grantor and grantee or their privies, while almost the only way that the point could arise would be in a contest between purchasers be- fore and after title acquired. Between grantor and grantee it is well enough in a 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, and the grantee no better. 1 Ante, pp. 329, 380. 2 But see ante, pp. 330, 331. 5 Rawle, Covenants, 401-403 (4th ed.). * Cole v. Raymond, 9 Gray, 217. 5 Robinson v. Douthit, 64 Texas, 101. There a father conveyed to his son with warranty upon the considera- tion above stated. The father had pre- viously created an incumbrance upon the land which, after the grant to his son, was bought in by a third person and then acquired by the father. The defendant was « purchaser of the prem- ises from the father with notice of the deed to the son. It was held that the title derived from the discharge of the incumbrance inured to the son, against the claim of the purchaser, Perhaps this result would not have followed in a contest between the father and the son. TITLE BY ESTOPPEL. 437 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. And so does the American editor of Smith’s Leading Cases in his notes to the Duchess of Kingston’s Case? It should be added also that the covenants considered in many of the cases coming within the above mentiéned 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 putting the statement of facts into the form of a contract there arises a right of action for the breach. The covenant in reality is only a recital with an agreement to respond in case of its falsity. 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 thé Supreme Court of the United States’ and by the courts of 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;7 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 1 Rawle, Covenants, 427 et seq. (4th ed. ). 2 2 Smith’s L. C. 720 (6th Am. ed.). 8 Littlefield v. Perry, 21 Wall. 205, though there was no warranty. 4 Frazer v. Hilliard, 2 Strob. 309. 8ee Moore v. Byrum, 10 S. Car. 452, 463. 5 Gardiner v. Suydam, 7 N. Y. 357, 363. See Kimberly v. Patchin, 19 N. Y. 330, 339. 6 2 Smith’s L. C. 742 (6th Am. ed.). . 1 4 Mees. & W. 775, 794. ® Supra. 9 Mortgage of personalty to be ac- quired in the future is of course another thing. 438 ESTOPPEL BY DEED. 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 Ante, p. 435. e RELEASE OF DOWER. 439 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 husband ‘in token of her relinquishment of dower, when in fact the husband had previously parted with all his interest in the premises to the grantee in the present deed; and this deed con- tained no words of grant on the part of the wife. The court held that she was estopped to claim dower. Mr. Justice Wilde said that it was no valid objection to the operation of the deed on the part of the wife that her husband had no right or title to the land at the time of its execution. It was not essential that the sale by the husband, and the relinquishment of dower by the wife, should be made by the same deed, or at the same time® Nor was it any objection that the deed of the wife was a mere release, without words of grant; for it operated by way of estoppel, and not by way of grant. Where the husband conveys his wife’s land in his own name only, and the wife merely affixes her signature and seal to the deed in token of relinquishment of all her right in the bar- 1 Stearns v. Swift, 8 Pick. 532; Far- ley 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. Nor is a husband estopped 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. 8 Fowler v, Shearer, 7 Mass. 14. 440 ESTOPPEL BY DEED. gained premises, she is not estopped to claim the land after her husband’s death.!_ Chief Justice Shaw in the case cited said that by law and usage the deed of the husband and wife conveying the wife’s estate had been deemed sufficient ;? but it had also been steadily held that to have this effect the wife must have joined in the deed; that is, it must appear that both husband and wife were parties to the efficient and operative parts of-the instrument of conveyance, and that it was not sufficient that her name was annexed as expressing her assent to the’ act of her husband, without words expressing her formal participation in the granting part of the deed.3 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 inopera- tive, the wife’s release of dower works no estoppel. The question was considered by the Supreme Court of Ohio in Woodworth v. Paige® whether a wife who releases dower in a deed made without consideration, and to defraud her husband’s creditors, 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.’ 1 Bruce v. Wood, 1 Met. 542. ? Doane v. Willeutt, 5 Gray, 328, 832 ; ante, p. 330. The husband's cov- enants of course will not estop the wife to claim any after-acquired estate. Thompson v. Merrill, 58 Iowa, 419. 8 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. * Rosenthal v. Mayhugh, 33 Ohio St. 155; Usher v. Richardson, 29 Maine, 415. § Blain v. Harrison, 11 Ill. 387; Hoppin v. Hoppin, 96 Ill. 265. § 5 Ohio St. 70. 