THE 
 
 LAW OF ESTOPPEL. 
 
 BY 
 
 LANCELOT FEILDING EVEREST, M.A., LL.M. 
 
 IF THE MIDLAND CIRCUIT, 
 AND 
 
 EDMUND STRODE, M.A. 
 
 OF THE SOUTH EASTERN CIRCUIT, 
 BOTH OF LINCOLN'S INS, BARRISTER AT-LAW. 
 
 INTEREST REI-PUBLWM VT <IT FIX!? /./. 
 
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 CD 
 
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 London : 
 STEVENS AND SONS, ll<>, CHANCERY LANK. 
 
 ilublishcrs anu *looI;scllcrs. 
 I 384.
 
 £a 
 
 V» e 
 
 LONDON' : 
 BRADBURY, ACNEW. & CO., PRINTERS. WHITEFRIARS.
 
 5 
 
 Hcspettfulln JUbuatefc, 
 
 BY PERMISSION, 
 
 I'll 
 
 THE RIGHT HON. LORD BLACKBURN, 
 
 ONE OF THE LORDS OF AFPEAL. 
 
 7^/03^
 
 PEE FACE 
 
 If any apology is needed for this book, it is furnished 
 by the fact that hitherto no separate work has been 
 published, by an English lawyer, on the law of Estoppel. 
 A great many of the eases on the subject are indeed 
 collected and discussed in the very able and learned note 
 to the Duchess of Kingston's Case, contained in Smith's 
 Leading Cases. But, notwithstanding this, we have felt 
 that by writing a book dealing exclusively with the law 
 of Estoppel, we should be supplying a want which no 
 doubt exists in the legal profession. This want has been 
 already to a certain extent supplied in America, by 
 BigeloWs work on the subject. 
 
 In arranging this work, we have followed Lord Coke's 
 three principal divisions of the subject. We have not 
 bound ourselves to any fixed style of composition. Some 
 parts of tin' subject, notably those which deal with the 
 Estoppel arising from Foreign Judgments and from 
 Representation, i.e., Representation which is either express,
 
 Vl PREFACE. 
 
 or may be implied from conduct, might, we thought, be 
 appropriately treated of by means of propositions, sup- 
 ported by illustrations carefully classified, and arranged, 
 as far as possible, in chronological order ; and we have 
 accordingly so dealt with them. In other parts we have 
 contented ourselves with simply stating the law, and 
 giving a reference to the authorities in the notes. We 
 
 CD Cj 
 
 should have dealt somewhat more fully with some of the 
 older cases, had space permitted us to do so. 
 
 In the Introductory Chapter we have made an attempt 
 to clear the character of our subject from that odium in 
 which it has been supposed to be enveloped. In the 
 Appendix is contained a concise report of the Duchess 
 of Kingston's Case, together with full citations of the 
 numerous authorities referred to by the various counsel 
 in the case ; and this is preceded by a short account of 
 the nature of the jurisdiction of the ecclesiastical courts 
 previously thereto. 
 
 In citing the cases, only one reference is used, as a 
 rule, in the body of the work. But, in the Table of 
 Cases, fuller references, usually at least two, are given, 
 and every case has been dated, an important detail which 
 every lawyer will appreciate. 
 
 We folly acknowledge the assistance we have derived, 
 in the preparation of this work, from the note in Smith's 
 Leading Cases above referred to, which directed us, in
 
 PREFACE. Vll 
 
 the first instance, to many sources of information which 
 we might otherwise have passed over. The task of writ- 
 ing the book has nevertheless involved a considerable 
 amount of original research, both amongst old and 
 modern authorities; and, notwithstanding the fact that 
 the cases connected with the subject are very numerous , 
 we have, as far as possible, made reference to those 
 which seemed to us of sufficient importance. 
 
 L. F. EVEREST. 
 E. STRODE. 
 
 Fakkar's Building, Temple, 
 May, 1884.
 
 TABLE OF CONTENTS. 
 
 PAGE 
 
 Table of Cases xix 
 
 Table of Statutes xvii 
 
 CHAPTER I. 
 
 BSTI iPPELS GENERALLY. 
 
 Definitions of estoppel 
 
 Difference between estoppels and admissions 
 
 Division of the subject ; estoppel by record, by deed, and in pais 
 
 Lord Coke's general rules . 
 
 Exception in case of the Crown 
 
 Authorities that the law does not favour estoppels 
 
 Authorities contra .......•• 
 
 Increasing importance of estoppel 
 
 EXTOL' TEL BY RECORD. 
 CHAPTER II. 
 
 RECORDS. 
 
 Proceedings of record and of quasi record 
 
 Records are conclusive 
 
 Records admit of no alteration 
 
 Averments whi h stand with tin record arc allowed 
 
 Difference between effed of a mistake In the record and of the partj 
 Records coram non judice raise no estoppel .... 
 
 The judgment unit also !»• final ...... 
 
 4 
 5 
 S 
 9 
 Vi 
 16 
 
 IT 
 is 
 ]'J 
 '_':; 
 •J! 
 24 
 26
 
 X 
 
 TABLE <>K CONTENTS. 
 
 Estoppel by verdict and pleading ..... 
 
 Judgment obtained by compromise) .... 
 
 Judgment obtained by consent ..... 
 
 Notice of admission of document .... 
 
 Confession of defence ....... 
 
 Discontinuance of action . .... 
 
 Nonsuits ......... 
 
 Records" in actions wrongly brought .... 
 
 Admissions arising from pleadings 
 
 Default and omissions in pleading .... 
 
 Omission to plead defence . . .... 
 
 < (mission to plead set-off or counter-claim . 
 
 Pleas in the spiritual courts 
 
 Particular instances of records 
 
 Fines, common recoveries, licence or charter of alienation 
 
 Affidavits ......... 
 
 Acts of Parliament ....... 
 
 Proceedings of bodies other than courts of justice, e.g., of cour 
 aldermon, sheriffs' returns, arbitrators' awards . 
 Judgments of courts of inferior or limited jurisdiction 
 
 General rules ......... 
 
 . I mlgments of County Courts . 
 
 Decisions of Justices ........ 
 
 PAGE 
 2(i 
 
 '> 
 
 28 
 29 
 29 
 30 
 31 
 35 
 35 
 oi 
 37 
 ■>1 
 38 
 39 
 39 
 
 40 
 43 
 44 
 46 
 48 
 
 CHAPTER III. 
 
 DOMESTIC JUDGMENTS IX PEKSONAM. 
 
 As to the parties to an action ...... 
 
 Suing in different rights 
 
 Privies in blood, in law and by estate .... 
 
 Jl>toppel limited to parties and privies .... 
 
 Between whom records admissible in evidence 
 
 Parties claiming under original parties, and joint parties . 
 As to the subject-matter of the action .... 
 
 To work an estoppel, the cause of action must be the samo 
 
 "Where plaintiff recovers less than he might have done . 
 
 ( ontinuiug cause of action 
 
 The true test whether a former action is a bar to a subsequent 
 action . . . . . . 
 
 The elements necessary to establish the plea of res judicata 
 
 EIow far a judgment conclusive as to matters incidentally detei 
 mined by it ......... 
 
 51 
 52 
 52 
 55 
 56 
 57 
 57 
 57 
 60 
 61 
 
 61' 
 64 
 
 67
 
 TABLE OF CONTENTS. XI 
 
 PAGE 
 
 Distinction between judgments of courts having concurrent, and 
 
 those having exclusive jurisdiction ...... 6'' 
 
 Fraud is an exception to conclusiveness of judgments . . . . To 
 
 Fraud vitiates the most solemn proceedings of courts of justice . TO 
 
 Fraud in one court can only be examined in a court having 
 
 concurrent jurisdiction . . . . . . 73 
 
 Fraud cannot be set up as a defence by one who was a party to it . 73 
 
 Lapse of time 
 
 i •) 
 
 The allegations of fraud and collusion must, to succeed, be specific 7 1 
 
 CHAPTEB tV. 
 
 DOMESTIC JUDGMENTS IN REM. 
 
 Definitions of a judgment in rem ....... ~o 
 
 1. (a) Judgments of condemnation of property forfeited by the old 
 
 Court of Exchequer . . . . . . . . 77 
 
 ( lonvictions for penalties were not even evidence in civil 
 
 proceedings ......... 79 
 
 Acquittal of goods 80 
 
 Condemnations by the commissioners or sub-commissioners 
 
 of excise, inland revenue, or customs 80 
 
 2. Adjudications of the Court of Admiralty on the subject of prize 82 
 
 3. Judgments in tin' Divorce Court 83 
 
 Sentences which do not affect the status do not operate as 
 judgments in rem . . . . . . . 84 
 
 4. Grants of Probate and Administration So 
 
 Not conclusive in case of a subsequent indictment for forging 
 the mil of which probate was granted . . . . 86 
 
 •3. Adjudications in Bankruptcy ....... 87 
 
 G. Sentences of deprivation and expulsion, whether delivered by 
 
 the spiritual court, a visitor, or a college 88 
 
 7. Judgments of outlawry and declarations of legitimacy . . 89 
 
 Bastardy orders • . . . • • • . . . 90 
 
 8. Adjudications of settlemenl by an order of justices, whether 
 
 unappealed against, or confirmed by a Court of Quarter 
 Bee don on appeal 91 
 
 9. (n) Judgments and orders made by courts of summary jurisdic- 
 
 tion, under special statutory powers 93 
 
 (3) Judgments and wider- made under special statutory powers 
 
 lerally .......... 98 
 
 Pacts necessary to give jurisdiction must appear on such 
 judgments or orders ........ !'!» 
 
 Parliamentary Election Petition! 100
 
 xii TABLE OF CONTENTS. 
 
 1 0. Sentences of Courts-martial 
 
 Courts-martial subject to prohibition .... 
 Their sentences have not been decided to be judgments in 
 rem . 
 
 1 1. Judgments on proceedings by way of'/"" warranto . 
 
 The nature of the proceedings on a writ of quo warranto 
 Decisions on the effect of judgments of ouster, on informa 
 tions of this nature ....... 
 
 f 2. Convictions on criminal prosecutions and inquisitions 
 The effect of criminal verdicts in civil cases 
 The effect of criminal verdicts in criminal cases . 
 Inquisitions taken under a commission .... 
 
 Inquisitions in lunacy ....... 
 
 Coroner's inquisitions ....... 
 
 PACT, 
 
 101 
 102 
 
 103 
 
 104 
 105 
 
 106 
 
 107 
 108 
 113 
 114 
 114 
 115 
 
 118 
 
 119 
 120 
 121 
 
 CHAPTER V. 
 
 FOREIGN JUDGMENTS. 
 
 Eules in favour of conclusiveness apply with at least as much force 
 
 to colonial judgments 117 
 
 Foreign judgment does not create a merger of the original debt . 
 
 Plaintiff's remedies where he has obtained a foreign judgment in his 
 favour .......... 
 
 Foreign judgment may be set up as a defence .... 
 
 Story's view of the effect of foreign judgments 
 
 1. The English courts will not recognise as conclusive a judgment 
 
 of a foreign court which was (a) not final and conclusive 
 
 where pronounced 
 
 or (b) not a decision on the merits .... 
 
 2. Nor will they do so where («) the foreign court had not com 
 
 petent jurisdiction 
 
 or (h) where tho procedure was irregular or tho judgment 
 
 improperly obtained 
 
 or (c) where the judgment was contrary to natural 
 justice .....••••• 
 
 3. Nor will they do so where the foreign judgment has been 
 
 fraudulently obtained 
 
 \. The judgment of a foreign court is conclusive on the merits 
 ">. The judgmenl of a foreign court cannot be impeached on the 
 ground that it has mistaken the law of sonic other country 
 including that of England 140 
 
 123 
 
 124 
 
 124 
 
 128 
 
 129 
 
 133 
 139
 
 TABLE OF CONTENTS. Xlll 
 
 PAGE 
 
 147 
 151 
 
 6. It seems that the English courts will not recognise as con- 
 
 clusive the judgment of a foreign court when it has been 
 obtained by a British subject and is in express contraven- 
 tion of the English statutory law 
 
 7. Nor the judgment of a foreign court which is contrary to the 
 
 comity of nations ....•••• 
 
 8. The mere pendency of an action in a foreign tribunal at the 
 
 date of an action brought in England between the same 
 parties, cannot be set up as a bar to the action in England 155 
 
 CHAPTER VI. 
 
 FOREIGN JUDGMENTS IN KEM. 
 
 Difficulty of determining between judgments in rem and in personam 
 
 in certain cases . . . . . • • • . . 157 
 
 Foreign criminal proceedings an exception to the conclusiveness of 
 
 judgments in rem ......••• 1"^ 
 
 I. Foreign matrimonial sentences . . . . • . . 161 
 
 (i.) Foreign sentences of nullity of marriage . . • • 16-j 
 The validity of the marriage dependent on the lex loci 
 contractus, so far as regards the forms and solem- 
 nities 16"* 
 
 Foreign sentences of nullity not necessarily conclusive 
 
 in England . . . . . • • .105 
 
 Distinction where sentence of nullity was pronounced 
 
 and marriage celebrated in different countries . . 16G 
 (ii.) Foreign sentonces of divorce ...... 109 
 
 The influence of the A.- domicilii . • ... 169 
 1 . To create a valid foreign divorce, the domicile must 
 
 bo bond fidt . . . . • • . 1 < 1 
 
 _'. a) The foreign sentence will be held valid where 
 tho domicile is throughout in the foreign 
 country where it is pronounced . . . . 177 
 
 3 Even though the marriage may have been 
 celebrated in England and have been dissolved 
 for a cause for which a divorce could not have 
 been obtained in England .... L78 
 
 Points which till remain an ettled . . . . 17!) 
 
 IT. Foreign sentences in Admiralty ...... 183 
 
 demnation of a ship as prize, a judgment in rem . . . 183 
 
 elusive upon what was inn ! \ and properly within 
 
 tli" foreign jui Lsdiction 1 83
 
 Mv FABLE OF CONTENTS. 
 
 PAGl 
 
 Conclusive also for collateral purposes to a certain extent in 
 
 actions on policies of insurance . . . . . . 184 
 
 Not conclusive as to any of the premises that led to the adju- 
 dication 18G 
 
 Arbitrary local regulations or other grounds that do not 
 
 warrant the condemnation will not be held conclusive . 187 
 
 The sentence of a foreign court of admiralty, only evidence 
 of what is positively and specifically affirmed in the adju- 
 dicative part of it . . . . . . . . 188 
 
 Distinction between cases where sentences of a foreign belli- 
 gerent power are pronounced in the dominions of a neutral 
 and of a co-belligerent power . . . . . . 1 88 
 
 III. Foreign bankruptcy proceedings . . . . . . 189 
 
 1. Discharges under foreign bankruptcy laws, obtained under 
 
 the laws (a) of the foreign country in which the debt arose 189 
 (h) of a foreign country other than the one in 
 
 which the debt arose . . . . .190 
 
 2. Assignments of a debtor's property, under foreign bank- 
 
 ruptcy laws ; movable and immovable property . . 190 
 
 3. Attachments of debts in foreign countries .... 191 
 
 ESTOPPEL BY DEER 
 CHAPTER VII. 
 
 DEEDS. 
 
 A man is estopped by his own deed 198 
 
 1. (a) No estoppel in case of fraud 195 
 
 (1) It must, however, be fraud dans locum contracbui . . . 196 
 
 (2) No man may allege his own fraud to invalidate his own 
 deed ........... 19fi 
 
 1. O) No estoppel against showing that the deed is imperfect or 
 
 void 203 
 
 2. Infants and married women may plead disability to contract . 20-j 
 ;. Corporations and companies may, in certain cases, plead statu- 
 tory disability 206 
 
 Ultra vires . . . . . . . . . . 208 
 
 Distinction between articles and memorandum of association 209 
 
 Onus of proof of illegality lies on the defendant company . 211 
 
 Distinction between imperative and directory clauses . . 212
 
 TABLE OF CONTENTS. XV 
 
 I'AGK 
 91 -A 
 
 Estoppel arising on the deed and on parts of it 
 
 Eeceipt for consideration money ...... 
 
 Covenants ......... 
 
 Recitals .......... 
 
 Distinction between general and particular recitals . 
 There must be no ambiguity ...... 
 
 The whole effect of the deed must be looked at . 
 
 Xo estoppel arises from things merely appearing by legal 
 
 inference, or from matters foreign to the contract . 
 A mistake of fact not necessarily an estoppel 
 Conditions in bonds ........ 
 
 Matters wholly collateral to the deed do not estop . 
 
 Elates by estoppel 
 
 The estoppel does not arise in the case of a lease by parol 
 No estoppel if the deed shows that the lessor has nothing 
 in the lands ....... 
 
 An estate by estoppel runs with the land 
 
 Reversion by estoppel 
 
 Legal and equitable estate ...... 
 
 There is no estoppel where an interest passes .... 
 
 For an interest to pass, the estate out of which it passes 
 
 must be some greater estate in law . . . . 231 
 
 The lessee may deny a particular estate of the lessor, but 
 he may not assert that the lessor has no estate in law 
 or a smaller estate than the term granted . . . 232 
 A lease may operate by way of estoppel, even if it com- 
 mences by way of interest 233 
 
 An interest when it accrues feeds the estoppel .... 234 
 
 The doctrine not regarded favourably in equity . . . 236 
 The doctrine dues qoI apply to ;i surrender of copyholds . 237 
 
 213 
 
 214 
 21.1 
 •JIT 
 217 
 219 
 
 220 
 221 
 
 222 
 223 
 225 
 
 22S 
 228 
 220 
 229 
 230 
 
 ESTOPPEL IX PAIS. 
 CHAPTER VIM. 
 
 LANDLORD AND TENANT. 
 
 Art- in pais enumerated by Lord I oke ...... •j:;\i 
 
 The modern estoppel between landlord and tenant . . . . 240 
 
 A tenant is estopped from disputing hie Landlord's title . l'ii
 
 XVI TABLE OF CONTENTS. 
 
 PAGE 
 
 Exceptions and limitations to tho estoppel on tho tenant : — 
 
 («) In case of one from whom he did not actually receive possession 248 
 
 (/3) Expiration of landlord's title ....... 250 
 
 (y) Eviction of landlord by title paramount ..... 2.32 
 
 (8) Better title in the tenant himself 252 
 
 (f) The tenant only estoppod to the extent of the interest granted 253 
 
 Attornment and payment of rent ....... 257 
 
 Surrender by operation of law ....... 261 
 
 Certain rules established although decisions are conflicting . . 264 
 
 Analogous cases to those of landlord and tenant .... 268 
 
 CHAPTER IX. 
 
 NE< ;< (TIABLE INSTRUMENTS. 
 
 Distinction between the law of estoppel and the law merchant as 
 
 applied to negotiable instruments . . . . . 277 
 
 Statutory preclusion created by the Bills of Exchange Act, 1882 . 280 
 (a) Cases of forged or unauthorised signatures specially provided 
 
 for by the Act 283 
 
 ( 3) Cases not provided for by the Act, where the party, against 
 whom it is sought to retain or enforce payment of the bill, 
 is precluded from setting up the forgery or want of authority 288 
 (y) Cases where there has been a ratification of a signature which 
 
 does not amount to a forgery 295 
 
 CHAPTER X. 
 
 REPRESENTATION. 
 
 Tho general principles upon which estoppel by representation, or 
 
 equitable estoppel, depends 299 
 
 The representation may be by words or conduct or partly by one and 
 
 partly by the other 305 
 
 Receipts, invoices, and bills of lading, furnish instances of estoppel 
 
 by representation ......... 306 
 
 The representation may be made in a variety of ways : — . . . 308 
 
 1. False or fraudulent representations ...... 310 
 
 2. Representations not necessarily false to the knowledge of the 
 
 person making them, but intended to be acted upon . . 318
 
 TABLE OP CONTENTS. XVII 
 
 PACK 
 
 3. Representations in cases where the damage sustained is the 
 
 result of a reasonable inference from such misrepresentations 324 
 
 4. The representation must be of an existing fact, and not of a 
 
 mere intention ....... . 330 
 
 5. Acquiescence or standiug by, where there is a duty to speak or 
 
 assert a right . . . . . . . . . 34 1 
 
 (a) The duty to speak or assert a right must exist . . . 349 
 (/3) Knowledge of the thing done must be brought home to the 
 
 acquiescing party . . . . . . . . . 351 
 
 6. Estoppel by negligence 353 
 
 7. The representation must have been acted upon by the party 
 
 setting up the estoppel, and to his prejudice . . . . 370 
 The benefit of the estoppel can only be claimed to the ex- 
 tent of the damage caused by the representation . . . 375 
 
 8. A representation does not operate as an estoppel, if the party 
 
 making it is legally incapacitated from entering into the obli- 
 gation from which the estoppel might otherwise have arisen . 378 
 Infants and married women . . . . . . . 378 
 
 Incorporated bodies 380 
 
 PLEADING. 
 CHAPTER XL 
 
 PLEADING THE ESTOPPEL. 
 
 It is advisable in all cases to raise the estoppel on the pleadings . 392 
 Authorities how far an estoppel may be conclusive if not pleaded . 393 
 Foreign judgments should be pleaded by way of estoppel . . 400 
 
 APPENDIX. 
 
 Appendix A Pkei ltorynote to the Duchess op Kingston's 
 
 Case 40 
 
 endix B. The Duchess of Kingston's Case . . . 410 
 
 INDEX 133 
 
 b
 
 TABLE OF CASES. 
 
 Abo— Ano. 
 
 Abouloff v. Oppenheinier, L. R. 10 Q. B. D. 295; 5-2 L. J. Q. B. 
 1 & 309 ; 47 L. T. 325 cV 702 [1882] . . .OS, 74, 130, 133, 
 Accidental Death Insurance Co. v. McKenzie, 5 L. T. 20 [1861] 
 Adamson, < •■ parte, Collie, in re, L. R. S Ch. D. 807 ; 47 L. .J. Bk. 103 
 
 [1878] 
 
 Alchorne v. Gomme, 2 L. J. C. P. 18 ; 2 Bing. 54 [1824] . 
 Alderson v. Maddison, L. R. 5 Ex. D. 293 ; L. R. 7 Q. B. D. 174 ; 
 L. R. 8 App. Cas. 4(57 ; 49 L. J. Ex. 801 ; 50 L. J. Q. B. 4 ; 52 
 
 L. J. Q. B. 737 [1880-1883] 299, 337, 
 
 Aldridge v. Haines, 2 B. & Ad. 395 [1831] 
 
 Alivon v. Fumival, 3 L. J. Ex. 241 ; 1 C. M. & R. 277 [1834] . 
 Allason v. Stark, 9 A. & E. 255 ; 1 P. k D. 1S3 [1838] . 
 Allen v. Dundas, 3 T. R. 125 [1789]. . . . 85,149,192, 
 AUen v. McPherson, 5 Beav. 409; 1 H. L. Cas. 191 [1841—1845] 
 
 86, 87, 
 
 Allen v. Milner, 2 Cr. & J. 47 [1831] 
 
 Alma Spinning Co., in re, Bottomley's Case, L. R. 10 Ch. D. 681 ; 29 
 
 W. K. 133 [1880] . 
 
 Aluer v. George, 1 "■.imp. 392 [1808] 
 
 Alton Wood's ( 'use, 2 Anderson, 151 ; Jenkins's Utli cent. 251, case 4' 
 
 Co. Rep. vol. i. p. lis 1 1595] 
 
 Andrew v. Pearce, I B. & !'. N. R. L58 [1805] .... 
 An. hews v. Elliott, 25 L. .1. Q. B. 1 ; 5 E. & B. 502 [1855] 
 
 Andrews v. MarriB, 1 Q. B. 3 [1841] 
 
 Andrews v. Powers or Powis, Vin. Ah. vol. siii. p. 548 ; and vol. xi 
 
 p. 59 [1727] 
 
 Anglo I rei !i Co-operative Society, in re, L. I!. II Ch. I >. 533 j I 
 
 I. i. Ch. ::s> : 28 W. R. 580 |1880| 
 
 Anonymous < !ase, 
 
 Jenkins' Rep. (5th. cent, case 4, p. 100 [1509] 
 Brooke's New Cases, translated by March, p. 107. 
 Moore, 20 [1559] .... 
 
 Ldsb. 53 Case V. [1587] . 
 I " ■ man Rep. I7.">, pL 051 |1678| . 
 12 Mod. 225 ( 1698] 
 Comyn Rep. 150 [1705] 
 I :; Esp. 115 [ante, 1800] . 
 
 PAGE 
 
 137, 151 
 253 
 
 [1541 
 
 31, 370 
 244 
 
 339, 34 I 
 50 
 
 142, 191 
 18 
 
 40S, 410 
 
 407, 408 
 41 
 
 2 1 2 
 220, 306 
 
 8 
 
 230 
 
 318 
 
 50 
 
 407 
 
 5.S 
 
 216 
 193 
 231 
 228 
 236 
 1 1 '.-. 
 107 
 268 
 
 b 2
 
 XX 
 
 TABLE OF CASKS. 
 
 Aop Bal. 
 
 Appleford v. Judkins, L. R. 3 C. P. D. 189 ; »7 L.J. C. P. 615 [1878] 
 Archbishop of Dublin v. Trimleston, Lord, 12 [r. E3q_. 251 |1849| 
 Archer v. Mosse, 2 Vera. S 1 1G86J ...... 
 
 Armani v. Castriqiie, 14 L. J. Ex. 36; L3 M. & W. 443; 2 Dowl. & L 
 
 P. ('. 432 1 1844| 
 
 Armstrong v. Norton. 2 Ir. L. R. 96 [1839] .... 
 Arnold v. Cheque Bank, L. R. 1 C. P. D. 578; 45 L. J. C. 1'. 562; 34 
 
 L. 'J'. 729 [1876] 282, 290, 292, 
 
 Arnold i?. City Bank, L. R, 1 C. P. D. 578 ; 45 L. J. C. P. 562 ; 34 L. 
 
 T. 729 [1876] 
 
 Arnott 17. Redfern, 2 C. & P. 88 ; 3 Bing. 353 [1826] 
 
 Ashbury By. Carriage & Iron Co. v. Riche, L R. 7 H. L. 053 ; 44 L. 
 
 J. Ex. 185 ; 33 L. T. 451 [1875] . . . 207, 208, 209, 
 Ashby 17. Black well & Million Bank Co., 1 Amb. 503 [1765] . 
 Ashpitel r. Bryan, 32 L. J. Q. B. 91 ; 33 L. J. Q. B. 328 ; 3 B. & S. 
 
 474 ; 5 B. & S. 7-23 [1864] 1,284, 
 
 Aslin r. Parkin, 2 Burr. 665 [1758] 
 
 Athenaeum Life Assurance Society v. Pooley, 28 L. J. Ch. 119 ; 3 Ue 
 
 G. & J. 294 ; 1 Giff. 102 [1858] 
 
 Atkinson y. Coatsworth, 8 Mod. 33 ; 1 Str. 512 [1721] 
 
 Atkinson y. Deuby, 30 L. J. Ex. 361 ; 31 L. J. Ex. 362 ; H. & N 
 
 778 ; 7 H. & N. 934 [1861-1862] 
 
 Attenborongh p. London and St. KatherineDockCo., L. R. 3 C. P. D 
 
 450 ; 47 L. J. C. P. 763 [1878] 
 
 Attorney-General r. Davison, McClel. & Y. 160 [1825] 
 Attorney-General v. Great Northern Ry. Co., 29 L. J. Ch. 794 ; 1 1) 
 
 &. S. 154 [1860] 
 
 Attorney-General v. Hotham, 1 Turn. & Buss. 219 ; 3 Russ. 415 [1827 j 
 Attorney-General 17. King, 5 Price, 195 [1817] .... 
 Attorney-General r. Ryder, 2 Gas. in Ch. 178 [1686] 
 Aveline v. Whisson, 12 L. J. C. P. 58 ; 4 M. & G. 801 [1842] . 
 Ayerst v. Jenkins. L. R. 16 Eq. 275 : 42 L. .1. ( !h. 5&0 [1873 1 . 
 
 Backwellv. Bardue, 1 Mod. 113 1 1674 
 
 Bacon, exparte, Bond, in re, L. 1!. 17 Ch. 1 >. 417; 4:s L. T. 798; 41 
 
 L. T. 834 ; 29 W. R. 292 & 574 [1881] .... 
 
 Bacon v. Chesney, 1 Stark, 192 [1816] 
 
 Bagot v. Williams, 3 B. & C. 235 [1824] 
 
 Bahia k San Francisco Ry. Co. in re, Trittin, in re, L. P>. 3 Q. B. 584 
 
 37 L. J. Q B. 176 [1868] 
 
 Bainbridge 17. Baddeley, 2 Phil. 705 [1347] 
 
 ^V Baker v. Dewey, 1 L. J. K. B. 193; 1 B. & C. 704 ; 3 D. & R. 99 
 
 
 PAflE 
 
 
 45 
 
 
 25 
 
 
 407 
 
 285, 
 
 391 
 
 394 
 
 396 
 
 310, 366 
 
 [1823] 
 
 Baker v. Willis, Cr'o. Car. L, 470 [1636] . 
 Ballard v. Way, 5 L. J. Ex. 207; 1 M. & W. 520 [1836] 
 Balls 17. Weetwood,' 2 Camp. 11 [1809] 
 
 
 366 
 
 
 129 
 
 210. 
 
 381 
 
 
 363 
 
 393, 
 
 402 
 
 23, 
 
 394 
 
 
 346 
 
 
 214 
 
 201 
 
 270. 
 
 271 
 
 
 ,-,., 
 
 210, 
 
 380 
 
 
 241 
 
 
 1 
 
 
 107 
 
 
 203 
 
 
 203 
 
 218 
 
 87 
 
 307 
 
 59, 60 
 
 322, 383 
 59 
 
 213 
 
 i 
 
 39 
 
 250, 25]
 
 TABLE OF (ASKS. 
 
 XXI 
 
 Bal-Bec. rA ' ;E 
 
 Balme v. Hutton, 1 L. J. Ex. 27 ; 2 L. J. Ex. 116; 2 C. & J. 19; 1 
 
 C. & M. 262 ; 9 Bing. 471 [1833] . ... 
 Bank of Australasia v. Harding, 19 L. J. C. P. 345; 9 C. B. 661 
 
 [1850] .... .... 18, 118, 120, 127, 139 
 
 Bank of Australasia v. Nias, 20 L. J. Q. B. 284 ; 16 Q. B. 717 [1851] 
 
 18, 117, 118, 121, 127, 133, 136, 139 
 Bank of Bengal v. Pagan, 7 Moo. P. C. 72 [1849] 
 Bank of Hindustan, Cliina, & Japan, in re, Alison's Case, L. R. 9 Ch. 
 
 App. 1 ; 43 L. J. Ch. 1 ; 29 L. T. 254 ; 22 W. R. 113 [1873] . 
 Bank of Hindustan, China, & Japan, in re, Campell's Case & Hippis- 
 
 ley's Case, L. R. 9 Ch. App. 1 ; 43 L. J. Ch. 1 ; 29 L. T. 519 ; 22 
 
 W. R. 113 [1873] 
 
 Bank of Hindustan v. Alison, L. E. 6 C. P. 54 & 222 ; 40 L. J. C. P. 
 
 117 [1871] . • . . . 
 
 Bank of Ireland v. Trustees of Evans's Charities, 5 H. L. Cas. 389 
 
 [1855] 354, 362, 366 
 
 Bannatyne v. Baunatyue, 2 Robertson's Eccl. Rep. 472 [1852] . 
 
 Barber v. Gingell, 3 Esp. 60 [1800] 
 
 Barber v. Lamb, 29 L. J. C. P. 234 ; 8 C. B. N. S. 95 [1860] . 60 
 Barber v. Notts & Grantham Canal Co., 32 L. J. C. P. 193 ; 15 C. B 
 
 N. S. 726 |1864] 
 
 Barber v. Pullen, Hargrave's Tracts, p. 481 [1627] . 
 
 Bargate v. Shortridge, 24 L. J. Ch. 457 ; 5 H. L. Cas. 297 [1855] 
 
 Baring i\ Clagett, 3 B. & P. 201 [18C2] 186 
 
 Barned's Banking Co. in re, Peel's Case, L. R. 2 Ch. App. 674 ; 36 L 
 
 J. Ch. 757 [1867] 
 
 Barnesly t>. Powel, 1 Yes. Sen. 283, 287 [1749] .... 
 
 Barrington's Case, Co. Rep. Vol. IV. 413 [1610) 
 
 Bans v. Jackson, 1 Y. & C. C. C. 585 ; 1 Phil. 582 [1842-1845 
 
 Bartlett v. Wells, 31 I,. .1. Q. B. 57 ; 1 B. & S. 836 1 1862 1 
 
 Barwick d. Mayor of Richmond v. Thompson, 7 T. R, 488 [1798] 
 
 Barwicke v. Gybson, Cro. Jac. 297; case 4 [161 1 J . 
 
 r.arzillai v. Lewis, 3 Dougl. 126; Park Insce. (4th ed.), 469; 8 T. R 
 
 HI [1782] 
 
 Basset v. Basset, 3 Atk. 202, 207 [1744] 
 
 Basten v. Carcw, 3 15. \ C. 649 |1825| 
 
 Bateman v. Mid-Wales l:.y. Co., L. I:. I C. P. 499; 35 L. J. C. P 
 
 205; II. 4 R. 508 (1866| 
 
 Bates v. Todd, 1 Moo. & Bob. 106 [ 1831 J 
 
 Baxendale, inre, 11 C. B. N. S. 787 [1862| .... 
 Baxendale r. Bennett, L. R. 3 Q. B. D. 525; 17 L J. Q. B. 624 
 
 [1878| 9,290,291,292,293,310,355,368 
 
 Beale v. Langstaffe, 2 Wils. 371 1 1768 1 39 
 
 Beattie v. Ebury, L. Et. 7 II. L L02; 14 L. J. Ch. 20 [1874] . . 315 
 
 Beaufort, Duke of, V. Smith, 19 L. J. Kx. 97 ; 4 Kx. 450 1 1849] . 39, U) 
 Beckett v. Bradley, 14 L. J. C. P. 3 ; 7 M. k Or. 994 1 1844] . . ;t<)\ 
 
 69 
 
 390 
 
 389 
 
 115 
 
 289 
 120, 140 
 
 25 
 
 71 
 
 210, 382 
 
 187, 188 
 
 349, 387 
 407 
 39 
 07, 68, 86 
 379 
 243 
 214 
 
 186 
 
 408 
 
 49 
 
 281 
 30 
 
 34 1
 
 XXM TABLE OF CASES. 
 
 Bec-Bol. page 
 
 Beckett r. Midland Lly. Co., L. R 1 C. P. 241 ; 35 L. J. C. P. L63 . 
 
 [1866] 25 
 
 Becquet v. McCarthy, 2 B. & Ad. 051 ; 8 Bl. N. S. 301 |1831] . 
 
 126, 127, 141, 143 
 IV, man v. Duck, 12 L. J. Ex. 198 ; 11 M. & W. 251 [1843] . 284, 285, I'll') 
 Beer v. Beer, 21 L. J. C. P. 124; 12 C. B. 60 |1852J . . . 2:;:; 
 
 Bees v. Williams, 2 C. M. & 1!. 581 ; Tyr. k Gr. 23 [ 1835 1 . . 267 
 
 IVhreus v. Sieveking, 2 My. & Cr. 002 [1837] L24 
 
 Belclier v. Mills, 2 C. M. & R. 150 [1835] 
 
 Belfield v. Adams, 3 Bulstr. 81 [1615] 228 
 
 Bell v. Harwood, 3 Tr. 308 [1789] ........ 53 
 
 Bengal, The, SwabeyAdm. 468 [1859] 59,83 
 
 Bennet v. Vade, 2 Atk. 324 [1742] 407 
 
 Bennett v. Gamgee, L. R. 2 Ex. D. 1 1 ; 40 L. J. 204 [1876] . . 28 
 
 Bensley v. Burdou, S L. J. Ch. 85; 2 S. & S. 519 [1830] . . . 214, 215 
 Henyon r. Nettlefold, 18 L. J. Ch. 445; 20 L. J. Ch. 180; 3 Mac. k 
 
 (J. 94 [1850] 203 
 
 Berkley v. Watling, L. J. K. B. 195 ; 7 A. & E. 29 ; 2 N. & P. 178 
 
 [1837] 308 
 
 Bermondsey (Vestry) v. Kamsey, L. R. 6 C. P. 247 ; 40 L. J. C. P. 
 
 206; 24 L. T. 429; 19 W. R. 774 [1871] 50 
 
 Bernardi r. Motteux, 2 Dougl. 575 [1781] 184,185 
 
 Bessey v. Windham, 14 L. J. Q. B. 7 ; 6 Q. B. 100 [1844] . . 190 
 
 Betteley r. Pveed, 12 L. J. Q. B. 172; 4 Q. B. 511 ; 3 G. & D. 561 
 
 [1843] ... 
 
 Biddle r. Bond, 34 L. J. Q. B. 137 ; G B. & S. 225 [1865] 
 
 Biddulph r. Ather, 2 Wilis. 23 [1755] 
 
 Birch v. Wright, 1 T. R. 378 [1786] .... 
 
 Bud r. Appleton, 8 T. R. 502 [1800] 
 
 Bird v. Smith, Moore, 781 [1606] .... 
 
 Blackham's Case, 1 Salk. 290 [1708] 
 
 Blake v. Poster, 8 T. R. 487 [1800] .... 
 
 Blake v. O'Kelly, 9 Ir. Eep. Eq. 54 [1874] 
 
 Blake v. Smith, cited, 8 Sim. 303 [1810) . 
 
 Blakely Ordnance Co., in re, New Zealand Banking Corporation, ex 
 
 parte, L. R. 3 Ch. App. 154 ; 37 L. J. Ch. 418 [1867]. . . :::il 
 
 lJlakcmnrc r. ( damorganshire Canal Co., 4 L. J. Ex. 146; 2 C. M. A R. 
 
 133 [1835 J 27,54, 50, 57 
 
 Blakes, eo parte, 1 Cox, 398 [1787] 191 
 
 Blithman, re 35 Beav. 219 [1865] 190 
 
 Bloxam v. Favre, L. It. 8 P. I). 101 ; 52 L. J. P. D. & A. 42 [1883J 151, 165 
 
 Bluet v. Bampfield, 1 Cas. in Ch. 237 [1673] 400,421 
 
 Board v. Hoard, L. R. 9 Q. B. 48 ; 43 L. J. Q. B. 4 [1873] . . 254 
 
 Boileau?-. Rutlin, 2 Ex. (i<;5; 12 Jur. 899 [1848] . . . 31,51,211 
 Hold Buccleuch, the, cited as Harmer v. Bel] , 7 Moo. I'. ( '. ( '. 207: 
 
 19 f, T. 235 |1851| Ii.i) 
 
 . 
 
 . 
 
 269, 
 
 27( » 
 
 • 
 
 269, 
 
 270, 
 
 275 
 416 
 254 
 
 • 
 
 • 
 
 IS5, 
 
 187 
 407 
 
 86, 
 
 412, 
 
 421, 
 
 422 
 
 232 
 
 34 
 
 134
 
 TABLE OF CASES. 
 
 XXII 1 
 
 :;.>■_ 
 
 L84, 1ST 
 13 
 
 194, 199 
 194 
 122 
 
 Bol— Bro. ll,;K 
 
 Bolland, expartc, Dysart, in re, L. R. 9 Cli. 1>. 312; 47 L. J. Bk. 74 
 
 [1878] 
 
 Bolton v. Gladstone, 2 Taunt. 85 1809] .... 
 
 Bond v. Hopkins, 1 Sch. & Lefr. 413 [1802] 
 
 Bonner v. Wilkinson, 5 B. & Aid. 682 ; 1 D. & R. 328 [1822 1 
 
 Bottrell p. Summers, 2 V. & J. 407 [1828] . ... 
 
 Boucher v. Lawson, ( p. Hardwicke, 85 [1734] 
 
 Bouchier v. Taylor, 1 Bro. P. U. 708; Harg. Law Tracts, 473 [1776] 
 
 r.7. 406, 40S, 421 
 
 Boverton v. Evans, Vin. Ab. Estop. 466 [1599] .... 2-23 
 
 es v. Foster, 27 L. J. Ex. 262 ; 2 H. & X. 770 [1858j 196, 202, 306, 372 
 
 Bowles v. Orr, 1 Y. & Coll. 464 [1835 125,133 
 
 Bowman v. Rostrou, I L. J. K. B. 62; 2 A. & E. 295; I X. & M. 552 
 
 [1835] 393 
 
 Bowman v. Taylor, 2 A. & E. 278 : 4 X. & M. 264 [1834] 7, 216, 210. 391 
 
 Bowse v. Cannington, Cro. Jac. 244 |1G09 20 
 
 . Boyle, 3 Mod. 164 [1686] Ill, 4(17.417 
 
 Boyle v. Scarborough, style's Rep. 395, 440 [1653 .... 24 
 
 Boyson v. Coles, 6 M. & S. 14 [1817] 32S 
 
 Braithwaite v. Gardiner, L5 L. .1. Q. B. L87 ; 8 Q. B. 473 [1846] . 284 
 
 isby w. Kerridge, 1 P. Wms. 548 ; 3 Bro. P. C. 358 [1718—1727] 
 
 72, 407, 414 
 
 Branthwait's Case, 3 Leon. 118 [1584] 216 
 
 Knretonr. Evans. 2 Cro. Eliz. 700 1 1600 1 205, 
 
 233, 2^3 
 
 Brett v. Beales, S L. J. K. B. 141 ; Moo. & Mai. 416. 421 [ 1829] . 39, tO 
 
 Brett v. CTowser, L. R. 5 C. P. D. 376 [1880] 341 
 
 Brigga v. Briggs, L. R. 5 P. D. 163; 19 L. J. P. 38; 28 W. R. 702 
 
 |1880] 177, 178 
 
 Bringloeu Goodson, 8L. J. C. P. 116; 5 Bing. X. < . 738; 8 Scott, 71 
 
 [1839] 
 
 Brinsmead . Barrison, L. R. 6 C. P. 584; I.. R. 7 C. P. 547 ; 40 
 
 L. .1. C. P. 281 : 41 L. J. C. P. 190 [1871 — 1872] 
 
 Brisl ' ■. 1 Den. C. C. R 116 [1849] 
 
 . Stephens, 2 Bing. 213 |1824| 
 
 Bristowe o. Fairclough, 9 I.. -I. C. I'. 245 ; I M. & Gr. 142 ; I Scott, 
 
 X. II. 161 [1840| 
 
 British Fanners' Pure Linseed •'<>.. in re, NichoU's Case, L. R. 7 Ch. I'. 
 
 3 : 17 I.. 4. ( I, 415 |1878| 
 
 Brittain v. Kinnaird, I B. B 130 [1819| .... 22. 19, 50 
 
 Brook v. BiggB, 5 L. J. C. P. I 13 ; 2 Bing. N. ( !. 572 ; 2 Sc. 803 [1836] 248 
 
 Brook . B I.. 27 L J. Ch. 639; 25 Beav. 342; 3 Sm. & G. 181 
 
 [1857] 150, L64 
 
 Brook v. Carpenter, 3 Bing. 297 1 1825] 108 
 
 Brook . Hook I.. R. 6 Ex. 89; W L. J. Ex. 50 |1871| . . . 296 
 
 Brooke v. ffaymi . I.. R. 6 Eq, 25 |1868| 221 
 
 56 
 90 
 
 25 
 
 59 
 384
 
 XXIV 
 
 TABLE OK CASKS. 
 
 Bro -Car. 
 
 Brown's, Sir G., Case, Co. Rep. vol. ii. 138, 163 1 1594 ] 
 
 Brownsword v. Edwards, 2 Ves. Sen. 242, 245 [ 1750 — 17511 
 
 Bruce r. Waite, 9 L. .1. C. P. 237 ; 1 M. .V Gr. I ; 1 Scott, N. K. 8 
 
 1 1840| 
 
 Brudnell y. Roberts, 2 Wils. 143 [1762 1 
 
 Brunsden i>. Humphrey, L. R. II Q. B. I>. 712 ; 52L. J. Q. B. 751 
 
 [1883J 
 
 Brydges v. Walford, 6 M. & S. 42 [1817] 
 
 Buchanan v. Rucker, 9 East, 192 [1808] 
 
 Buckland v. Johnson, 23 L. .7. C. P. 204 ; 15 C. B. 145 [1854] . 
 Buckmaster v. Meiklejohn, 22 L. J. Ex. 242 ; 8 Ex. 634 [1853] 
 Buckworth v. Simpson, 1 C. M. & R. 834 [1835] 
 Bull v. Wyatt, Cro. Car. 388 ; Vin. Ah. Estop, p. 442 [1635] . 
 Bunting v. Lepingwell, Co. Rep. vol. ii. p. 355 [1585 1 84, 86, 400 
 Burchfield v. Moore, 23 L J. Q. B. 261 ; 3 E. & B. 683 [1854] . 
 Burkinshaw v. Nicholls, L. E. 3 App. Cas. KH)4; 48 L J. Ch. 179 
 
 [1878] 
 
 Burkitt v. Blanshard, 18 L. J. Ex. 34 ; 3 Ex. 89 [1848] . 
 Burnand v. Rodocanachi, L. R. 7 App. Cas. 333; 51 L. J. Q. B. 548 
 
 47 L. T. 277 ; 31 W. R. 65 [1882] 
 
 Burrowes v. Lock, 10 Ves. 475 [ 1805 1 
 
 Burrows y. Jemino, 2 Str. 733 : 1 Dick. 48 [1726] 51, 122, 399, 400 
 
 Burton, exparte, 1 Atk. 255 [1744] 
 
 Bushby v. Mnhday, 5 Madd. 207 [1821] 
 
 Buston v. Ridley, 11 Mod. 224 [1709] 
 
 I'A'iK 
 
 38, 225 
 4 IS, 422 
 
 128 
 232 
 
 (il 
 
 41 
 
 125, 130 
 
 57. 59 
 
 30 
 
 260 
 
 54 
 
 412, 424 
 
 286 
 
 , 15, 384 
 
 30 
 
 225 
 
 208, 341 
 
 415, 421 
 
 191 
 
 131 
 
 38 
 
 ( u.le v. Moody, 30 L. J. Ex. 385 ; 7 Jur. N. S. 1249 [1861] . 
 Cairncross r. Lorimer, 3 Macq- 820 ; 7 Jur. N. S. 149 [1860] . 
 Callaudar v. Dittrich, 4 M. & Gr. 68 ; 4 Scott, N. E, 682 [1842] 
 Callow v. Jeukinsou, 20 L. J. Ex. 321 ; 6 Ex. 666 [1851] . 
 
 Calvert r. Bovill. 7 T. R. 523 [1798] 
 
 Cammell v. Sewell, 27 L. J. Ex. 447 ; 29 L. J. Ex. 350; 3 11. & N 
 
 617 ; 5 H. & N. 728 ; 8 W. R. 639 [1858; 
 
 74, 76, 130, 153 
 
 < lampbell v. Loader, 34 L. J. Ex. 50 ; 3 H. & C. 520 [1865] . 
 
 Campbell v. Twemlow, 1 Price, 81 [1814] 
 
 Cannam v. Karmer, 2 Car. & K. 457 ; 3 Ex. 698 [1849] . 
 Caldwell v. Lucas, 6 L. J. Ex. 52 ; 2 M. & W. I 1 1 [1836] 
 Carnarvon, Earl of, v. Villebois, 14 L. J'. Ex.233; 13 M. & W. 313 
 
 [1844] 
 
 Carpenter /•. Buller, 10 L. .1. Ex. 303 ; 8 M. & W. 200 [1841] . 
 CarpeDter v. Thornton, 3 B. & Aid. 52 [1819] .... 
 Carr <■. London & Xortli Western Ry. Co. L. R. 10 C. I'. 307; 44 L 
 
 J. C. P. 109 [1875| 303,334,339,353, 
 
 I . iron Iron '',,. ,-. Maclaren, 5 II. ,v L. Cas. 416 [ 1855 J . 
 Carter;'. Carter, 29 I.. I. I'. \l. & A. I(,7 ; 3 K. & J. 615 [1857] 
 
 264, 266 
 
 303, 344 
 
 124 
 
 57 
 188 
 
 158, 300 
 47 
 311 
 378 
 203 
 
 40 
 
 223 
 
 IS 
 
 370, 376, 
 
 131
 
 TABLE OF CASES. XXV 
 
 Car Cla. page 
 
 Carter v. James 13 L. J. Ex. 373 ; 13 M. & W. L37 : - Dowl. &. L. ?. 
 
 C. 23b' [1844] 27 
 
 Carvick v. i Blagrove, 1 B. & B. 531 [1819J 232 
 
 Cary v. Daucy, 2 Cro. Eliz. 471 [1595] 51 
 
 < lastrique v. Behrens, 30 L. J. Q. B. 103 ; 3 E. & E. 709 [1861] 
 
 IS, 22, 118, 134, 139 
 Castrique v. Imrie, 8 C. B. X. S. 1 & 40-". ; L. R. 4 H. L. 414 ; 39 
 
 L. J. C. P. 350 [1860-1870] 76, 83, 90, 91, 104, 113, 125, 129, 130, 132, 
 
 134, 142, 143, 144. 154, 157, 158 
 Caton v. Caton, 1 L. R Ch. App. 137 ; 2 L. E. H. L. 127: 34 L. J. 
 
 Ch. 564 : 35 L. J. Ch. 292 ; 36 L. J. Ch. 8S6 [1865] . . . 341 
 
 Caughey, in re, Ford, • i parte, L. R. 1 Ch. D. 521 ; 45 L. J. Bk. 19 
 
 [1875] 351, 352 
 
 I 'avail v. Stewart, 1 Stark. 525 [1816] 125. 128 
 
 Cave v. Mills, 31 L. J. Ex. 265 ; 7 H. & X. 913 [1862] . . . 314 
 
 Cawdrey's Case, Co. Rep. vol. iii. p. xv. [1591 1 .... 4117 
 
 Chambers v. Manchester & Milfonl Ry. ( !o., 33 L. J. Q.B. 268 ; 5 B. &S. 
 
 588 [1864] 2(17. 382 
 
 Chapleo v. Brunswick Building Society. L. It. 5 C. P. D. 331 ; L. 1!. l> 
 
 Q. B. D. 696 : 4:i L. J. C. P. 796 ; 50 L. J. Q, B. 372 ; 42 L. T. 741 ; 
 
 44 L. T. 449 ; 29 W. R. 153 & 529 1 1880-1881] .... 382 
 
 < lhapman v. Monmouthshire Ry. & ( 'anal Co., 27 L. •). Ex. 97 ; 2 H. ,v X. 
 
 267 [1857] 
 
 Chapman v. Sherrie, 5-1*. R. C. L. 36 1870^ 18,400 
 
 Charles v. Blackwell, L. It. I C. P. D. 548; L. R. 2 C. P. D. 151 : 45 
 L. J. ( . P. 542 ; 46 L. J. C. P. 368 ; 35 L. T. 165 ; 36 L. T. 195 
 
 [1877] 282, 28( 288 
 
 esman v. Exall, 20 L. J. Ex. 209 ; 6 Ex. 341 [1851] . 247.269,270,275 
 Cheltenham, &c. Ry, < 0. v. Daniel, 2 Q.B. 2sl ; 2 Railw. Cas. 728 
 
 118411 321 
 
 Cherry v. Colonial Bank oi Australia, L. R. 3 P. C. 21 1 1869] . . 315, 382 
 Chew v. Eolroyd, 22 L J. Ex. 95; 8 Ex. 2)9 [1852] . . j ( ; 
 
 Chri ■ 3ecn tan, 8 T. R. 196 [1799] lsii 
 
 Christie v. Qnwin, II A. & E. 373 [1840| 99 
 
 • udleigh v. Hervey, cited 20 State Trials, p. 389 |1769|. . . 429 
 
 Church v. Dalton, 2 Ir. C. L. R. 249 1 1852 1 229 
 
 Citizi i. of Louisiana >. First National Bank ol Orleans, I.. II. ii 
 
 II. I.. 352: 13L. J. Ch. 263 1 1873] 14,240,337 
 
 City Bank, ex parte, General Estate Co., in re, L. R. 3 I b. A.pp. 758 
 
 [1868| 33] 
 
 Claridge <■. MacKenzie, II I.. J. C. P. 72; l M. & <;r. 143; I Scott, 
 
 \. I:. 796 ;1842] 259 
 
 • lark v. Adie, L R. 2 App. Cas. 123; 16 L. J. Ch. 585 ( 1877 1 
 
 251, 253, 254, 2f 8 
 
 l. ■■■• • v. in re, 3 Bro. C. C. 238 1 1791 j . . . 285 
 
 <lai! II I.. .1. Q. B. 75; -' l > | . B. 619; 2 Ci. ,V D. 780 [1842] 22, 16, 19
 
 \ Will 
 
 TABLE 
 
 CASES. 
 
 !1 ; 10 Q. B. 1. 
 [1830] . 
 703 ; W 
 
 1 1846] 
 N. May 12, 
 
 24 
 
 1 883 
 
 . 248 
 L24 
 
 S. 249 
 
 Dnv DOC. PAGE 
 
 I '..Mrs. ex parte, Sadler, mi re, I.. R. 19 Ch. D. 86 ; 15 L. T. 632; 30 
 
 \Y. R. 237 1 1881 1 
 
 Davies ». Bush, I McClel. & V. 58 j Fearne, 365 1 18241 • 
 Pa vis n. Bank of England, 3 L. J. C. P. I ; 2 Bing. 393 1 18241 
 I 'avis r. Hodges, L. R. 6 <>>. B. 687 ; 40 L. J. Q. B. 276 |1871| 
 
 Davis r. Nest, (I C. & P. 107 [1833] 
 
 Davison v. Gent, 26 L. J. Ex. L22; 1 H. & N. 714 [1867] . 
 Davison d. Bromley r. Stanley, 4 Burr. 2210 [1768] . 
 Day v. Spread, 1 Jebb & Bourke's Rep. 163 [1842] . 
 De Cosse Brissac v. Rathbone, 30 L. .1. Ex. 238 ; 6 H. ft N. 301 1 18611 
 
 121, 126, 
 De Medina v. Grove, 17 L. J. Q. B. 3-2 
 De La Vega ». Vianna, 1 B. & Ad. 2S4 
 I Vines, in re, Nordon v. Levy, 48 L. T 
 
 p. 87 [1883] 
 
 Delaney v. Fox, 26 L. J. C. F. 248 ; 2 C. B. X. S. 70S 1 1857 
 Delta, the, L. R. 1 P. D. 393 ; 45 L. J. P. D. Ill [1876] . 
 Denue v. Knott, 10 L. J. Ex. 80 ; 7 M. ft W. 143 [18401 • 
 Dent r. Smith, L. R, 4 Q. B. 414 ; 38 L. J. Q. B. 144 ; 10 B. ft 
 
 [1869] 
 
 Dickson v. Fisher, 1 Sir W. Bl. 664 [1768] 
 
 Dickson r. Renters Telegraph Co., L. R. 3 C. P. D. 1 ; 47 L. J 
 
 1 [1877] . . ...... 
 
 Digby v. Cornwallis, 3 Eep. in Ch. 40 [1671] . 
 
 Dimes v. Grand Junction Canal Co., 3 H. L. Cas. 785 [1852] 
 
 Disney V. Butler, 2 Hud. ft Br. 499; 2 Wms. Saund. (ed. 
 
 p. 829 [1829] 
 
 Dixon v. Hamond, 2 B. ft Aid. 310 [1819] 
 
 Dodd v. Acklom, 13 L. J. C. P. 11 : 6 M. ft G. 672 ; 7 Scott, 
 
 415 [1843] 
 
 Doddingtou's Case, Co. Eep. Vol. I. 519 [1593] 
 
 I >oe r. Huddart, 4 L. J. Ex. 316 ; 2 C. M. ft R. 316 [ 1835] 11! 
 
 Doe v. Martyn, 8 B. & C. 497, 527 [1828] . 
 
 Doe v. Stone, 15 L. J. C. P. 234 ; 3 C. B. 176 
 
 Doe v. Welsman, 18 L. J. Ex. 277 ; 2 Ex. 368 
 
 Doe v. Wilson, 4 B. & Aid. 303 [1821] 
 
 Doe v. Wright, 10 A. k E. 763 [1839] 
 
 Doe '/. Baggaley, v. Hares, 2 L. J. K. P< 
 
 ft M. 237 [1833 J .... 
 Doe d. Bailey v. Foster, 15 L. J. C. P. 263 ; 3 C. B. 215 
 Doe d. Barber v. Lawrence, 4 Taunt. 23 [1811] . 
 
 Doe d. Baverstock v. Rolfe, 7 L. J. Q. B. 251 ; 3 N. & P. 648 [1838 1 
 Doer/. Biddulph dl Poole, 17 L. J. Q. B. 143; 11 Q. B. 713 [1848J 
 Doe d. Blacksell v. Tomkins, 11 Fast, 185 1 1809] 
 Doe d. Bullen v. Mills, 4 L. J. K. B. 10 ; 2 A. & E. 17 : 4 X. ft M. 25 
 
 [1834] 241,244 
 
 [18461 
 [1848] 
 
 88 ; 4 B. ft Ad. 435 
 
 [1846] 
 
 C. P 
 
 871 1 
 
 N. E 
 
 , 393 
 
 1 N 
 
 270, 
 
 276 
 
 
 235 
 
 
 350 
 
 37, 58 
 
 
 109 
 
 
 263 
 
 
 265 
 
 68, 
 
 421 
 
 1 39 
 
 111 
 
 
 73 
 
 
 151 
 
 56, 
 
 397 
 
 250 
 
 252 
 
 140, 
 
 155 
 
 
 37 
 
 140 
 
 142 
 
 
 20 
 
 
 366 
 
 
 408 
 
 
 21 
 
 
 229 
 
 
 268 
 
 
 264 
 
 6, 
 
 223 
 
 394, 
 
 400 
 
 
 235 
 
 
 1 95 
 
 
 392 
 
 
 238 
 
 
 394 
 
 
 199 
 
 
 247 
 
 
 216 
 
 
 238 
 
 
 265 
 
 
 238
 
 TABLE OF CASKS. XXIX 
 
 Doe— Doe page 
 
 Doe d. Butcher r. Musgrave, 9 L. J. C. P. 31S ; 1 M. & G. 625 [1810] 217 
 
 Doe d. Chandler v. Ford, 3 L. J. K. B. 214 ; 3 A. & E. G49 ; 5 X. & M. 
 
 209 [1835] 199, 200, 213, 214 
 
 Doe d. Christinas v. Oliver, 8 L. J. K. B. 137; 10 B. £ C. 181 ; Sm. 
 
 L. C. (8th. ed.) vol. ii. 773 [1829] 234 
 
 Doe (/. Colemere v. Whitroe, 1 Dowl. & R. N. P. Rep. I [1822J . 232 
 
 Doetf. Daniel v. Woodroffe, 2 H. L. Cas. Sll [1848-1849] . . ;; s 
 
 Doe d. Davy v. Haddon, 3 Dougl. 310 [1783] 72, 89 
 
 Doe d. Egremont v. Courteuay, 17 L. J. Q. B. 151 ; 11 Q. B. 702 [1848] 265 
 
 Doc/. Egremont v. Forwood, 11 L. J. Q. B. 321 ; 3 Q. B. 027 [1842] 266 
 
 Doe d. Egremont v. Langdon, IS L. J. Q. B. 17 ; 12 Q. B. 711 [1848] 247 
 
 . Foster . Derby, 3 L. J. K. B. 191 ; 1 A & E. 7S3 ; 3 X. & M. 
 
 782 [1834] 27 
 
 Doe d. Freeland v. Burt, 1 T. ft. 701 [1787] 216 
 
 Doe d. Croves v. Groves, 10 L. J. Q. B. 297 ; 10 <j. B. 4S0 [1847] . 343 
 
 Doe (/. Harvey \ Francis, 8 L. J. Kx. 145 ; 5 M. & W. 272 ; 2 Moo. 
 
 & Rob. 507 [1837] 
 
 Doc/. Higginbotham v. Barton, 9 L. J. Q. B. 57: 11 A. & E. 307 ; 3 
 
 P. & D. 194 [1840J -249. 250. 252, 254 
 
 Doed. Hud.Ue.ston v. .Johnston, McClel. & Y. 141 [1825] . . . 266 
 
 Doe -/. Jackson v. Wilkinson, 3 B. & C. 413 : 5 D. ,v R. 273 [1824] . 257, - 3 
 Doe '/. Johnson v. Baytup, 4 L. .J. K. B. 203 ; 3 A. & E. iss : 4 N. & 
 
 M. 837 [1835] 253 
 
 Doc/. Knight r. Sinythe. 4 M. ,\; S. 347 [1816] -J41 
 
 Doe d. Leemiug v. Skirrow, 7 A. & E. 157; 2 X. & P. 123 [1837] 5. 245 
 Doe '/. Levy ». Home, 12 L J. Q. 1!. 72 ; 3 Q. B. 700 ; 3 G. & D. 239 
 
 [1842| 195, 199 
 
 Dm-/. Kowdeu v. Watson, 2 Stark. 230 [1817] 250 
 
 Doe</. Lumley v. Scarborough, 4 L. J. K. Ii. 172; 4 X. & M. 724 ; 3 
 
 A. >v K. 2& 897 [1835] . 216 
 
 Doe d. .Manton v. Plomer, 9 Bing. 41 [1832] 244, 2 .s 
 
 D..,- d. Manvers v. Mizem, 2 M. .^ R. .".0 [1837] .... 
 
 ho.- ,/. Marcbaot v. Errington, '.» I.. -I. C. I'. '.1 ; Bing. X. C. 79; 3 
 
 Scott, 210 |1839] 
 
 Doe«/. Marlow ,. Wiggins, 12 I.. .1. Q. B. I T7 ; ) Q. I'.. 367 ; 3G. & I). 
 
 504 11843] 246, 258 
 
 Doed. Marriott . Edwards, 5 B. & Ad. 1065; :; X. & M. hi:; [1834| 250 
 
 Doe d. Morris v. Rosser, 3 East, 15 [1802] ,. 
 
 Doc'. Nepean v. Budden, 5 B. & All. 020 [1822] .... 243, 259 
 Doc '/. Ogle v. Vlckere, I.. .1. K. B. 266; 4 A. ,v E. 782; X. ,v M. 
 
 .' 1 1836] •_.,, 
 
 Doed. Oliverr. Powell, I A. & E. 53] ; 3 X. .. M. 616 |1834] . . -.'-.J 253 
 I)...- d. Pleviu v. Brown, 8 L. -I. ". I'.. 19 ; 7 A. & K. 117 ; 2 X. ,v I'. 
 
 502 [1837] 248 
 
 l' I. Prei Bowells, :» I.. .1. K. P.. 332; 2 B. v A.d. 711 1 183 1 1 200 
 
 B. .v AM. 367 1 1819| .... I'),;. 197
 
 XXX 
 
 TABLE OF ('ASMS. 
 
 204, 220 
 
 Doe— Eas. pagk 
 
 Doe d. Shelton ». Shelton, 4 L. •). K. B. 107 ; 3 A. & E. 265 ; 4 N. 
 
 & M. 857 ("18S5J 
 
 Doe</. Smith v. Webber, 1 A. & E. 119 1 1834] .... 
 Doe d. Strode v. Seaton, 4 L. J. K. B. 13 ; 2 C. M. & R. 728 ; 4 N. 
 
 &M. 81 [1835] 230,250,394 
 
 Doe d. Teynham v. Tyler, 6 Bing. 390 [1830] 54 
 
 Doe J. Thompson v. Hodgson, 12 A. & E. 135 ; 2M. & R. 283 [1840] 319 
 
 Doe d. Wheble v. Fuller, 1 Tyr. & Gr. 17 [1835] .... 245 
 
 Doe d. Williams v. Lloyd, 9 L. J. C. P. S3 ; 5 Bing. N. C. 741 [1839] . 19G 
 
 Doe d. Willis v. Birchmore, 8 L. J. Q. B. 108 ; 9 A. & E. 062 ; 1 P. 
 
 & D. 44S [1839] 246 
 
 Doe d. Wright v. Smith, 7 L. .1. Q. B.158 ; 8 A. & E. 255 ; 3 N. & P. 
 
 335 [1838] 
 
 Dolby v. lies, 9 L. J. Q. B. 51 ; 11 A. & E. 335 ; 3 P. & D. 287 L1840] 
 Dolphin v. Robins, 7 H. L. Cas. 390 ; 3 Macq. 574 ; 1 Sw. & T. 37 
 
 [1859] 
 
 Don r. Lippman, 5 CI. & Fin. 1 [1837] 
 
 Donaldson v. Thompson, 1 Camp. 429 [1808] .... 
 Doolan r. Midland Ry. Co., L. R. 2 App. Cas. 792 [1877] . 
 Douglas v. Forrest, 4 Bing. 686 ; 1 M. & P. 663 [1828] . 
 Dover v. Child, L. R. 1 Ex. D. 172 ; 45 L. J. Ex. 462 [1876] . 
 Downs r. Cooper, 11 L. J. Q. B. 2 ; 2 Q. B. 256 ; 1 G. & D. 573 [1841] 
 Drayton v. Dale, 2 L. J. K. B. 20 ; 2 B. & C. 293 ; 3 D. & R. 534 
 
 [1823] 
 
 Dublin, Archbishop of, v. Trimleston, Lord, 12 Ir. Eq. 251 [1849] 
 Duchess of Kingston's case, 20 State Trials, 355 ; I Leach C. C. 146 
 
 2 Smith's L. C. (8th Ed.) p. 784 [1776] .... 
 
 69, 72, 73, 84, 85, 107, 137, 263, 298, 394 
 Dudfield v. Warden, Fitzgibbon, 313 [1731] .... 
 
 Duflos v. Burlingham, 34 L. T. 688 [1876] 
 
 Duke v. Ashby, 31 L. J. Ex. 16S ; 7 H. & K 600 [1862] . 
 
 Duke v. Smith, 4 Leon. 238 [1605] 
 
 Dulwich College v. Johnson, 2 Vera. 48 [1688] .... 
 
 Duncan v. Scott, 1 Camp. 100 [1807] 
 
 Dundas v. Waddell, L. R. 5 App. Cas. 249 [1880] . 
 
 Dunn v. Murray, 7 L. J. K. B. 390 ; 9 B. & C. 780 ; 4 M. & R. 571 
 
 [1829] 
 
 Dunn v. Wyman, 51 L. J. Q. B. 623 [1881] .... 
 Dunston v. Paterson, 26 L. J. C. P. 267 ; 2 C. B. N. S. 495 [1857] 
 Dutch West India Co. v. Moses, 1 Str. 611 [1724] . 
 Dyer v. Pearson, 3 B. & C. 38 ; 4 D. & R. 648 [1824] 
 
 28 
 •246, 24 S 
 
 175 
 121, 151 
 
 125, 183 
 387 
 
 126, 400 
 
 49 
 250, 261 
 
 284 
 
 9S 
 
 55, 
 
 17 
 
 896, 405 
 156 
 401 
 258 
 US 
 408 
 290 
 64 
 
 43, 59 
 205 
 37 1 
 191 
 330 
 
 351 
 
 East India Co. v. Vincent, 2 Atk. 82 [1740] .... 
 Eastern Counties Ry. Co. r. Hawkes, 22 L. J. Ch. 77; 24 L. J. 
 
 Ch. 601; 1 De G. M. & G. 737; 5 H. L. Cas. 331 [1855] 210, 
 
 211, 212, 380, 382, 383
 
 TABLE OE CASES. 
 
 X X X 1 
 
 Eas— Fer. ■*«» 
 
 Eastmure v. Laws, 8 L. .1. C. P. 230; 5 Bing. N. C. 450 ; 7 Scott, 401 
 
 [1839J 26, 34 
 
 Edwards ». Edwards, L. E. 2 Ch. D. 291 ; 45 L. J. Ch. 391 [1876] . 372 
 
 Edwards v. Omellialluui, March, 64 ; 3 D'Anver's Abridgment, 272, 
 
 pi. 10 [1639] 227 
 
 Edwards v. Rogers, Sir \V. Jones's Rep. 456, 45!) [1640] . 13, 32, 38, 235 
 
 Eley o. Positive Assurance Co., L. R, 1 Ex. D. 20, 8S ; 45 L. J. Ex. 
 
 4.") I [1875—1876] 207. 209 
 
 Ellis ,-. McHenry, L. R. (J C. P. 228 ; 40 L. J. C. P. 109 ; 23 L. T. S6; 
 
 19 W. R. 503 [1871] 118,123,140,189,190 
 
 Emerson »■. Lasliley, 2 H. Bl. 248 [1793] 26,124 
 
 Kinerton o. Hide (or Viner), 3 Keble. 434 : cited Cornb. 72 ; and 3 
 
 Mod. 165 [1674] 408 
 
 Emery o. Barnett, in re, 27 L. J. C. P. 216 ; 4 C. B. X. 8. 423 [1858] 252 
 
 Empire Assurance Corporation, in re, Challis's Case, Somerville's Case, 
 
 L. R. 6 Ch. App. 266 : 40 I,. J. Ch. 431 ; 23 1, T. 882 ; 19 W. R. 
 
 453 [1871] 
 
 Empson's Case, L. R. 9 Eq. 597 [1870] 
 
 Engelback v. Nixon, L. R. 10 C. P. 645 ; 44 L. J. C. P. 396 : 33 L. T 
 
 S31 [1875] 
 
 Englaud v. Slade, 4 T. R. 682 [1792] 
 
 Ernest v. Xicholls, 6 H. L. ('as. 401, 423 [1857] 
 
 Erring r. Peters, 3 T. P. 085 [1790] 
 
 European Society Arbitration Acts, in re, Liquidators of British Nation 
 
 life Assurance Association, exparte, L. R. 8 Ch. D. 679 ; 4s I,. .1 
 
 Ch. 118 [1878] 
 
 Evans v. Bicknell, 6 Ves. Jnn. 174 [1801] 
 
 I ; vans ,. Elliott, S L. J. (). B. 51 ; 9 A. & E. 342: 1 P. & D. 250 
 
 [1838J 
 
 Evans v. Smallcombe, L. P. 3 II. L. 249 ; 37 L. .1. Ch. 793 [1868] 
 Eyre r. Smith, L. I:. 2 < '. I'. I>. 435 ; 37 L T. 417 ; 25 W. R. 87 
 
 [1877| 
 
 Paibtitlb v. Gilbert, 2 Tr. 169 1787] 199 
 
 Farmeloe v. Bain, L. U. 1 C. I'. D. 145; 45 I,. -1. C P. 204 [1876] . 338 
 
 Fair's Case, Siderfin, 254 [1665] 71,72,419 
 
 Farrar v. Butchinson, 8 I.. -I. Q. B. 107; !> A. A: E. 641 ; I P. & D 
 
 i::7 [1839] 305 
 
 Fanlder v. Selk, 3 Camp. 120 [1811] II.-, 
 
 Fell v. Parkin, 47 L; T. N. S. 350 [1882] 31,378 
 
 Fenner v. Uuplock, 2 L -l. ( '. ]'. 102; 2 Bing. 10 1 1824J . . 259 
 
 Kenton r. Livingstone, •'! Macq. 107 [1859] .... 10 1 
 
 Ferguson v. Mahon, II A. & E. 179; :; P. & D. 143 [ 1839] . . 128 
 
 Fermor's Case, Co. Rep. vol. ii.,202 [1602 71 
 
 . \ 1 < ) « • 1 1 2 Cro. I'li/. 668; Co. Rep. vol. iii. p, 271 f 1598 J 
 
 ::i, 52, 50, 62 
 
 38S, 
 
 390 
 
 
 222 
 
 
 ■Mr2 
 
 250, 
 
 253 
 
 208, 
 
 382 
 
 
 28 
 
 
 385 
 
 2!is. 
 
 3)1 
 
 
 252 
 
 210. 
 
 349 
 
 87
 
 X xxu 
 
 TABLE <>F CASES. 
 
 Fer— Fre. page 
 
 Ferrers -p. Borough, 2 Cro. Eliz G !•"> [1599| 227 
 
 Fetter v. Beale, 1 Salk. II ; 1 Ld, Raym. 339 [1701] . <;i 
 
 Feversham p. Emerson, 24 L. J. Ex. 254 ; 11 Ex. 385 [1855] . . 393, 397 
 Few /. Backhouse, 8 L. J. Q. B. 30; 8 A. & E. 7S9 ; 1 P. & D. 34 
 
 [1838] 59 
 
 Field v. Smith, 6 L. J. Ex. .119; 2 M. & W. 388 [1837] ... 40 
 
 Financial Corporation, in re, Feiliug & Rimington's Case, L. R. 2 Ch. 
 
 App. 714 ; 3(3 L. J. Ch. S7 [1867] 388 
 
 Finney p. Finney, L. R. 1 P. & I). 483 ; :<7 L. J. P. k M. 43 [1868]. 84 
 
 Firebrace p. Firebrace, L. 1!. 4 P. I'). 63 : 47 L. J. D. 41 ; 39 L. T. 94 ; 
 
 26 W. R, 617 [1878] 177 
 
 Fisher p. Maguay, 12 L. J. C. 1'. -271) : 5 M. X: Or. 77S ; 6 Scott, N.R. 
 
 5SS [1843] 342 
 
 Fisher v. Ogle, 1 Camp. 417 [1808] 188 
 
 Fishmongers' Co. p. Robertson, 12 L. J. (.'. P. 185 ; 5 M. & O. 131 & 
 
 192 ; 6 Scott, K R. 56 [1843] 211 
 
 Fitch p. Bissie, Brownsl. & Godesb. .07 [1606] 22:$ 
 
 Flad Oven, the, 1 C. Rob. Adm. Rep. 135 [1799] . . . 125, 152, 188 
 Fleming p. Gooding, 3 L. .1. C. P. 214; 10 Ring. 54!); 1 Mo. & Sc. 
 
 455 [1834] 244 
 
 Fletcher p. Ferrer, 1 Rolle's Rep. S3 [1614] 223 
 
 Flitters p. Allfrey. L. R. )<> C. 1". 29; 44 L. J. O. P. 73 [1874] 
 
 •24, 34, 47, 51 
 Flower >: Lloyd, L. 1!. 6 Ch. D. 207 ; L. R. 10 Ch. D. 327 ; 46 L. J. 
 
 ( h. 838 [1878] 74. 133 
 
 Flud v. Pennington, 2 Cro. Eliz. 872 [1601 1 41 
 
 Folliott p. Ogdeu, 1 H. Bl. 123 [1789 1 160 
 
 Ford, ex parte, Caughey, in re, L. R. 1 Ch. D. 521 ; 45 L. J. Bk. lit 
 
 [1875] . 351, 352 
 
 Ford v. Ager, 32 L. J. Ex. 269 ; 2 H. & C. 279 [1863] . . . 252 
 
 Foster v. Green, 31 L. J. Ex. 158 ; 7 H. & N. 8S1 [1862] . . . 292, 295 
 Foster p. Mentor Life Assurance Co., 23 L. J. Q. B. 145 ; 3 E. & B. 48 
 
 [1854] -323 
 
 Fountaine '•. Carmarthen By. Co., L. R. 5 Eq. 316 ; 37 L. J. Ch. 429 
 
 [1868] 383 
 
 Fowler's < ase, British & American Telegraph Company, in re, L. R. 14 
 
 Eq. 316 ; 42 L. -I. Ch. 9 : 27 L. T. 748 ; 21 W. R, 37 [1872] . 388 
 
 Fox v. Clifton, 9 L. J. C. P. 257 ; 6 Bing. 776 ; 4 M. & P. 676 [1830] 328 
 
 Francis v. Doe </. Harvey, S L. J. Ex. 280 : 4 M. & W. 331 [1838] . 245 
 
 Frank v. Frank, 2 Moo. & Rob. 314 [1840] 115 
 
 Fraukland p. McGusty, 1 Knapp, 271 [1830] 129 
 
 Eraser p. Pendlehury, 31 L. J. C. P. 1 ; LOW. R. 101 [1861] . . 220, 224 
 
 Frayea v. Worms, IOC. B. X. S. 1 19 [1861] 123. 400 
 
 Frederick p. Frederick, 1 P. Wins. 710 [1721] 40 
 
 Freeman /•. Cooke, 18 L. J. Ex. 1 14 ; 2 Ex. 654 ; 6 Dowl. k L. P. C. 191 
 
 [1848] 282, 290, 299, 300, 301 , 302, 31 0, 326, 337, 353, 359, 360, 383, 395, 402
 
 TABLE OF casks. 
 