7 “It would seem obvious,’ said Thur- man, C., J. in delivering judgment, ‘that if the deed of the husband and wife was executed for a sufficient con- sideration, and was invalid only by reason of the intent to defraud credit- ors, she ought to be barred of her dower as against the grantee and his privies. For as between her and them there is no reason why her release made for a sufficient consideration should be avoided. But the case is quite different, I apprehend, where there is no consider- ation to uphold the deed; and it can only be upheld by the application of the doctrine that as between fraudulent grantor and grantee the title of the Jat- ter is good. For why, and in what sense, is the deed fraudulent? And why is it that the title of the grantee, who has paid no consideration, is never- theless good? It is fraudulent simply because it is an attempt to place the property beyond the reach of the hus- band’s creditors; and the title of the grantee is good except as against the RELEASE OF DOWER. creditors, simply because no court will aid a party to avoid his executed con- tract made for a fraudulent purpose. But so far as the wife is concerned she places nothing beyond the reach of the creditors to which they are entitled. It is the husband’s estate alone, and not her dower right, that is liable for his debts, and that estate he can convey without her joining in the deed. Her execution of the deed adds nothing to its efficacy so far as his estate is con- cerned; it simply releases her dower, which the creditors have no right to touch. How then can she be said to 441 be a fraudulent grantor? Whom does she defraud, either by the deed or by avoiding it so far as to claim dower? Not the creditors, for they had no right to her dower. Not the grantee, for he paid no consideration for the convey- ance. Not a purchaser with notice from the grantee, for such a purchaser is in no better condition than the grantee himself. How then can it properly be said that the deed is her executed fraud- ulent contract or conveyance, against which she ought not to be relieved, when its execution does not and cannot defraud anybody ?’ PART III. RIGHTS ARISING FROM ESTOPPEL IN PAIS. PART III. RIGHTS ARISING FROM ESTOPPEL IN PAIS. CHAPTER XIII. PRELIMINARY VIEW. EsTopPEL in pais may be defined to be a right arising from acts, admissions, or conduct which have induced a change of position in accordance with the real or apparent intention of the party against whom they are alleged.! This definition would not have suited the estoppel in pais of the earlier common law. The following acts created the estoppel of Lord Coke’s time: Livery (of seisin), entry, acceptance of rent, partition, and the acceptance of an estate? These acts in pais possessed the same conclusive character 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 transfer a reversion in the same Jand when held by a tenant of the feoffor2 But verbal conveyance was terminated by the statute of frauds. The estoppel 1 Ante, p. 3. See Gray v. Gray, 83 Mo. 106; Yates v. Hurd, 8 Col. 343, 349. In these cases the definition given in the third edition of this work was adopted, to wit: ‘An estoppel by mat- ter in pais may be defined as an express or implied admission, become indispn- table by reason of the circumstance that the party claiming the benefit of it has, arising in cases of partition has while acting in good faith and in accord- ance 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 ‘admission’ is not apt for the case of waiver; chapter 18, sec. 7. 2 Inst. 352 a. 3 2 Smith’s L. C. 742 (6th Am. ed.). 446 ESTOPPEL IN PAIS. 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.2 Estoppel by the acceptance of rent, as known to Lord Coke, occurred where the landlord accepted rent from a tenant who held over after the expiration of a lease by deed. Such an estoppel depended upon the prior existence of a deed; while at the present day it is immaterial how the tenure arose, as will hereafter appear. Indeed the estoppel in pais of the present day has grown up almost entirely since the time of Lord Coke, and embraces cases never contemplated in that character by him or by the lawyers of even much later times. By analogy to the rule that a tenant shall not dispute the title of his landlord (and even this rule did not prevail in Coke’s day ;* the only estoppel of a tenant being by virtue of a deed, as we shall see), a somewhat similar estoppel has been introduced in the case of bailment, which forbids a bailee in general terms to dispute his bailor’s title ; and other cases of a similar character have arisen. The most important addition however to this branch of the law has been the class of cases known as estoppels ‘ by conduct.’ At the present day no subject is more constantly before the courts. What would have been done at law in Lord Coke’s time with a case like Pickard v. Sears’ where the owner of goods permitted the property to be sold as another’s® — does not ap- pear. 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 \disvovenan the fraud and rescinding the contract. At any rate the estoppel 1 Ante, pp. 401, 402. 8 2 Black. Com. 209 ; 3 Black. Com. 2 5 American Law Review, p.1(Oc- 175. tober, 1871). A valuable article upon 4 Moffat v. Strong, 9 Bosw. 57, 65, the Estoppel of » Tenant to deny his per Woodruff, J.; Duke ». Ashby, 7 Landlord’s Title, understood to have Hurl. & N. 600, 602, Pollock, C. B. been written by Mr. Joseph Willard of 5 6 Ad. & E. 469. the Boston bar. 6 See chapter 18, PRELIMINARY VIEW. 447 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 en- able them to do what the Court of Chancery had always done unaided.! Besides this class of cases, and the others above-mentioned, 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 great variety of cases, embraced in the present work under the heads of Corporations, Agency, Partnership, Waiver, Election, and Inconsistent Positions. There are many cases too in which the term is used merely for convenience, as equivalent to ‘bar.’ Such need not be considered. Indeed in regard to most of the specific cases just mentioned 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, how- ever nearly those may resemble the grounds of admitted estop- pels of the present time. But it must always be understood that they stand upon their own grounds, so far as these are distinctive. Thus in the case of waiver of rights the ground upon which the waiver rests is, at least in ordinary cases, knowl- edge 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.2 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 es- toppel at best. An estoppel is a legal consequence —a right — arising from acts or conduct; while acquiescence and ratification are but facts, presupposing a situation incomplete in its legal aspect, i. e. not as yet attended with full legal consequences. The most that acquiescence or ratification can do, and this they 1 Bacon, V. C. in Keate », Phillips, Eichmeyer Hat Co., 90 N. Y. 607, 614; 18 Ch. D. 560, 577. McCreary v. Parsons, 31 Kans. 447, 2 See post, chapter 18, sec. 7. 451; Vallette v. Bennett, 69 Ill. 632; 5 See e. g. Aldrich v. Billings, 14 and other cases in chapter 19, at the R. I. 232, 239; Sheldon Hat Co. » end. 448 ESTOPPEL IN PAIS. may under certain circumstances do, is to supply retrospectively an element wanting to an estoppel, 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 necessarily in the way required of an estoppel by conduct. Again there are cases of agency which are sometimes put as estoppels that are not such. Thus the rule that one who has left with another his signature to an incomplete mercantile in- strument 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.2 But there is here no false repre- sentation, the only 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, or purchaser for value without notice.2 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 is of course the same; but where there is danger of con- fusion, things should be called by their right names. It may be observed in this connection that estoppel by misrepresentation or concealment of title was at first argued at the bar and perhaps considered by the bench as resting on agency ;4 but that view never gained acceptance® . 1 See chapter 18, sec. 8. much of the law of vendors, would be- 2 See e. g. Jewell v. Rock River long to that subject ; that could not be Paper Co., 101 Til. 57. admitted. 8 If that were estoppel, the chief * Pickard ». Sears, 6 Ad. & E. 469. part of the law of bills and notes, and 5 Post, p. 546, note (a). CONTRACT: ESTOPPEL FROM TAKING POSSESSION. 449 CHAPTER XIV. CONTRACT: ESTOPPEL ARISING FROM TAKING POSSESSION. 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? 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 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 pres- ent 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 re- plevin, and similar cases. It arose only upon the indenture, 1 The estoppel upon the landlord has 8 Ante, pp. 445, 446. See also the already been considered under Title by Estoppel. Ante, pp. 382-387. 2 Hatch v. Bullock, 57 N. H. 15; Betts v. Wurth, 32 N. J. Eq. 82; Ter- rett v. Cowenhaven, 79 N. Y. 400; Nims v. Sherman, 43 Mich. 45; Cam- pau-v, Lafferty, ib. 429; Ward v. Ryan, 10 Ir. R. C. L. 17. article already cited from the 5th Am. Law Rev. Without continually citing this article we shall draw from it con- siderably in the opening pages of this chapter ; and we recommend a careful reading of it. * Ryder v. Mansell, 66 Maine, 167. 29 450 : ESTOPPEL IN PAIS. 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, says the writer in the American Law Review, already referred to, ‘established by this rule was, will appear on referring to the ancient precedents of debt for rent. In Carson v. Faunt? the declaration avers a demise, set- ting out specifically the date, term, premises, and rate of rent; yet nil habuit, &c. was pleaded, and issue was joined thereon. In Offley v. Ormes® the indenture is set out in full; yet nil habuit, &c. was a good plea... . Indeed the entire distinction between the pleading when estoppel would and when it would not arise seems to have been found in the technieal averment of the breach; that in debt concluding that such an amount had accrued and was due, &c.; and that in covenant that the cove- nant recited had been broken, &c.’ 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 con- clusive also against the idea that the modern estoppel originated in the feudal tenures,* that the feud required an estate of free- hold; 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 ceases. In the familiar case of Doe d. Knight v. SmytheS an ac- tion 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 referred 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 1 Palmer v. Ekins, 2 Ld. Raym. 8 Tbid. 179. 1550; Veale v. Warner, 1 Wms. Saund. 4 1 Washburn, Real Prop. 356. 325, n. 4; Syllivan v, Stradling, 2 Wils, 5 4 Maule & S. 347 (1816). 208. 6 Reported in note, 1 T. R. 758. 2 1 Lilly, Ent. 168 (1698). CONTRACT: ESTOPPEL FROM TAKING POSSESSION. 451 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 in- stance, and the decision was acquiesced under.’ It seems then that the origin of the rule in ejectment cannot be traced further back than to the middle of the last century; and the writer in the 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 landlords,} as was supposed by Mr. Justice Woodruff in Moffat v. Strong? and this appears from the fact that in Lewis v. Willis, tried in. 1752, the case of Prichard v. Houlditch * was referred to to sus- tain a demurrer to a plea of nil habuit in tenementis in indebi- tatus assumpsit for use and occupation ; a case tried twelve years 1 It was enacted by § 14 of this statute, that, ‘to obviate some diffi- culties 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 agree- ment is not by deed, to recover a rea- sonable satisfaction for the lands, tene- ments, and hereditaments held or occu- pied 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 reserved, shall appear, the plaintiff in such action shall not therefore be nonsuited, but may make use thereof as an evidence of the quan- tum of damages to be recovered.” And by § 22, ‘it shall be lawful for all de- fendants in replevin to avow and make cognizance 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 dis- trained for was incurred, which rent has been and still remains due, . . . with- out setting forth further the grant, terms, demise, or title of the landlord.’ 11 Geo. 2, v. 19. 2 9 Bosw. 57, 65. 31 Wils. 314. * Hil. T. 13, Geo. 1 (1727). 452 ESTOPPEL IN PAIB. prior to the passage of the act. In Gibson », Kirk! ‘Lord Den- man says that assumpsit for use and occupation was simply ‘pro- tected by the statute from being defeated by proof of a certain rent under a parol demise or agreement not under seal, and that before the statute actions of assumpsit for the occupation of land had been frequently held maintainable The fact is also men- tioned 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 essen- tial to the existence of the estoppel: first, possession ; secondly, ‘permission; when these conditions are present the estoppel arises.3 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 1 Q. B. 840, 855. ‘2 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. 8 Morrison v. Bassett, 26 Minn. 235 ; Hussman v. Wilke, 50 Cal. 250. It has been suggested, and with much sound- ness apparently, that the estoppel will arise even if there appears no entry or possession 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. observed: ‘If the defendant in his answer had confined himself to a denial that the plaintiff-at thetime of the demise had any estate in the prem- ises, the question would be presented whether the ancient rule of the com- mon law, to which I have referred, pre- ‘vails 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 con- tracted 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.’ 4 18 Johns, 490. CONTRACT: ESTOPPEL FROM TAKING POSSESSION. 453 due. The plaintiff pleaded to the avowry that the land was not the defendant’s; to which the defendant replied by way of estop- pel. that the plaintiff had accepted from the defendant a written lease for the premises signed by both parties, and that the plain- tiff occupied the premises under the lease. There was a de- mutrer 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 premises, 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 ». Shoemaker,! and to all that class of cases. It is worthy of notice however that the case just cited was an action of debt for rent; and it was for a long time supposed in England that in this action nil 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, rest their decision upon the rule in Coke that ‘if a man take a lease for years of his own land by deed indented, the estoppel doth not continue after the term ended. For by the taking of the lease the estoppel doth grow, and consequently by the end of 1 1 Rawle, 135. 5 43 N. H. 328. See Carpenter ». 2 Syllivan v. Stradling, 2 Wils. 208; Thompson, 3 N. H. 204; Gray v. John- Smith v. Scott, 6 C. B. x. 8.771, obiter. son, 14 N. H. 421; Russell v. Fabyan, 8 See 5 Am. Law Rev. 15. 27 N. H. 537; Accidental Death Ins, £ Moore v. Beasley, 3 Ohio, 294; Co. v. Mackenzie, 5 L.T.N. 8.20; 8.c Gray. v. Johnson, 14 N. H. 414; Var- 10C. B. n. s, 870 (Am. ed.). nam v. Smith, 15 N. Y. 327. ‘ ’ 454 © ESTOPPEL IN PAIS. the lease the estoppel determines”! The seal being the efficient 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 estop- pel, it is clear that the estoppel will prevail so long as such pos- session continues,? though the contract of lease was void.2 And the authorities upon this point are numerous. We proceed now to a more detailed examination of the modern doctrine of the ten- ant’s estoppel, and as heretofore by a presentation 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.6 In the case first cited, an action of ejectment, it appeared that, upwards of thirty years before, the defendant had enclosed a piece of waste ground of which one Trafford was owner. Subsequently the plaintiff bought the land of Trafford, and several years afterwards demanded rent of the defendant, who paid it. Six years later the plaintiff gave notice to quit, with which the 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 1 Coke, Litt. 47 b. 2 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. 8 Crawford v. Jones, 54 Ala. 459. 4 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. 5 Doe d. Jackson v Wilkinson, 3 Barn, & C. 413; Cooper v. Blandy, 4 Moore & S. 562; Dunshee v. Grundy, 15 Gray, 814; Whalin » 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 con- stitutes a letting in cases of payment on shares, so as to raise an estoppel, see Strain v. Gardner, 61 Wis. 174; Jack- son v. Brownell, 1 Johns. 267; Over- seers v. Overseers, 14 Johns. 365; Taylor v. Bradley, 89 N. Y. 129. Judgment for the plaintiff in a suit for unlawful detainer conclusively estab- lishes the relation of landlord and ten- ant between the parties. Norwood ». Kirby, 70 Ala. 397. 