 XXXI 1 I 
 
 Fre— Gil. 
 
 Freeman v. East India Co., 5 P.. & Aid. 617 [18221 
 Freke v. Fiucb, Freemau's Rep. 375 [1684] 
 Frieud v. Eastabrook, 2 Sir W. Bl. 1152 [1776], 
 Frumpton v. Pettis, 3 Lev. 23 [1680] 
 Fry . Malcolm, 4 Taunt. 705 [1812] . 
 Fuller r. Fotcli, Cartb. 346 [1695] . 
 Fulmerston v. Steward. Plowden's Rep. 102 [1554] 
 Fursman v. Fursmau, [ante 1776] 
 
 PAGK 
 
 I.-:: 
 
 38 
 
 194 
 
 •25, 98 
 
 26, 124 
 
 82 
 
 263 
 
 418. 4l'2 
 
 ( : w.AKi:n\s v. Kreeft, L. R. 10 Ex. 274 : 44 I.. J. Ex. 238 ; 33 L. T. 365 ; 
 
 24 W. P. 146 [1875] 329 
 
 Galbraith v. Neville, 1 Dougl. 6 a, note [1789] .... 18 
 
 Gale v. Lindo, 1 Vera. 475 [1687] .".17 
 
 Garden G«lly United Quartz Mining Go. v. McLister, I.. P. 1 App. 
 
 Las. 3!) : 33 L. T. 408 : 24 W. R. 744 [1875] .... 347 
 Garland v. Jacomb, L. R. 8 Ex. 216: 38 L. T. 877 ; 21 W. P. S68 
 
 [1873] 285 
 
 Garnett *. Ferrand, 6 B. fc C. 610 [1827] 50,115 
 
 Garrard v. Lewis, L. P. 10 Q. P.. IX 30: 47 L. T. 408; 31 W. P. 475 
 
 1882; 21)1. 297 
 
 Coke Co. v. Turner, 9 L. -I. C. P. 75 : 9 L. .1. Ex. 336 ■ 
 
 6 Bing. N. C. 324 1840] . . . • 198,200 
 
 Gascoyne v. Edwards, 1 Yr^TTJ. 19 [1826] 41,42 
 
 Gaunt --. Wainman, 5 L. J. C. P. 344 ; 3 Bing. N. C. 69 ; 3 Scott, 413 
 
 [1836] 5 
 
 Geils v. Ceils, 1 Macq. ■_'."."> 1852] 175 
 
 General Finance, ic. Co. v. Liberator, kc. .Society, L. R. 10 Ch. D. 15 ; 
 
 27 W. R. 210 [1879] 11,213,214,215,217,219 
 
 lal Steam Navigation Co. v. Guillou, 1.'! P. J. Ex. 168; 11 M. ,v 
 
 YV. S77 [1843] 1 •_>:>, L26, •:"; 
 
 George v. < lagett, 7 T. P 359; Sm. P C. 8th ed. vol. ii. p. 118 
 
 97) • •'■ ; ' ) 
 
 rmin v. Randal, Noy's Rep. 79 1603 214,223 
 
 • r v. Aguilar, 7 T P. 696 ! 1T98J 77. Wt 
 
 Gibbins p. Buckland, 32 L.J. Ex. 156; I IP & C. 736 [1863] . . 250 
 
 Gibbons v. Maltyard, Popham, 8 |1592| 23 
 
 Gibba . Cruickshank, P. P. 8 0. P. 154; f-' P. J. C. P. 273 [18731 :>s 
 
 Gibson v. McCarthy, cos. tempi Hard wicke, 311 1735] . . . ins 
 
 Gilburne v. Rack, otherwise Tilborne v. Rag, 2 Siderfin, 12 [1657| . 396 
 Gillett V. Abbott. 7 P. J. < v ». P. 61 ; 7 A. & P.. 7s3 ; 3 \. & P. 24 
 
 1 1838| 220 
 
 i. • Hill. :; P. .1. Ex. II.".; ■!<'. .v M. 530 1 1834 1 . . . 272 
 
 Gillow v. Lillie, I P. J. ( '. P. 222; I Bing. X. < '. 695 ( 1835] . . 206 
 ui. or Holn in Soare, oi Flore, I Sulk. 275 ; 3 Salk. I">1 
 
 [1692] 231,
 
 XXXIV 
 
 TABLE OF CAS his. 
 
 Gir— Gyf. pace 
 
 Girdlestone r. Brighton Aquarium Co., L. I!..'! Ex. I). L37 ; L. R, 4 
 
 Ex. D. 107 ; 48 L. J. Ex. 373 [1878] 72,74 
 
 Godard y. Gray, L. R. 6 Q. B. 139; 40 I,. .1. Q. B. 62 [1870] 
 
 120, 125, 140, 141, 142, 140, L52 
 
 Goddard's Case, Co. Rep. vol. i. p. 431 [1584] 393,397 
 
 Goddard v. Smith, L. R. 3 P. & D. 7 ; 42 L. J. P. & M. 14 [1872] . 376 
 
 Golightly r. Jellicoe, 4 T. R. 146, note [1768] 43, 59 
 
 Goodman v. Pocock, 19 L. J. Q. B. 410 ; 15 Q. B. WO [1850] . . 31 
 
 Goodtitle v. Bailey, 2 Cowp. 597 [1777] 193,211 
 
 Goodtitle v. Morse, 3 T. R. 365 [1789] 237 
 
 Goodwin v. Robarts, L. R. 1 App. Cas. 476 ; 45 L. J. Ex. 74S [1875] 
 
 278, 329, 368 
 Gore v. Wright, 7 L. J. Q. B. 147 ; 8 A. & E. 118 ; 3 N. & P. 243 
 
 [1838] 2G4 
 
 Gosling v. Biruie, 7 Bing. 339 ; 1 M. & M. 531 [1831] . . . 268 
 
 Gosling v. Warburton, 1 Cro. Eliz. p. 128 [1589] .... 19 
 
 Goucherr. Clayton, 11 Jur. N.'S. 107 [1865] 27 
 
 Gould v. Bacup Local Board, 50 L. J. M. C. 44 ; 44 L. T. 103 ; 29 
 
 W. R. 471 ; 45 J. P. 325 [1881] 324 
 
 Gouldsworth r. Knights, 12 L. J. Ex. 282 ; 11 M. & W. 343 [1843] . 229, 234 
 
 Grant v. Gould, 2 H. Bl. 69 [1792] 102 
 
 Gravenor v. Woodhouse, 1 Bing. 38 [1822] .... 242, 243, 257 
 
 Graves r. Key, 3 B. & Ad. 318 [1832] . . 3, 193, 213, 298, 305, 30G 
 Great Northern Steamship Fishing Co. v. Edgehill, L. R. 11 Q. B. D. 
 
 225 [1883j 48, 98, 99 
 
 Greathead v. Bromley, 7 T. R. 455 [1798] 63 
 
 Green v. Moody, Godbolt's Rep. 384 [1627] 19 
 
 Green v. Green, L. R. 3 P. & D. 121 : 43 L. J, P. & M. 6 [1873] . 85 
 
 Green v. New River Co., 4 T. R. 589 1 1792] 21,23 
 
 Gregg r. Wells, S L. J. Q. B. 193 ; 10 A. & E. 90 ; 2 I'. & 1). 290 
 
 [18391 299,301,342,353,393 
 
 Gregory v. Loidge, 4 L. J. C. P. 159 ; 3 Bing. 474 [1826] . . 248 
 
 Greville v. Attkins, 9 B. & C. 402 ; 4 M. & R. 372 [1829] . . 198 
 
 Grey v. Cooper, 3 Dongl. 05 [1782] 2S0 
 
 Griffin v. Brady, 39 L. J. Ch. 136 [1869] 128 
 
 I trimman v. Legge, 6 L. J. K. B. 321 ; S B. & C. 324 ; 2 M. & R. 438 
 
 [1828] 264 
 
 Grcenvelt v. Burwell, 1 Ld. Raymd. 151; 12 Mod. 386; Carth. 491 
 
 [1699] 17, 21 
 
 Guardian Assurance Co. v. Avonmore, 6 Ir. Rep. Eq. 391 [1872] . 219 
 
 Guinness v. Carroll, 9 L. .1. K. B. 11 ; 1 B. & Ad. 463 [1830] . . 129 
 Carney v. Evans, 27 L. J. Ex. 166 ; 3 H. k N. 122 [1858] . . 282, 327 
 Gwyn v. Neath Canal Navigation Co., L. R. 3 Kx. 209 ; 37 L. .1. Ex. 
 
 122 [18681 213 
 
 G wynne v. Burnell, 4 L. .1. Ex. 340 ; 2 Bing. N. C. 7 [1835 1 . . 212 
 
 Gyfford v. Woodgate, 11 East, 297 [1809] 41
 
 TABLE OF CASES. XXXV 
 
 Had— Haw. i' Aii,; 
 
 Hadley v. Green, 1 L. J. Ex. 137; 2 Cr. & J. 374 [1832] . . . 33, 58 
 Haineav. East India Co. 11 Moo. P.O. 39 [1856] . . . . 318 
 
 Halifax Union v. Wheelwright, L. R. 10 Ex. 183 ; 44 L. J. Ex. 121 ; 32 
 
 L.T. 802; 23W.R. 704 [1875] 292, 294, .Hi I 
 
 Hall v. Butler, 8 L.J. Q. B. 239; 10 A. & E. 204 ; 2 P. & D. 374 [1839] 246, 24!) 
 Hall v. Conder, 26 L. J. C. P. 138 ; 2 C. B. N. S. 22 [1857] ... 26S 
 
 Hall v. Hall & Richardson, 48 L. J. P. D. 57 [1879] .... 85 
 
 Hall v. Levy, L. R. 10 C. P. 154 ; 44 L. J. C. P. S9 [1875] ... 28 
 
 Hall v. Odher, 11 East, 124 [1809J 118,119 
 
 Hallifax v. Lyle, IS L. J. Ex. 197 ; 3 Ex. 446 [1849] .... 2S4, 403 
 Hallows v. Ferine, L. R. 3 Ch. App. 4G7 ; 30 L. J. Ch. 207 [1868] . 388 
 
 Hammersley r. DeBiel, 12 CI. &Fiu. 45 [1845] 341 
 
 Hannaford o. Huuu, 2 C. & P. 148 [1825] 103, 304 
 
 Hannor v. Mase, Hobart, 283 [1619] 396 
 
 Harding v. Ambler, 7 L. J. Ex. 132; 3 M. & W. 279 [1838] ... 194 
 
 Hardman v. Booth, 32 L. J. Ex. 105 ; 1 H. & C. S03 [1863] . . 329 
 
 Hardman v. Willcock, 9 Bing. 3S2 (note) [1832] .... 274 
 
 Mare's Case, Loudon & County General Agency Association, in re, LP. 
 
 4 Ch. App. 503 [1869] 300 
 
 Hare v. London & North Western Ry. Co., 30 L. J. Ch. 817 ; John. C. C. 
 
 722 [1860] ) 313, 386 
 
 Harford v. Morris, 2 Hagg. Consist. 423 [1776] 164 
 
 Harmer v. Bell, the-Bold Buccleuch, 7 Moo. P. C. C. 2G7 ; 19 L. T. 235 
 
 [1851] 160 
 
 Harper, Ex parte, Bremner, in re, L. K. 10 Ch. App. 379 ; 4-1 L. J. Bk. 
 
 57 [1875] 43, 378 
 
 Harrington v. Taylor, 15 East, 378 [1812] II 
 
 Harris v. Mulkern, L. R. I Ex. D. 31 ; 45 L. J. Ex. 211 [1875] . 23 
 
 Harris w. Truman & Co., L. R. 9 Q. B. D. 264 ; 51 L. J. Q. 1'.. 338 
 
 '1882| 317 
 
 Harrison y. Mayor, &c, of Southampton, 22 L. J. Ch. 722 ; I De (Aex, 
 
 M. & G. 137 [1853] 70, 7:'. 
 
 Harrop o. Fisher, 30 L. J. C. P. 283 ; 10 C. 15. N. S. L96 [1861] . 282 
 
 Hart v. Buckminster, Aleyn'a Elep. 52 [1647] ..... 217 
 
 Hart v. Fronti Bolivia, &c. Co., L. R. 5 Ex. Ill; 39 L. J. Ex. 93 
 
 [1870] 323 
 
 Hart v. McNamara, 4 Price, 154 note 1 1817] 70,111 
 
 Harvey r. Farnie, L. R. 5 P. I>. 153; L. R. 6 P. D. 35; L. R. 8 App. 
 
 ( as. 4:! ; 49 L. J. P. I >. >V A. 33 : 50 L. J. P. D. & A. 17 : 52 L. .1. 
 
 I-. I). & A. 33 |1880 1883] 170, 172, 17::, 171, 175, 170, 178, 170, L82, 183 
 Harward'a Case, Great Oceanic Telegraph Company, in re, L. R. L3 
 
 Eq. 30 ; 41 L. J. Ch. 2s:: : 25 L. T. 690 : 20 W. R. 84 J 1871 1 . 388 
 
 Ha sard v. Smith, [r. Rep. 6 Eq. 429 |1872| 115 
 
 Hatfield v. Hatfield, 5 Brown's Caa. in Pari. LOO |1725] . 72, 409, 413, 124 
 
 Hathaway v. Barrow, 1 Camp. 151 1 1807 1 108 
 
 Haveloektf. Rockwood, 8 T. R. 268 |1799| 125,. 188 
 
 Hawea v. Watson, 2 L. J. K, B. 83 ; 2 B, k C. 540 |.1824| . . 269, 272 
 
 c 2
 
 WXV1 
 
 TABLE OK (ASKS. 
 
 [1836] . 
 L. R. SCh. D. 11 
 
 17 L. 
 
 PAGE 
 252 
 .1. Bk. 54 
 
 . 
 L96, 217, 235, 268 
 3, 5, 298, 305, 372 
 
 Haw -Hoi. 
 
 Hawkes i\ Orton, 5 A. & E. 367 
 
 1 layman. Ex p . Pulsford, in i 
 
 | 1878] 
 
 Bayne v. Malfcby, 3 T. R. 138 [1789| 
 
 Heane o. Rogers, 9 B. & ( '. 577 [1829] 
 
 Heath v. Crealock, L. R. 18 Eq. 215 ; L. R. lit Ch. App. 22 ; 12 L. J. 
 
 Ch. 455 ; 44 L. J. Ch. 157 [1875] 215,217,237 
 
 Beath v. . Yermeden, 3 Levinz, 146 [1683] 391 
 
 Heilbutt v. Nevill, L. R. 5 C. P. 478 ; 39 L. J. C. P. 245 ; 22 L. T 
 
 662 [1870] 282 
 
 Helbutv. Held,2Ld. Raymd.1414 [1724] 20 
 
 Helps v. Hereford, 2 B. & Aid. 242 [1819] .... 38, 54, 225 
 
 Helsham v. Blackwood, 20 L. J. ('. P. 1ST; 11 C. B. Ill L1851| . 113 
 
 Henderson v. Henderson, 3 Hare, 100 [1843] 04 
 
 Henderson v. Heuderson, 13 L. J. Q. B. 274 ; 6 Q. B. 288; 11 Q. B 
 
 1015 [1844] 121, 140 
 
 Henriques v. Dutch West India Co., 2 Ld. Raymd. 1535 [1728] . 38 
 
 Henshaw r. Pleasauce, 2 Sir W. Bl. 1174 [1778] . . . . 77. 81 
 Hensloe's Case, Co. Rep. vol. v. p. (i4 [1600] ..... 407 
 
 Hercules Iusurauce Co., in re, Bruutou's claim, L. II. 19 Eq. 302 ; 44 
 
 L. J. Ch. 450 [1874] 
 
 Hervey, the Hon. T., au action against, [ante 1776] . 
 Hibblewhite v. McMorine, 6 M. & W. 200 [1840] 
 
 Hickey v. Burt, 7 Taunt. 48 [1816] 
 
 Higgins v. Senior, 11 L. J. Ex. 199 : 8 M. & W. 834 [1841] 
 
 Higgon v. Coppinger, Sir W. Jones, o - 20 [1633] 
 
 Higgs v. Northern Assam Tea Co., L. R. 4 Ex. 387 ; 38 L. .1. Ex. •_ , :::i 
 
 [1869] 
 
 Hildyard y. South Sea Co. & Keate. 2 P. Wins. 75 [1722J . . 363 
 
 HiUard o. Phaley, 8 Mod. ISO [1722] 
 
 Hill v. Manchester & Salford Waterworks, 2 B. & Ad. 544 [1831] 
 
 346 
 
 414, 424 
 312 
 221 
 305 
 
 41S 
 
 417 
 
 17. :;• 
 
 32 
 
 :;'H 
 
 34, 37, <il 
 
 407 
 
 02 
 
 Hill v. Saunders, 4 L. J. K. B. 2; 4 B. & C. rd<.) : 7 D. & R. l'4 [1825] 
 
 Hills v. Laming, 23 L. -J. Ex. 60 : 9 Ex. •_ , .-.li [1853] . 
 
 Hindley v. Haslem, L. R. 3 Q. B. D. 481 ; 27 W. R. 61 [1875] 
 
 Hinks i>. Harris, Garth. 271 ; Harg. Tracts 478 [1693] 
 
 Hitchin v. Campbell, 2 Sir W. Bl. 830 [1772] .... 
 
 Bitchman v. Walton, 8 L. J. Ex. 31 : 4 M. >v W. 409 [1838] . 
 
 Hobbs •. Heuniug, 34 L. J. C. P. 117; 17 C. B. N. S. 791 [1864] 
 
 67, 184, 185, 186, 187, 400, 422 
 Bodgson v. Hutchensou, Vin. Ah. vol. v., pi. 34, p. 522 [1712] . 341 
 
 Bodson . Walker, L. R. 7 Ex. 7^ ; 41 L. J. Ex. 51 [1871] . . 47 
 
 Bogg v. Skeen, 34 L. J. C. P. 153; 18 C. B. N". S. 126 [1865] . 
 Bolden v. King, 46 L. J. Ex. 75; 35 L. T. 479; 25 W. R. 62 [1876] 49 
 
 Holding v. Elliott, 29 L. J. Ex. 134; 5 B. & N. 117: 8 W. R. 192 
 
 [I860] 307
 
 TABLE "I' CASKS. XXXV11 
 
 Hol-Hut. PAGB 
 
 Roll v. Griffin, 3 L. J. C. P. 17 : 10 Bing. 246 ; 3 Mo. & So. 732 [1833J 269 
 
 Holland v. Bonis.. 3 Leou. 175 [1586] 23, '24 
 
 Holland v. Clark, 1 Y. & C. C. C. 151 [1841] 12 
 
 Holland v. Donne, Savile, 91 [1585] 23,24 
 
 Hollius r. Fowler, L. R. 7 Q. B. 617 ; L. R. 7 H. L. 757; 41 L. J. Q. 
 
 B. 277 ; 44 L. J. Q, B. 169 [1874] 329 
 
 Holloway's Case, 1 Mod. case 46 [1669] 223 
 
 Holme v. Brunskill, L. R, 3 Q. B. D. 405 ; 47 L. J. Q. B. 610 ; 38 L. 
 
 T. 83S [1877] 264 
 
 Hope-raft i: Keys, 9 Bing. 613 ; 2 Mo. & Sc. 760 [1833] . . . 252 
 
 Hope v. Carnegie, L. R. 1 Ch. App. 320 [1866] 131 
 
 Hopetoun v. Ramsay, 5 Bell, App. Cas. 69 [1846] .... 18 
 
 Horsfall v. Halifax & Huddersfield Union Banking Co.. 52 L. J. Ch, 
 
 599 [1883] -374 
 
 Horton v. Westmiuster Improvement Commissioners, 21 L. J. Ex. 
 
 " ' . 7S0 [1852] 
 
 . Searle, 2 B. & I'. 299 [1800] .... 
 Houlditch v. Donegal, 2 CI. & Fin. 47<> : 8 Bligh, 301 [1834] 
 Houldsworth v. Evans, L. R. 3 H. I.. 263 ; 37 L. J. Ch. 703 
 Howard's, Sir T., Case, Owen, 138 [1587]. 
 Howard v. Hudson, 22 L. J. Q. B. 341 ; 2 E. & B. 1 [1853] 
 Howard c. Tucker, 1 B. & Ad. 712 [1831] .... 
 Howbeach Coal Co. v. Teagne, 29 L. J. Ex. 137 ; 5 H. & N. 151 [I860] 
 Eowlett . Tarte, 31 L. J. C. P. 146 ; 10 C. B. N. S. 813 [1861] 2::, 24, 36 
 
 Hubert's Case, Cro. Eliz. 531 [1597] 24,38 
 
 Hudland v. Povy, 1 Levinz, 3 [1660] 223 
 
 Hudson v. Robinson, 4 M. & S. 475 [1816] .... 32,51,56 
 
 Huffer v. Allen, L. K. 2 Ex. 15 ; 36 I.. -I. Ex. 17; 4H. &C. 634 [1866] 19, 20, 22 
 
 . Cornelius, 2 Shower, 232 ; Sm. L. C. (8th ed.) vol. ii. p. 797 
 
 [1680] 183, 415 
 
 lies v. Metropolitan Railway Co., L. R. 2 App. Cas. 439 ; 46 L. .1. 
 
 C. I'. 583 |1877] 34 1 
 
 Hull & County Bank, Bui Case, in re, L. 1!. 15 Ch. D. 507; 19 
 
 I,. .1. Ch. Ml |1880] 349 
 
 Hull I'lax < o. ,-. Wellesley, 30 L. .1. Ex. :> ; 6 II. & \. 38 [186 >| . 387 
 
 Hume v. Burton, I Ridgway's J'. R. pp. 204, 247,554,565 [1785] 
 
 13. 26, 38, llo. 205 
 
 Hunt o. Hunt, :il L. 4. Ch. Kil [1861] 201 
 
 Hunt v. Wimbledon LocalBoard, I.. I:. :; < '. 1'. D. 206; I.. II. I < '. P. 
 
 1). 4S; 47 I,. J. C. P. 540; 48 L. .1. C. 1'. 207: 39 L. T. 35 ; 40 
 
 L T. L15 11878 1 211, 
 
 Hunter v. Potts, 4 T. R. 182 [1791] 22,149,190,192 
 
 Hunter p. Bice, 15 East, loo J 1812] 42 
 
 Hunter v. St< wart, ::i I-. •). Ch. 346 ( 1861] .... 
 Hutchinson's < 'use, I Shower, 6; 3 Mod. l'.M: I Leach, C, C. I 
 
 note (a) ; Buller, N. P. 245 ; 3 Keble, 785 [1677], . . . 161 
 
 • 
 
 198, 
 
 217 
 223 
 
 . 120. 
 
 123, 
 
 1.",!) 
 
 [1868] . 
 
 
 210 
 
 2:; 
 
 1 [18601 
 
 301, 
 
 371 
 308 
 3S8
 
 \ \ \ \ 1 1 1 
 
 T\I'>LK OF CASKS. 
 
 Hilt— Joil. I'A.n: 
 
 Hutchinson . Glover, L R. 1 < v >. B. D. 138; 45 L. J. Q. B. 120 
 
 [1875] 
 
 Ilutt r. Morrell, 16 L. J. Q. B. 240; 3 Ex. 240 [1849 | . . . 27 
 
 Hynde's Case, Co. Rep. vol. }i. p. 456 [1590J •_'.". 
 
 [ncledom ». Burgess, Carth. 65, (17 1 1689] .... 
 [ngham v. Primrose, 28 I.. .1. C. P. 294 ; 7 C. B. N. S. 82 [1859] 
 Irish Peat Co. v. Phillips, 30 L. J. Q. B. :ili:; ; 1 B. & S. 598 [1861] 
 Irish Society v. Bishop of Deny, 12 < '1. & Fin. 641 [1846] . 
 Irwin v. Grey, 19 C. B. N. S. 585 : H. & R. 113; L. R. 1 C. P. 17 
 L. R. 2 H. L. 20 ; 34 L. J. C. P. 313 ; 35 L. J. C. 1'. 43 ; 36 L. .1 
 
 C. P. US [1865] 
 
 [seham v. Morrice, Cro. Car. 109 [1628] 
 
 . 31 
 
 , 5li 
 
 
 293 
 
 
 387 
 
 
 1 1 I 
 
 
 , 20 
 
 . 231, 
 
 399 
 
 19, 
 
 Jackson r. Hill, 8 L. J. Q. B. 253 ; 10 A. & E. 477; 2 P. * I). 455 
 [1839] 
 
 James's Case, Moore, 181 [1584] .... 
 
 James u. Landou, 1 Cro. Eliz. 36; Moo. 181 [1581 1 . 
 .lames r. Loudon & South Western By. Co. L. B. 7 Ex. 1S7, 2S7 ; 41 
 
 L. J. Ex. 1S6 [1872] 
 
 Jekyll r. Moore, 2 B. & P. N. E. 341 ; 6 Esp. 63 [1806] . 
 Jenkins v. Robertson, L. E. 1 H. L. Sc. 117 [1867] . 
 
 Jenys v. Fawler, 2 Str. 946 [1732] 
 
 Jesson v. Collins, 2 Salk. 437 ; 6 Mod. 155 ; Holt, 158 [1703] 
 Jew v. Wood, 10 L. J. Ch. 262 ; Craig. & Phil. 185 [1841] 
 JeweU's Case, 1 Bolle's Rep. 4(18 [1616] .... 
 Jewsbury v. Mummery, L. B. S C. P. 56; 42 L. J. C. P. 22 [1872] 
 
 c 
 
 J eyes v. Booth, 1 B. & P. 97 [1797] 
 
 John & Mary, The, Swabey's Adm. 471 [1859] .... 
 Johnsou v. Credit Lyonnais Co., L. B. 3 C. P. D. 32 ; 47 L. J. C. 1 
 
 •_>41 [1877] 
 
 Johnson r. Long, 1 Salk. 10 ; 1 Ld. Raym. 370 [1698] 
 
 Johnson r. Mason, 1 Esp. 88 [1794] 194 
 
 Johnson r. Pie, 1 Keb. 913 [1665] .... 
 Johnston v. Parcey, L. It. 9 Eq. 181 ; 39 L. J. Ch. 390 [1870] . 
 Johnston v. Benton, L. B. 9 Eq. 181 ; 39 L. J. Ch. 390 [1870] . 
 Johnstone v. Huddlestone, 4 L. J. K. B. 71 ; 4 B. & C. 922 ; 7 1). & R 
 
 III [1825[ 
 
 Jollet v. Deponthieu, 1 H. Bl. 132, note [1769]. 
 
 Jolly ■. Arbuthnot, 28 L. J. Ch. 547; 4 De G. & J. 237 
 
 Jones v. Bow, Carth. 225 |1692| .... 
 
 Jones v. Bridgman, 39 E T. 500 [1878] . 
 
 Jones o. Frost, I.. K. 7 Ch. App. 773 ; 42 L. J. Ch. 47 [1872] . 
 
 Jones v. Eerbert, 7 Taunt. 121 [1817] . . . ' . 
 
 [1859] 
 8 1, 409 
 
 
 41 
 
 
 253 
 
 205, 
 
 393 
 
 
 82 
 
 
 50 
 
 
 27 
 
 
 28 1 
 
 412, 
 
 111 
 
 257, 
 
 259 
 
 
 223 
 
 , 36, 
 
 311 
 
 
 311 
 
 59, S3 
 
 330, 
 
 350 
 
 
 61 
 
 244, 
 
 259 
 
 
 379 
 
 
 364 
 
 
 364 
 
 
 260 
 
 
 191 
 
 220, 
 
 21 1 
 
 411 
 
 424 
 
 
 264 
 
 
 205 
 
 
 221
 
 TABLE OF CASES. XXXIX 
 
 Jon— Lat. page 
 
 Jones v. Williams, 2 Stark. 52 [1817] 218 
 
 Jorden v. Money, 21 L. J. Ch. 531, 893 ; 23 L. J. Ch. 865 ; 5 H. L. 
 
 Cas. 1S5 ; 2 De G. M. .V G. 31S ; 15 Beav. 372 [1854] 299, 302, 309, 337, 351 
 
 Karne v. Pryther, Cro. Jac. 1, 375 [1615] 223 
 
 Keane v. O'Brien, 5 Ir. R. C. L. 531 [1871] 27 
 
 Keate v. Phillips, L. R. 18 Ch. D. 5G0 ; 50 L. J. Ch. 604 [1881] . 11, 237 
 Kclsall v. Marshall, 26 L. J. C. P. 19; 1 C. B. N. S. 241 [1856] 18, 118, 140 
 Kemp v. Goodal, I Salk. 277 ; 2 Ld. Raymd. 1154 [1704]. . . 391 
 
 Kemp v. Neville, 31 L. .1. C. I'. 158 ; 10 C. B. N. S. 523 [1861] . 50 
 
 Kendall v. Hamilton. I.. U. 1 App. < as. 504 ; 48 L. J. C. P. 705 [1879] 50, 63 
 Kenn's Case, Co. Rep., vol. iv. p. L36 [1607] . 84, 86, 409, 412, 417, 421 
 
 Kenna v. Nugent, Ir. P.. 7 C. L. 464 [1873] 2:! 
 
 Kennedy v. Cassilis, 2 Swanst. 313 [1818] 162 
 
 Kepp v. Wiggett, 20 L. J. C. P. I!) ; L0 < '. B. 35 ; l4Jur. 1137 1 1850] 217, 220 
 Kieran v. Sandars, 6 L J. K. B. I 15 ; 6 A. & E. 515 ; 1 X. & P. 625 
 
 [1837] 274 
 
 Kimlersley v. Chase, Park Iusce. (8 ed.) 74."> [1801] . . . 183, 1S6, 188 
 King v. Hoare, 14 L .). Ex. 29; 13 M. &W. 494 1 1844] ... 63 
 
 King v. PercevaH, I Rolle's Rep. 4. - {0 (1615] 6 
 
 King of the two Sicilies o. Willcox, I Sim. X. S. 301 [1851] . . 161 
 
 Kingston's, Duchess of, Case, 20 state Trials :',:>:> ; 1 Leach C. ('. 146 ; 
 
 2 Smith's L C. (8th. ed.) p. 784 [1776) 17, r,^, 69, 72, 73, 84, 85, 107, 
 
 137, 26.S, 29S, 394, 396, 405 
 
 Kinnersley v. Orpe, 2 DougL 517 [1780] 52,56,393 
 
 Kitchen v. Bartsch, 7 East, 53 [1805] 280 
 
 Knight v. Cox, 25 L. J. C. P. 314 ; 18 O. B. 645 11856] . . . 259 
 
 Knights <: Wiffen, L. R. 5 Q. B. 660 ; 40 L. J. Q. B. 51 [1870] . j;;; 
 
 Knox v. Whalley, I Esp. 159 [1794 1 306 
 
 Laclouchv. Towle, 3Esp. 115 1 1799J 268 
 
 Lady Mayo's « ase, cited 20 Howell's State Trials, 425 [1771] . . 72 
 
 Lainson v. Tremere, 4 L J. K. B. 62; 1 A. cV E. 792 ; i N. & M. 552 
 
 [1834] 1114, 217, 219, 391 
 
 Lambert v. Cameret, Comb. 446 [1697] 393,397 
 
 Lambert v. Pack, 1 Salk.. J27 ; Ld. Raymd. 443 [ 1698| . . . 285 
 
 Lampen v. Kedgewin, I Mod. 207 1 1675 ) 30 
 
 Lampoa v. Corke, 5 B. & Ad. 606 1 1833 1 . . . 4,193,213,220,306 
 Lane v. Chapman, 9 L. J. Q. B. 239; 1 1 A. & E. 966; 3 P. >v D. 668 
 
 [1840] 37 
 
 Langford . Selmes, 3 K. .. .1. 220; 3Jur. X. S. 859 11857] . . 250 
 
 Langmead v. Maple, 18 C. B. X. s. 255; 12 L. T. X. s. L43 ; L3 W. 
 
 I:. 169 : II Jur. X. s. 177 1 1865J 33, 34, 64, 101 
 
 er v. White. L. II. 5Q. B. 622; L. R. 6 Q. B. 171 ; L. R. 5 II. I,. 
 
 578; M)L. J.Q.B. 9> 162; H L. J. Q. B. 342 1 1872] . . :;;i;
 
 ad 
 
 TABLE OF i ASES. 
 
 [1876] 
 42 L. .1 
 
 830 
 
 C 
 
 Law - Luc. 
 
 Laves v. Purser, 26 I.. J. Q. B. 25 ; 6 E. & B. 930 [1856] 
 
 Le Blanch v. Renter's Telegraph Co., L K. I Ex. D. 408 [1876 
 
 Le Caux i\ Eden, 2 Dougl. 594 1 1781] 
 
 Le Chevalier v. Lynch, ! Dougl. 170 [1779] .... 
 LeClerc . Greeue, lr. K. 7 Eq. 371 [1873] 
 Le Sueur v. Le' Sueur, L. II. I P. I). L39; 45 L. J. P. L>. 73 
 I ebeau v. General Steam Navigation Co., L. El. 8 C. P. 88 
 
 C. P. 76 |1872] 
 
 Lebel v. Tucker, J.. ft. 3 Q. B. 77 ; 37 L. J. Q. 15. 4G ; SB. & S 
 
 [1867] 
 
 Lee v. Lancashire & Yorks. By. Co., L. I!. 6 Ch. App. 527 ; 25 L. T 
 
 77 ; 19 W. R. 729 [1871] 
 
 Leggott v. Great Northern By. Co., L. B. 1 Q. B. D. 599 ; 45 L. J 
 
 Q. B. 557 [1876] 
 
 Legh v. Legh, 1 B. & P. 447 [1799] 
 
 Leith Harbour & Dock, Commissioners of, v. Inspector of Poor, L. B 
 
 1 Se. App. 17 [1866] .... 
 Leonard v. Simpson, 2 Ping. N. C. 170 [1835] 
 Level v. Hall, Cro. Jac. 284 [1611] . 
 Lewis v. Willis, 1 Wils. 314 [1752] . 
 Lickbarrow v. Mason, 2 T. R. 63 ; 1 H. Bl. 357 ; 6 East, 21 : Sm. 1 
 
 (8th ed.) vol. i. p. 753 [1787] 
 Like v. Howe & Rogers, 6 Esp. 20 [1806] . 
 Linch w. Hooke, 6 Mod. 311 ; 1 Salk. 7 [1703] 
 Linch v. Spencer, 2 Cro. Eliz. 513 [1593] . 
 Linnell v. Gunn, L. E. 1 Adm. k Eccl. 363 ; 36 L. J. Ecc. 23 [1867 
 
 Lipscomb v. Holmes, 2 Camp. 442 [1810] 
 
 Litchfield v. Beady, 20 L. J. Ex. 51 ; 5 Ex. 939 [1850] . . 392 
 Liverpool Adelphi Loan Association v. Fairhurst & Wife, 23 L. J. Ex 
 
 163 ; 9 Ex. 422 [1854] ....... 
 
 Liverpool Marine Credit Co. v. Hunter, L. R. 4 Eq 62 ; L. R 
 
 App. 479 [1867] 
 
 Lloid v. Maddox, Moore, 917 [1617] 
 
 Locke v. Nbrbonne, 3 Mod. 141 (Cas. 96) [1683] 
 Lockyer v. Ferryman, L. R. 2 App. Cas. 519 [1877] . 
 Loffus v. Maw, 32 L. J. Ch. 49 ; 3 Gift'. 592 [1863J . 
 
 London's Case, Anderson, 128 [1584] 
 
 London & North Western Ry. Co. v. Lindsay, 3 Macq. 99 [1858] 
 London & North Western Ry.Co. v. West, L. R. 2 C. P. 553 ; 36 L. J 
 
 C. P. 245 [1867] 
 
 London & Northern Insurance Co. , in rt , Stace k Worth's Case, L. R. ( 
 
 Ch. App. 682 [1869] 
 
 Loudon, .Mayor, &c, of, v. Cox, L. R. 2 H. L. 239 [1867J 
 Lothian v. Henderson, 3 B. & P. 496 1 1803 1 . . . si, 181 
 Lucy v. Levington, I Ventris. 17."., 176 [1G71] .... 
 Luders v. Anstey, 1 i . 501 [1709] 
 
 Ch 
 
 PAOB 
 
 268 
 
 45 
 
 83 
 
 11!). 192 
 
 23 
 
 L76 
 
 333 
 
 280 
 
 306, 307 
 
 52 
 221 
 
 96 
 
 28 
 
 29 
 
 195 
 
 291, 363 
 
 342 
 
 205 
 
 38 
 
 48 
 
 311 
 
 394, 396 
 
 378 
 
 131, 151 
 419 
 
 57, 63, 409 
 337 
 
 226, 228 
 126 
 
 2.",:; 
 
 389 
 
 45. 19 
 
 I si;, 187 
 
 39 
 
 341
 
 TABLE OF CASKS. 
 
 xli 
 
 Lud-McC. PAGB 
 
 Ludford v. Barber, 1 T. R. 90 [1786] 
 
 Lush's Trusts, in re, L. K. 4 Ch. App. 591 ; 38 L. J. Ch. 650 [1869] . 380 
 
 Lynch v. Lynch, 6 Ir. L. R. 131 [1843] 263 
 
 Lyou v. Reed, 13 L. J. Ex. 377 ; 13 M. & W. 285 [1844] 239, 262, 263. 264, 
 
 267, t02 
 
 MacAllistEB v. Bishop of Rochester, L. R. 5 C. P. D. 194; 49 L. J. 
 
 Q. B. 114 [1880] 343 
 
 Macoichol, in re, Macuichol v. Macnichol, L. R. 19 Eq. 81 ; 31 L. T. 
 
 560 ; 23 W. R. 67 [1874] 85 
 
 Maddisou v. Alderson, L. R. 8 App. Cas. 467 ; 52 L. •). Q. B. 737 
 
 [1883] 337, 340 
 
 Maghee v. McAllister, 3 Ir. Ch. 604 [1853] 179 
 
 Magrath 9. Hardy, 7 L. J. C. P. 299 : 4 Bing. X. C. 782 : 6 Scott, 627 
 
 [1838] 395, 396 
 
 Manchester Mills Case, 1 Dougl. 221 (note 13) [1757] ... IS 
 
 Mantle v. Wellington, Cro. Jac. 166 ; Vin. Ab. Estop, p. 4S2 [1607] 233 
 Mapleback, in re, Caldecott, ex parte, L. R. 4 Ch. D. 150 ; 4(i L. J. 
 
 Bk. 14 [1876] 201 
 
 March v. March, 28 L. J. P. & M. 30 [1858] 110 
 
 Marianski v. Cairns, 1 Macq. 212 [1851] 30 
 
 Marriott v. Hampton, 7 T. I!. •_ , (i9 : 2 Smith's L. C. (8th ed.) p. 42] 
 
 [1796] 21, 37, 203 
 
 Marston v. Allen, 11 L. J. Ex. 122 ; 8 M. & W. 194 [1841] . . 278 
 
 Martin v. Powning, L. R. 4 Ch. App. 356 ; 38 L. J. Ch. 212 [1869] . 87 
 
 Martini v. Coles, 1 M. & S. L40 [1813] 330 
 
 Martyn v. Gray, 14 C. B. N. S. 824 [1863] 328 
 
 Mason v. Mason, L. R. 8 P. D. 21 ; 52 L. J. I'. D. & A. 27 [1883] . 8 i 
 Masper 9. Brown, L. R. 1 C. P. D. 97 ; 45 L. I. C. P. 203 ; 34 L. T. 
 
 254 ; 21 W. R. 369 [1875 1 49 
 
 . Thorley's Cattle Food Co., L. I!. 1 I I lh. D. 748; 12 I,. T. 
 
 I : 28 W. R. 966 [1880| 29 
 
 Matthew -rue, 22 I.. J. C. P. 211 ; 13 C. B. 919 [1853] . . 394 
 
 Maubourquet v. Wyse, 1 Ir. R. C. L. 471 [1867] .... 401 
 
 Maunaell v. Hedges, 4 H. L. Cas. 1039 [1851] :;tl 
 
 May. in re, L. R. 25 Ch. I). 231 [1883 1 64 
 
 Mayne«. Walter, Park Insce. (8th ed.) 730 [1782] .... L87 
 Lady, Case-, cited 20 Howell State Trials, 425 1 1771 j . 72,420 
 M-, y ,„. a of London v. Cox, L. H. 2 11. L. 239 [1867] . . 45, 49 
 Mayor of Norwich o. Norfolk Ry. Co., 21 L. J. Q. B. L05; 4 E. & B. 
 
 397 [1855] 210, : 
 
 Poole v. Whitt, 16 L. J. Ex. 229; 15 M. & W. 571 1 1846 j 252 
 McCance v, London S North Western Ry. Co., 31 L.J. Ex.65; 34 
 
 I, J. Ex. 39 ; T II N. 177 ; 3 II. S C. 343 1 1861 1 ... 314 
 
 [J Mil ci I. 642 (note) [1831 . . . 172
 
 xlii 
 
 TAI'.LK OP CASES. 
 
 431 ; 
 
 I'M I 
 ,409, 
 
 Q. B 
 
 ol. ii. 
 
 McF-Mor. 
 
 McFarlane ». Giannacopulo, 2S L. J. Ex. 72 ; 3 H. & N. 860 |1858| 
 Mel tregor dl Rhodes, 25 L. J. Q. B. 318 ; 6 E. & B. 266 [1856] 
 McHenry v. Lewis, L. R. 21 Oh. D. 202 ; L. R. 22 Ch. D. 397 ; 52 L 
 
 .1. Ch. Hi. 325 [1882] 
 
 McKenzie v. British Linen Co., L. R. 6 App. Cas. 82 ; 44 L. 1 
 
 29 W. Et. 177 |1881] 
 
 Mead v. Young, 4 T. R. 28 [1790] 
 
 Meadows v: Duchess of Kingston, 2 Amb. 756 [1775] . 73 
 Meddowcroft v. Huguenin, 4 Moo. P. C. 386 [1844] . 
 Meeus v. Thellusson, 22 L. J. Ex. 239 : 8 Ex. 63S [1853] . 
 Meggy v. Imperial Discount Co., L. R. 3 Q. I'>- l>. 711 ; 48 L. J 
 
 54 [1878] 
 
 Mellow r. May, Moore, 636 (Cas. 876) [1601] . 
 Meluish v. Milton, L. R, 3 Ch. D. 27 ; 45 L. J. Ch. 836 [1876] 
 Mendez v. Villa Real Cas. temp. Hardwicke, 18 [1734] . 
 Merryweather v. Nixan, 8 T. R. 1S6 ; Sm. L. C. (8th ed.) 
 
 p. 546 [1798] 
 
 Messina v. Petrococchino, L. R. 4 P. C. 144 ; 41 L. J. P. C. 27 [1872] 
 
 130, 
 Mette v. Mette, 28 L. J. P. M. & A. 116 ; 1 Sw. & T. 416 [1859] 
 Metters v. Brown, 32 L. J. Ex. 138 ; 1 H. & C. 686 [1863] 
 Meyer v. Ralli, L. R. 1 C. P. D. 358 ; 45 L. J. C. P. 741 [1876] 
 Michael Stanhope's Case, Viu. Ab. Estop, p. 461 [1610] . 
 Middleton v. Pollock, Ex parte Wetherall, L. R. 4 Ch. D. 49 ; 46 L. J 
 
 Ch. 39 [1876] 
 
 Miles v. Furber, L. II. 8 Q. B. 77 ; 42 L. J. Q. B. 41 (1873] . 
 Miles v. Mcllwraith, L. R. 8 App. Cas. 120; 52 L. J. P. C. 17 ; 48 
 
 L. T. 689 ; 31 W. R. 591 [1883] 
 
 Miller v. Blankley, 38 L. T. N. S. 527 [1878] . 
 
 Millisent v. Millisent, cited in Cas. temp. Hardwicke, 11 [1718] 
 
 Mitchel v. Reynolds, 1 P. Wms. 181, 196 [1711] 
 
 Molins v. Werby, 1 Lev. 76 ; I Siderfin, 94 ; 1 Keble, 355 L1662] 
 
 Mollett v. Brayne, 2 Camp. 103 [1809] 
 
 Mollwo, March & Co. v. Court of Wards, L. R. 4 P. C. 419 [1872] 
 
 Molony v. Gibbons, 2 Camp. 502 [1811] 
 
 Mondel v. Steele, 10 L. J. Ex. 426; 8 M. & W. S5S [1841] 
 Montague v. Perkins, 22 L. J. C. P. 187 [1853] 
 Montetiorir. Montefiori, 1 Sir W. Bl. 363 [1762] 
 
 Moody v. Thurston, 1 Str. 481 [1722] 
 
 Morgan, ex parte, Simpson, m re, L. R. 2 Ch. D. 72 ; 45 L. J. Bk. 36 ; 
 
 34 L. T. 329 ; 24 W. R. 414 [1875] 220, 
 
 Morgan v. Couchman, 23 L. J. C. P. 36 ; 14 C. B. 101 [1853] . 
 
 Morgan v. Vaughan, Sir T. Raymd. 456 [1680] 
 
 Morris v. Bethel, L. R. 5 C. P. 47 ; 38 L. J. C. 1'. 379 [1869] . 
 
 Morris v. Cannam, 4 De G. P. & J. 581 [1862] 
 
 Morris v. Webber, Moore, 225 [1585| 416, 
 
 l'AOK 
 
 313 
 
 285 
 
 156 
 
 , 300, 
 
 :;.-,() 
 
 . 282, 
 
 28 1 
 
 ,416, 
 
 42 1 
 
 . 70, 84 
 
 . 129, 
 
 401 
 
 
 352 
 
 
 263 
 
 
 Sli 
 
 . 409, 
 
 414 
 
 197, 203 
 
 133, 
 
 141 
 
 
 164 
 
 
 52 
 
 
 142 
 
 
 9 
 
 305, 
 
 316 
 
 
 315 
 
 
 319 
 
 
 379 
 
 
 417 
 
 
 205 
 
 
 20 
 
 
 264 
 
 282, 
 
 327 
 
 
 129 
 
 
 27 
 
 
 291 
 
 318, 
 
 337 
 
 
 99 
 
 222, 
 
 '_'■_'.-. 
 
 
 39 
 
 h 
 
 ', 33 
 
 
 289 
 
 
 357 
 
 424 
 
 4-_'S
 
 TABLE OF CASES. 
 
 PAGE 
 
 Mor— Nic. 
 
 Morrison v. Chadwick, IS L. J. C. P. 189 ; 7 C. B. 266 [1849] . . -264 
 
 Morse v. Faulkner, 1 Anstr. 11 ; 3 Swanst. 429 [1792] . . . 238 
 
 Mortimer v. Mortimer, 2 Hagg. Consist. 310 [1820] . . . . 201 
 
 Morton v. Woods, 38 L. J. Q. B. SI ; L. R. 4 Q. B. 293 [1869] . 216, 220, 241 
 Muss r. .lames. 47 L. J. <>. B. 160 ; 37 L. T. N. S. 715 [1877] . 2.34, 264, 266 
 Mould v. Williams, 5 Q. B. 469 [1844] . . ... 50 
 
 Mountnoy v. Collier, 22 L. Q. B. 124 ; 1 E. & B. 630 [1853] . . . 250, 25 1 
 Muir v. City of Glasgow Bank, L. R. 4 App. Cas. 337 ; 40 L. T. 339 ; 27 
 
 W.R.603 [1879] 328 
 
 Malleus v. Miller, L. R. 22 Ch. D. 194 ; 52 L. J. Ch. 3S0 ; 48 L. T. 103 : 
 
 31W.R559 1882] 319 
 
 Munroc v. Pilkington, 31 L: J Q. B. 81 : 2 B. & S. 11 [1862] . . 1 4<>, 156 
 .Murray v. Bush, Agriculturist Cattle Insurance Co., in re. L. R. 6 II. L. 
 
 37 ; 42 L. J. ( !h. 586 : 29 L. T. 217: 22 W. R. 280 [1873] . . 388 
 
 N LTAl Investment Co., in re, L. R. 3 Ck. App. 355 ; 37 L. J. Ch. 362 
 
 [1868] 331 
 
 National Bauk of St. Charles v. De Bernales, 1 By. & Moo. 190 [1825] 101 
 
 National Bolivian Navigation Co. v. Wilson, L. IX. 13 Ch. D. 1 ; L. R. 
 
 5 App. Cas. 176 ; .43 L. T. 60 [1879—1880] 64 
 
 National Exchange Co. of Glasgow v. Drew, 2 Macq. 103 [1855] . 196, 382 
 Le v. Cottdngham, 1 H. Bl. 132, note [1764] .... 191 
 
 Neave v. Moss, 2 L. J. Ch. 2.3 ; I Bing. 360 [1823] .... 250 
 
 Needham v. Bremner, L. R. 1 < . I'. 583 : 35 L. 3. < '. P. 313 ; II. x R. 
 
 731 [1866] 85 
 
 Needier v. Bishop of Winchester, Hobart, 220, 227 [1619] 303, 394, 397, 402 
 \. Ison 17. < touch, 33 L. J. C. P. 46 ; 15 < !. I', N. S. 99 [1863] 59, 60, 63. 83 
 
 Nelson v. Oldfield, 2 Vern. 76 [1688] 107 
 
 . Wilkinson, 1 Bro. C. C. 543 [1782] 318, 337 
 
 New Zealand Banking Co., in re, Sewell's Case, L. R. 3 Ch. App. 131 
 
 [1868] ^ s 7- 388 
 
 Newall v. Elliot, 32 L.J. Ex. 120: 1 II. & C. 707 [1863] . . . 42, 422 
 
 . & Metropolitan By. Co., 14 < '. B. N. S. 105 [1863] . 25 
 
 Newington . Levy, L. B. 6 C. I'. L80; 40 L.J. C. 1'. 20 [1870] 
 
 Newlandv. Borsman, Cas. in Ch. part ii. 74 [1681J . . . 124 
 
 ,t„„. Exparte, 16 < B. 07 ; 24 L. J. C. I'. I 18 [1855] . . . 21 
 
 rton . Liddiard, 18 L. J. Q..B. 53 ; 12 Q. B. 925 [1848] . . ."-72 
 
 Niboyet v. Niboyet, L. R. :; I'. D. .".•_• ; L. K. 4 I'. I). 1 ; 47 L. J. P. D. 
 
 L 19; 18 L. -I. p. I). &A. I [1878] . . . . 84, 162, 16."., 180 
 Nicholas v. Nicholas, Precedents in Chancery, 546 : 2 Cas. in Ch. 242, 
 
 .,7:; [1720| 108 
 
 Di es, 4C. .v I'. 330; I Moo. & Rob. 13 [1830[ . . 319 
 
 bolls . Mitford, I.. R. 20 Ch. I». 380; 5] I, -I. Ch. 185 ! 1882] . 39 
 
 Nickells 0. .'• ae, 16 L. .1. <.'. B. 571 ; 10 ',». I'., oil ; I I Jur. 77s 
 
 [1847| 203, 267 
 
 Nicl Knowles, 5 Maddock, 17 [ 1820] 268,270
 
 xliv 
 
 i \P.l.i: OF CASKS. 
 
 Noe- Par. page 
 
 x ■ I ■ Wells, 1 Levinz, 235 [1668J 37,85,407. ill 
 
 Noke v. Awder, 1 Cro. Eliz. 436 [1594] 227 
 
 Nordon v. Levy, Defrics, in /•<•, 48 L. T. 703; VV. N. May 12, 1883, 
 
 P- 87 [1883 1 5 6 
 
 Norfolk's Case, Hardres, 464 [1666] 205 
 
 Norman v. Villars, L. II. 2 Ex. D. 359 j 46 L. .1. Ex. 579; 36 L. T. 
 
 788 ; 25 W. R, 7S0 [1877] 83 
 
 Norton v. Florence Laud, &c, Co., L. R. 7 Ch. I>. 332 ; 38 L. T. 377 ; 
 
 26 W. R. 123 [1877] 156 
 
 Norway v. ftowe, 19 Ves. 143 [1812] 346,347,348 
 
 Norwich, Mayor of, v. Norfolk Ry. Co., 24 L. J. Q. B. 105 ; 4 E. & B. 
 
 397 [1855] 210, 380, 3S3 
 
 Noton '. Brooks, 7 H. & N. 499 ; 8 Jur. N. S. 155 [1861] . . . 268 
 
 IS toIL" k Rossi, 9 L. J. K. B. 307 ,• 2 B. & Ad. 757 [1831] . . 126 
 
 Oakes v. Turquand, L. R. 2 H. L. 325 ; 36 L. J. Ch. 949 [1867] . 328, 349 
 Oastler v. Henderson, L. R. 2 Q. B. D. 575; 46 L. J. Q. B. 607 
 
 [1877] 264, 266 
 
 Obicini v. Bligb, 8 Biug. 335 ; 1 M. & Sc. 477 [1835] . . . 124 
 
 ( >chsenbein v. Papelier, L. R. 8 Ch. App. 695 ; 42 L. J. Ch. 861 
 
 [1873] 133, 134, 139 
 
 Oddy v. Bovill, 2 East, 476 L1802] 415 
 
 Ogden v. Benas, L. R. 9 C. P. 513 : 43 L. J. C. P. 259 ; 30 L. T. 6S3 
 
 [1874] 286 
 
 Ogden v. Folliott, 3 T. R, 726 [1790] 160 
 
 Ogle v. Atkinson, 5 Taunt. 759 [1814] 247, 248 
 
 Oldham v. Lahgmead, 3 T. R. 438 [1789] 217 
 
 i >rrel Colliery & Firebrick Co., in re, L. R. 12 Ch. D. 681 ; 48 L. J. Ch. 
 
 655 [1879] 35 
 
 ( >utram v. Morewood, 3 East, 346 [1803] (i, 27, 51, 53, 56, 393 
 
 Overton v. Harvey, 19 L. J. C. P. 256; 9 C. B. 324 ; 1 L. M. & P. 
 
 233 [1850] 20 
 
 Paine v. Skeltrom, Style, 17 [1647] 223 
 
 Palmer v. Ekins, 2 Ld. Raymd. 1551 ; 2 Str. 817 [1728] . 5, 225, 227, 228, 
 
 391, 393 
 Palmer v. Temple, 5 L. J. K. B. 92 ; 9 A. & E. 508 ; (i N. & M. 159 
 
 [1839] 
 
 Panton v. Jones, 3 Camp. .372 [1813] .... 
 Papillon v. Buckner, Hardres Rep. 478 [1668] . 
 Paramoure v. During, Moore, 420 [1596] . 
 Pargeter v. Harris, 15 L. J. Q. B. 113 ; 7 Q. B. 70S [1845] 
 
 Parker v. Dee, Finch, 123 [1674 1 
 
 Parker v. Lewis, L. R. 8 Ch. App. 1035; 29 L. T. L99; 21 YV. R 
 
 928 [1873] 57 
 
 59 
 
 243, 
 77, 81 
 
 223 
 229, 234 
 
 408
 
 CABLE OF CASES. 
 
 xlv 
 
 PAGE 
 
 41,42 
 
 ■242, 243 
 
 254 
 
 298 
 330 
 L23 
 233 
 260 
 L98 
 221 
 15 
 
 221 
 
 •21 
 
 50 
 
 71. 34 
 
 281 
 
 156 
 
 109, 111) 
 204, 265 
 
 Par— Pit. 
 
 Parkes v. Smith, 19 L. J. Q. B. 40.3 [1850J 
 
 Parry v. House, Holt's Rep. 488, & p. 491 (note) [1816] 
 
 Partridge v. Bere, 5 B. & Aid. G04 [18221 • 
 
 Pasley v. Freeman, 3 T. R. 51 [1789] 
 
 Paterson v. Tash, 2 Str. 1178 [1742]. 
 
 Paul v. Roy, 21 L. J. Ch. 361 ; 15 Beav. 433 [1852] . 
 
 I'aulin v. Hardy, skinner. 2. 62 [1681] . 
 
 Paull v. Simpson, 15 L. J. Q. B. 382 ; 9 Q. B. 365 [1846] 
 
 Paxton v. Popham, 9 East, 408 [1808] 
 
 Payue v. Rogers, 1 Dougl. 407 [1780] 
 
 Peacock v. Bell, I Wms. Saund. 96 [1666] 
 
 Pearce v. Morrice, 4 L. J. K. B. 21 ; 2 A. & E. S4 ; 1 N. >v .M. I 
 
 [1834J .215 
 
 Pearse v. Coaker, L. R. 4 Ex. 92 : 38 L. J. Ex. 82 [1869] 
 Pelham's Case, 2 Leon. 65 [1588] .... 
 Penney o. Slade, 5 Biug. N. C. 469 ; 7 Scott, 4S4 [1839] 
 Perry v. Meddowcroft, 10 Beav. 122 [1846] 
 Peruvian Ry. Co., re, L. R. 2 Ch. App. 617 [1867] . 
 
 shawur, the, L. R. 8 P. D. 32 ; 52 L. J. P. D. & A. 30 [1883] 
 Petrie v. Nuttall, 25 L. J. Ex. 200; 11 Ex. 569 [1856] 
 Phene" v. PopplewelL 31 L. J. C. P. 235 ; 12 C. B. X. S. 334 [1862] 
 Philips --. Bury, 2 T. R. 346; Shower's Cas. iu Parliament, 35 
 
 [1788] 88, 415 
 
 Philips v. Hunter, 2 H. Bl. 402 [1795] . . 22, 63, 120, 147, 100, 192 
 Phillips . Chichester, Sir T. Raymd. 401 ; 3 D'Anver's Abridgment, 
 
 111, pi. 3 ; 2. Jon. 146 [1680] 
 
 Phillips v. ('rawly. Freeman's Rep. in C. P.. 83; 1 Siderfin, 170.220 
 
 1 Keble, 780 '[1673] 
 
 Phillips o. lm Thurn,35 L. J. C. 1'. 220 ; 18 C. B. \. S. 694 [1865] 
 Phillips v. Ward, 33 1, .1. Ex. 7 ; 2 11. & C. 717 [1863] . 
 Pbillpotts . Phillpotts, 20 P. J. C. 1'. 11 ; IOC. P.. 85 1 18 50] . 
 Phil bslett, 3 L. -I. Ex. 344 : I < !. M. & P. 85 [1834] 
 
 Phi] ulth( rpe, I P. & AM. 50 [1817] .... 
 
 Phospl .ime I o. . Green, P. P. 7 C. P. 43 [1871] . 
 
 Phosphi o. v. Molleson, P. P. 5Ch. I». .'nil ; P. P. 1 App 
 
 780 1 1876| 60, 1. 
 
 Pickard v. Sears, 6 A. & E. 169; 2 X. & P. 188 1 1837 ] 298, 299, 300, 301, 302 
 
 :;I2, 326, 339 
 
 Pickering v. Bnsk, 15 E i 1812] 328 
 
 Pierce v. Johns, Bwnbury's Elep. p. II |1717| ..... 12 
 
 ■. Stratton, 29 L, J. Ch. 9; Johns, 341 ; I De G. F. & J. 33 
 
 1S59] 313 
 
 Pinnej Hunt, L. R. 6 Ch. D. 98 ; 26 W. R. 69 [ 187TJ . 
 
 Pitmau i'. Woodbury, :; Ex. 1 1 1848] 20.". 
 
 Pitt y. Chappelow, 10 I-. J. Ex. 187 ; 8 M. ... W. lilt.; [1S41] . . 284 
 
 i i 027 1 1864| 175 
 
 37. 
 
 407 
 284, 290 
 
 57 
 1:10 
 
 :;: 
 
 2i.: 
 
 388
 
 xlvi TABLE OF CASES. 
 
 Pie R. PAaE 
 
 PleadalTs Case, or PleadaU. v. Pleadall, Moore, 96 [1672]. . . 19,393 
 Plommer v. Webb, 2 Ld. Raymd. 1414 (note) [1729] . ... 20 
 
 Plume v. Beale, 1 P. Wms. 388 [1717] 407 
 
 Plummer v. Woodburne, 4 B. & C. 625 [1825] .... 57,123,400 
 Poe, in re, J. W., 3 L. J. K. B. 33 ; 5 B. & Ad. GS1 ; 2 N. & M. 636 
 
 [1833] I,,:: 
 
 Polak v. Everett, L. R, 1 Q. B. D. (309 ; 4G L. J. Q. I'.. 218 [1876] . 302, 349 
 
 pole v. Harrobin, 9 East, 416 (note) [1781 1 198 
 
 Pollard v. Bell, 8 T. R. 434 [1800] 18;,, 18G, 1ST 
 
 Pollock r. Stacy, 16 L. J. Q. B. 132 ; 9 Q. B. 1033 [1847] . . . 229 
 
 Poole, Mayor, &c, of, v. Whitt, 16 L. J. Ex. '229; 15 M. & W. 571 
 
 [1846] 252 
 
 Pope v. Biggs, 7 L. J. K. B. 246; 9 B. & C. 245; 4 M. & R. 17:: 
 
 [1829] 25 °» 254 
 
 Portarlington v. Soulby, 3 My. & K. 104 [1834] .... 131 
 
 Potter v. Brown, 5 East, 124 [1804] 189 
 
 Potts v. Nixon, 5 Ir. R. C. L. 45 [1870] 213 
 
 IWtneyr. Holmes, 1 Str. 404 [1720] 229 
 
 Power v. Whitmore, 4 M. & S. 141 [1815] . . .122,130,151 
 
 Poyser v. Minors, L. R. 7 Q. B. D. 329 ; 50 L. J. Q, B. 555 ; 45 L. T. 
 
 33 ; 29 W. R. 773 [1881] 30 
 
 Preece v. Corrie, 6 L. J. C. P. 205 ; 5 Bing. 25 ; 2 M. & P. 57 [1828] . 229 
 
 Prendergast v. Turton, 11 L. J. Ch. 22; 13 L. J. Oh. 2GS ; 1 Y. & C. C. C. 
 
 98 [1841] 346 > ;U '> ::,S 
 
 Price v. Belial East, 663 [1801] 187 
 
 Price r. Dewhurst, 6 L. J. ( !h. 226 ; 8 Sim. 272 [1837] . . . 133, 134 
 
 Pride v. Earl of Batb, 3 Levinz, 410 [1694] 408 
 
 Prince's Case, the, Co. Rep. vol. iv. 168 [1605] 39 
 
 Prinsep& East India Co. t>. Dyce Sombre, 10 Moo. I'. ( '. ( '.232 [1856] L15 
 
 Pritchard v. Hitchcock, 6 M. & G. 151 ; G Scott, N. R. 851 [1843] . 21, 23 
 Prole •. Soady, 29 L. J. Ch. 721 ; 2 Giff. 1 [1859] .... 34 I 
 
 Prole r. Wiggins, 6 L. J. C. P. 2 ; 3 Bing. N. C. 230 [1836] . 1 96 
 
 Prudham v. Phillips, 2 Amb. 762 [1738] . . . 72, 73, 419, 428 
 
 Pryor ». City Office Co., L. R. 10 Q, B. D. 504 ; 5-2 L. J. Q. B. 3G2 
 
 [1883] ,; ' 
 
 I'ullen r. Purheck, 12 Mod. 361 1 1700] 
 
 Pyke v. (Vouch, 1 Ld. Raymd. 730 [1697] 53 
 
 Queltn i>. Moisson, lKnapp. 266, note [1827] 191 
 
 1 ; i , . i n \ v. All Saints, Southampton, G J . M . C. 55 ; 7 B. & C. 785 ; 1 M. 
 
 &R.663 '1828] u '< 
 
 i: . Ambergate, See., Railway Co. 22 L. J. Q. B. 191 ; I Iv .V B. 372 
 
 1853] 
 
 Rtf.Blagden, 10Mod.296 [1712] L05 
 
 I: Blakemore, 2 Dcn.C.C. R. 410 [1852] 114,396
 
 TABLE OF CASES. 
 
 xlvii 
 
 It. 
 
 198 
 
 rAi;i: 
 
 407 
 
 46, 48, 50 
 
 25 
 
 . 98, 113 
 
 86,408, 410,417 
 
 10 B. & S 
 
 Q. B. 082 
 
 R 
 
 K.r.Blatch, 5 Yes. .fun. 113 [1799] 
 
 R. ,-. Bolton, 1 Q.B. 66 [1841] .... 
 
 R.v. Bowman, 6 C. & P. 101, 337 [1834] 
 
 Rr.Burbou, 5M.&S.392 [1816] 
 
 R. v. Buttery & McNamara, R. & R. C. C. 342 [1818] 
 
 R. v. Cambrian Ry. Co. L. R. 4 Q. B. 320 ; 38 L. J. Q. B 
 
 315 [1869] * 
 
 K. v. Carlile, 9 L. J. K. B. 250 ; 2 B. & Ad. 302 [1831] 
 R. v. Clint, 10 L. J. M. C. 151 j 11 A. & E. 624 [1841] 
 R. '•. Darliugton School, Governors of, 14 L. J. Q. B. 6 
 
 [1844] .... 
 R. v. Debue, 1 Mod. 200 [1713] 
 R. v. Ekins, 4 Burr. 2129 [1767] 
 
 R v. Evenwood, 1 2 L. J. M. C. 101 ; 3 Q. B. 370 ; 3 G. k D. 145 . [1843] 
 R.*. Gaunt, L. R. 2 Q. B. 406 : 36 L. J. M. C. 89 ; 8B.&S.365 [1867] 
 
 1,\ v. Gibson, cited in R. & R. C. C. R. 342 [1802] 41( 
 
 R.v.Glynne,L.R.7Q.B.16; 41L.J.M.C.58 [1871] 
 
 R. v. Goodrich, or Goodridge, Sessions Papers, 1785—6, case 123 ; cited 
 
 in3T.R 126 [1786] 
 
 R. r. Greene, 6 A. & E. 548 [1837] 
 
 R.r. Grimes, 5 Burr. 2601 [1770] 
 
 1!. v. Grundon, Cowp. 315 [1775] 
 
 R. r. Hartington, 24 L. J. M. C. 9S ; 4 E. & B. 780 [1855] 
 
 R. r. Haughton, I E. & B. 501 [1853] 
 
 I: . Eebden, 2 Str. 1109 ; Bull. N. P. 231 ; Andrew, 389 [1739] 
 R. r. Hcrrington, 3 N. R. 408 [1864] . . . . 
 
 i;. v . Sickling, I I L. J. M. C. 177 : 7 Q. B. 880 [1845] . 
 
 R. v. Horton, 4 Price, 150 [1817] 
 
 R. v . Hutchins, L. R. 5 Q. B. D. 353; L. R. 6 Q. B. D. 300; 49 L, J. 
 
 M. C. 01 ; 50 L. .1. M. C. 35 [ 1881 ] . . 25, 55, 07, 68, 70, 92, 91 
 R. v. Jenkin, Cas. temp. Hardwicke, 301 1 1736] .... 
 
 R. r. Kenilwortb, 2 T. R. 598 1 1788] 
 
 l: . LoUey, Rubs. 8 Ry. C. C. R. 237 |1812| . . . 172, 173, 174 
 l:. ,, London ■ North Weatern Ry. Co., 23 L. J. Q. B. 185 ; 3 E. cV B. 
 
 143 1 1854| ... 
 
 |;. ,. Lubbenbam, I T. R. 251 1 17911 . . ... 
 
 r. , Macben, 18 L J. M. C. 213; n Q. B. 71 1 1849 1 . 
 
 l;. ,, Maurer, !■■ &■ l0 Q- ,; - "• :,l:{; 52 L ''• NL C " lul ; :;l W - Rl 
 
 609 [1883] 
 
 ,-. Mayor, c. oi Sandwich, L0 Q. B. 563 |1846| .... 
 
 394 
 20 
 92 
 
 89 
 
 8 
 41 
 92 
 90 
 
 417 
 
 4 10 
 
 39 
 
 . 53, 106 
 
 40, 88, 4 10 
 
 76, 92, 90 
 
 . 39, !H 
 
 >1 
 
 100 
 90 
 
 94 
 
 79 
 
 90 
 
 91 
 175 
 
 13, :m 
 
 !io 
 
 i: 
 
 II. ,-. Mayor <>f York, 5T. R. 72 1 1792 
 
 i:. 
 
 R, 
 
 i: 
 
 R. 
 
 o. McNamara, R. & R C. C. 342 1 1818 
 p. \,. ■... College,2 Levinz, I I 1671; . 
 Per i ,11, I Rolle'a Rep. 130 1616 
 Raines, I Ld. Raymd. 262 1698 
 K. ,-. Rhodes, 2 Str. 703 [1726] . 
 
 98 
 
 107 
 . 53, 107 
 
 86, lus, no, n; 
 407 
 223 
 
 . III. II.. 
 417
 
 xlviii 
 
 CABLE ui-' CASES. 
 
 R. Ric. pagk 
 
 K. 9. Richardson, Sessions Papers, 1764—1765, p. 348 [1765] . . 41!) 
 
 R. r. Rislip, I Ld. Raymd. 394 [1698] 418 
 
 R. v. Shaw, R. & R C.C. 526 [1823] 20 
 
 R. •. South Bolland, 8 L. J. Q. B. 04 ; S A. & E. 429 ; 1 I'. & D. 79 
 
 [1838 319 
 
 R. >. St.George, Bloomsbury, 24 L. J. M. C. 49 ; 4 E.k 11.5-20 [1855] 48 
 
 R. .-. st. Panoras, Peake's N. P. C'as. 219 [1794] 
 
 R. o. sterling, 1 Leach, C. C. 99 ; 2 East P. C. 950 [1773] . 
 
 R. v. Suddis, 1 East, 300 [1801] 
 
 R. v. Sutton, 4 M. & S. 532 [1816] 
 
 R, v. Templeman, 1 Salk. 55 [1702] 
 
 i: : Twiss, Sir Travers, L. R. 1 Q. I',. 407, 413 ; 38 L. J. Q. B. 228 ; 10 
 
 B. fc S. 298 1869 | 
 
 !,'. v. Vincent', 1 Str. 4S1 [1721] 
 
 R. v. Warden of Fleet, Holt's Rep. 134 [1694] . 
 
 R. v. Wick St. Lawrence, 3 L. J. M. C. 82 ; 5 B. & Ad. 526 ; 2 N 
 
 289 1833 
 
 R, ■. Wye, 7 k. J. M. ( '. 18 : 7 A. & E. 761 ; 3 N. & P. 6 1838] 
 
 Rafael ': Verelst, 2 Sir W. Bl. 1055 [1776] 
 
 Rainsford v. Smith, Dyer, 190 a.(note) [1560] . 
 
 Ramsbottom v. Buckhurst, 2 M. & S. 565 [1814] 
 
 Ramsden v. Dyson, L. R. 1 H. L. 129 ; 12 Jur." N. S. 506 ; 14 W. R. 
 
 926 [1865—1866] 350 
 
 Ramsden v. Jackson, 1 Atk. 292 [1737] 36 
 
 Hanger v. Great Westero By. Co., 5 H. L. Cas. 172 [1854] . . 21 
 
 Ravee v, Farmer, 4 T. R. 140 [1791] 43, 59 
 
 Rawlins's Case, Jenkins's Rep. (Gth. cent.) Case 40, p. 254 : Co. Rep., 
 
 vol. ii. p. 419 [1586] . . . 21 li, 221, 222, 226, 227, 228, 231, 394 
 
 Bead's Case, L. T. (Eur. Arb.) 10, 13 [1872] 382 
 
 Read v. Victoria Station, &e. Co., 32 L. J. Ex. 107 ; 1 H. & C. 826 
 
 [1863] 25 
 
 Reed v. Jackson, 1 East, 355 [1801] ... ... 21 
 
 Rees d. Chamberlain v. Lloyd, Wightwick, 123 [1811] . . . 218 
 
 26, 113, 399 
 
 419 
 
 103 
 
 39 
 
 112 
 
 405 
 . 86, 110 
 . 27, 109 
 &M. 
 
 91, 92, 421 
 
 84 
 
 160 
 
 .217, 223 
 
 19 
 
 Reimers v. Druce, 23Beav. 149 [1857] 
 
 120, 121, 122. 125, 133, 140 
 
 24:; 
 
 Rennie v. Robinson, I k. .1. C. 1'. 30; 1 King. 147 [1823]. 
 
 Revell v. Blake. L. II. 7 C P. 300 ; L. R. 8 C. P. 533 ; 41 L. J. C. P. 
 
 129 : 42 L. J. C. P. 165 ; 26 k. T. 57s ; 29 L. T. 07 [1873] . 40, 48, 87 
 
 Reynish v. Martin, 3 Atk. 330 [1746] 408 
 
 Reynolds v. Blackburn, 7 A. & E. 161; 2N..&P. 136 [1837] . . 34 
 
 nolds v. Fenton, 16 k. J. C. P. 15 ; 3 C. B. 187 [1846] . . 128, 401 
 Reynolds v. Wedd, 7 L. J. C- P. 244 ; 4 Bing. N. C. 694 [1838] . 22 
 
 Ricardo v. Garcias, 12 CI. 8 Fin. 368 [1845] . US, 120, 121, 124, 140, 141 
 Richards v. Browne, 6 L. J. C. P. 95 ; 3 Bing. N. C. 499; 4 Sc. 262 
 
 [1837] 311 
 
 Richards v. Johnston, 28 L. J. Ex. 322 ; 4 H. & N. 660 1859 . . 5,305 
 Richards • , gan, 33 k. J. Q. B. 114; 4 B. & S. 041 [1863] . . 3, 39
 
 TABLE OF CASES. 
 
 xlix 
 
 Ric— Rus. 
 
 Richardson v. Williams, 12 Mod. 319 1699j .... 
 
 Richardson v. Williamson. L. R. Q. P.. 276 ; 40 L. J. Q. B. 14 
 
 [1871] 
 
 Riche's Case, 3 Leon, 52, pi. 75 [1573] 
 
 Rideal v. Great Western Ry. Co., 1 F. & F. 706 [1859] . 
 
 Rigge v. Burbidge, 15 L. J. Ex. 309 ; 15 M. & W. 598 ; 4 Dow. & I. 
 
 P. C. 1 [1846] 
 
 Right v. Bucknell, 2 B. & Ad. 278 [1831] . 
 
 Right v. Proctor, 4 Burr. 2209 [1768] 
 
 Roach v. Garvan, 1 Ves. Sen. 157 [1748] .... 71,161 
 
 Robarts v. Tucker, 20 L. J. Q. B. 270 ; 16 Q. B. 560 [1851] . 
 
 Roberts <:. Eastern Counties Ry. Co., 1 F. & F. 460 [1859] 
 
 Roberts v. Fortune, Harg. Tracts, p. 468 [1742] 
 
 Roberts v. Ogilby, 9 Price, 269 [1821] 
 
 Robins v. Crutchley, 2 Wils. 118 [1760] .... 37, S6 
 
 Robiuson's Case, Cro. Jac. 14; Co. Rep. vol. iii. p. 66 
 
 Robinson v. Bland, 2 Burr. 1077 [1760] 
 
 Robinson v. Duleep Singh. L. R. 11 Ch. D. 798 ; is L. .1. Ch. 758 
 
 [1877-1879] 
 
 Robinson v. Xahon, 1 Camp. 245 [1808] 
 
 Robinson v. Robinson, L. R. 2 P. D. 75; 46 L. J. P. D. & A. 1 
 
 [1877] 
 
 Robinson v. Yarrow, 7 Taunt. 455 [1817] 
 
 Rock r. Leigliton, 1 Salk. 309 [1700] 
 
 Roe w. Eicks, 2 Wils. 13 [1754] . .... 
 