6 ‘The payment of rent,’ said Hol- royd, J. ‘was an acknowledgment that the occupation was by permission. Had the defendant known that the lessor of the plaintiff 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.’ CONTRACT: ESTOPPEL FROM TAKING POSSESSION. 456 ~ existence of a seal having become obsolete, it is plain that the doctrine of mutuality in the case of competent parties is fully ap-, plicable 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 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.! 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 surrender of possession from denying her son’s title. The doctrine of privity prevails also, and is illustrated in Doe d. Bullen v. Mills? Certain premises were in the possession of a lessee under an indenture from Bullen the plaintiff. Subse- quently the defendant laid claim to the premises, and offered the 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 attempted to prove his own title to the land. The court refused to allow him todo 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 posses- 1 Russell v. Erwin, 38 Ala. 44. See 3 Otis v. McMillan, 70 Ala. 46, Grant v. White, 42 Mo. 285. 53; Dobson v. Culpepper, 23 Gratt. 22 Ad. & E. 17. 352, 456 ESTOPPEL IN PAIS. sion 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 in- terest; and in either case the defence was inadmissible.! 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 per- mitted to inquire into the validity of their title, since all the evi- dence of title had been given by the master, and in this respect the case differed from the ordinary one where a tenant was not permitted ‘to impeach his landlord’s title. But the court were of opinion that as the defendants held under the master, who had been appointed by the mayor and aldermen, they ought not to dispute the title of the latter, and that it was immaterial whether the defendants held immediately under the mayor and aldermen, or under the master who claimed under them. The doctrine of privity is well illustrated in a recent case in the English Common Pleas.® The action was ejectment under the following circumstances: The plaintiffs let land to one Budd, who continued to hold over and pay rent for several years after the expiration of the plaintiffs’ title, which occurred in 1859, In 1863 Budd sublet the premises to the defendant, who paid rent tohim. 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 See Doe d. Knight v. Smythe, 4 Maule & 8S. 347. 897 (administrator and administrator de bonis non); White v. Barlow, 72 Ga. 2 Barwick v. Thompson, 7 T. R. 488. 8 London & Northwestern R. Co. v. West, L.R. 2 C. P. 553. Further of privity see Woodruff v. Erie Ry. Co., 73 N. Y. 609; Bishop »v. Lalouette, 67 Ala. 197; Norwood v, Kirby, 70 Ala. 887 (purchaser from tenant, with no- tice) ; Blake v. Sanderson, 1 Gray, 332 ; Lunsford v, Alexander, 4 Dev. & B. 40; Rennie v. Robinson, 1 Bing. 147; Doe d. Wheble v. Fuller, 1 Tyr. & G. 17. * Willes, J. said: ‘It seems to me CONTRACT: ESTOPPEL FROM TAKING POSSESSION. 457 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,1 — that rule is illustrated in Doe d. Ogle v. Vickers? an ejectment for land in Shropshire. The facts were these: In 1824 the defend- ant executed a mortgage in fee to the plaintiff of the premises in question. Subsequently other parties brought ejectment for two undivided thirds of the premises against the defendant, who remained in possession claiming by title anterior to the mortgage mentioned. The plaintiffs in that case obtained judg- ment subject to the award of a barrister, who was to direct what sort of lease should be executed by the successful parties to the defendant. The arbitrator awarded a lease which. was executed and had not expired at the commencement of the 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. plaintiff? But judgment was given for the In a case in the English Common Pleas* the defendant to an avowry for rent pleaded that ‘before the lessor (who claimed that the question is whether, if Budd had been the defendant instead of West, he could have resisted this ejectment, for West came in under Budd; and since no change has taken place in the Tight of the different parties since his tenancy commenced, he cannot dispute that the rights of Budd have duly vested in him. Would then Budd be able to dispute the plaintiffs’ title? If his ten- ancy had commenced after 1859 when the Jand is alleged to have vested in the adjoining owner, there is no doubt that he would have been estopped from doing ‘so, since a tenant cannot dispute his landlord’s title except by showing that such title has terminated since the com- mencement of the tenancy. In this case the answer is to be found in a con- clusion of fact, namely, that as the question is raised by a mere stranger who does not even allege that he has any title himself, we ought to conclude if necessary that Budd intended to re- main tenant to the plaintiffs after 1859, and that there was therefore a new ten- ancy in law from year to year created subsequently to the year 1859. He therefore could not have disputed the plaintiffs’ title, and neither can the de- fendant.’ 1 Helena v. Turner, 36 Ark. 577 ; Baker v. Barclift, 76 Ala. 414; Cald- well v, Smith, 77 Ala. 157; Littleton v. Clayton, ib, 571. 24 Ad. & E. 782. 8 See Doe d. Hurst v. Clifton, 4 Ad. & E. 809, 818, 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. 4 Achorne v, Gomme, 2 Bing. 54. 458 ESTOPPEL IN PAIS. 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, TR 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. 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.2 The case cited was an ejectment, in which it appeared that the defendant applied to the plaintiff, then in possession of the premises, for the privilege of getting vegetables from the garden; and that having obtained the keys, he fraudulently took possession and set up a claim to the land. The court refused to hear it.? 1 Best, C. J. 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 plain- tiff was equivalent to payment, and that the plea was nothing more than a spe- cial plea of riens in arrear ; ‘but if so,’ he replied, ‘it may be equally contended that non tenuit is a plea of riens in ar- rear. 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 rule which prohibits a tenant from disputing in a court of law the title of his landlord is a wise rule, tending to general convenience especially when there is another court in which he may insist on any equities which the case may involve. I am aware that there is a qualification of this rule, if qualification it can be called, and that there are cases in which the tenant has been permitted to show that the land- lord could not justify a distress. In all of them however the right of the land- lord 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 before the lessor’s title commenced. In the present case unless the tenant had attorned, though the mortgagor might have evicted, he could not have dis- trained.’ 2 Doe d. Johnson v. Baytup, 3 Ad. & E. 188; s. c. 4 Nev. & M. 887. 3 Mr. Justice Patteyson said: ‘In the case of a person who has become tenant there is no doubt as to the law. Doe d. Knight v. Lady Smythe, 4 Maule & S. 347, shows that he must first give up 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 ejectment.. It was held in that case, not that the CONTRACT: ESTOPPEL FROM TAKING POSSESSION. 459 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 ad- mission that his landlord had sufficient right to lease the prop- erty at that time. That the tenant may show that his landlord’s title has since in any way expired is shown among other cases? by the case of Hopcraft v. 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 party claiming as landlady to the tenant was altogether estopped from trying the right, but that the tenant must first re- store possession. If the defendant here has any right, she might in the first in- stance 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 plaintiff 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 permis- sion as a mere lodger, or as a servant.’ Mr. Justice Coleridge said that there was no distinction between the case of a tenant and that of a common licensee. The licensee by asking permission ad- mitted that there was a title in the 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 dispute the licensor’s right of action? The law would imply a ten- ancy 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 situation in which she stood before the leave was granted.’ 1 Emmes v. Feeley, 132 Mass. 346 ; Hilbourn v. Fogg, 99 Mass. 11; Lam- son v. Clarkson, 118 Mass, 348; Farris v, Houston, 74 Ala. 162; Caldwell uv. Smith, 77 Ala. 157, 166; Clarke ». Clarke, 51 Ala. 498; St. John v. Quit-- zow, 72 Ill. 384; Ryder v. Mansell, 66 Maine, 167 ; Presstman v. Silljacks, 52 Md. 647; Delmege v. Mullins, 9 Ir. R. C. 1, 209, 214. Tenant at will may. show that his landlord's title has ex- pired. Emmes v. Feeley, supra. 2 9 Bing. 613. 460 ESTOPPEL IN PAIS. 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 Hoperaft to. Hawkins, re-entered for the condition broken and turned out all the tenants, Hopcraft among them. Kent there- upon put aman in possession of the house which had been, occupied by Hoperaft. The house was subsequently finished, vacated, and leased again to Hopcraft by Kent upon a new agreement and for a different rent. The chief justice, with whom the other judges concurred, said that, it was competent for the plaintiff to show that his landlord had a defeasible title only, and that such title had been actually defeated before any rent became due, and that the rule of estoppel could not apply: to the case where the tenant had been actually turned out of possession and kept out a considerable time, and had afterwards entered under a new agreement made bona fide with another person. The case of Claridge v. Mackenzie! 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. 143. 2 Chief 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 transaction had taken place without a knowledge on the part of the plaintiff of the cir- cumstances, ‘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 plaintiff was in possession of the premises ; and after the expiration of the defendant's interest he continued to oceupy as ten- ant by sufferance under the party who was entitled to the intermediate term CONTRACT: ESTOPPEL FROM TAKING POSSESSION. ‘A461 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 they 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 hada right to de- mise 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 doctrine. If the landlord parted with his title pending the lease, the ten- ant would be bound to pay rent to the assignee ; and should the of three quarters of a year. The wit- ness Richards speaks of a new agree- ment having been entered into between the plaintiff and the defendant that the former should continue in possession ag tenant to the latter; but there was no new possession given by the defend- ant; 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 plaintiff 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 prem- ises ; it is in fact a remaining in pos- session 