 Roe d. Berkeley e. York. Archbishop of , 6 East, 86 [1805] 
 Rogers v. Pitcher, 6 Taunt. 202 [1815] ... 
 
 Rogers v. Wood, 2 B. & Ad. 245 [1831] 
 
 Romford (anal Co., in re, L. R. 24 Ch D. 85 ; 52 L. J. Ch. 729; 49 
 
 L. T. IIS |1883] 331, 340. 383, 386 
 
 Hot; Fansbaw, 3 Atk. 627 1 1748] -ins 
 
 illon o. Rousillon, L. R. 14 Ch. D. 351 ; 49 L. J. Ch. 339 ; 42 
 
 L. T. 679 1 1880 1 ... 126, 127 
 
 Routledge v. Bislop, 29 L, J. M C. 90 i 2 E. & B. 549 (18601 ■ 
 
 [an Ry L33 [1828] 
 Rowland ■ Crankshaw, in re, L. R. I Ch. A.pp. 121 1 1866] 
 
 Rowntrei »b, 2 Taunt. I II |1809| I'M 
 
 Royal Bank of Scotland v. Cuthbert, : : Bkrptcy. Cas 
 
 j Appendij ( 1813 J .... 
 Royal British Bank o. Turquand, 24 L. J. Q. B. 327 
 
 317 B 248 i 6 B. & B. 327 1 1855 —1856] 
 
 Rule v. Jewell, L. R. is I h. D. 660; 29 W. R. 755 
 Rumball v. Metropolitan Hank. I. R. 2 Q. B. D. 194 
 
 346 [1876] 
 
 Rushwortli v. Pembroke, Harare 172 f 1668 ] . 
 •. Langsl iffe, 2 Dougl 51 I |1780| . 
 
 II I 
 
 382 
 
 20 
 307 
 
 215, 217 
 
 194, 214 
 
 418, 422 
 
 282. 2S8 
 
 307 
 
 7, 80, 185 
 
 268 
 
 418, 422 
 
 31, 52 
 
 1 22 
 
 7. 4.". 
 ::n 
 
 394 
 
 284 
 28 
 237 
 265 
 259 
 25 
 
 : 2a I. . -I . Q B 
 
 1881| 
 Hi I. .1 Q. B 
 . 279 
 
 1 4:: 
 
 47 
 
 I II 
 
 328 
 
 3, 306 
 
 192 
 
 L98 
 348 
 
 J29, 368 
 54 
 291 
 d
 
 I 
 
 rABLE OF CASES. 
 
 Kus She. 
 
 Russell r. Smyth, I I L. J. Ex. 308 ; it M. & W. 810 [1842] 
 
 Ryle v. Haggie, Uac. & W. 234 1 1820 [ . . . . 
 
 l'AGK 
 127 
 
 213 
 
 124 
 18G 
 217 
 185 
 402, 403 
 
 Sadler v, Robins, 1 Camp. 2.").'! [1808 1 
 
 Saloucci r. W'oodmass, Dougl. 345 [1784 ] .... 
 
 Salter y. Kidley, ] Show. 56 [1688] 
 
 Salucci v. Johnson, 4 Dougl. 224 [1785] 
 
 Sanderson v. Collman, 1 M. & Gr. 209 ; I Scott N. R. 638 [1842] 284 
 Sandwich. Mayo, of, &C. p. R., 16 L. J. Q. B. 432; 10 Q. B. 571 
 
 1 1847 1 107 
 
 Sandys v. Hodgson, 9 L. J. Q. B. 31 ; 10 A. & E. 472 ; 2 P. & D. 435 
 
 [1839] 343, 349, 371 
 
 Saunders v. Merry weather, 35 L. J. Ex. 115 ; 3 H. & C. 902 1 1865 J . 216 
 
 lies v. London & South Western Ry. Co., 53 L. T. (O. S.) 44 [1872] 332 
 
 Scarf r. Jardine, L. R. 7 App. Cas. 345 ; 51 L. J. Q. B. 612 |1882| 
 
 31, 282, 301, 378 
 S. hibsby v. Westenholz, L. R. 6 Q. B. 155 ; 40 L. J. Q. B. 73 [1870| 
 
 120, 125, 130 
 Scholefield v. Lockwood, 33 L. J. Ch. 106 ; 32 Beav. 434 [1863] 
 
 ott v. Pilkington, 31 L. J. Q. B. 81 ; 2 B. & S. 11 [1862] . 121, 140, 156 
 Scott o. Shearman, 2 Sir W. Bl. 977 [1774] . . 77, 78, 81, 112, 115, 116 
 
 Scott v. Stansfield, L. R. 3 Ex. 220 [1868] 50, 101 
 
 Scottish Petroleum Co., in re, L. R. 23 Ch. D. 413 [1882—1883] . 347 
 
 Scrimshire v. Scrimshire, 2 Hagg. Const. 395 [1752] . . .167, 400 
 
 Seddon v. Tutop, 6 T. R. 607 [1796] 58 
 
 Segredo, otherwise Eliza Cornish, 1 Spinks, Eccl. & Adm. 36 [1853] 153, 154 
 Selkrig v. Davis, 2 Rose Bankruptcy Cas. 291 [1814] ... 191 
 
 Sergesonn Sealey, 2 Atk. 411 [1742] 115 
 
 Serle v. Williams, Hobart, 121 & 288 [1619] 417,418 
 
 Severn v. Clerk, 1 Leon 122, case 164 [1587] 221 
 
 Sharp v. Paslow, Co. Rep., vol. ii. p. 260 [cir. 1575] ... 19 
 
 Sharpe v. Foy, L. R. 4 Ch. App. 35 [1868] 380 
 
 Shaw v. Attorney-General, L. R. 2 P. & D. 156 ; 39 L. J. Mat. 81 ; 
 
 23 L. T. 322; 18 W. R. 1145 [1870] 169,176 
 
 Shaw v. Could, L. It. 3 H. L. 55 ; 37 L. J. Ch. 433 [1868] 
 
 73, 152, 169, 174, 175, 176, 177 
 
 Shedden v. Patrick, 1 Macq. 535 [1854] 70, 74, 139 
 
 Sheehy v. Professional Life Assurance Co., 22 L. J. C. P. 244 ; 2 C. B. 
 
 N. S. 211 ; 3 C. B. N. S. 597 ; 13 C. B. N. S. 787 [1853-1857] . 129 
 
 Sheffield r. Duchess of Buckingham, 1 Atk. 628, 630 [1739] . . 407 
 
 Sheffield v. RatcMe, Hobart 339 [1614] 8 
 
 Sheffield & Manchester Ry. Co. v. Woodcock, 11 L. J. Ex. 26 ; 7 M. 
 
 & W. 574 [1841J 312 
 
 Shelbury ». Scotsford, Yelverton, 22 [1602] 269, 271 
 
 Shelley v. Wright, Willes, 9 [1773] 217 
 
 Sheridan v. Barrett, 4 L. R. Ir. 223 [1879] . .351
 
 TABLE OF (ASKS. 
 
 11 
 
 She— Spe. page 
 
 Sheridan v. Now Quay Co., 28 L. J. C. P. 58; 4 C. B. X. S. CIS 
 
 [1858] 271 
 
 Shirley v. Ferrers, cited 11 Yes. Jim. 535, 536 [eir. 1800]. . . 318 
 
 Sill v. Worswick, 1 H. Bl. G65 [1791] .... 140, 190, 191, 192 
 Snnra v. Anglo-American Telegraph Co., L. R. 5 Q. B. D. 18S ; 49 L. 
 
 J. Q. B. 392 [1870] . . 2, 11, 12, 16, 219, 273, 298, 304, 310, 373 
 Simonin u. Mallac, 29 L. J. P. M. & A. 971 ; 2 S\v. & T. 67 [I860] 165 
 
 Simpson r. Bloss, 7 Taunt. 246 ; 2 Marsh. 542 [1816] . . . 202 
 
 Simpson v. Fogo, 29 L. J. Cli. 657 ; 32 L. J. Ch. 249 ; 1 J. & H. IS ; 
 
 1 H. & M. 195 [I860] . 62, 64, 76, 117. 120, 131. 132, 140, 140, 154, 157 
 Simpson v. Pickering, 4 L. .1. Ex. 20: 1 ('. M. & R. 529; 5 Tyr. 143 
 
 [1834] 6, 52 
 
 Sinclair v. Fraser, 1 Dougl. 4 [1778] 4 19 
 
 Sinclair ». Sinclair, 1 Hagg. Const. 294 [1798] 166, 169 
 
 Skaife v. Jackson, 3 L. .1. K. B. 43; 3 B. & C. 421 ; 5 1). & R. 290 
 
 [1824] 306 
 
 Skipwithw. Green, 1 Str. 610; 8 Mod. 311 [1725] .... II 
 
 Skipwith r. Steed, 2 Cro. F;iiz. 769 [1600] 223 
 
 Shade's Case, Co. Rep. vol. ii. p. 501 [1596] 59 
 
 Slim v. Croucher, 1 De G. F. & J. 518 ; 2 Giff. 37 [I860] . . . 341 
 
 Smith v. Buchanan, 1 East, 6 [1800] 190 
 
 Smith v. Chester, 1 T. R. 654 [1787] 284 
 
 Smith r. Johnson, 15 East, 213 [1812] 43,59 
 
 Smith /•. Johnson, 27 L. J. Ex. 363 ; 3 H. & N. 222 [1858] . . 280 
 
 Smith v. Kay, 7 11. L. Cas. 750 1 1859 ] 309 
 
 Smith v. Mat-sack, 18 L. J. ( '. I'. 65 ; 6 C. B. 486 [1848] . . . 284, 378 
 Smith v. Molls, 5 Ring. N. < '. 208; 7 Scott, 147 ; 7 D. P. C. 282 
 
 [1839] 18, 118, 119, 120 
 
 Smith v. Rummens, 1 Camp. 9 [ 1807] 108 
 
 Soci6t6 Generale v. Metropolitan Bank, 21 W. R. 335 [ 1873] . . 293 
 
 Solomon v. Turner, 1 Stark. 51 |1815J ..... 259 
 
 Solomons v. Ross, 1 H. Bl. 131, note (a) [1764J 191 
 
 Sopwith v. Sopwith, 30 L. -I. Matr. 131 ; 2Sw. & T. 160 [1861] . m 
 
 Sottomay.r ,-. He Barros, L. R. 2 I'. I). 81 ; I- II. .'! I'. I >. I ; L. R. 5 
 
 P. D. 91 : 19 L. 4. I'. I>. .v A. 1 |1877] 151, 165 
 
 South EaBtern liy. ( '<•. ■-. Warton, 31 1.. .1. Ex. 515; o II. & N". 520 
 
 [1861] 210, 219. 225 
 
 South of Ireland Colliery Co. . Waddle, L. R. 3 C. P. 463 ; L. R. i 
 
 C. P. 617; 37 L. J. C. P. 211; 38 L. J. C. P. 338 [1868 1869|. 381 
 
 South Yorkshire Ry. Co. v. Great Northern Ry. Co., 22 I.. .1. Ex.305; 
 
 9 Ex. 55 [1853] 206 
 
 South cot >: Adams, Yin. Ah. Estop, p. Oil [1695] .... 228 
 
 Spackman v. Evans, L. R. 3 II. L. 171 ; 37 L. J. Ch. 79:; |1868| . 210, 383 
 Sparry's Case, Co. Rep. vol. iii, p. 123 1 1590 1 ..... 155 
 
 Speake v. Richards, Hob. 206 [1618 1 393 
 
 Spencer v, Williams, I.. R. 2 P S D 230; WL J P, 5 M. 45 [ 1871 1 :>.:>::
 
 lii 
 
 l \l'.l,l'. OF CASES. 
 
 St.— Tay. 
 
 St. Nazaire Co., in re, L. R. L2 Ch. D. 88 ; 41 L. T. 110 ; 27 W. K 
 
 854 [1879J 
 
 Stafford u. Clark. 2 Bing. 377 ; 1 C. & P. 403 [1824]. 
 Standish w. Ross, 19 L. J. Ex. 1S5 ; 3 Ex. 527 [1849 1 
 Stanhope's, Sir Michael, Case, Yin. A)>. Estop, p. 401 [1610J . 
 Stanley r. Stanley, L. 11. 7 Ch. D. 589 ; 47 L. J. Ch. 256 [1878] 
 stapleford Colliery Co., hi n-, Barrow's Case, L. R. 14 Ch. D. 4:52 ; 
 
 49 L. J. Ch. 498 [1880J 40, 
 
 Stavertou, Parish of, v. Ashburton, Parish of, 4 E. & B. 526 [1855] 
 Steadman ». Duhamel, 14 L. J. C. P. 270 ; 1 C. B. 888 [1845] . 
 
 Stephens v. Elvvall, 4 M. & S. 259 [1815] 
 
 Stepheuton v. Gardiner, 2 P. Wms. 286 [1725] .... 
 Stevens v. Tillett, L. R, 6 C. P. 147 ; 40 L. J. C. P. 7S [1870 1 
 
 Stouard v. Dunkin, 2 Camp. 344 [1810] 
 
 Stone y. Whiting, 2 Stark, 235 [1817] 
 
 Stratford & Moreton Ry. Co. v. Stratton, 2 B. & Ad. 518 [1831] 
 
 Straton v. RastaU, 2 T. R. 306 [1788] 
 
 Stringer's Estate, in re, Shaw v. Jones-Ford, L. R. 6 Ch. ~D. 1 ; <■ 
 
 L. J. Ch. 633 [1877] 
 
 Stroud v. Gerrard, Lady, 1 Salk. 8, pi. 19 [1707] 
 
 Stroud v. Stroud, 7 M. & Gr. 417 [1844] 
 
 Stroughill v. Buck, 14 Q. B. 781 ; 14 Jur. 741 [1850] 
 
 Strowd v. Willis, 1 Cro. Eliz. 362 [1594] 
 
 Strutt v. Bovington, 5 Esp. 57 [1803] 
 
 Sturgeon v. Wingfield, 15 L. J. Ex. 212 ; 15 M. & W. 224 [1846] 
 
 Style r. Hearing, Cro. Jac. 1, 73 [1605] 
 
 Sumner v. Scholfield, 43 L. T. 763 [1880] 
 
 Sutton's Case, 1 Cro. Eliz. 140 [1586] 
 
 Sutton r. Tatham, 8 L. J. Q. B. 210 ; 10 A. & E. 27 ; 2 P. & D. 308 
 
 [1839] 
 
 Swan, Ex parte. North British Australasian Co., in re 30 L. J. C. 1 
 
 113; 7C. B. N. S. 400 [1859] 292 
 
 Swan v. North British Australasian Co., 31 L. J. Ex. 425 ; 32 L. J. Ex 
 
 -'73 ; 7 H. & N. 603 ; 2 H. & C. 175 [1862] 14, 277, 290, 303, 
 
 Swatmau v. Ambler, 22 L. J. Ex. 81 ; 8 Ex. 72 [1852] 
 Swift v. Heath, Carth. 110 [1686] .... 
 Syllivan v. Stradling, 2 Wils. 208 [1764] . 
 Sylph, the, L. R. 2 Adm. 24; 39 L. J. Adm. 14 [1867| 
 Syms's Case, Co. Rep. vol. iv. 239 [1608]. 
 
 PAGE 
 
 64 
 399 
 
 41 
 
 9 
 
 380 
 
 200, 3S4 
 
 48 
 
 205 
 
 329 
 
 407 
 
 61, 101 
 
 268, 272 
 266 
 390 
 
 193, 300 
 
 255 
 
 24 
 
 343 
 
 216, 220 
 
 217, 225 
 57, 395 
 
 229, 236 
 
 226, 228 
 
 261 
 
 397 
 
 314 
 
 318, 357 
 
 310, 312, 
 
 355, 358 
 
 203 
 
 263 
 
 242, 24S 
 
 59, 83 
 
 10, 19 
 
 Talleyrand v. Boulanger, 3 Ves. 447 [1797 ] . 
 Tarleton v. Tarleton, 4 M. & S. -2) J 18151 • 
 Tayler v. Great Indian Peninsular Ry. Co., 28 L. 
 De G. &.I. .V.!) [1859| . . 
 
 .1. Ch. 281 
 
 . LSI, 151 
 
 . 23, 1 22, 421 
 709 : 4 
 . 310, 350. 363
 
 TABLE OF OASES. 
 
 l.ll 
 
 Tay Tye. 
 
 Taj lor v. Bowers, L. R. 1 (.,». 
 
 l'AGE 
 
 B. D. 29] : 4.'. I.. .1. (,). B. L63 
 
 1876 1 
 L96, 202, 372 
 Taylor v. Clemson, 2 Q. B. 978; 2 G. & I). 346; 11 CI. & Fin. 610 
 
 [1844] 44, 48 
 
 Taylor v. Ford, 29 L. T. 392; 22 W. R. 47 [ 1873 j .... 129 
 
 Taylor v. Hare, 1 B. & 1'. X. R. 260 [1805] 268 
 
 Taylor r. Xeeclham, 2 Taunt. 278 L1810] 10o 
 
 Taylor o. Tarry, 9 L. J. C. P. 29S ; 1 M. & G. 640 [1840J . . 40 
 
 Taylor v. Phillips, 1 Yes. Sen. 230 [1749] .... 238 
 
 Teuueut v. City of Glasgow Bank, L. R. 4 App. (as. 615 ; 40 L. T. 
 
 694 ; 27 W. R. 694 [1879] 349 
 
 Terry v. Huntingdon, Hardres Rep. 480 [1668] 77 
 
 Thicknesse v. Bromilow, 2 Cr. & J. 425 [1832]. 
 
 Thomas v. Brown, L. R. 1 <). B. D. 714; 45 L. J. Q. B. 811 [1876] 
 
 302, 320, 325 
 Thomas o. Cook, 2 B. & Aid. L19 ; 2 Stark. 408 1 1818J . . 263, 267, 268 
 Thomas v. Ketteriche, 1 Yes. Sen. 333 [1749] .... 40S 
 
 Thompson v. Blackhurst, 2 L. J. K. B. 97 ; 1 N. & M. 266 1 1833] . 46, 120 
 Thompson v. Simpson, L. R. 5 Ch. App. 659 ; 39 L. J. Ch. 8.37 L1870 
 Thome v. Tilbury, 27 L. J. Ex. 407 ; 3 II. & X. 534 [ 1858] 
 Thornton v. Pickering, 3 Keble, 200 [1672 j 
 Thorp & Wingfield's Case, 3 Leon. 20:; [1588] . 
 Thorpe o. Eyre, I A. & E. 920 ; 3 X. & M. 214 1 1834] 
 Todd u. Stewart, 14 L. J. < v ). B. L50 : 9 Q. B. 759 [1845] . 
 Tollemache v. Tollemache, :;o L. .1. Matr. 113; 1 Sw. & T 
 
 [1859J 
 
 Tookerv. Beaufort, 1 Burr. 146; Sayer, 297 [175YJ . 
 Toulmin v. Copland, 2 Phil. 711 [1848] .... 
 Tovcy p. Lindsay, 1 Dow. 117, 131 ; 2 CI. & Fin. 513 [1813] 
 Travis v. Challoner, Gwillim on Tithes, vol. iii. 1237 [1781] 
 Tredegar v. Windus, L. K. 19 Eq. 007 ; 44 L. J. Ch. 268; 32 
 
 590; 23 W. R. 511 [1875] 
 
 Tremenhere v. Tresilliau, 1 Siderlin. 452 [1670J 
 
 Treport's Case, Co. Rep. vol. iii. p. 285 [1594 1 . 
 
 Treviviau v. Lawrence, 1 Salk. 270 ; 2 Ld. Raymd. 1036, 1048; 6 
 
 Mod. 258; Holt's Kep. 282 [1704 1 . .5,26,33,229,395,396 
 
 Trickett u. Tomlinson, 13 C. B. X. S. 663^ 7 L. T. X. S. 078 [1863] 319 
 
 Trotter*. Blake, 2 Mod. 229, 231 [1677] I, 
 
 Trougliton Ami.. 029 [1761 il, 352 
 
 Turner v. Burnaby, 2 Salk. 567 [1703] 19 
 
 Turner >. Eardy, 11 L. J. Ex. 277 ; 9 M. & W. 770 [1842] . 263 
 
 Tumor's Case, Co. Rep, vol. iv. p, !<>•". |161l| 71 
 
 Two8icilies, King of, v. Willcox, I Sim. X. 8. 301 1 1851] . . 16] 
 
 Twyne r s Case, Co, Rep. vol, ii. 212; Smith L. ('. (8th ed. ), vol. i. p, 1 
 
 [1601] 71. 1-M 
 
 Tyerraan Jmith, 25 L. J. Q. B 359; 6 E. k B. 719 (1856] . 318 
 
 558 
 
 337 
 
 269, 27" 
 
 417. 418 
 
 225 
 
 42 
 
 20 
 
 . 172, 17.-. 
 
 114 
 
 59 
 
 172, 174, 179 
 
 54 
 
 L. T. 
 
 18 
 41 
 . 230,
 
 liv 
 
 TABLE OF CASES. 
 
 Ung— Way. 
 
 I M.let ?>. Ungley, L. E. 4 Oh. I). 73 ; L. R. 5 Ch. D. 887 ; 16 L. J. 
 
 Ch. 189 ; 46 L. J. Ch. S54 [1877] 
 
 Unity Bank, ex parte, King, in re, 27 L. J. Bk. 33 ; 3 De G. & J. 63 
 
 [1858] 
 
 Usill v. Hailes, 14 Cox. 61, 64 [ 1878] 
 
 PAGH 
 
 341 
 
 379 
 50 
 
 V u.i.kk r. Dumerque, 18 L. J. Ex. 398 ; 4 Ex. 290 [1849] 
 
 Van Hasselt v. Sack, 13 xMoo. 1'. C. C. 1S5 [1859] . 
 
 Vanbrough v. Cock, 1 Cas. in Ch. 200 [1671] . 
 
 A-auquelin v. Bouard, 33 L. J. C. P. 78 ; 15 C. B. N. S. 341 
 
 Yauxhall Bridge Co. v. Spencer, Jacob, 04 [1821] 
 
 Vcale y. Warner, 1 Wms. Saund. (ed. 1871), p. 570 [1669] 
 
 Vernon's Case, Co. Rep. vol. ii. p. 24S [1573] . 
 
 Vick v. Edwards, 3 P. Wms. 371 [1735] . 
 
 Vooght o. Winch, 2 B. & Aid. 602 [1819 1 .... 
 
 . 127, 129, 401 
 
 . 314, 320 
 
 406 
 
 [1863] . 121, 140 
 
 3J8 
 
 . 241, 306, 403 
 
 19 
 
 . 13, 235 
 
 . 120, 394, 400 
 
 WADDILOVE r. Barnet, 5 L. .1. C. P. 145 ; 2 King. X. C. 538 ; 2 Scott, 
 
 763 [1836] 
 
 Wadling r. Oliphant, L. It. 1 (,>. B. L). 145; 45 L. J. Q. B. 173 [1875] 
 Wake, ex parte, L. it. 11 Q. B. D. 291 ; 52 L. J. M. C. 78 ; 31 W. K, 
 
 704 ; 32 W. R. 82 [1883] 
 
 Walker v. Code, 30 L. J. Ex. 172 ; H. & N. 594 [1861] . 
 Walker v. Richardson, 6 L. J. Ex. 229 ; 2 M. & W. 882 [1837] 
 
 Walker v. Witter, 1 Dougl. 1 [1778] 
 
 Walley v. UeConnell, 19 L. J. Q. B. 162 ; 13 Q. B. 903 [1849] 
 
 Walton v. Waterhouse, 2 Wms. Saund. 820 [1671] . . 229 
 
 Wankford v. Fotherley, 2 Vein. 321 [1694] 
 
 Ward v. Ellayn, Cro. Jac. 201 [1611] .... 
 
 Ward v. Ryan, 10 Ir. Rep. C. L. 17 [1875] 
 
 Ward v. Wilkinson, 4 B. & Ad. 412 [1833] 
 
 Warden v. Bailey, 4 Taunt. 07 [1811] .... 
 
 Warden v. Jones, 20 L. J. Ch. 427 ; 27 L. J. Ch. 190 ; 23 Beav 
 
 2 De G. & J. 76 [1857] 
 
 Warrender p. Warrender, 2 CI. & Fin. 488 ; 9 Bligh. 89 [1834] 
 
 250, 
 
 18, 
 
 , 230, 
 
 120, 
 234, 
 
 103, 
 
 487; 
 
 160, 
 
 Waterhouse v. Loudon ,V South Western Ry. Co., 41 L. T. 553; 44 
 .1. 1'. 154 [1879] 
 
 Watkins v. Oliver, Cro. Jac. 558 ; Buller N. P. p. 233 [1615] . 
 
 Watson v. Lane, 25 L. J. Ex. 101 ; 11 Ex. 769 [1856] . . 247 
 
 Watson r. Little, 29 L. J. Ex. 207; 5 H. &N. 472 [I860] 
 
 Watson v. Threkeld, 2 Esp. 637 [1798] 
 
 Waugh v. Carver, 2 H. Bl. 235 [1793] ... 
 
 Way v. Great Eastern By. Co., L. R. I Q. B. D. 692 ; 45 L. J. Q. B 
 874 |1876] 
 
 Waygood ,-. James, J.. L. t I '. I'. 301 ; 38 L. J. C. V. 195 [1869] 
 
 164, 
 173, 
 
 248, 
 
 71, 
 
 2.52 
 353 
 
 48 
 261 
 263 
 419 
 342 
 250 
 341 
 128 
 245 
 6 
 394 
 
 341 
 169 
 
 178 
 
 336 
 33 
 
 253 
 89 
 
 311 
 
 328 
 
 365 
 
 100
 
 TABLE OF CASES. 
 
 lv 
 
 Wea— Wog. 
 
 Weale v. Lower, Pollexfen, 67 ; Vim Ab. Estop, p. 462 [1672J 
 
 PAGi) 
 
 12 227 220 
 235, 393, 398 
 Webb v. Austin, 13 L. J. C. P. 203 ; 7 M. & Gr. 701 [1844] 227, 228, 234 
 
 Webb r. Cook, Cro. Jac. 535, 625 [1621] 407, 417, 421 
 
 Webb v. Heme Bay Commissioners, L. R. 5 Q. B. 642 ; 39 L. J. Q. B 
 
 221 [1870] 199, 211, 
 
 Weeks v. Propert, L. R. 8 C. P. 427 ; 42 L. J. C. P. 129 [1873] 
 Weld r. Baxter, 25 L. J. Ex. 214 ; 26 L. J. Ex. 112 ; 11 Ex. 816 ; 1 
 
 H. & X. 508 [1856] 
 
 Wenmau v. MacKenzie, 25 L. J. Q. B. 44 ; 5 E. & B. 447 [1855] 
 West Cornwall Ry. Co. v. Mowatt, 19 L. J. Q. B. 478; 15 Q. B. 52 
 
 [1850] . 
 
 West Friesland, the, 1 Sw. Adm. fas. 450 1 1860] . 
 
 Wlialey o. Anderson, Keble, 874 [1665] .... 
 
 Wheal Cnity Wood Mining Co., in re, Chynoweth's Case, L. K. 15 
 
 Cb. D. 13 ; 42 L. T. 636 [1880] 
 
 Whistler v. Lee, Cro. Jac. 359 [1613] .... 
 
 Whiter Bartlett, 2 L. J. C. P. 43 ; 9 Biug. 378 ; 2 Moo. & Sc. 515 
 
 [1832] 
 
 White v. Greenish, 31 L. J. C. P. 93; 11 C. B. N. S. 209 [1861] 299 
 
 Whitehead v. Tattersall, 1 A. & E. 491 [1834]. 
 
 Whitroug v. Blaney, 2 Mod. 10 ; 2 lust. 452 [1675] . 
 
 Whittaker v. Jackson, 33 L. .1. Ex. LSI ; 2 H. & C. 920 |1864| 
 
 Whitton v. Peacock, 2 Bing.N. C. 411 [1835] . 
 
 Wikes v. Morefoots, 1 Cro. Eliz. 86 [1587] 
 
 Wildes v. Russell, L. R. 1 C. P. 722 ; 35 L. J. M. C. 241 ; H.Hi 
 
 689 | 1866| 
 
 Wiles v. Woodward, 20 L. J. Ex. 201 ; 5 Ex. 557 [1850] . 
 
 Wilkinson v. Kirby, 23 L. J. C. P. 224 ; 15 C. B. 430 |1854| 
 
 Wilkinson r. l.ntwidge, I Str. 648 [ 1738 1 .... 
 
 Wilkinson o. Stoney, 1 J. & S. 509 |1839|. 
 
 Williams v. Davies, L. R. II <). B. D. 74 ; 52 L. J. M. C. 87 [1888] 
 
 Williams v. Beales, L. R, 9 C. P. 177 ; 43 L. .1. C. P. 80 [1874] 
 
 Williams v. Jones, 14 L. .J. Ex. 145; IJ M. eV W. 028 [1845] 
 
 Williams *. Richardson, 36 L. T. 505 1 1877] . 
 
 Willooghby v. Brook, 2 Cro. Eliz. 756 1 1600) . 
 
 Wilson's Case, cited 1 H. Bl. 691 [qu. 1736] 
 
 Wilson r. Anderton, 9 L. J. K. B. 48 ; 1 B. & Ad. 450 [1830| 
 
 Wilson v. Butler, 2 M. cV R. 78 ; 1 Bing. N. C. 748 [1838] 
 
 Wilson v. Ray, 10 A. & E. 82 [1839] 
 
 Wilson v. Sewell, 4 Burr. 1!»75 [ 1766 1 .... 
 
 Wilson v. Wilson. L. R. 2 l». & M. 435 ; 41 L. J. P. & M. 33 [ 1872] 
 
 Wilson ,-. Woolfryes, 6 M. & 8. 341 [1817] 
 
 Wiltm, o. Dunn, 21 L. J. Q. B. 60; 17 ',> B. 294 [1851] . 
 
 Wimbisb v. Tailbois, Plowden, 38, 44 |1550| . 
 
 Wogan o. Doyle, L2 L R. Ir. O'l [1883J .... 
 
 322, 383 
 
 382 
 
 232 
 5, 54 
 
 387 
 320 
 230 
 
 20 
 
 26 s 
 
 372, 378 
 
 42 
 
 II 
 
 27 
 
 229 
 71 
 
 21, 48 
 
 225 
 
 392 
 
 284 
 
 28! I 
 
 90 
 
 258, 261 
 
 120, 152 
 
 28 
 
 7, 217 
 
 191 
 
 269 
 
 393 
 
 21. 37 
 
 2fi."» 
 
 180 
 
 203 
 
 252 
 
 71 
 
 245
 
 VI 
 
 PABLE OF CASKS. 
 
 WOI-YOU. PA«Bi 
 
 Wolff «. Oxholm, 6 M. & S. 92 j 1817 1 154,160 
 
 Wood, Alton's Case, 2 Anderson, l~>4; Jenkins's 6tb cent. 251, case 
 
 12 ; Co. Rep. vol. i. p. 68 [1595] 8 
 
 Wood v. Day, 7 Taunt. 646 [1817) 194 
 
 Woodgate v. Knatchbull, 2 T. R. 148 1 1787J 40 
 
 Woodier v. Coventry, 32 L. J. Ex. 185 ; 2 H. & C. 161 |1863| . . 
 
 Woods v. Thiedemann, 1 H. & C. 478 [ 1862 ] 288 
 
 Woolseys Case, Godbolt's Rep. 17S [1610] 39 
 
 Wright r. General Omnibus Co., L. R. 2 Q. B. 1). 271 ; 46 L. J. Q, B. 
 
 129 [1877] I 
 
 Wright v. Leonard, 30 L. J. C. P. 365 ; 11 C. B. N. S. 258 [1861 J . 378 
 
 Wright v. Simpson, 6 Ves. 714 |1802| 131 
 
 Wright v. Wright, 1 Ves. Sen. 409 [1749] 235 
 
 Yeomansu Williams, L. R. 1 Eq. 184 ; :r> L. .1. Ch. 283 [1865] . 311 
 ^ ork Trannvays Co. v. Willows, L. R. 8 Q. B. D. 685 ; 51 L. J. Q. B. 
 
 257 ; 46 L. T. 296 ; 30 W. R. 624 [1882] 388 
 
 Youug v. Grote, 4 Biug. 253; 12 J. B. Moore, 484 [1827] 291, 292, 294, 362, 
 
 363 
 
 Young v. Raiucock, 18 L. J. C. P. 193 ; 7 C. B. 310 [1849] . . 393
 
 TABLE OF STATUTES AND STATUTORY 
 
 RULES. 
 
 13 Edw. 1, c. 1 (Statute De Donis) .... 
 
 2 H. 4, c. 15 (Suppression of Heresy) 
 
 9H. 6, c. 11 (Bastardy) 
 
 27 H. 8, c. 10 (Statute of Uses) .... 
 
 13 Eliz. c. 7, s. 2 (Bankruptcy) 
 
 1 Tac. 1, c. 11 (Bigamy) 
 
 I Jac. 1, c. 15, s. 13 (Bankrupt's creditors) 
 29 Car. 2, c. 3 (Statute of Frauds) .... 
 
 s. 2 
 
 3 \V. & M. c. 15 iCustoms) 
 
 7 & S Will. 3, c. 25, s. 7 (Elections, Fraudulent Conveyau 
 
 9 Will. 3, c. 35 (Blasphemy) 
 
 In Anne, c. 31, s. 1 (Elections, Fraudulent Conveyance) 
 
 10 Geo. 1, c. 10, s. 16 (Customs) .... 
 'i Geo. 2, c. 36 (The Mortmain Act) .... 
 
 I I Geo. 2, c. 19, s. 22 (Avowry) .... 
 13 Geo. 3, c. 78, s. 24 (Public Highway Act) . 
 32 Geo. 3, c. 58 (Quo warranto) .... 
 
 :u Geo. 3, c. 64 (Highways) 
 
 53 < Jeo. 3, c. 141 (The Annuity Act) 
 
 s. 8 
 
 A i ;to. 4, c. 83 (Factors) . . . • . 
 
 6 Geo. 4, c. 50, ss. 60, 61 (Juries) .... 
 ii i ieo. 4, c. 94 (Factors) 
 
 1 W. 4, c. 6 (Carriers Act) 
 3 & 4 Will. 4, c. -I' Statute of Limitations) 
 3 & 4 Will. 4, c. 91, s. 47 (Juries, Ireland) 
 5 & 6 Will. 4, c. 50, s. 73 (Highways) 
 
 7 Will. 4 it 1 Viet. c. 78 Municipal Corporations) . 
 
 2 .V 3 Vict. c. 71, 8. ») (Metropolitan Police Act) 
 
 5 & ii Vict. c. 39 Factors 
 
 6 4 7 Vict. c. 89 Municipal Corporations 
 
 'i Vict, c, 18, b. 68 Land Clauses Consolidation Act) 
 > Vii t. c 106 ( Heal Property Amendment Act) 
 
 j. 3 
 
 
 
 ce) 
 
 PAGE 
 
 5 
 . 425 
 . 422 
 . 23G 
 147, 148 
 . 411 
 147, 148 
 264, 320, 340 
 261 
 S2 
 200 
 425 
 200 
 80 
 200 
 242 
 94 
 105 
 93 
 199 
 206 
 330 
 L12 
 33U 
 . 365 
 254, 34;: 
 112 
 
 . 49 
 . 106 
 . 4S 
 . 339 
 . LOG 
 25, 114 
 
 . -J.il 
 . 215
 
 J v i i i 
 
 TABLE OF STATUTES. 
 
 I'Af.K 
 
 1 1 & 12 Vict. C. 43, s. 14, Sched. Form L. (Justices of the Peace, Summary 
 ( lonvictions) ....... 
 
 11 & 12 Vict. c. 44(Jervis'sAct) .... 
 
 1 1 & 12 Vict. c. 63. s. 85 (Public Eealth Act, 1848) . 
 14 & 15 Vict., c. 99 (Lord Brougham's Act) 
 
 14 & 15 Viet. c. 105, s. 12 (Maintenance of Poor Persons 
 
 15 & 16 Vict. c. 7C (C. L. P. Act, 1852) . 
 
 16 & 17 Mot. c. 59, s. 19 (Banks) .... 
 Rules 22 & 23 of T. T., 1853 (under C. L. P. Act, 1852, 15 & 16 Viet 
 
 17 & 18 Vict. e. 31 (Railway and Canal Traffic Act) . 
 
 17 & 18 Vict. e. 12.1 (C. L. P. Act, 1854) . 
 
 18 & 19 Vict. e. Ill, s. 3 (Bills of Lading) 
 
 19 & 20 Vict. c. 47 (Companies Act, 1856) 
 
 s. 25 . . . . . 
 
 19 & 20 Vict., e. 10S, s. 32 (County Court Act, 1856) 
 
 ss. 50, 51 
 
 20 & 21 Vict. c. 14 (Companies Act, 1857) 
 
 ss. 8, 9 
 
 20 & 21 Vict. c. 77 (Probate Court) .... 
 
 20 & 21 Vict. c. 85 (Matrimonial Causes Act, 1857) . 
 
 s. 27 
 
 21 & 22 Vict. c. 93 (Legitimacy Declaration Act, 1858) 
 
 23 & 24 Vict. c. 126 (C. L. P. Act, I860) . 
 
 24 & 25 Vict. c. 100, s. 45 (Criminal Law Consolidation Act, 1861) 
 
 25 & 26 Vict. c. 89 (Companies Act, 1862) 
 
 s. 35 
 
 29 & 30 Vict. c. 109 (Navy Discipline Act, 1866) 
 
 30 & 31 Vict. c. 131, s. 25 (Companies Act, 1867) . 
 
 31 & 32 Vict. c. 6, s. 5, s. 11, sub-s. 15, s. 29 ( Parliamentary Elections 
 Act, 1868) 
 
 32 & 33 Vict. c. 19 (Stannaries Act, 1869) 
 
 s. 35 
 
 32 & 33 Vict. e. 71, s. 10 (Bankruptcy Act, 1869) . 
 