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 indepen- dently of Mackenzie. But then it is argued that in July, 1838, the plaintiff entered into an agreement to take the premises from the defendant; and I think that such must be considered to be the result of the evidence. And if she had a legal right at that time and might have turned the plaintiff out of possession, I am not prepared to say but that he must have formally sur- rendered to the defendant. But the infirmity of the defendant’s case con- sists in this, that at the time of this agreement she had in fact no power to turn the plaintiff out of possession, and I think therefore that he cannot be said to have been let in by her. The ques- tion then is, Was this 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 v, Lathrop, 22 Wend. 121; Tilghman v. Little, 13 Ill. 239; Farris v. Houston, 74:Ala. 162, 462 ESTOPPEL IN PAIS. tenant then buy in the assignee’s right, the lease would be ex- tinguished. 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 sus- tained ; for a purchase or acquisition of title under a judgment 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- dinately the landlord claims? 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 property. After Quinton had conveyed to the plaintiff, and after he had attorned to him as tenant, he gave up possession in considera- tion of a sum of money to the representatives of the mortgagor (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® 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 possession. The de- fendants 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 1 Haskell v. Putnam, 42 Maine, 244. 82 Ad. & E. 17; ante, pp. 455, 2 Ford v. Ager, 2 Hurl. & C. 279. 456. CONTRACT: ESTOPPEL FROM TAKING POSSESSION. 468 after the expiration of his lease deny his landlord’s title without (1) actually and openly surrendering possession to him, or (2) being evicted by title paraniount, 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 ter- mination of the lease, for a few days, without the landlord’s knowledge, and then by the same collusion resumed possession. 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 In Morse v. 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 paramotnt title before the commencement of the time for which the rent was claimed. The defendant offered to show that persons hav- ing 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 1 Littleton v. Clayton, 77 Ala. 571. is the consideration for the covenant 2 Miller v, Lang, 99 Mass. 13; Hil- bourn v. Fogg, ibs 11; Morse v. God- dard, 13 Met. 177. 8 ‘Mere leaving possession and re- suming it a short time afterwards, with- out notice to the landlord, or giving hin an opportunity to take possession, is not sufficient.’ Ib, Clopton, J. * Chief 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 to pay rent, and when the lessee is de- prived of the benefit, he cannot be held to pay the compensation. Bacon’s Abr. Rent, L; Cruise’s Dig. tit. 28, c. 3. ‘It is not enough therefore,’ the chief justice proceeded to say, ‘that a third party has a paramount title ; but to ex- cuse 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 under a judgment of law is not necessary. An actual entry by one having a paramount title and present right of entry is an ouster of the tenant. He cannot lawfully hold against the title of such party. He is not bound 464 ESTOPPEL IN PAIS. that if the defendant bona fide had yielded possession of the premises to the third persons to prevent being actually expelled, of which fact the plaintiff had notice, and if upon the evidence the third persons had a good title paramount to that of the de- fendant 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 tenant2 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 pro- duce 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 to hold unlawfully and subject himself v. Shaw, 100 Mass. 187. See also Hardy to an action, and is uot therefore com- pellable to resist such entry. Hamilton v. Cutts, 4 Mass. 349. So when an exe- cution creditor is put into possession by the sheriff under the levy of an execu- tion, he has the actual and exclusive possession, and may maintain trespass. Gore v. Brazier, 8 Mass. 523. There is a recent case which seems to us alike [sic] in principle. Smith v. Shepard, 15 Pick. 147. A mortgagor in possession ‘made a lease for years, reserving rent. Afterwards the mortgagee, having a paramount title, entered, as he law- fully might, with right to take the rents and profits. In a suit by lessor against lessee for rent such entry under a@ paramount title was held to be an ouster, and a good bar to the action.’ But where the third person merely for- bade the tenant to pay rent to his lessor, demanding it herself, but without avail, and had even brought a writ of entry which had not been tried, it was held that the tenant could not set up the title of such person in an action by the landlord to recover possession. . Hawes v. Akerly, 57 Barb. 148. . 1 Shaw, C. J. said that it was to be understood that when a tenant thus re- lied on an ouster in pais, without judg- ment, he had the burden of proving the validity of the elder title, the actual en- try 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. 198 ; Ross v. Dysart, 33 Penn. St. 452; Simers ». Saltus, 3 Denio, 214; Greenvault ». Davis, 4 Hill, 648 ; Whalin v. White, 25 N. Y. 462, 465. 3 Lansing v. Van Alstyne, 2 Wend. 563, note; Webb ». Alexander, 7 Wend. 281; Greenby v. Wilcocks, 2 Johns. 1, 4 Waldron v. McCarty, 3 Johns. 471; Kortz ». Carpenter, 5 Johns. 120; Kerr v. Shaw, 13 Johns. 236, 5 Simers v. Saltus, supra; St. John v. Palmer, 5 Hill, 599; Greenvault v. Davis, supra ; Whalin v. White, supra. In California it is held that a tenant cannot justify an attornment to one CONTRACT: ESTOPPEL FROM TAKING POSSESSION. 465 doubt has been raised in a recent English case! whether construc- tive eviction is engugh in England; but it has been distinctly declared enough in one case,? and evidently so considered in others And it has been said that the law must be regarded as settled in England in this way 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 ad- mission 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 first cited a tenant filed an interpleader against two sets of persons who claimed to be respectively devisees and co-heirs of his original landlord ; and the court granted an injunction to stay proceedings at law by one of the parties for the recovery of rent on payment into court of the sum due, though it appeared that the plaintiff had acknowledged in writing the title of the party suing at law, and had paid rent to him for nearly two years after the death of the original landlord, it appearing that this had been done in ignorance of the fact that the title was in dispute , who has recovered the land under an ejectment against the tenant if the landlord was not notified to come in and defend. Douglas ». Fulda, 45 Cal. 592. 1 Delaney v. Fox, 2 C. B. N. 8. 768, per Cockburn, C. J. 2 Poole v. Whitt, 15. Mees, & W. 571, 577. 3 Doe d. Higginbotham v. Barton, 11 Ad. & E. 307; Hawkes ». Orton, 5 Ad. & E. 367; Emery v. Barnett, 4 C. B. Nn. 8. 423. 45 Am. Law Rev. 35. 5 Wiggin v. Wiggin, 58 N. H. 285; Farris v. Houston, 74 Ala. 162 ; Jew v. Wood, Craig & P. 185 ; Doe d. Plevin v. Brown,.7 Ad. & E. 447; Cornish v. Searell, 8 Barn. & C. 471; s.c.1 Man, & R. 703,;, Rogers v. Pitcher, 6 Taunt. 202; Gravenor v. Woodhouse, 1 Bing. 38. § “It appears to me well established,’ observed Lord Chancellor Cottenham, ‘by the uniform current of all the cases (for there is not that discrepancy be- tween the cases which was suggested) that the rule of law is that after the death of the person to whom the occu- pier became tenant the tenant may rer quire the person claiming under the original lessor to prove his title under such original lessor; and that although the tenant has paid rent to the person so claiming under the original lessor, he is not precluded from so doing by the payment of rent and other acts which might under other circumstances amount toan attornment. Several cases were cited. Rogers v. Pitcher, 6 Taunt, 30 466 ESTOPPEL IN PAIS. 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 ». 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 appeared that Duplock bought the premises of one Collins, who 202, was one. That was a case of mere mistake as to the title of the party to whom the rent was paid. There was no misrepresentation by the party so obtaining the rent ; it was a mere mis- apprehension, and the payment of rent under such misapprehension was not considered as altering the situation of the tenant. He was permitted to call upon the person claiming his land to prove his title. Fenner v. Duplock, 2 Bing. 10, proceeded entirely upon the tenant’s ignorance of the title of the party who claimed the rent. Gregory v. Doidge, 3 Bing. 474, is a still stronger case. There does not appear to have been any 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 Hop- craft v. Keys, 9 Bing. 613, has no direct application ; that decision having pro- ceeded 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 land- lord. The case of Doe d. Plevin v. Brown, 7 Ad. & E. 447, was a case of attornment made by the direction of the person under whom the tenant held. That title was disputed by his assignee ; but Lord Denman in holding that’ the tenant was at liberty to dispute the title of the person to whom he had attorned says that it was competent for him ‘‘ to explain and render inconclusive acts done under mistake or through mis- representation ;” putting therefore mis- take and misrepresentation for that purpose upon the same footing. So far, I think, it was admitted at the bar that the eases were uniform. But a case was referred to, Hall v. Butler, 10 Ad. & E, 204, which it is contended establishes a different doctrine. Now I think the doctrine 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. An- other person then claimed by title para- mount 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 But- ler’s. The judges put it upon this ground, either that the defendant But- ler ratified the demise, or that there was a fresh demise by him; and in either case the tenant could not dis- pute 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.’ 1 2 Bing. 10 ; s. c. 9 Moore, 38. CONTRACT: ESTOPPEL FROM TAKING POSSESSION. 467 took them under a will. Duplock leased to the plaintiff, who paid rent until the death of Collins, At this time a third per- son claimed the premises, alleging that Collins had only a life estate under the will. He demanded rent of the plaintiff, who paid it and refused to pay longer to Duplock. Subsequently however upon distress he paid again to Duplock for some time, when the third person renewed his claim. The plaintiff acqui- esced 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 es- tate for the life of Collins, and that the plaintiff, though aware of the claim of the third party, had: paid the rent to Duplock in ignorance of the precise nature of the claim and in ignorance that Duplock’s estate expired at the death of Collins.