 33 & 34 Vict. c. 52 (Extradition Act) 
 33 & 34 Vict. c. 97 (Stamp Act, 1870) 
 
 35 & 36 Vict. c. 5 (Bastardy Laws Amendment Act) 
 
 36 Vict. c. 9 (Bastardy Laws Amendment) 
 36 &. 37 Vict. c. 66 (Judicature Act, 1873) 
 
 ss. 16. 18 
 
 s. 25, sub-s. 11. 
 
 s. 26 
 
 s. 31 
 
 ::7 & 38 Vict. c. 62 (Infants" Relief Act, 1874) . 
 38 & 39 Vict. c. 55 (Public Health Act, 1875) . 
 
 s. 150 
 
 s. 174 . . . 
 
 
 . 
 
 98 
 
 . 
 
 49 
 
 . 
 
 381 
 
 . 
 
 108 
 
 93 
 
 100 
 
 
 394 
 
 286, 
 
 288 
 
 c. 76) 
 
 28 
 
 . 
 
 344 
 
 . 
 
 394 
 
 
 308 
 
 356, 
 
 357 
 
 . 
 
 357 
 
 . 
 
 30 
 
 . 
 
 17 
 
 . 
 
 357 
 
 . 
 
 357 
 
 . 
 
 406 
 
 . 
 
 406 
 
 . 
 
 181 
 
 . 
 
 89 
 
 , 
 
 394 
 
 . 
 
 49 
 
 20S, 
 
 372 
 
 , 
 
 322 
 
 , 
 
 101 
 
 • 
 
 383 
 
 ;tions 
 100, 
 
 101 
 
 
 323 
 
 
 
 323 
 
 
 
 87 
 
 
 
 98 
 
 
 
 99 
 
 
 
 90 
 
 
 
 90 
 
 
 64 
 
 •,72 
 18 
 
 222 
 20 
 
 83, 
 
 85 
 
 , 86 
 
 200 
 
 95 
 
 97, 
 
 323 
 
 t 
 
 
 381
 
 TABLE OF STATUTES. 
 
 lix 
 
 :>s .fc 39 Vict. c. 77 Judicature Act, 1875) 
 
 onl. XLI. r. (i . . . 
 County Court Orders, 187"), ord. XVI. r. 17 
 
 39 & 40 Vict. c. 81 (Cheques) .... 
 
 40 &. 41 Vict. c. 39 (Factors Acts Amendment) 
 
 s. 3 
 
 !•_' & 43 Vict. c. 33 (.Army Discipline and Regulation Act, 
 43 <fc 44 Vict. c. 4-2 (Employers' Liability -Act, 1880) 
 ■14 & \~> Vict. c. 41, s. 49 ( 'onveyanciug Act, 1881 I 
 a:> & 40 Vict. c. (51 (Bills of Exchange Act, 1882) 
 s. 20 . 
 s. 22 . 
 . 23 
 s. 24 . 
 
 s. 30, subs. 2 
 B. 7A . 
 s. 55, sub-s. 1 
 s. 55. sub-s. 2 
 a. 56 . 
 s. GO . 
 s. 62 . 
 s. 04 . 
 s. 73 . 
 s. 88, sub-s. 2 
 s. 89 . 
 45 & 40 Vict. c. 7"> -Married Women's Property Act 
 40 & 47 V ict. c. 52 (Bankruptcy Act, 1883) 
 ss. 20, 30, sub-s. 3 
 s. 82, sub-s. 3 
 ss. 92, 132, 138, 140, sub-s 
 s. 107 .... 
 4G k 47 Vict. c. 57, s. 1 1 (Corrupt and Illegal 
 Rules of the Supreme Court, 1883. 
 ord. XIX. r. 1 3 
 r. 15 
 ord. XXI. r. 5 
 ord. XXIV. rr. 1 & 2 
 ord. XXV. r. 1 
 
 rr. 1 ct 2 . 
 ord. XXVI. r. 1 
 ord. XXVII. r. I, rr. 2—14 
 ord. XXXII. r. 4 . 
 ord. \l.l. 
 ord. LXIV.r. 14 
 
 1882) 
 
 1879) 
 
 'r.urti'cs Prevention 
 
 
 l'AUH 
 
 29, 72 
 
 
 30 
 
 . 
 
 30 
 
 . 
 
 280 
 
 
 330 
 
 
 330 
 
 . 
 
 101 
 
 
 99 
 
 
 215 
 
 277, 
 
 280 
 
 283, 
 
 291 
 
 . 
 
 280 
 
 
 281 
 
 278, 
 
 282 
 
 
 289 
 
 
 284 
 
 
 296 
 
 285, 
 
 296 
 
 
 286 
 
 
 286 
 
 2S4, 
 
 285 
 
 293, 
 
 290 
 
 2S2, 
 
 2S0 
 
 
 290 
 
 . 
 
 2S3 
 
 . 
 
 200 
 
 72, 
 
 100 
 
 . 
 
 87 
 
 
 88 
 
 
 87 
 
 
 88 
 
 t). 
 
 KM 
 
 
 35 
 
 . 
 
 392 
 
 . 
 
 52 
 
 
 397 
 
 52, 
 
 391 
 
 
 391 
 
 
 30 
 
 . 
 
 35 
 
 • 
 
 32 
 
 '* 1 
 
 
 O 1 
 
 20
 
 THE 
 
 LAW OF ESTOPPEL. 
 
 CHAPTER I. 
 
 ESTOPPELS GENERALLY. 
 
 "Estoppe," says Lord Coke (a), " cometli of the 
 French word estoupe, from whence the English word 
 stopped ; and it is called an estoppel or conclusion, 
 because a man's own act or acceptance stoppeth or 
 closeth up his mouth to allege or plead the truth." 
 
 There is also a general definition of the term estop- 
 pel given in " Les tonnes de la Ley " (/>), as follows : 
 "Estoppel is, when one is concluded and forbidden in 
 law to speak against his own act or deed, yea, though it 
 he to say the truth." 
 
 The above definitions are satisfactory as far as they 
 go, but they are not sufficiently comprehensive. For 
 instance, they do nol appear to include the estoppel 
 arising from the judgment in rem of a court of record. 
 It is, indeed, a matter of some difficulty to give a good 
 general definition of the term estoppel. It may suffice 
 
 "i i <'o. Litt. 352 a j sec also (',) Tit. Estop. ; and see AsJqri- 
 
 Yin. Ab. Estop. A. 2, p. Ii'l; tel v. Bryan, 3 B. & S. 17 1. 
 citing Bro, Estop, pi. I •"''>. 
 
 i:
 
 2 INTRODUCTORY CHAPTER. 
 
 for the present to say that it is a legal result or " con- 
 clusion " arising from an admission which has cither been 
 actually made, or which the law presumes to have been 
 made, and which is binding on all persons whom it affects. 
 Or we may adopt the definition of estoppel given by 
 Bramwell, L. J., in a recent case (c), in which he says : 
 " An estoppel may be said to exist where a person is 
 compelled to admit that to be true which is not true, and 
 to act upon a theory which is contrary to the truth. 
 This formula nearly approaches a correct definition of 
 estoppel." 
 
 It may be as well here to point out the difference 
 between estoppels and mere admissions ; as, although 
 every estoppel arises from an admission of some kind or 
 another, that is, either from an actual admission or from 
 one presumed by the law to have been made, it does not 
 follow that every admission operates as an estoppel. One 
 difference is that admissions can be made use of by 
 persons who were not parties to the action in which such 
 admissions were made, whereas estoppels are only binding 
 on the parties or their privies (d). For instance, a 
 deposition taken under the old system of Chancery pro- 
 cedure, and made use of by a party to a Chancery suit, 
 was held to be admissible against him in a subsequent 
 common law action, brought against him by a stranger 
 to the suit (e). 
 
 The principle on which admissions are thus used has 
 
 Sim in v. Anglo- American ever, binding also on strangers. 
 Telegraph C<>., L. R. 5 Q. B. D. (e) See a case referred to by 
 
 |.^s. Blackburn, J., in Hutchinson v. 
 
 <</) Judgments in rem are, bow- Glover, L. R. 1 Q. B. D. 140.
 
 ESTOPPELS GENERALLY. 3 
 
 been explained by Cockburn, C. J., as follows (/) : " A 
 party seeking- to establish a fact by evidence, must be 
 taken to assert the fact he seeks to prove : so that 
 evidence, whether oral or documentary, will be admissible 
 against the party using it, in a subsequent proceeding 
 with a different party, not for the purpose of proving all 
 the statements it contains, but only so far as it appears 
 to have been used to establish a given fact or facts. 
 The evidence is so used against the party producing 
 it, as an admission by conduct, and as having been 
 in effect his own statement."' 
 
 The nature of admissions is also explained by Lord 
 Tenterden, C. J., as follows {g) : " A receipt is an 
 admission only, and the general rule is that an admission, 
 though evidence against the person who male it, and 
 those claiming under him, is not conclusive evidence, 
 except as to the person who may have been induced by 
 it to alter his condition" (A). The principle here 
 enunciated is similar to the one on which estoppels 
 in pais depend, as will be seen hereafter, and perhaps the 
 distinction between estoppels in pais and admissions is 
 rather a line one (/). 
 
 "The reasons." says Lord Coke (k), "why estoppels 
 are allowed, seem to be these. Xo man oimht to allege 
 anything but the truth for his defence, and whal he has 
 
 (/) RicJiards v. Morgan, I I'., cuasion of the difference between 
 
 I 1 ■ estoppels and admissions, Bringlot 
 
 ( : /) Graves v. Key, 3 B. & Ad. v. Goodson, 5 Bing. N. < '. 738 ; 
 
 318. and Smith's L. C.(8th ed.) vol. II. 
 
 (h) See also per Bayley, J., in p. 802. 
 // ane v. Rogers, 9 B. & C. 577. (/) C ». Lit! 352a, note (1). 
 
 (i) Sue also, for a further dis-
 
 4 INTRODUCTORY CHAPTER. 
 
 alleged once, is to be presumed true, and therefore, lie 
 ovurht not to contradict it : for, as it is said in the 4 Inst. 
 272, ' Allegans contraria non est audicndus.' 
 
 " Secondly, as the law cannot be known till the facts 
 are ascertained, so neither can the truth of them be 
 found out but by evidence : and therefore, it is reasonable 
 that some evidence should be allowed to be of so high 
 and conclusive a nature, as to admit of no contradictory 
 
 proof." 
 
 Again, Lord Coke writes thus, concerning the three 
 principal divisions of the subject (Q; "Touching estoppels, 
 which is an excellent and curious kind of learning, it is 
 to be observed that there be three kinds of estoppels, viz., 
 by matter of record, by matter of writing (m), and by 
 matter in paiis. 
 
 " (a) By matter of record, viz., by letters patent, fine, 
 recoverie, pleading, taking of continuance, confession, 
 imparlance (n), warrant of attorney, admittance. 
 
 " (/3) By matter in writing, as by deed indented, by 
 making of an acquittance by deed indented or deed poll, 
 or by defeasance by deed indented or deed poll. 
 
 " (y) By matter in paiis, as by liverie, by entry, by 
 acceptance of rent, by partition and by acceptance of an 
 estate : whereof Littleton maketh a special observation, 
 that a man shall be estopped by matter in the country 
 without any writing." 
 
 Lord Coke then proceeds to lay down the following 
 general rules regarding estoppels. " To make the reader 
 
 (I) Co. Litt. 352 a, 352 1). Lamport -v. Corlce, 5 B. & Ad. GOG; 
 
 (m) i.e., by deed only. See Graves v. Key, 3 B. & Ad. 313. 
 Slraton v. Eastall, 2 T. R. 36G; (n) Yin. Ab. Estop. K. (3).
 
 ESTOPPELS GENERALLY. 5 
 
 more capable of the learning of estoppels, these few 
 rules, amongst others, are to be known. 
 
 " First, every estoppel ought to be reciprocal, that is, 
 to bind both parties (o), and this is the reason that 
 regularly a stranger shall neither take advantage nor 
 be bound by the estoppel (p). Privies in blood, as the 
 heir (q), privies in estate, as the feoffee (r), lessee (s), &c. : 
 privies in law, as the lord by escheat and tenant by the 
 curtesie, tenant in dower (f), the incumbent of a benefice, 
 
 (») See also Sheppard's Touch- 
 stone (8th ed.) p. 275 ; Cro. Eliz. 
 37 ; Gaunt v. Wainman, 3 Bing. 
 N. C. 69; I' alien v. Purhtd; 12 
 Mod. 361. This applies only to 
 cases where both parties are in- 
 tended to l>c bound, since other- 
 wise there could be no estoppel 
 by deed poll, see Bac. Ab. Tit. 
 Leases (o) ; or in some cases of 
 representation, see post, p. .'580. 
 
 ( />) The general rule is that 
 everyone, who claims under an 
 estoppel, shall take advantage of 
 an estoppel, sec Com. Dig. Tit. 
 Estop, p. 1 95 : and instances 
 there given. See also Heane v. 
 Rogers, 9 B. «v < '. 577 ; Richards 
 v.Jo7vnston, l H.& N". 660; Gaunt 
 v. Wainman, 3 Bing. X. C. G!) ; 
 Doe d. MarcJtant v. Errington, 6 
 Bing. X. < '. 79; Lady Wenman v. 
 Mach nzie, 5 E. & B. 447 ; Spem r 
 v. Williams, L B. 2 P. & D. 230. 
 
 (>/) See Yin. Ab. Estop, p. I 17, 
 
 i /., and p. 478. H appears, 
 
 however, that no estoppel of the 
 
 father binds the heir in tail. Sec 
 
 Jenkins's Eep. p. 113, Case XX., 
 and Statute De Donis. Moreover 
 a personal estoppel does not bind 
 the heir, see Jenkins's Hep. 8th 
 century, p. 330, Case LIX. 
 
 (/■) See Vin. Ab. Estop, p. 447. 
 Thus an assignee of a set of cham- 
 bers in Lincoln's Inn was held 
 not to be estopped from denying 
 the title of his assignor, as he held 
 from the trustees of the Inn, and 
 there was consequently no privity 
 of estate between him and the 
 assignor : JJoe d. Marchant v. 
 Errington, G Bing. N. ('. 7!) ; see 
 also Pnl nh r v. Ekins, - Ld. Ray- 
 mond, L551 ; Treirivian v. Law- 
 ?•( ,i'->, 1 Salk. 27G. 
 
 (■<) But not disseisees : see Vin. 
 Ah. Estop, p. 432. 
 
 (/) A widow continuing in pos- 
 session of her husband's property 
 after his death, is bound by es- 
 toppels respecting the title to the 
 property which would have hound 
 him : sec Dot v. Skirrow, 2 X\ & 
 P. L23.
 
 6 INTRODUCTORY CHAPTER. 
 
 and others that come under by act in law, or in the post, 
 shall be bound and take advantage of estoppels (u) ; and 
 a rebutter (v) is a kind of estoppel." 
 
 Persons deriving their titles through others, are 
 estopped by the same matters as estopped the parties 
 through whom they claim (w). But there is no estoppel 
 on persons who are not parties; e.g., if A. and B. 
 are named executors in a will they are not estopped 
 afterwards from saying that they were not executors, as 
 they are not parties to the will, but arc named by the 
 testator (x). 
 
 " Secondly. — That every estoppel, because it con- 
 cludeth a man to allege the truth, must be certain (y) to 
 every intent, and not to be taken by argument or in- 
 ference." 
 
 There is a rule laid down in Viner's Abridgment to a 
 similar effect, viz., that a man shall not be estopped by a 
 generality, otherwise by a particularity (::). 
 
 " Thirdly. — Every estoppel ought to be a precise 
 affirmation (a) of that which maketh the estoppel, and 
 not to be spoken impersonally; as if it be said, 'ut dicitur, 
 
 (/') See also per Ld. Ellen- 
 borough, in Outram v. Morewood, 
 :i East, 3 1'i ; and see Ward v. 
 Wilkinson, I B. & Ad. 4-12 ; Simp- 
 ton v. Pickering, 1 C. M. it R. 
 529. 
 
 (v) For a definition and deriva- 
 tion of the term Rebutter, see Co. 
 Litt. 303 b (A), and 365 a. 
 
 (,r) Yin. All, Estop, p. -1 L3, 
 citing Bro. Estop, pi. 1 12. 
 ) Ibid. 
 
 (//) Vin. Ab. Estop. A. 2, p. 121, 
 citing Bro. Estop, pi. 172, and 
 pi. 177. 
 
 (z) See Vin. Ab. Estop, pp. 4G~>, 
 et seq. See also Doddington's Case, 
 Co. Rep. vol. i. 519 ; King v. 
 Perceval I, 1 1 tulle's Rep. 430. 
 
 (a) e.g., If I grant all my lands 
 I had by my father, this is no 
 estoppel, .but if it be Blackacre, 
 it is, sec Vin. Ab. Estop, p. -462.
 
 ESTOPPELS GENERALLY. 7 
 
 quia mpersonalitas non eoncludit, ncc ligat : impersonates 
 dicitur, quia sine persona." Neither doth a recital con- 
 clude, because it is no direct affirmation (b). 
 
 "Fourthly. — A matter alleged that is neither tra- 
 versable nor material shall not estoppe (c)." So also 
 mere surplusage docs not act as an estoppel (d). 
 
 " Fifthly. — Regularly a man shall not be concluded by 
 acceptance or the like, before the title accrued. 
 
 "Sixthly.- — Estoppe] against estoppel doth put the 
 matter at large (e). 
 
 " Seventhly. — Matters alleged by way of supposal (/) 
 in counts shall not conclude after non-suit : otherwise it 
 is after judgment given : and after non-suit, albeit the 
 supposal shall not conclude, yet the bar, title, replication, 
 or other pleading of either party, which is precisely 
 alleged, shall conclude after non-suit (<j). 
 
 " Eighthly. — "Where the veritie is apparent in the 
 
 (b) Sec, however, WUloughby v. estoppel, and the other pleads 
 Brook, 2 Cro. Eliz. 756 ; Bowman another estoppel against him 
 v. Taylor, 2 A. & E. 278 ; and again, this is estoppel against 
 other cases which will lie referred estoppel which puts the matter at 
 to in a later chapter. These cases large," Bro. Estop, pi. 183. For 
 decide thai a recital, in order to an instance of an estoppel against 
 be binding as an estoppel, must an estoppel, setting the matter at 
 be the recital of a particular fact, large, Bee Bah rv. Willis, Cro. ( !ar. 
 
 (c) See Viu. Ab. Estop, pp. 132, I. 476 ; see also 1 Ro. Ab. Tit. 
 135, citing Bro. Estop, pi. 103, Estop. 87-1. 
 
 and pi. 158 j also Estop. M. (3), (/) SeeVin. Ab. Estop, p. 441; 
 
 M. (4), citing Bro. Estop.pl. 13, and for an explanation of the term 
 
 and pi. 165. See also Morgan v, Supposal, see Com. Dig. Tit. 
 
 Vaughan, Sir T. Raymond, 156. Pleader, G. 13, and Yin. Ab. 
 
 (d) See Vin. Ab. Estop. p. 458; Supposal, II. 2. 
 
 Bro. Estop. ]-l. _7; . Itto rnty-Gm ral (g) See Vin. Ah. Estop. Sub- 
 
 v. King, 5 Price, 195. heading, Supposal, p. 141, citing 
 
 {< ) " li one party pleads an Bro. Estop, pi, 194, and pi, 39,
 
 8 
 
 INTRODUCTORY CHAPTER. 
 
 same record, there the adverse party shall not be 
 estopped to take advantage of the truth : for he cannot 
 be stopped to allege the truth when the truth appeareth 
 of record (It). 
 
 " Ninthly. — Where the record of the estoppel runs to 
 the disability or legitimation of the person, there all 
 strangers shall take benefit of that record : as out- 
 lawrie (/), excommengement, profession, attainder of 
 praemunire, of felony, bastardy (./), mulierty : and shall 
 conclude the parties though they are strangers to the 
 record (A'). 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 (/)." 
 
 There is one exception to the rule that estoppels ought 
 to be reciprocal, that is, should bind both parties, and 
 that is in the case of the crown ; for it appears from the 
 authorities that the king is not bound by estoppels, though 
 he can take advantage of them. Thus, it is laid down in 
 Viner's Abridgment (m) that the king is not bound by 
 estoppels (».), and that the king is not estopped by his 
 
 (It) For examples of this, see 
 Co. Litt. 352 1). (a) and (o) ; and 
 Com. Dig. Tit. Estop, pp. 196, 
 107. 
 
 (i) Yin. Ah. Estop, p. 450, 
 citing lire. Estop, pi. 15. 
 
 (J) Yin. Ab. Estop, p. 443, 
 citing Bro. Estop, pi. 15. 
 
 (/:) So if a man confesses the 
 deed of his ancestor pleaded 
 against him, it is estoppel for all 
 tli' world to plead it, Bro. Estop- 
 pi. 15. 
 
 (/) For an exception in the 
 case of mulierty, see Co. Litt. 
 352 b. (p). 
 
 (m) Yin. Ah. Estop, p. 432, 
 citing 2 Bo. Rep. 304. 
 
 (n) See also Sheffield v. Ratclife, 
 Hobart, at p. 330, citing Alton 
 Wood's Cxxe, reported in 2 Ander- 
 son, 154 ; Jenkins's Rep. Cth cen- 
 tury, 251, case 42, and Co. Rep. 
 vol. i. p. 08. See also R. v. 
 Dehue, 10 Mod. 200, cited in 
 Petersdorff's Ah. Tit. Estoppel.
 
 ESTOPPELS GENERALLY. 
 
 patent (o). It is also stated in Brooke's Abridgment (p) 
 that the king shall not be concluded, if lie lias matter to 
 serve him. " The king," says Holt, C. J., in Sir Edward 
 Coke's ( ( ase {<j) 1 " is not bound by estoppels nor recoveries 
 had betwixt strangers, nor by fundamental jurisdiction of 
 courts, as appeareth 38 Assize 20, where a suit was for 
 tithes in the Exchequer, being a mere spiritual thing: 
 and shall he be bound by a conveyance?" On the 
 other hand " the king shall take advantage of an estoppel, 
 though he be not party to the record ; for he is always 
 present in the court " (/•). 
 
 The question sometimes occurs whether the law is 
 opposed to estoppels or in favour of them, and the 
 expression "estoppels are odious/' has occasionally been 
 cited as applicable to estoppels generally, as pointed 
 out by Lord Blackburn in the case of Burkmshaw v. 
 Nicolls (-s). Thus in the case of Baxendalev. Bennett (t), 
 Bramwell, L. J., says, " Estoppels are odious ; and the 
 doctrine should never be applied without a necessity for 
 it." But, on referring; to the older authorities in which 
 the expression occurs, it will be found that it is not 
 applicable to every class of estoppel. The expression 
 occurs in Co. Litt. 365 b, al the end of a discussion on 
 the difference between warranties and estoppels. "A 
 warranty," says Coke (u), " is a covenant real annexed 
 to lands or tenements, whereby a man and his heirs are 
 
 ,i \ in. An. Estop, p. I'il, as to this, and see Vin. Ab. Estop, 
 
 citing D'Anver's Ab. vol. iii. p. 178. 
 
 p. 267,and Sir Micliael Stanhope's (r) 2 Inst. p. 39. 
 
 ■ - (dubitatur). («) L. R. 3 App. Cas. at p. 1026. 
 
 ( p) Bro. Estop, pi. 206. \t) L R. 3 Q. B. I), at p. 529. 
 
 (q) Godbolt, 295. But query (u) Co. Litt. 365 a.
 
 10 INTRODUCTORY CHAPTER. 
 
 bound to warrant the same; and either upon voucher or 
 by judgment in a writ of warrantise cartas, to yield other 
 lands and tenements to the value of those that shall be 
 evicted by a former title, or else it may be used by way 
 of rebutter," that is, it may be presumed, as an estoppel 
 against the heir, in case he brings an action of ejectment 
 in contravention of his ancestor's warranty. 
 
 And again, he says (a*), " Note, there is a diversity 
 between a warranty on the part of the mother, and an 
 estoppel ; for an estoppel on the part of the mother, shall 
 not bind the heir, when he claimeth from the father. 
 .... Note, that warranties are favoured in the law, 
 being part of a man's assurance ; but estoppels arc 
 odious." 
 
 So that evidently what Lord Coke intends to say is 
 that, whereas on the one hand it is fair and right that a 
 man's express covenant or warranty should bind him 
 and those claiming under him, it is unfair that a man's 
 tortious acts should bind his successors and prevent 
 them claiming their just rights (i/). 
 
 And, although Lord Coke writes of estoppels in 
 one passage, that they are odious, in another place he 
 says that they arc an excellent and curious kind of 
 learning (z). 
 
 The above expression, "estoppels are odious," occurs 
 again in the argument of counsel for the defendant, in a 
 
 (x) Co. Litt. 365 b. and an estoppel. And see further, 
 
 (//) See also Syms's Case, Co. for a discussion as to warranties, 
 
 Rep. v«.l. [v. p. 245, where a dif- Doctor and Student, pp. 2G2 et 
 
 ference is pointed out between s< 7. 
 
 •\i<- effect of a collateral warranty (.1) Co. Litt. 'do'J, a.
 
 ESTOPPELS GENERALLY. H 
 
 case of Skipwiih v. Green {a), and it was adopted by 
 Pratt, C. J., in his judgment in the same case, where he 
 says, " It has been truly said at the bar, that estoppels 
 are odious in the law : and it would be very hard that 
 the defendant should be bound by this description : and, 
 though all the parties to an indenture are bound by the 
 words thereof in point of law, because they agree to it : 
 yet that must be intended of material words, and not to 
 every minute and descriptive words and circumstances." 
 The estoppel however, in the above case, arose out of the 
 description of the parcels in an indenture, and was of a 
 very technical nature (It). 
 
 The above are the older authorities in favour of the 
 odiousness of estoppels. Estoppels have also been 
 condemned in modern times, and by eminent judges. 
 Thus, in the case of The General Finance Co. v. Liberator 
 Building Society (<•), where an estoppel by deed was 
 again in question, Sir (I. Jessel,M. &, said " I think that 
 I ought not to attempt in any way to extend this doctrine 
 (7. e., of estoppel), by which falsehood is made to have 
 the effect of truth. In my opinion it should not be 
 carried farther than a judge is obliged i<> carry il. ' 
 Ami in a still more recenl case, viz.: Keate v. Phillips 
 d . where il was attempted t<> apply the highly technical 
 doctrine of an estoppel being l\'d by the subsequent 
 acquisition of a legal estate, Bacon, Y.-O., speaks very 
 
 (a) 1 Sir. 610; sec also Yin. Telegraph Co.,L. II. 5 Q. B. D. 
 
 A.b. Estop, p. li'-"-. 188, at p. 20G. 
 
 (A) And Bee, as 1m the dictum (c) I,. I!. I" Ch, D. 15. 
 
 of Brett, I... I., on estoppels l.y (d) L. It. 18 ch. 1). 500. 
 dccil, Simm v. Anglo- American
 
 1£ INTRODUCTORY CHAPTER. 
 
 harshly of estoppels. He says (at pp. 668, GG9) "The 
 common law doctrine of estoppel was, as I have said, a 
 device which (he common law courts resorted to at a very 
 early period fco strengthen and lengthen their arm ; and 
 not venturing to exercise an equitable jurisdiction over the 
 subject before them, they did convert their own 
 special pleading tactics into an instrument by which 
 they could obtain an end which the Court of Chancery, 
 without any foreign assistance, did at all times put into 
 force, in order to do justice. But the doctrine of estop- 
 pel is purely legal " (e). And Brett, L. J., in a recent 
 case (/), speaks as follows of an estoppel by deed : ; ' I 
 incline to think that when the word ' estoppel ' is used 
 with reference to deeds of conveyance or of a similar 
 nature, it is merely a phrase indicating that they must 
 be truly interpreted." 
 
 The doctrine of estoppel may have been in its origin, 
 as Vice-Chancellor Bacon says, purely legal, but it does 
 not appear to have been altogether ignored in the Court 
 of Chancery in early times. Thus, it appears, from the 
 case of Weale v. Lower (g), that an estoppel which binds 
 the estate was not unfavoured in equity. And though 
 it is stated in Pierce v. Johns (It), that a judgment 
 at law is no estoppel in equity, yet in a case of 
 
 (<?) But Chancery proceedings Vin. Ab. Estop, p. 453. 
 
 do not appear to have been rccog- (/) Simm v. Anglo-American 
 
 nised at common law so far as to Telegraph Co., L. R. 5 Q. B. D. 
 
 create an estoppel. Thus a writ 188, atp.20G. 
 
 of the Chancery reciting a man to (g) Pollexf. 07. 
 
 be an infant, was not an estoppel (h) Bunbury's Rep. p. 11 ; Hol- 
 
 to anyone to allege the truth : land v. Clark, 1 Y. & C. C. C. 151.
 
 ESTOPPELS GENERALLY. 13 
 
 Virile v. Edwards (/), where there had been a reference 
 to the master respecting title, the Lord Chancellor was 
 of opinion that trustees, by joining in a fine, would pass 
 a good title to the purchaser by estoppel. The principle 
 of estoppel was also applied in Chancery in the cases of 
 Bond v. Hopkins (/j), and of Daire v. Beversliam (J). 
 
 The following passage from an old authority gives, it 
 is submitted, a correct statement of the origin of estoppels, 
 and of the reason for their existence. " Estoppel was 
 devised and allowed in law for the maintenance of 
 verity, and to restrain a man from saying a thing if it is 
 false, and it shall conclude him from saying against that 
 which he before affirmed " (m). 
 
 The following remarks of FitzGibbon (Attorney- 
 General) arguendo, in another old authority (n), on the 
 origin and doctrine of estoppels, are also in point. "The 
 objection is that this is an estoppel, and should have 
 been pleaded, and then gentlemen tell your lordships that 
 estoppels are odious, inasmuch as the legal definition 
 an estoppel is, that it stops a man's mouth from speaking 
 the truth. My lords, however this may be found, if you 
 divest the maxim of the quaintness and pedantry of the 
 day, and translate it into plain English, it will be found 
 
 (/) 3 P. Wms. 371. Equity, Doctor and Student, 
 
 (7) 1 Sch. & Lefr. 1 1 •' > ; eitcd chap. xix. p. 56. 
 
 in Coin. Dig. vol. viii., Appendix, (m) Edwards v. Rogers, Sir W". 
 
 p. SON. Jones's Rep. 159 j see also Co. 
 
 (/) Nelson's Chane. Rep. 76, Litt. 352 a, notc(l); see contra 
 
 and Cary's Rep. p. '11 ; cited also per Lord Kenyon, C. J., in /,'. v. 
 
 in Vin. Estop, pp. 487, 4<>2, as a Lubbenham, 4 T. R. 251. 
 
 case of estoppel in Chancery. (u) Hume v. Burton, 1 Rid^e- 
 
 And see, as to the light in which way's P. I!., at p. 217. 
 
 estoppels should he regarded in
 
 1 1. INTRODUCTORY CHARTER. 
 
 to contain much good sense : for in plain English it is 
 nothing more than this. The law cannot be known until 
 facts are ascertained : and facts can never be ascertained, 
 unless yon allow some evidence to be of such a nature as 
 not to be contradicted : and therefore it is that estoppels 
 are allowed." 
 
 The apparent odiousness therefore of some classes of 
 estoppel, chiefly estoppels by deed, seems to result not 
 so much from the nature of an estoppel, as from the 
 highly technical rules of real property law upon which it 
 operated, and with which it was associated. 
 
 Estoppels by record, indeed, stand upon a considerably 
 higher footing than estoppels by deed, and are of great 
 importance, especially in their bearing on the effect of the 
 judgments of foreign and colonial courts. It is impossible 
 therefore, at any rate, to consider such estoppels as 
 " odious," or to apply to them the same strictures as have 
 been imposed upon the doctrine of an estoppel by deed. 
 
 Estoppels in pais, or equitable estoppels as they 
 have sometimes been called (o>), are also of an im- 
 portance which is growing daily, and far from being- 
 odious, are certainly equitable in their nature, and ought 
 to be regarded with favour in courts of equity. Thus, 
 in the case of Tlte Citizen's Bank of Louisiana v. 
 First National Bank of Orleans (p), Lord Selborne 
 says, " I apprehend that nothing can be more certain 
 than this, that the doctrine of equitable estoppel by 
 representation is a wholly different thing from contract, 
 
 (o) Sec Bigelow on Estoppel, 3G0 ; and see per Wilde, B., in 
 2nd ed., chap, xviii. Swanv. North British Australasian 
 
 (p) L. It. Jf. L. 352, at p. Co., 7 II. & N. 603.
 
 ESTOPPELS GENERALLY. 15 
 
 or promise, or equitable assignment, or anything of that 
 sort. The foundation of that doctrine, which is a very 
 important one, and certainly not one likely to be 
 departed from, is this, that if a man dealing with another 
 for value makes statements to him as to existing facts, 
 which beino; stated would affect the contract, and without 
 reliance upon which, or without the statement of 
 which, the party would not enter into the contract, 
 and which, being otherwise than as they were stated, 
 would leave the situation after the contract different 
 from what it would have been if the representations 
 had not been made ; then the person making those 
 representations shall, so far as the powers of a court of 
 equity extend, be treated as if the representations were 
 true, and shall be compelled to make them good.''' 
 
 To the same effect are the remarks of Lord Blackburn 
 in Lis judgment in the recent case of Burkinshaw v. 
 Nicolls(<j), where the learned Judge says, "Now some- 
 times then- is a degree of odium thrown upon the 
 doctrine of estoppel, because the same word is used 
 occasionally in a very technical sense, and the doctrine 
 of estoppel in pais lias been thought to deserve the odium 
 of the more technical classes of homologation. But the 
 moment the doctrine is looked al in its true light it will 
 In- found to be a most equitable one, and one without 
 which, in fact, the law of the country could not he satis- 
 factorily administered. When a person makes to another 
 the representation 'I take upon myself to say such ami 
 such tilings do exist, and you may act upon the basis 
 
 (q) L. I,\ 3 App. Cas. L004,a1 p. L026.
 
 18 INTRODUCTORY" CHAPTER. 
 
 that they do exist,' and the other man does really act 
 upon that basis, it seems to me it is of the very essence 
 of justice that, between those two parties, their rights 
 should be regulated, not by the real state of the facts, but 
 by that conventional state of facts which the two parties 
 agree to make the basis of their action ; and that is what 
 I apprehend is meant by estoppel in pais or homologation. 
 But whether the term be used in its more or less 
 technical sense, I take it that one common idea runs 
 through the whole, namely, that your rights, as between 
 yourselves, must be regulated upon the basis, that that is 
 accurate which you induced the other side to take as 
 the basis upon which he was to act." 
 
 And apart from the authorities that have been cited to 
 controvert the " odium thrown upon the doctrine of 
 estoppel," there is the additional reason that this branch 
 of law has grown up from the sound basis of judicial 
 decision ; and, with one or two exceptions, is almost un- 
 touched by legislation. The importance of the doctrine is 
 shown by the wide and increasing area over which it 
 extends, and its necessity is recognised even by judges 
 who have been most cautious in applying its principles. 
 As Lord Bramwell says in the case of Si nun v. The 
 Anglo- American Telegraph Company (■>•), when speaking 
 of estoppels, " I do not know how the business of life 
 could go on, unless the law recognised their existence." 
 
 (/•) L. R. 5 (,>. 1!. I>. 188, at \>. effect was inserted in the New 
 
 202. In Pitt-Taylor on Evidence York Code of Civil Procedure 
 
 (7th ed.), vol. i. p. 10 6, note (8), it is (1850), § 1792, but it never 
 
 stated that estoppels arc abolished passed into law, 
 in America. A provision to that
 
 CHAPTER II. 
 
 RECORDS. 
 " Res judicata pro veritate accipitur." — Ulpian. 
 
 In this chapter we shall endeavour to explain by 
 illustrations taken from the older authorities and text 
 books, what is the nature of a record, and what is a 
 sufficient record for the creation of an estoppel, but 
 although the illustrations given relate only to the pro- 
 ceedings of " courts of record," strictly so called, viz., 
 those courts which have power to fine and imprison (a), 
 yet certain other judicial proceedings, although not 
 emanating from courts, strictly speaking of record, have 
 come to be regarded as of equal efficacy with them for 
 the purpose of raising an estoppel. 
 
 These proceedings are classed by the learned editors 
 of Smith's Leading Cases (5), under the general heading 
 of Proceedings of Quasi Record, and they include, 
 amongst other things, Decrees in the old Court of 
 Chancery, Judgments of the Ecclesiastical Courts, 
 sentences in matrimonial suits, sentences of college 
 
 (a) See Qroenvelt v. Burwett, 1 (b) Sec the note on the Duchess 
 
 Ld. Raymd. \~>\ ; L2 Mod. 38G ; of Kingston's case, 2 Smith's L. 
 & Carth. 491, C. (8th ed.), p. 82G. 
 
 c
 
 18 
 
 ESTOPPEL BY 11ECORD. 
 
 visitors, &c, <fec. At what period they first came to be 
 so regarded it is difficult to determine. The old Court 
 of Chancery, however, seems never to have been, on its 
 equity side, a court of record (c), and yet its decrees have 
 from comparatively early times, stood on the same level 
 with the judgments of the common law courts (</). 
 
 Again, foreign judgments are not, strictly speaking, 
 records, nor are foreign courts regarded in England as on 
 the same footing as English courts of record (e), and yet 
 foreign judgments are treated in England as judgments 
 of courts of record, in so far, that they are not examin- 
 able upon the merits (/), except under special circum- 
 stances, which will be explained in a later chapter. 
 
 " The rolls," writes Lord Coke ([/), "being the records 
 or memorials of the judges of the courts of record, import 
 in them such uncontrollable credit and verity, as they 
 admit of no averment, plea, or proof to the contrary. 
 
 (c) See Co. Litt. p. 260. But 
 see now the Judicature Act of 
 1873, ss. 16, 18. 
 
 (d) Buller's N. P. p. 243; Man- 
 chester Mills, 1 Dougl. 222 ; Trot- 
 ter v. Blake, 2 Mod. 231 ; Allason 
 v. Stark, 9 A. & E. 255 ; Earl of 
 Hopetounv. Ramsay,5 Bell's App. 
 Cases, 69 ; see, however, Carpenter 
 v. Thornton, 3 B. & Aid. 52 ; 
 deciding that an action at law was 
 not maintainable upon a decree of 
 a court of equity for a specific 
 sum of money, founded on equit- 
 able considerations only, and made 
 in invitum. But the dismissal of 
 a bill was a bar to an action at 
 
 law ; Tredegar v. Windus, L. R, 
 19 Eq. 607. 
 
 (e) Walker v. Witter, 1 Dougl. 
 
 5 ; Galbraith v. Neville, 1 Dougl. 
 
 6 a (note) ; Chapman v. Sherrie, 
 5 Ir. 11. C. L. 36. 
 
 (/) Per Tindal, C. J., in Smith 
 v. Nicolls, 5 Bing. N. C. 208 j The 
 Bank of Australasia v. Harding, 
 9 C. B. 661 ; The Bank of Aus- 
 tralasia v. Nias, 16 Q. B. 717; 
 Kelsall v. Marshall, 1 C. B. N. S. 
 241 ; Castrique v. Behrens, 30 L. 
 J. Q. B. 163. On this point, 
 great difference of opinion has 
 existed. 
 
 (a) 1 Inst. 260.
 
 RECORDS. 
 
 19 
 
 Ami, if such a record be alleged, and it be pleaded that 
 there is no such record, it shall be tried only by itself: 
 and the reason hereof is apparent, for otherwise (as 
 our old authors say, and that truly) there should never 
 be any end of controversies, which should be incon- 
 venient " (I/). 
 
 Again Willes, J., in Irwin v. Sir G. Grcy(i\ says, 
 " the record of a superior court is the conclusive state- 
 ment of a proceeding conducted with all the formalities 
 required for a judgment, and it states either expressly or 
 by necessary implication that the proceeding was one in 
 which the court exercised its jurisdiction in a judicial 
 way, and therefore that the jury was one not merely in 
 name, but in law and in fact; and that the court sat at a 
 time when, and was otherwise constituted so that it could 
 properly exercise its jurisdiction." Moreover, it is pointed 
 out in the older writers that an estoppel by record is 
 stronger than any other kind of estoppel (&). 
 
 Ii< cords admit of no alteration (I). — " During the 
 
 (Ji) Sec also Yin. Ab. Estop, 
 p. 120 ; and Sharp v. Paslow, 
 citcl at the end of Vernon's Case, 
 ( '.i. Etep. vol. Li, 260. See also 
 Gosling v. Warburton, 1 Cro. Eliz. 
 p. 1 28 ; see also pi c Ld. Ellen- 
 borough in Ramsbottom v. Buck- 
 hurst, 2 M.a- S. 565 j and Euffer 
 v. Allen, L. R. 2 Ex. L5. 
 
 '/) L R. I C. P. 17; L. It. 2 
 li. L. 20. 
 
 (I ) Grei a v. Moody, Godbolt's 
 Rep. 384 j James v. Landon, I 
 Cro. Eliz. 3G: Moo. 181 ; and 
 
 sec Co. Litt. 17 1). And see the 
 note to James v. Landon, referring 
 to PleadalVs Case, Moo. !Mi;see 
 also Bro. Ab. Tit. Brief, pi. 420; 
 and sec in Co. Litt. 170 b, note 3; 
 171a. There is, however, an ex- 
 ception made in t he old authorities 
 in the rase of estoppels which 
 stand upon recompense : see 
 Sym's Case, Co. Rep. vol. iv. at 
 p. 246 j and Erington v. Erington, 
 •1 Bulstr. at p. 43. 
 
 (/) Per Bolt, C. J., in Turner 
 v. Burnaby, 2 Salk. 567 ; where 
 
 o ■:
 
 20 ESTOPPEL BY RECORD. 
 
 term (m)" writes Lord Coke (;*), " wherein any judicial 
 act is done, the record remains in the breast of the judges 
 of the court, and in their remembrance : and therefore 
 the roll is alterable during that term as the judges shall 
 direct : but when that term is past, then the record is in 
 roll, and admits of no alteration, averment, or proof to 
 the contrary." And it follows from this that records 
 cannot be contradicted by error in fact (o). Thus, it is 
 laid down in Bacon's Abridgment (p), that nothing can 
 be assigned for error that contradicts the record ; for the 
 records of the courts of justice, being things of the 
 greatest credit, cannot be questioned but by matters of 
 equal notoriety with themselves : wherefore, though the 
 matter assigned for error should be proved by witnesses 
 of the best credit, yet the judges would not admit of it. 
 
 Thus even a false verdict or an erroneous judgment 
 may work an estoppel, so long as it remains in force, and 
 is not upset by writ of error or attaint (q). On the same 
 
 a distinction is pointed out be- Plommer v. Webb; Molins v. 
 
 tween an act of the Court done Werby, 1 Lev. 76 ; 1 Siderfin, 94 ; 
 
 on record, and an act of the party 1 Keble, 355 ; Bowse v. Canning- 
 
 recorded by the Court. ton, Cro. Jac. 244 ; Cole v. Green, 
 
 (in) As to terms, see the Judi- 1 Lev. 309 ; Irwin v. Sir G. Grey, 
 
 cature Act of 1873, s. 20 ; and 19 C. B. N. S. 585 : L. R. 1 C. 
 
 R. S. C. 1883, Order LXIV., P. 171. 
 
 rule 1 4. ( p) Error (k), 3 ; and see, as a 
 
 (//) Co. Litt. 260 a; Dickson v. modern example, Conradi v. Con- 
 Fisher, 1 Sir W. BL 604; R. v. radi, L. It. 1 P. & D. 514.. 
 Shaw, Russ. & Ryan, C. C. R. (q) Vin. Ab. Estop, p. 435, 
 52G. citing Bro. Estop, pi. 81 ; Vin. 
 
 (o) B. v. Carlile, 2 B. & Ad. Ab. Record, p. 173, citing Bro. 
 
 302 ; Whistler v. Lee, Cro. Jac. Record, pi. 4 ; see also Overton v. 
 
 359 ; llelbut v. Held, 2 Ld. Ray- Hervey, 9 C. B. p. 324; Todd v. 
 
 mond, 1414; referring in note to Stewart, 9 Q. B. 759 ; Huffer v.
 
 RECOKDS. 21 
 
 principle a judgment is not void, even by reason of 
 interest in tlie judge, but voidable only by proper 
 proceedings being taken to set it aside (?•)■ As illustrating 
 the principle that records are conclusive evidence of the 
 facts therein contained, we may, besides the authorities 
 referred to in the note (.<?), cite the case of Ex parte 
 Newton (t), where a prisoner was tried and convicted at 
 the Central Criminal Court. After sentence, an applica- 
 tion was made to the Court of Common Pleas, for a writ 
 of habeas corjnis for his discharge, on the ground that 
 the offence was not committed within the jurisdiction of 
 the Central Criminal Court, as alleged in the indictment. 
 Held, that the record was an estoppel and the writ 
 refused. 
 
 Another illustration of the above principle is furnished 
 by the well known rule of law, that what a party recovers 
 from another by legal process without fraud, the loser 
 shall never recover back by virtue of any facts which 
 would have availed him in the former proceedings (u). 
 
 Allen, L. R. 2 Ex. 15. But a Ld. Raymond, 454: 12 Mod. 386 j 
 
 reversed judgment does not raise Green v. New River Co., 4 T. R. 
 
 an estoppel, J i kite's Case, 3 Leon. 589 ; /.'. v. 11<bden, Bullcr's N. I'. 
 
 52 pi. ?:-. 231 ; Pritchard v. Hitchcock, G 
 
 (/■) Dimes v. Grand Junction M. it G. 151 • Phillipps on Evi- 
 
 Canal Co., 3 IT. L Cas. 785 ; re- dence, vol. ii., p. 2, et *<</. ; Reed 
 
 ferred to in Wildes v. Russell, L v. Jackson, I East, 355. 
 
 i;. 1 ('. P. 7 11. See, however, (/) 24 L. J. C. P. 1 IS. 
 
 as to the judgment of a referee (v) Per Ld. Denman, C. .1., in 
 
 appointed by the agreement of Wilson v. A'.///, In A. & E. 82, at 
 
 the parties, Ranger v. <•'/. West. p. 88, referring to the principle 
 
 Rail. Co., 5 II. L Cas. 17-'. cstahlishcd in Marriott v. Hamp- 
 
 («) Wildest. Russell, 1. R. 1 ton, Smith's L. C. (8th ed.)Tol. ii, 
 
 C. P. 7-'.' ; GrcenveU v. Bwrwell, p. 421,
 
 22 ESTOrPEL BY RECORD. 
 
 Thus, where money was paid by a bankrupt under com- 
 pulsion of law, his assignees in bankruptcy were bound 
 by it and could not recover it back (x) ; but the law 
 appears to have been otherwise, where the legal pro- 
 ceedings under compulsion of which the money had 
 been paid, had been taken in a foreign country (y). 
 
 Again, on a similar principle, in an action of trespass 
 against a magistrate, a conviction by him, if no defect 
 appears on the face of it, is conclusive evidence of the 
 facts contained therein {z). 
 
 So also, if one party brings an action against another 
 for maliciously and without probable cause signing judg- 
 ment and issuing execution against him, he is estopped 
 from denying the correctness of the judgment and of the 
 execution (a). 
 
 Again, if A. brings an action against B. in England, 
 and it is in issue between the parties whether or not a 
 judgment was obtained against them by some third party, 
 not a party to the present action ; and to prove that it 
 was, one of the parties puts in evidence a foreign judg- 
 
 (.') Belcher v. Mills, 2 C. M. & 182 ; and Cooke's Bankrupt Laws, 
 
 R 150; Reynolds v. Wedd, 4 vol. i. (ed. 1823). 
 
 Bing. N. C. 694 ; Le Chevalier v. (z) Jlritiaia v. Kinnaird, B. & 
 
 Lynch, 1 Dougl. 170: and the B. 432 ; referred to in Re Chuir, 
 
 references in the judgments in 2 Q. B. 633 ; and see post, pp. 
 
 Philips v. Hunter, 2 II. Bl. t02, 49, 50. 
 
 •Ill ; contra, Follett v. Hoppe, 5 (a) Buffer v. Allen, L. R. 2 
 
 ( '. B. 226, But it was otlierwi.se Ex. 15. The same principle ap- 
 
 where the debt i >r had committed a pears to apply to an action brought 
 
 secret act of bankruptcy, Balme v. in England for unlawfully and 
 
 Hutton, 9 L5ing. 471. maliciously conspiring to obtain 
 
 {y) See judgment of majority a foreign judgment in rem, see 
 
 in Philips v. Hunter, '1 II. Bl. Castrique v. Behrens, 30 L. J. Q. 
 
 102; Hunter v. Potts, 4 T. R. B. 103.
 
 RECORDS. 
 
 23 
 
 ment, then this is conclusive evidence against the other 
 party, and he is not at liberty to shew that the proceed- 
 ings were erroneous (b). 
 
 The old fictitious action of ejectment serves as a good 
 illustration of the matters on which a judgment is, and 
 on which it is not conclusive. Generally speaking, a 
 judgment in one action of ejectment was not conclusive 
 in another, in consequence of the fictitious nature of the 
 proceedings. However, it was conclusive evidence of 
 the plaintiffs title against the tenant in possession, in an 
 action for mesne profits, for it concluded the parties as to 
 the right to the immediate possession ; but it proved 
 nothing beyond the time laid in the demise (c) ; nor did 
 it prove anything as to the length of time during which 
 the tenant had occupied, or as to the value of the land (d). 
 
 So also a judgment may be used to prove the fact that 
 a party had, by process of law, been compelled to pay 
 damages to a certain amount, but not to prove the circum- 
 stances under which they were paid(e). 
 
 Averments /chick stand with the record are allowed. — 
 Thus, although a man may not aver anything against the 
 purport of a record (/'), he may against its operation (y). 
 
 (b) Tarleton v. Tarleton, 1 M. 
 & S. 21. 
 
 (>■) <>,;■ //.,, ris v. Mulkern, L. I.'. 
 I Ex. I ). 31, at p. 36 ; and per 
 ( lleasby, B., in Pearsi v. ( 'oak r, 
 L. R. I Ex. 92, at p. 101. 
 
 (d) l'liill. Ev. vol. ii. pp.9, U>; 
 
 Aslin v. Parkin, 2 Burr. 665. And 
 
 as to judgments by default in 
 
 I ment in Ireland, see l\> nnct 
 
 v. Nvgent, Ir. R. 7 C. L. -10 1; 
 
 /,. Clerc v. Greene, Ir. R. 7 Eq. 
 371. 
 
 (c) Phill. Ev. vol. ii. p. I, citiDg 
 Green v. New River Co., 4 T. I!. 
 . r )S!) ; and Prtichard v. Hitchcock, 
 6 M. & G. 151. 
 
 (/) Sir T. Howard's Case, 
 Owen 138 ; Gibbons v. Maltyarddi 
 Martin, Popham, > s . 
 
 (-/) Hyndt '• ( 'a le, ( '<>. Rep. vol. 
 ii. p. 10G ; Vin.Ab. Estop, pp. 420,
 
 2 I ESTOPPEL BY RECORD. 
 
 Moreover, evidence may be offered to explain a judg- 
 ment given in evidence or pleaded by way of estoppel (k). 
 Thus a mistake in the record does not prejudice a party 
 to the action, by way of estoppel in a subsequent action, 
 if the mistake was no fault of his, even if he takes no 
 steps to correct it (/). 
 
 But there is a difference between the effect of a 
 mistake in the record itself, and a mistake of the 
 party (k). Thus merely putting in bail by a wrong 
 name was considered to be the act of the court, and not 
 of the party, and did not estop the party from plead- 
 ing in an action that his or her name was a different 
 one from that in which the bail was put in. But 
 if the party appeared to the bail by a wrong name, 
 that might have worked an estoppel (/). And on the 
 same principle entry and acceptance on a less quantity 
 of land than had been actually recovered in an action 
 of dower, was held to be a bar to proceedings of scire 
 facias against the terre tenant for the recovery of the 
 remainder (m). 
 
 liccords coram non judice raise no estoppel {a). — 
 
 423 ; Pelkam'8 Case, 2 Leon. 65 ; (/) Hot/lev. Scarborough, Style's 
 
 Ro. Ab. Tit. Estop., p. 862 ; llu- Rep. pp. 395 ct 440. 
 
 bert's Case, Cro. Eliz. 531 ; How- (k) Lutwyche's Rep., 524 (Ap- 
 
 lett v. Tarte, 10 C. B. N. S. 813. pendix). 
 
 In some of the above cases a dis- (/) Stroud v. Lady Qerrard, 1 
 
 tinction is drawn for purposes of Salk. 8, pi. 19. 
 
 estoppel between a record and a (m) Moo. 07!), Tit. Dower, pi. 
 
 deed enrolled. See further Hoi- 92S. 
 
 land v. Donne, Savile 91; Hoi- (n) Bro. Ab. Estop, pi. 215; 
 
 land v. Bonis, 3 Leon. 175. Fitzhcrbert, Estop, pi. 18; see 
 
 (h) Flitters v. Allfrey, L. R. 10 also Vin. Ab. Estop, p. 462; and 
 
 C P. 29. Com. Dig. Tit. Estop., p. 196.
 
 RECORDS. 25 
 
 Thus judgments of courts of inferior jurisdiction of a 
 thing out of their jurisdiction are absolutely void, and 
 advantage might be taken thereof in pleading without 
 reversal by writ of error (o). And such judgments are 
 not even admissible in evidence (p). 
 
 So also judgments have no operation by way of 
 estoppel, respecting matter as to which the court had no 
 authority to adjudicate directly and immediately between 
 the parties (//). For instance, an inquisition under the 
 compensation clauses of the Lands Clauses Consolidation 
 .Vet, 18-15, has only reference to the amount of compensa- 
 tion, and not to the right of the party to demand com- 
 pensation. Therefore a verdict and judgment under these 
 clauses does not estop the company from alleging, in an 
 action brought against them on the judgment, that the 
 lands were not injuriously affected by their works (V). 
 And a coroner's inquisition nut taken super visum, 
 corporis would be a record coram nonjudice (s). 
 
 Jjesides having the proper jurisdiction the court must 
 be legally constituted in order that the judgment relied 
 un as res judicata may be conclusive (/). And the judg- 
 
 (o) Frumpton v. Pettis, 3 Levinz, Chapmanv. Monmouthshire Rail. 
 
 23 j cited in Briscoe v. Stepliens, Co., 2 J I. & N. 2G7 ; In re >V</"- 
 
 ■l i;in-. 213, hold & Metropolitan Rail. Co., 14 
 
 (//) See the cases cited in Arch C.B.N.S. t05j Barber v. Notting- 
 
 bishop of Dublin v. Lord Tiin/I<.<- Intm ,[■<-. C<tn<tl Co., 15 ( '. B. N. S. 
 
 ton, 12 Ir. Eq. 251, 268. 726 j Beckett v. Midland Rail 
 
 (<i) See i he judgment of Lord Co., L I!. I C. I'. 241. 
 
 Selborne in A', v. Hvtchins, L I!. (.»•) As to decisions coram non 
 
 6 Q. B. I >. 300, judice, see R. v. Bowman, <'. & 
 
 (>•) /,•<><,/ v. Victoria Station Co., p. :;:;7. 
 
 I II. ,v ('. 826 ; /.'. v. London & (/, Rogers v. Wood, 2 I 1 .. & Ad. 
 
 .V. II'. Rail. Co., 3 E. & B. 443 ; 245.
 
 20 
 
 KsTOPPEL BY RECORD. 
 
 merit must be final (u). Thus no action can be brought 
 on an interlocutory order of an inferior court, e.g., an 
 interlocutory order for costs (x). 
 
 Estoppel Jiy verdict and pleading. — The authorities 
 differ as to whether a verdict of itself can operate as an 
 estoppel. Thus it is laid down by sonic old authorities 
 that a record cannot operate as an estoppel, unless 
 judgment was actually given in the proceedings relied on 
 fry way of estoppel (y) ; and that a verdict, without 
 judgment given, not being a perfect record, works no 
 estoppel (,i). On the other hand, it is laid down else- 
 where as follows : "A verdict whereupon an attaint lies, 
 estops all parties and their privies. An estoppel on a 
 verdict goes a great way. Issue in tail shall never falsify 
 it " (a). And Lord Coke says that a verdict is itself an 
 estoppel upon the same matter of fact afterwards arising 
 between the same parties, unless it has been reversed by 
 attaint (b). 
 
 But where issues on matters of title in a Chancery 
 
 («) Hume v. Burton, 1 Ridg- 
 way's P. R. 565. 
 
 ('.-•) Emerson v. LasMey, 2 H. 
 Bl. 248 ; Fry v. Malcolm, 4 Taunt. 
 705. For the proper remedy is 
 by attachment. 
 
 (y) Vin. Ab., Former Action B. 
 Pleadings, p. 197, citing Bro. 
 Estop, pi. I'M. 
 
 <-) Bro. Estop, pi. 189 ; Vin. 
 Ab. Record, p. 171, citing Bro, 
 Repleader, pi. 61. 
 
 (a) Trevivian v. Lawrence, 1 
 Sulk. 270. 
 
 (//) Co. Litt. 227 b ; Vin. Ab. 
 Estop, p. 424 ; Bro. Estop, pi. 132; 
 Peake's Evidence (3rd ed.), p. 39 ; 
 Eastmure v. Laws, 5 Bing. N. C. 
 450. In order, however, for the 
 verdict to operate as an estoppel 
 on any matter, the matter must 
 have been actually in issue be- 
 tween the parties, Vin. Ab. Estop, 
 p. 480. It need not, however, 
 have been the only one in issue, 
 R. v. St. Pancras, Peake's N. P. 
 Cases, 219.
 
 RECORDS. 27 
 
 suit were directed to be tried by a jury, it was held in a 
 subsequent action between successors in title, that the 
 verdict on the issues in the suit between the predecessors 
 in title, did not itself create an estoppel, but that the 
 decree and pleadings in the suit must also be taken into 
 consideration (c). A verdict upon matters in issue is, 
 however, evidence for and against all parties and privies, 
 upon the same matters in issue between them in 
 subsequent proceedings (d) ; but in order that it may be 
 evidence for or against any one claiming under a party 
 to the verdict, the claim must have been acquired through 
 such party, subsequently to the verdict (e). 
 
 A judgment obtained by a compromise of the parties to 
 an action, cannot be considered as res judicata so as to 
 bind persons not parties to the action (/'). 
 
 And judgment given for plaintiff by consent, before 
 declaration filed, was held to be no estoppel against 
 defendant, at common law in a subsequent suit (//). 
 
 But where plaintiff gave defendant notice that he 
 might inspect a document, and that he would be required 
 
 Robinson v. Duleep Singh, (< ) Doe d. Foster v. Derby, 1 A. 
 
 I.. II. II Mi. I>. 798. >v K. 783. And a verdict inter 
 
 <■') Com. hi Tit. EvidenceA. partes is not as a rule evidence 
 
 ."> ; Gilbert ":i Evidence, p. I s ; nuain^t Btrangers, excepl where it 
 
 /,'. v. Warden of Fleet, Holt's Eep., is evidence of custom or general 
 
 I .". I ; Ovtramv. Morewood, 3 East, reputation. Roscoe's Nisi Prius 
 
 346 ; Mondelv. Steele, M. a- W. | I 111, .,1.), pp. 191, 192. 
 
 872; Carter?. James, 13M. &W. (f) Jenkins v. Robertson, L 
 
 137 ; Riggt v. Bnrbidge, L5 M. a- ];. I II. L, So. 117; 1ml, as to 
 
 W. 598; Hutt v. Morrell,% Ex. compromises by counsel, see K<, 
 
 240 ; 117-;//.//. /-v. Jackson, 2 II. & v. O'Brien, 5 tr. R. C. I.. 531. 
 
 C. '.'_'<;, Blakemort v. Glamorgan- (.-/) Per V.-O. Wood in Goucher 
 
 shin CanalCo., 2 C. M. a- R. 1 :;.".. v. Clayton, 11 Jar. N. S. 107.
 
 23 ESTOPPEL BY RECORD. 
 
 to admit it at the trial, and the judge, on summons, made 
 an order, by consent, for the same to be admitted ; held, 
 that defendant was estopped from raising any objection 
 to the document at the trial (h). 
 
 And where plaintiff confessed a defence under Rules 
 22, 23, of T. T. 1853 ; such a confession was final as to 
 everything that had been, or might have been, contro- 
 verted in the action ; and plaintiff was estopped from 
 raising the same point in a subsequent action between 
 the same parties (i). But the confession did not operate 
 as an estoppel with respect to any matters which did 
 not arise until after the termination of the action in 
 which the plea was confessed, and which therefore could 
 not have been in controversy in such action (j). And 
 this still appears to be the law with respect to con- 
 fessions under the Rules of the Supreme Court, 
 1883 (*). 
 
 Similarly a judgment for plaintiff by default may estop 
 defendant with respect to matters which he might have 
 set up as a defence to the action (Jck). And judgment 
 against an executor or administrator by confession or 
 default is an admission of assets, and he is estopped 
 from afterwards denying the fact (/). 
 
 If an action were discontinued, the proceedings therein 
 
 (h) Doe d. Wright v. Smith, 8 {Jck) Williams v. Richardson, 
 
 A. & E. 255. 36 L. T. 505 ; and as to judg- 
 
 ( i) Newington v. Levy, L. R. G ments by default in ejectment in 
 
 < '. P. 180; cf. Bennett v. (Imngee, Ireland, sec ante, p. 23, note (<1). 
 
 L. R. 2 Ex. D. 1 t. (I) Rock v. Leighton, 1 Salk. 
 
 (j) Hall v. Levy, L. R. 10 C. P. 309 ; Erving v. Peters, 3 T. R. 
 
 1 54. G85 ; Leonard v. Simpson, 2 Bing. 
 
 (k) Order XXIV. rule 3. N. C. 17G.
 
 RECORD*. 
 
 29 
 
 did not operate as an estoppel at common law (m). And 
 it is now expressly provided by the Rules of the Supreme 
 Court, 1883, that the plaintiff may, at any time before 
 receipt of the defendant's defence, or after the receipt 
 thereof before taking any other proceeding in the action 
 (save any interlocutory application), by notice in writing, 
 wholly discontinue his action against all or any of the 
 defendants, or withdraw any part or parts of his alleged 
 cause of complaint, and that such discontinuance or with- 
 drawal, as the case may be, shall not be a defence to 
 any subsequent action (u). 
 
 Nonsuits did not, generally speaking, at common law, 
 raise an estoppel in a subsequent suit : for after nonsuit 
 the record was null (<>). But a plaintiff who had been 
 nonsuited might nevertheless be estopped in a subse- 
 quent suit, from pleading matters which he had omitted 
 to plead in the former action, but which he might and 
 ought to have pleaded in such action (p). 
 
 By the Judicature Act, 1875, a judgment of nonsuit, 
 unless the Court or a judge otherwise directed (and 
 unless set aside in the manner therein provided), had the 
 same effed as a judgment upon the merits for the 
 
 (m) Bro. Estop, pi. 215 ; Mas- 
 sam v. Thorleifs CatUt Food Co. } 
 I.. II. 1 1 Ch. I). 718. 
 
 (n) Order XXVI rule 1. 
 
 (o) Bro. Estop, pis. :>7, L08, 
 L92, 194 : Via Al>. Estop. p. I l<> ; 
 Level v. Hall, Cro. -lac. 284. But, 
 for an instance <>f an estoppel in 
 of a n<>n-suit, see Bro. Estop, 
 pi. 162, and Vin. Ab. Estop. p. 
 
 151. Moreover, in the action of 
 a ize, which was a real action, 
 an acknowledgment by plaintiff 
 
 operated as an estoppel after 
 nonsuit, Vin. All. Kstop. p. |.",'.i. 
 Ami as to thr efl'irl of dismissal 
 of proceedings in Equity, see post, 
 PI ». 58, 59. 
 
 (/<) Bro. Kstop. pi. 39 j Fitz. 
 All. Estop, pi. 96.
 
 30 ESTOrrEL BY RECORD. 
 
 defendant^); and therefore estopped plaintiff from 
 bringing- a fresh action against defendant for the same 
 cause (r). And a similar provision is contained in the 
 County Court Acts, with respect to nonsuits in actions 
 in the County Courts (rr). 
 
 But the above provision contained in the Judicature 
 Act, 1875, has now been annulled (s), and the Rules of the 
 Supreme Court, 1883, contain no provision with respect 
 to nonsuits in actions in the High Court. It is however 
 provided that the Court or a judge may before, or at, or 
 after the hearing or trial, upon such terms as to costs, 
 and as to any other action, and otherwise as may be just, 
 order the action to be discontinued, or any part of the 
 alleged cause of complaint to be struck out : and that the 
 Court or a judge may, in like manner, and with the like 
 discretion as to terms, upon the application of a defendant, 
 order the whole or any part of his alleged grounds of 
 defence or counterclaim to be withdrawn or struck out (t). 
 It is presumed therefore that, in consequence of the 
 above provision, an order for discontinuance or that the 
 plaintiff's claim be struck out, with leave to plaintiff to 
 bring a fresh action, will henceforward take the place, in 
 actions in the High Court, of a judgment of nonsuit at 
 common law. 
 
 The record in an action wrongly brought is no bar to 
 an action rightly brought, unless title was pleaded in the 
 
 (7) Order XLL, rule 6, of Judi- Cairns, 1 Macq. 212. 
 
 cature Act, l*7-">. (rr) Poyser v. Minors, L. R. 7 
 
 (r) Larapen v. Kedgewin, 1 Q. B. D. 329. 
 
 Mod. 207 ; Buchnaster v. MeiHe- (s) "Wilson's Judicature Acts 
 
 johi, 8 Ex. 634 ; Burhitt v. Blan- (4th ed.), p. 382. 
 
 shard, 3 Ex. 89; MariamM v. (() Order XXVI. rule 1.
 
 RECORDS. 
 
 31 
 
 first action. Thus an action of trepass against a bailee 
 of goods, in which lie pleaded not guilty or demurred (>/), 
 was no bar to a fresh action against him in detinue or 
 account. But where defendant pleaded title in bar to a 
 thing demanded, and, by reason thereof, the plaintiff was 
 barred by demurrer or verdict, the interest thereby was 
 bound, and the plaintiff was barred from bringing a fresh 
 action (v). And if a person has more than one civil 
 remedy for the same cause of action, and elects to take 
 one, he cannot afterwards take the other (./;). 
 
 The admissions arising from the pleadings in an action 
 also afford examples of estoppels by record. Formerly, 
 proceedings in actions had to be filed before they could 
 operate as records (//). But the procedure is now regu- 
 lated by the Rules of the Supreme Court of 1883 (.:). 
 The general rule as to admissions in pleadings and their 
 effect by way of estoppel, is stated by Parke, B., in Boileau 
 v. Ratlin (a). " Pleadings," says the learned Baron, " are 
 not to be treated as positive allegations of the truth of 
 the facts therein for all purposes, but only as statements 
 
 (u) Demurrers are now abol- 
 ished, see R. S. C. 1SS3, Order 
 XXV. 
 
 {v) Ferrers v. Arden, 2 Cro. 
 Eliz. p. 668, and Co. Rep. vol. iii. 
 271. As to records in actions 
 brought in ;i wrong character, or 
 under a mistake as to the subject- 
 matter, see Vin. Ab. Estop, p. 4 CO, 
 citing Bro. Estop, pi. 168 ; Tnch 
 don v. Burgess, Carth. G5, G7 ; 
 note in Vin. Ab. Former Action, 
 p. 497 ; Robinson's Ca ■, Cro. Jac. 
 
 14, and Com. Dig. Tit. Estop. 
 
 (C). 
 
 (.'•) Goodman v. Pocock, 15 Q. 
 B. 576 ; per Coleridge, J., at p. 
 583 ; Scarf v. Jardine, L. 11. 7 
 App. ('as. 3 15 ; contra, Ex parte 
 Adamson, in re Collie, L. K. 8 
 Cli. D. 807. As to what amounts 
 to an election, sec Fell v. Parkin, 
 47 I, T. N. S. 350. 
 
 (//) Vin. Ab. Tit. Record, p.172. 
 
 (z) Ord. XLI, 
 
 (a) 2 Ex. 665.
 
 82 KSTOITEL BY RECORD. 
 
 of the case of the parly to be admitted (&), or denied by 
 the opposite side, and, if denied, to be proved, and 
 ultimately submitted for judicial decision. The facts 
 actually decided by an issue in any suit cannot be again 
 litigated between the same parties, and are evidence 
 between them, and that conclusive, upon a different 
 principle, and for the purpose of terminating litigation : 
 and so are the material facts alleged by one party, which 
 are directly admitted by the opposite party, or indirectly 
 admitted by taking a traverse upon some other facts, but 
 only if the traverse is found against the party making it. 
 But the statements of a party in a declaration or plea, 
 though, for the purposes of the cause, he is bound by those 
 that are material, and the evidence must be confined to 
 them upon an issue, ought not, it should seem, to be 
 treated as confessions of the truth of the facts stated " (c). 
 The older authorities supply abundant illustrations of 
 this statement of the effect of the estoppels raised by 
 pleadings. Thus a supposal did not create an estoppel (d). 
 
 (/,) See as to admissions under of estoppel, Co. Litt. 12 a; Ed- 
 
 the R. S. C. 1883, Ord. XXXII. wards v. Rogers, Sir W. Jones, 
 
 rule 4. 460. 
 
 (c) An estoppel arising from (d) Com. Dig. Tit. Pleader, g. 
 
 pleading affects only parties and 13, where many examples arc 
 
 privies, as stated in Baron Parke's given. But it is laid down by 
 
 judgment. Thus if B. plead that Lord Coke that matter of estoppel 
 
 the contract on which A. is suing in a count, though it be but by 
 
 him was made by C. as well, and way of supposal, after judgment 
 
 it be found against him, C. cannot concludes the parties in another 
 
 plead this finding as an estoppel, action, but a supposal in a writ 
 
 when sued by B. for contribution does not act as an estoppel after 
 
 as co-contractor, Hudson v. Robin- nonsuit ; see further as to sup- 
 
 son, 4 M. & S. 475. See also as posals, Bro. Estop, pi. 138, Vin. 
 
 to the effect of pleadings by way Ab. Estop, p. 462.
 
 RECORDS. 33 
 
 A plea pleaded was an estoppel ; but a plea vet pending 
 and not made a perfect record, by judgment or otherwise, 
 did not cause an estoppel (e). Thus, where A. sued B. 
 on two counts, one for rent, and the other for money had 
 and received, and gave particulars on the count for money 
 had and received, but, at the trial, took a general verdict, 
 and for the amount of the rent only, held, in a subsequent 
 action by A. against B. for money had and received, in 
 which the same particulars were delivered as in the 
 former action, that the recovery in the former action was 
 no bar to a recovery in the second action (/). 
 
 No estoppel arises from pleading matters imma- 
 terial (r/), or unnecessary to be decided in the case (h), 
 nor do pleas and verdicts work any estoppel in other 
 actions, respecting matters which are not inconsistent 
 with them (i), or upon points not comprised therein (/>•). 
 
 If a point has been raised by a plea and traversed, 
 and is decided against the party traversing, he is estopped 
 
 I Bro. Estop, pi. 15 ; and for actually have been decided there- 
 
 the difference between a writ or by: per Willes, J., in Langmead 
 
 count and plea pleaded, see 21 v. Maple, 18 C. B. N. S. 255, 
 
 lien. VII. 24, 25, and Trevivian 270. 
 
 v. Lawrence, 1 Salk, 276; and (g) Bro. Estop, pi. L03 and 
 
 for an example of an estoppel by I I 3. 
 
 larance and pleading to an (h) Morgan v. Vauglum, Sir T. 
 
 II, see Jenkins's Rep. L13, Raymond, 456. 
 
 Case XX. (/) Vin. Ab. Estop, pp. 432, 
 
 (/) Hadley v. Green, 2 Cr. & 133, and Bro. Estop, pi. 191. 
 
 .1. .".71. [n order thai anestoppel i/'i Vin. Ab. Estop, pi. 27; 
 
 may 1"' raise!, the matters in Watkins v. Oliver, Cro. Jac. p. 5 
 
 question musl uot only have been Buller's X. 1'. p. 233; ami Co. 
 
 controverted before a court of Litt. 227 b. 
 competent jurisdiction, but must
 
 3 1' 
 
 ESTOPPEL BY RECUlJK 
 
 from raising the same point in ;i subsequent action 
 between the same parties (/). So a party may not 
 plead matters which are inconsistent with his plead- 
 ings in a former action between the same parties (m). 
 And a material statement made by one side and 
 accepted and relied upon by the other, estops the party 
 making- it from denying it in a subsequent action (».), 
 even if the statement made was a mistaken one (o). 
 
 But a party would not be estopped from subsequently 
 raising any point which the Court did not decide, and 
 which neither side were bound to raise (p). For ex- 
 ample, where by statute matters may be determined 
 cither by the County Court or the magistrates, and the 
 matter has been decided upon in the County Court, the 
 magistrates are not thereby estopped from deciding a 
 point which was not raised, and which neither side was 
 bound to raise, before the County Court judge (q). 
 
 Where a party to an action does not answer in his 
 pleadings his opponent's allegations, he is estopped from 
 afterwards denying them (r). And where a party did 
 
 (/) Bro. Estop, pis. 13, 77, and 
 p. 432 ; Vin. Ab. Estop, p. 432 ; 
 Eastmure v. Lews, 5 Bing. N. C. 
 450 ; Flitters v. Allfrey, L. R. 
 10 C. P. 29. 
 
 (»i) Bro. tit. Mortdancestor, 
 pi. 50; Jeivsbury v. Mummery, 
 L R. 8 C. P. 56. An exception 
 was, however, formerly made in 
 the case of special defences to 
 certain real actions, see Bro. Estop, 
 pis. 77, L38, 140 j unless defen- 
 dant, instead of raising a special 
 defence to the first action, tra- 
 
 versed the whole of it, see ibid, 
 
 (n) Bro. Estop, pi. 124. 
 
 (o) Reynold* v. Blackburn, 7 A. 
 &E. 161. 
 
 ( p) Per Willes, J., in Lang- 
 mead v. Maple, 18 C. B. N. S. 
 255, at p. 270 Nor from raising 
 points which the Court could not 
 decide from want of jurisdiction, 
 Blake v. CAW///, 9 Ir. R. Eq. 54. 
 
 (q) Hind ley v. Ifeidem, L. R. 3 
 Q. B. D. 481. 
 
 (r) Bro. Estop, pi. 151 ; Vin. 
 Ab. Estop, p. 429 ; Cowlishaw v.
 
 RECORDS. 35 
 
 not answer in his pleading an objection, raised by his 
 opponent, to his title, but set up another title, he was 
 considered to have confessed the objection, and to be 
 estopped from afterwards denying its validity (s). 
 
 Default and omissions in pleading. — By the Rules of 
 the Supreme Court 1883, if plaintiff fails to deliver a 
 statement of claim within the proper time, the Court or a 
 judge may, upon application being made to him by 
 defendant, order the action to be dismissed for want 
 of prosecution, or make such other order as he thinks 
 just (t). And by the same rules provision is made for 
 the entry by plaintiff (or other parties) of judgment, upon 
 defendant (or the opposite party, as the case may be) 
 failing to deliver a pleading within the proper time (it). 
 
 The question how far a defendant, by omitting to 
 plead a defence which he lias Ihe opportunity of pleading, 
 is precluded from raising the same defence subsequent ly. 
 is one which admits of some discussion. It seems that 
 he is at any rate precluded by his omission, from raising 
 Hie defence in proceedings which arc founded on the 
 action in which the omission occurred, as, for instance, in 
 
 Chedyn, I Cr. A: .1. t8 j and sec by nient dedire of a thing which 
 
 now It. S. ('. 1883, Order XIX., he had no opportunity of travers- 
 
 rule 13. And, as to no< taking ing, Vin. Ab. Estop, p. 158. 
 
 objections to the opponent's (t) R. S. C. Order XXVII., 
 
 pleading, see Bro. Fauxifier de rule I. Bui such dismissal is nol 
 
 Recovery, pi. 39. Points of law a bar to subsequent proceedings 
 
 hould ii'"A be raised on the in respect of the same matter, Be 
 
 demurrers being abo] Orrel Colliery and Firebrick Co., 
 
 R. S. C. I $83, Order L. R. L2 Ch. D. 681. 
 
 XXV., rules I, 2. (u) R. S. C. Order XXVII., 
 
 (*) Yin. Ab, Estop, p. 133. A rules 2 to I 1. 
 party was not, however, estopped
 
 3ti ESTOPPEL BY EECORD. 
 
 proceedings of scire facias upon the judgment in the 
 action (.r), or in an action brought upon the judgment 
 itself (//). And it appears from the older authorities, 
 that where defendant appeared and pleaded in an action, 
 and a matter was put in issue between him and the 
 plaintiff, and defendant omitted to plead a defence which 
 he might have pleaded, and verdict was given against 
 him, that he was estopped from setting up the defence in 
 a subsequent action brought against him by the same 
 plaintiff (z). And the same was held where defendant 
 appeared, and pleaded to issue, although he made default 
 at the trial (a). But where plaintiff brought an action for 
 rent under an agreement for a lease, and defendant 
 appeared and applied for time to plead, but failed to plead, 
 and plaintiff signed judgment against him by default, it 
 was held, in a subsequent action by plaintiff against 
 defendant for another instalment of rent due under the 
 same agreement, that defendant was not estopped from 
 disputing the agreement and setting up another one in 
 its stead, by having omitted to set up the defence in the 
 former action (b). 
 
 In accordance, therefore, with the above decision, it 
 appears that the mere omission by a defendant to set up 
 a defence in one action, does not necessarily preclude him 
 from setting it up in another action brought against him 
 by the same plaintiff. 
 
 And the mere omission by a defendant to plead 
 
 I Per I,. C. in Ramsdcn v. (?) Vin. Ab. Estop, p. 433. 
 
 Jackson, 1 Atk. 292. (a) P.ro. Estop, pi. I'.to. 
 
 (,/) Jewsbury v. Mummery, I.. (b) Hewlett v. Tarte, 10 C. B. 
 
 E - Q B N. S. 813.
 
 RECORDS. 37 
 
 matters by way of set-off or counterclaim, does not estop 
 Lira from bringing a subsequent action against plaintiff 
 in respect of such matters (c). 
 
 But as far as the action is concerned in which the 
 omission occurred, neglect in omitting to set up a defence 
 at the proper time (after the time for amendment has 
 gone by) is irremediable (d) ; and if, in consequence of the 
 omission, plaintiff has recovered judgment for a sum of 
 money, defendanl cannot recover it back in a subsequent 
 action for money had and received (e). 
 
 In the spiritual courts, on the other hand, neither plea:, 
 in prohibition (f) nor sentences of divorce and the like 
 were matters or judgments of record (g). Thus a testa- 
 ment proved under the seal of the ordinary was no 
 estoppel to prevent the plaintiff from saying thai the 
 testator died intestate, or from denying that the plaintiff 
 was executor, as it was not a matter of record (//). 
 
 Particular instances of record are afforded by fines, 
 recoveries, recognizances, letters patent, &c. 
 
 I Davii v. II"lges, L. R. 6 Q. 118, and see Appendix B, p. 4 IS. 
 
 I;. 687 ; Hindley v. Haslem, L. The rule appears to have been 
 
 |;. 3 Q. B. I>. 181. as follows: " Sentm vntra 
 
 (,l) Philpot v. Aslett, 1 C. M. matrimonium nunquam transit in 
 
 ,v i:. 85 ; Denru v. Knott, 7 M. .v- rem judicatam.' 1 Such sentenc 
 
 W. 143; Lam v. Chapman, 11 A. were, however, usually conclusive 
 
 , k. 966. if given in evidence 
 
 (e) Marriott v. Hampton, (h) Bro. Estop, pi. 12 \ and 
 
 Smith's L. C. (8th ed.) vol. ii., Wentworth's " Office of Executor " 
 
 P 121 ; Wilson v. Bay, in A. a- (Curson's ed., 1728), p. 48. The 
 j.;. 82. I of the ordinary was, however, 
 
 (/') Vin. All. Record, p. 171. conclusive as to I he authenticity 
 
 (g) See Wentworth's " Office of of the will; Noel v. Wells, I 
 
 Executor" (Curson's c<l., L728), Levinz, 235 ; and sec Phillips y. 
 
 and Robins v. Crutchley, 2 Wils. Ghi.chester, Appendix A, p. t07,
 
 38 
 
 ESTOPPEL BV RECORD. 
 
 Thus a tine was a record (/); and it. bound those who 
 claimed under him who levied the fine(/.-). For in- 
 stance, if a line were levied by grant and render to A. 
 for years, remainder to B. in fee, even if A. was before 
 seised in fee, lie was estopped by the fine from claim- 
 ing a larger estate than an estate for years (I). And 
 even contingent or executory interests, or possibilities, in 
 lands of inheritance might be passed at law by fine by 
 way of estoppel {in). 
 
 So also a common recovery was a record and operated 
 by way of estoppel (n). And even a void recovery might 
 create an estoppel (o). A recognizance too is a record 
 upon the taking it, and before the enrolment (p). So also 
 are letters patent (</). 
 
 However, a mere licence or charter of alienation was 
 no record, and no estoppel was created thereby (r). 
 
 (i) Yin. Ab. Record, p. 171; 
 citing Bro. Record, pi. 78. 
 
 (/) Yin. Ab. Estop., p. 480; 
 citing Edwards v. Rogers, Cro. 
 Car. pp. 524 &, 543; and see 
 Hubert's Case, Cro. Eliz. p. 531 ; 
 Edwards v. Rogers, ibid. And see 
 Sir G. Brown's <'<t.<r, Co. Rep., 
 vol ii., pp. 138 & 103; and 
 Linch v. Spencer, Cro. Eliz. p. 513. 
 
 (I) Per Anders, .ii, C.J., 2 And. 
 79 ; //"ui< v. Burton, 1 Ridg- 
 way's P. R. 567 ; and see other 
 instances cited in Yin. Ab. Kstop. 
 1:32, 443 ; Ro. Ab. Estop, p. 
 363 : 2 Ro. Ab. p. 16, pi. 17; 
 and Brooke's New (.'uses, p. 108. 
 
 (m) Noy's Maxims (ed. of 1821), 
 p. 1 17, and references there given. 
 
 And see further as to estoppels by 
 tine, Helps v. J I ere ford, 2 B. & Ad. 
 242. 
 
 (it) Duke v. Smith, 4 Leon. 238. 
 Doe. d. Daniel v. Woodroffe, 2 H. 
 L. Cas. 811. 
 
 (o) Vin. Ab. Estop, p. 431. 
 
 {/>) JBuston v. Ridley, 1 1 Mod. 
 224 ; and see further as to estoppel 
 by recognizance, Freke v. Finch, 
 Freeman's Rep. 375 ; Henriques 
 v. Dutch West India Co., 2 Ld. 
 Raymd. 1535. 
 
 (q) Ro. Ab. Estop, p. 864 ; Bro. 
 Estop, pi. 144 ; and Bro. Estop. 
 Tit. Office devant escheator, pi. 23. 
 But letters patent are no estoppel 
 to a stranger, Bro. Estop, pi. 52. 
 
 (r) Bro. Est cp. pi. 134.
 
 RI-X'OBDS. 
 
 30 
 
 And even an affidavit which has been read and filed 
 becomes a record of the court, and cannot be taken off 
 the file (s). But a statement in an affidavit in an action 
 between A. and B., though evidence, is not conclusive, in 
 a subsequent action between A. and C. (t). 
 
 A general Act of Parliament is a record to which 
 every one is privy, and therefore nul tiel record was not 
 pleadable to it (u). 
 
 A distinction, however, must he drawn between public 
 and private Acts of Parliament. Thus, it has been held 
 that a recital in a public Act of Parliament acts as an 
 estoppel, or is at any rate admissible evidence concerning 
 the matters therein recited, as between all persons (x). 
 But the statement of a fact in the schedule to an Act 
 of Parliament is not conclusive evidence of that fact(y). 
 Nor is a mere recital in a local and personal public Act, 
 either of fact or law (?:). 
 
 And statements contained in private Acts of Parliament 
 do not bind strangers, so as to prejudice their interests (a). 
 But they may be admissible in evidence against classes 
 
 , /;.<//< v. Langstaffe, 2 W i Is. 
 371. 
 
 </) Morganv. Couchman, -'■> J>. 
 .I.e. I'. 36 ; and Bee Ricliards v. 
 .I/-./'/"//, t JJ. (V S. (ill. 
 
 (x) Prince'si 'ase, < !o. Rep., vol. 
 iv., 168 ; Woohei/s Case, ( tod- 
 bolt's Rep., ITS. 
 
 I Bro. Estop, pi, L55 ; R. v. 
 
 Sutton, I M. & s. 532, 549 j and 
 
 ia to the effect of t he rehearsal 
 
 or preamble, < 'o. Litt. 1 9 b. 
 
 (//) /,'. v. Greene, (j \,& E, 548. 
 
 i Vin. Al>., vol. six., p. 507 ', 
 /«'. v. Haughton, 1 K. & B. .")10 ; 
 contra, Bro. Tit. Parlt., citing 9 
 II. 7, 2. 
 
 (a) I.iici/x. Levington, I Ventris, 
 17G; Barrington'8 Case, Co. Rep., 
 vol. iv., p. 413 (eBp. at p. I hi, 
 note B) ; Brett v. Beales, Moo. & 
 Mai. I-J I ; Ballard v. Way, I M. 
 a- W. 520 ; Duh. of Beaufort v. 
 Sunt/,, I Ex., at p. 170; Nicholh 
 v. Mitfnrd, I, R, 20 Ch, I >. 380.
 
 ■10 i STOPPEL BY RECORD. 
 
 of persons whose interests are intended to be affected by 
 them (/>). 
 
 It is, perhaps, owing to the above rule, viz., that an 
 Art of Parliament is a record to which every one is privy, 
 that the doctrine of estoppel has been considered to have 
 no application, so as to permit parties to a contract to 
 estop themselves in face of an Act of Parliament, How- 
 ever, whatever its origin, such a rule has been laid 
 down (c). 
 
 There are other instances where the proceedings of 
 bodies other than courts of justice have been held con- 
 clusive (d). 
 
 Thus, where an agreement was entered among the 
 other proceedings and orders of the court of aldermen 
 being a court of record, it became a matter of record (e). 
 
 And certain official acts of a public nature, when 
 recorded, create an estoppel against those by whom they 
 were done. An example of this is furnished by a sheriff's 
 return. Thus, in an action brought against a sheriff for 
 making a wrong return, the return is conclusive against 
 him (/). And in some of the older authorities it is laid 
 down that no averment in pleading could be taken against 
 a sheriffs return appearing by record ; and that, if the 
 return was wrong, the proper remedy was by action (g). 
 
 (b) Brett v. Beaks, Duke of (d) I?, v. Grand on, 1 Cowp. 315. 
 Beaufort \. Smith, supra; Earl of (e) Frederick v. Frederick, J P. 
 Carnarvon v. Villebois, I'd M. & Wins. 710. 
 
 W. 313; cf. per Erskine, J., in (/) Wood g ate v. Knatchbull, 2 
 
 Taylot v. Parry, 1 M. & G. 604. T. R. L48; Clerk v. Withers, 6 
 
 (c) Inre Stap/eford Colliery Co., Mod. 296 ; Field v. Smith, 2 M. 
 Barrow Co .1.. II. II Ch. D., at & W. 388. 
 
 p. in (^)Loirt'sTlep.372,Tit.lleturn;
 
 RECORDS. 
 
 41 
 
 Thus, when' a sheriff returned A. B. as guilty of a 
 rescue, an attachment oi course issued against A. B. on 
 the return, and lie was imprisoned, and subsequently 
 lined in the Queen's Bench without being allowed to 
 traverse the return (h). But the rule was that a return 
 was only conclusive in the cause in which it was made, 
 and not in actions or proceedings to which the sheriff 
 was not a party (■/). Thus, a return that A. B. was 
 guilty of a rescue, might be traversed in a subsequent 
 indictment against A. B. for the offence (A'). 
 
 And it appears that now a sheriff's return is not neces- 
 sarily conclusive against him, except in the case above- 
 mentioned, either in actions brought by the sheriff (I), or 
 against him (m), although they arise out of the execution 
 on which the return was made 
 
 The award of an arbitrator is conclusive between the 
 parties for certain purposes, but does not create any 
 merger of the original cause of action (n). And, although 
 the award of an arbitrator on a matter oi' title referred 
 to him. is conclusive evidence as to the title in a silbse- 
 
 /'///./ v. Pennington, - <')'<>. Eliz. 
 872; Harrington v. Taylor, 1 5 
 . 378 : Whitrong \. Blaney, - 
 Mod. 1 1 ; i' Enst. 152. See contra 
 Com. 1'i'j. Retora (G), \>. 290 ; 
 2 Ro. kb. Return, p. 462. 
 
 (h) /.'. v. Ekins, I Burr. 2129. 
 
 i n Jackson v. 1 1 ill, 10 A. & E. 
 I 7 7: 
 
 i/,) Gyfford v. WoodgaU , I I 
 East, 297. 
 
 il) Standish v. Ross, 3 Ex. 527. 
 
 i ,// 1 Brydgi - \ . Walfwd, 6 M. 
 
 & s. 42. And actual damage musl 
 be shown; Stimson v. Famham, 
 L R. 7 Q. 11. L75. 
 
 (n) Allen \. Milner, 2 C. & J. 
 17 : Gascoyne v. Edwards, I V. & 
 3. 19 : Parkes v. Smith, 19 I.. .1. 
 Q. B. L05. So, too, ;in action 
 mighl !>'• broughl <>ii a reference 
 ;it nisi prius, afterwards made :i 
 rale of courl ,if 1 lie rule was made 
 with the consenl of the parties, 
 7V' iik tilu 1 1 v. '/'/i sill i'lH, l Sidei 
 fin, 452.
 
 42 ESTOPPEL BY RECORD. 
 
 queiil action of ejectment between the parties (o), it is 
 not as a rule conclusive generally as to title or property. 
 Thus, property does not pass by the mere force of an 
 award, so as to prevent an action of trover being main- 
 tainable for its recovery subsequent to the award (p). 
 Ami where a bill in chancery was tiled by A. against 
 B. for infringement of a patent, and the matter being 
 referred to arbitration, the arbitrator, after hearing the 
 arguments, awarded that the letters patent which had 
 been granted for the invention were not illegal or void, 
 it was held that in subsequent proceedings by A. against 
 B. for another infringement of the same patent, B. was 
 not estopped by the award from pleading, inter alia, that 
 the invention was not one for which letters patent could 
 be legally granted (//). 
 
 The award, however, by an arbitrator, of a money 
 claim, is conclusive as to the amount awarded, and, 
 therefore, precludes the party to whom the sum is 
 awarded, from bringing a subsequent action for a larger 
 amount than the sum awarded (V). Thus where A. 
 and B. submitted the amount of damages accruing 
 from a breach of covenant between them to an arbi- 
 trator, it was held that in an action on the covenant, 
 the arbitrator's award was conclusive as to the amount 
 of damages, unless the award itself could be im- 
 peached (s). And it may be stated generally, that in all 
 
 (o) Doe (1. Morris v. Rosser, 3 (r) Per Lush, J., in Commings 
 
 East, 15. v. Heard, L. R. 4 Q. B. 669; 
 
 (/>) // a ntt r\. like, 13 East, 100; Gascoynew. Edwards, 1 Y. & J. 
 
 Tlborpe v. Eyre, 1 A. A E. 926. 19 ; Varies v. Smith, 19 I,. .1. Q. 
 
 ( 7) Neioall v. Elliot, :V1 I, -I. I'.. '10.1. 
 
 Ex. 120. (*) Whitehead v. Tattersall, 1
 
 RECORDS. 43 
 
 actions where damages only are to be recovered, arbitra- 
 ment, or accord with satisfaction, is a good plea (t). 
 
 As an award creates no merger of the original cause of 
 action, the mere fact that the award was made upon a 
 reference of all matters in difference between the parties, 
 does not preclude the plaintiff from suing upon a cause of 
 action subsisting against the defendant at the time of the 
 reference, upon proof that the subject-matter of the action 
 was not laid before the arbitrator, nor included in the 
 matters referred (u). But where all matters in difference 
 were referred to arbitration, and the subject in question 
 was a matter of difference at the time, and within the 
 scope of the reference, and the defendant might have 
 brought the whole under the consideration of the arbi- 
 trator, but kept part of it back, he was precluded from 
 using the amount kept back as a set-off, and from 
 claiming a deduction in respect thereof in proceedings of 
 attachment against him for non-payment of the sum 
 awarded (./•). 
 
 As regards the effect of the judgments or decisions of 
 courts of inferior or limited jurisdiction, it may be 
 observed in the first place, that the proceedings of a 
 court of inferior jurisdiction must show, upon the lace of 
 them, that the court had jurisdiction in the matter which 
 
 \'l. a- K. 191. See further as to (u) Ravee v. Earner, 4 T.R. 146* 
 
 awards, Com. 1%. Tit. Arhitra- and Golightly v. JelUcoe, note ibid. 
 
 ment, vol i., p. 208 ; Crofts v. | Smith v. Johnson, 15 East, 
 
 Harris, Carth. L87. 213 ; Dunn v. Murray, '.) B. & c. 
 
 «/, Blake's Case,Co. Rep. vol. iii. 780. As to the conclusiveness of 
 
 342 ; Morris v. Greach, I Levin/, the finding on n reference, see Ex 
 
 292. A.8 to a conditional award, partt Harper, n Bremner L I.'. 
 
 ei Crofts v. Harris, Carth. 187. In Ch. A.pp. 379.
 
 I ! I STOPPEL BY RECORD. 
 
 it professed to decide, or they are altogether void ,(?/) 
 unless, in the course of such proceedings, there has been 
 a waive!- by the opposite party of any objection to the 
 jurisdiction {.:). 
 
 The light in which judgments of courts of limited 
 jurisdiction are regarded by the High Court, is well 
 explained by Lord Brougham, in his judgment in Taylor 
 v. Clemson (a). He says : " Now it cannot be doubted, 
 that where a court of limited jurisdiction, limited either 
 in point of place or of subject-matter, assumes to 
 proceed, its judgment must set forth such facts as show 
 that it has jurisdiction, and must show also in what 
 respect it has jurisdiction. But it is another thing to 
 contend that it must set forth all the facts or all the 
 particulars out of which its jurisdiction arises. Thus, if 
 a power of commitment, or other power, is given to two 
 justices of a county, their conviction or their order must 
 set forth that they are two such justices of such county, 
 in order that it may be certainly known whether or not 
 they constitute the tribunal upon which the statute they 
 assume to act under has conferred the authority to 
 make that order, or to pronounce that conviction." 
 And again, later on in his judgment, he says : ' It is 
 necessary that the jurisdiction should appear, but there 
 is no particular form in which it must be made to 
 appear. The Court above, which has to examine, and 
 may control, the inferior Court, must be enabled, some- 
 how or other, to see that there is jurisdiction, such 
 
 (,j) Per Tindal, <'. J., in Taylor Fin. at y. 6 1 t. 
 v. Clemson, 2 </. B. at p. 1031. (a) 11 CI. & Fin. at p. 610. 
 
 (z) Taylor v. Clemson, 11 CI. &
 
 RECORDS. 
 
 45 
 
 jurisdiction as will support the proceeding : but in what 
 way it shall so see is not material, .provided that it does 
 so see " (6). 
 
 And in an important case (c), in which the jurisdiction 
 of the Mayor's Court (d) was in question, the judges said : 
 " The rule for jurisdiction is that nothing shall be 
 intended to be out of the jurisdiction of a superior Court 
 hut that which specially appears to be so ; and, on the 
 contrary, nothing shall be intended to be within the 
 jurisdiction of an inferior Court but that which is 
 expressly so alleged. Another distinction is that 
 whereas the judgment of a superior Court, unreversed, is 
 conclusive as to all relevant matters thereby decided, the 
 judgment of an inferior Court, involving a question of 
 jurisdiction, is not final. If the decision be for the 
 defendant, there is nothing to estop the plaintiff from 
 suing over again in a superior Court, and insisting that 
 the decision below had turned, or might have turned, 
 upon jurisdiction. If the decision were in favour of the 
 
 (b) 11 CI. & Fin. at p. G41 ; 
 iIsd the cases referred to by 
 !.<!. Cottenhara in his judgment, 
 at pp. «i 1 7, et - ■/. 
 
 (<•) Mayor, <(■>■., of London v. 
 Cox, I.. I.\ 2 II. L. 230. Ami 
 the opinions of the judges at p. 
 259, citing Peacock v. /A//, 1 Wm. 
 Saund. pp. '.)7, et seq, But even 
 (•..nils of general jurisdiction may 
 i aeii diction, and in 
 
 their decrees, &c, \\ ill 
 null and void : see t he judg 
 1 1 1 < ■ i : t ..; I I. .1,. in // 
 
 v. Duleep Singh, I.. R. 11 Ch. D. 
 
 at \k 813. 
 
 <'/ ) From thn above case it ap 
 pears that the Mayer's Court is a 
 local and inferior court, Bubjecl 
 to the jurisdiction of the High 
 I lourt. Sec, however, as to appeals 
 from i\io Mayor's Court, /. 
 Blanch v. Renter's '/'<■/< graph Co., 
 J, EL 1 Ex. I». (C.A.) t08 -, Apple 
 bi i v. Judkins, I.. I.'. :i C. I'. D. 
 -('.A.) |s:i ; Pryor v. City Offic \ 
 Co., L Et. ID Q. I'.. D. (C.A.) 
 504,
 
 16 ESTOPPJGL 15V RECORD. 
 
 plaintiff, it is still not conclusive, because the rule that, 
 in interior Courts and proceedings by magistrates, the 
 maxim omnia prcesumuntur rite esse acta does not apply 
 to give jurisdiction, never lias been questioned " (e). 
 And later on in their opinions they say (/), " So, in an 
 action brought in a superior Court upon a judgment of 
 an inferior Court, it must be again averred that the 
 original cause of action arose within the jurisdiction 
 of the inferior Court, so that upon a traverse of 
 that averment the question of jurisdiction may be 
 retried." 
 
 The want of jurisdiction in an inferior Court may be 
 shown by collateral facts ((/), and in any collateral proceed- 
 ings (h). As examples of judgments of Courts of inferior 
 jurisdiction, we will consider the effect of 
 
 (a.) Judgments in County Courts. 
 
 (/3.) Decisions of Justices. 
 
 (a.) Judgments in the County Courts. — A judgment of 
 the old County Court, which was not a court of record, 
 was not conclusive, but was at any rate liable to be 
 impeached by the subsequent rinding of a jury at nisi 
 jmus, amounting to a finding that the judgment had been 
 obtained by fraud (i). 
 
 An action, however, might be brought upon it, as 
 
 (e) See per Holroyd, J., in R. ton v. Pettis, 3 Levinz, 23. 
 
 v. All Saints, Southampton, 7 B. (h) Per Blackburn, J., in Revell 
 
 & C. 785 ; A', v. Bolton, 1 Q. B. v. Blake, L. K 8 C. P. 533, at p. 
 
 66 ; Chew v. Holroyd, 8 Ex. 249, 544. 
 
 per Parke, B. (*) Per Taunton, J., in Thomp- 
 
 ( f ) L. R. 2 H. L. at p. 2G3. son v. Blackhurst, 1 N. & M. at 
 
 ( y) Per Patteson, J., in In re p. 273. 
 ( 'larke, 2 Q. B. at p. 635 ; Frump-
 
 RECORDS. . 17 
 
 explained by Parke, B., in Williams v. Jones (k). He 
 
 <ays, " The principle on which this action is founded is, 
 that where a Court of competent jurisdiction has ad- 
 judicated a certain sum to be due from one person to 
 another, a legal obligation arises to pay that sum, on 
 which an action of debt to enforce the judgment may be 
 maintained. It is in this way that the judgments of 
 foreign and colonial Courts are supported and enforced, 
 and the same rule applies to inferior Courts in this 
 country, and applies equally whether they be courts of 
 record or not." 
 
 The modern County Court, however, established by 
 Ad of Parliament, is a court of record. And its 
 judgments upon matters within its jurisdiction, are con- 
 clusive as judgments of a court of record inter partes (/). 
 
 But the order of a County Court judge, under 19 & 20 
 Vict. c. 108, ss. 50 & 51, for delivery up of possession 
 of premises by the tenant, is not analogous to a judgment 
 in ejectment, so as to entitle the landlord to maintain a 
 subsequent action thereon for mesne profits, nor is it con- 
 clusive as to the landlord's right to possession, in a 
 subsequent action for mesne profits, brought by him 
 againsl the tenant (m). For the County Court judge is, 
 in the exercise of this peculiar statutory jurisdiction, in a 
 similar position t<> a magistrate having statutable autho- 
 rity to order possession of premises to be delivered up (n). 
 
 (k) 13 M. & W. 628, a1 p. 633; W. R. 62. 
 
 Bee also judgment of Alderson, I'... (m) Campbell v. Loader, 34 L 
 
 a1 p. 634. .1. Ex. 50. 
 
 \/, Routledffi v. Hislop, 2 E. & (n) Per Channell, B., in Camp- 
 
 K. . r )i!i ; Flitters v. Allfrey, L. I!, bell v. Loader, ibid. ; Hodson v. 
 
 10 C. P. 29 ; Clarh v. Torhe, 31 Walker, L R. 7 Ex. 55.
 
 L8 ESTOPPEL IVY RECORD. 
 
 (/3.) Decisions of Justices. — In accordance with what 
 Lord Brougham stated in Taylor v. Clemson (o) con- 
 cerning Courts of limited jurisdiction, the fact that 
 justices have jurisdiction in a matter must appear 
 upon the face of an order made by them (/;). And 
 orders made by them on matters outside their juris- 
 diction, are of no landing effect. Thus an order made by 
 magistrates for payment of rates, against a person who 
 disputed the validity of the rates, being outside their 
 jurisdiction was held not to be res judicata, so as to oust 
 the jurisdiction of the Arches Court (q). But in ordinary 
 cases where the jurisdiction of an inferior tribunal, as 
 of magistrates at petty sessions, depends on some fact 
 into which it is their duty to enquire as essential to 
 their jurisdiction, the determination of that tribunal, 
 after bond fide investigation as to such fact, is con- 
 clusive as to the existence of jurisdiction, so far as 
 that fact is concerned (r). And the decisions of 
 magistrates upon matters within their jurisdiction may 
 be binding on a civil Court (s). It has, however, 
 been held that a refusal of a magistrate to make an 
 
 (o) 11 CI. & Fin. at {-. 040, B. 66; see also Ex parte Wake, 
 
 and ante, p. 44. L. R. 11 Q. B. D. 291. 
 
 ( p) R. v. St. George, Blooms- (s) Wright v. London General 
 
 bury, 4 K A: B. 520 ; Parish of Omnibus Co., L. R. 2 Q. B. D. 271 ; 
 
 Staverton v. Parish of Ashburton, Great Northern Steamship Fishing 
 
 4 E. & B. 526. Co. v. Edgehill, L. R. 11 Q. B. D. 
 
 (y) Linnell v. Gunn, I, R. 1 225 ; and see Wildes v. Russell, 
 
 Adm. & Eccles. 363. L. R. 1 C. P. 744, as to the judg- 
 
 (?•) See per Bovill, ('. J., in ment of a court of Quarter Ses- 
 
 11 v. Blake, L. R. 7 C. P. at sions. 
 p. 310, citing R. v. Bolton, 1 Q.
 
 RECORDS. 49 
 
 order for delivery up of property, under 2 & 3 Vict, 
 e. 71, s. 40, is no bar to an action by the applicant 
 in trover (/). But a certificate of conviction or dis- 
 missal by a magistrate, in certain cases of aggravated 
 assault, is by statute a bar to a subsequent civil 
 action (//). 
 
 A conviction drawn up by a justice in due form, and 
 remaining in force, is a protection in any action brought 
 against him for the act, so done (i*). But in order that 
 the conviction may have this conclusive effect, no defect 
 must appear on the face of it (x) ; and the justiee must 
 have been unaware of any defect of jurisdiction, if any (?/), 
 and he must have been acting in a judicial capacity (z). 
 For example, by the Highway Act (5 & G Will. 4, c. 
 50, s. 73), it was enacted that if any timber, &c, was 
 laid upon the highway so as to be a nuisance, and was 
 not, after notice given, removed, the surveyor, by order 
 in writing from a justiee, might remove the same. A 
 justice having, under the said Act, made an order in 
 writing for the removal of the plaintiff's timber, in which 
 order it was recited that the plaintiff's timber was laid 
 upon the highway, and the timber having accordingly 
 been removed, it was held, in an action of trespass against 
 the justice, that the plaintiff could not give evidence, in 
 
 (/) Dover v. Child, L R. 1 Ex. I I & 12 Vict. c. I I. 
 
 D. 172. (x) Brittain v. Kmnaird, 1 B. 
 
 (u) 24 & 25 Vict. c. LOO, s. & B. 132 j In re Clarke, 2 Q. B. 
 
 15 ; Holden v. King, IU L. J. pp. 633, 634. 
 
 Ex. T. r ) ; Masper v. Brown, L. I«\ (//) See Mayor, &c, <>/' London 
 
 I C. P. I). 97. v. Cox, I, Et. 2 II. L at p. 263. 
 
 (v) Basten v. Carew, 3 B. & C. (z) I'Hi Tayloron Evidence (7th 
 
 at p. 652 ; sue also Jervis's Act, cd.), vol. ii. p. 13'J7. 
 
 E
 
 50 
 
 KSTOrrEL BY RECOUP. 
 
 contradiction to the order, to show that the locus in quo 
 was not a highway (a). 
 
 The above rule, affording protection to justices in 
 respect of acts done in their judicial capacity, is only part 
 of a general rule of law, that a judicial officer cannot be 
 sued for an adjudication according to the best of his judg- 
 ment, upon a matter within his jurisdiction, and that a 
 matter so adjudicated by him cannot be put in issue 
 against him (/>) ; and the same rule has been applied in 
 the case of judges of courts martial (c) ; coroners (d) ; 
 commissioners of courts of request (e) ; and also in the 
 case of judicial acts performed without fraud (/"), and 
 words spoken by a judge in his judicial capacity (</). 
 The rule, however, only applies if the judicial officer 
 has acted within his jurisdiction, and want of jurisdiction 
 may be shown (//), 
 
 (,<) Mould v. Williams, 5 Q. B. 
 469. 
 
 (A) Per Erie, C. J., in Kemp v. 
 Neville, 31 L. J. C. P. L58. 
 
 (c) Jehjll v. Moore, 2 B. & P. 
 N. R. 311. 
 
 (d) Garneit v. Ferrand, G B. & 
 C. at p. 625. 
 
 (<■) Aldridge v. Haines, 2 B. & 
 Ad. 395. 
 
 (/) Penney v. Slade, 5 Bing. 
 N. C. 4G9. 
 
 (<() Scott v. Stansfield, L. R. 3 
 Ex. 220. 
 
 (A) Andrews v. Morris, 1 Q. B. 
 3. The distinction between cases 
 where there is an inherent want 
 of jurisdiction on account of the 
 nature of the complaint, and 
 where there is want of jurisdiction 
 merely because the facts do not 
 make out the charge, is explained 
 in Ji. v. Bolton, 1 Q. B. GO, and 
 BHtlain v. Kinnaird, 1 B. & B. 
 432 ; see also Ld. Coleridge's 
 judgment in Usill v. Hales, 14 
 Cox, G4.
 
 CHAPTER III. 
 
 DOMESTIC JUDGMENTS IN PERSONAM. 
 
 It is laid down in the Duchess of Kingston's Case (a) 
 
 that a record, in order to operate as an estoppel in 
 subsequent proceedings in another court, must be that of 
 a court having either exclusive jurisdiction over the 
 subject-matter of the estoppel, or a jurisdiction concurrent 
 with that of the Court in which it is sought to raise the 
 estoppel. \Ye propose to consider, in this chapter, the 
 effed of domestic judgments in personam or inter partes, 
 and, in the following chapter, (lie effect of domestic 
 judgments in rem. 
 
 As to the parties to an action. — As regards judgments 
 in personam or inter partis, the general rule is, that an 
 allegation upon record, upon which issue has been once 
 taken and found, is, between the parlies taking it and 
 their privies (/*), conclusive according to the finding 
 thereof, so as to estop the parlies from again litigating 
 that fact once so tried and found (c). 
 
 In considering who are the parties hound by a judg- 
 
 (a) Appendix B, pp. HO, etseq. Outram v. Morewood, 3 East, 346 j 
 
 (b) Bro. Estop, pi. L62 j Gary per Parke, B., in Boileau v. Ilnt- 
 v. Dancy,2 <'r<». Eliz. 171 ; Hud- I'm, '2, Ex. 665; Burrowsv. Jemino, 
 son v. Robinson, I M. & S. I7~>,at 2 Str. 7.">-">, Appendix I!, p. 415 ; 
 pp. 179, 185. Flitters?. AU/rey, I, R. 10 C. P. 
 
 (c) Per Ld. Ellenborough in 29. 
 
 r. '1
 
 52 ESTOPPEL BY RECORD. 
 
 meni in personam, the question to be determined is, who 
 were the real parties to the suit (d). At all events, the 
 parties must be substantially the same (e). And, in 
 order to ('(institute a person a party so that a judgment 
 may be used against him, he must have taken some part 
 in tlie proceedings, in which the judgment was given (/). 
 But whenever a person sues, not in his own right, but 
 in the right of another, he must, for the purposes of 
 estoppel, be deemed a stranger {y). 
 
 And if a man mistook his action by bringing an action 
 as administrator, whereas in truth he was executor, he 
 was not debarred, by judgment for the defendant on 
 demurrer, from bringing a fresh action as executor (h). 
 
 So also the defendants, in an action brought by the 
 plaintiff as administratrix generally, were not estopped by 
 the judgment in a previous action brought against them 
 by the plaintiff, suing as administratrix under Lord 
 Campbell's Act (i). 
 
 Lord Coke classes privies under the three heads of 1. 
 Privies in blood ; 2. Privies in law; and 3. Privies by 
 estate. But as regards estoppel, the same doctrine 
 applies to each class, viz., that one who claims through 
 
 (d) Kinnersley v. Orpe, 2 Dougl. vol. iii. p. 66; Com. Dig. Tit. 
 517. Estop. (C). Demurrers are now 
 
 (e) Per Parke, B., in Simpson v. abolished, bee II. S. C, 1883, Order 
 Pickering, 1 ('. M. & It. 529. XXV., rule 1; and see as to the 
 
 (f) Doe d. Smith v. Webber, 1 practice now, It. S. C, 1883, 
 A. & E. 119. Order XXI., rule 5. 
 
 (a) Vin. Ah. Estop, p. 432, (i) Leggott (administratrix) v. 
 
 .Miii- Bro. Estop, pi. 1 10; Cum. G. N. U. Co., L. II. 1 () B. D. 
 
 Dig. i: bop. p. 195; Metters v. 599; 45 L. .1. Q. Jj. 557. And 
 
 Brown, 1 H. & 0. 686. see Ferrers v. Arden, 2 Cro. Ella 
 
 (h) Robinson's Case, Co, Pvep., p. 668 ; Co. Rep., vol. iii. 271.
 
 DOMESTIC JUDGMENTS IN PERSONAM. 53 
 
 another is, to the extent of his claim, subject to, and 
 able to take advantage of, all estoppels affecting the 
 person through whom he claims. 
 
 Thus, as an example of the first class, viz., privies 
 in blood, an heir is estopped by a verdict against his 
 ancestor through whom he claims (_/). But not if he 
 does not claim under the ancestor (h). 
 
 Again, as an example of the second class, viz., privies 
 iu law, an executor or administrator is bound by a 
 verdict against, his testator or intestate (/). So also a 
 verdict against a wife was held to bind a future bus- 
 band (m). And a judgment of ouster against one 
 member of a corporation is conclusive evidence against 
 another who derives title under him (it). 
 
 Further, as an example of the third class, viz., privies 
 in estate, if several estates in remainder be limited in a 
 deed, and one of the remaindermen obtains a verdict in 
 an action brought asrainst him for the same land, that 
 verdict may l>c given in evidence for the subsequent 
 remainderman in an action brought against him for the 
 same land, though he does not claim any estate under 
 the first remainderman, because they all claim under 
 the same deed (o). But there is no such privity 
 
 (j) Locke v. Nbrhonne, ■"> Mod. (>n) Outram v. Morewood, 3 
 
 HI; Bell v. Harwood, 3 T. R. East, 346; and sec Co. Litt, 
 
 308 ; Com. Dig. Tit. Estop, p. 392 a. 
 
 I '.• I, notes /•, s, and /. (») /,'. v. Mayor, <('•<■., <>/ Fork, 
 
 (I.) Spencer v. Williams, I.. R. 5 T. R. G<i and 72 ; but Bee A', v. 
 
 2 I', a- D. 230. Grimes, 5 Burr. 2601. 
 
 (I) R. v. Hebden, Buller's X. (o) Fyke v. Crouch, 1 Ld. 
 
 I'. 231 j Andrew, 388; 2 Str. Raymd. 730; 8 Wil. iii. On 
 
 1109. the same principle, a remain-
 
 f>l. 
 
 Ks'rorrKL m r record. 
 
 of estate between a tenant for life and a rever- 
 sioner (p ). 80 also in a bill claiming tithes, a former 
 verdict between the parson and another occupier was 
 admitted as evidence on the point " whether the payment 
 called the tilth-penny was paid and payable in lien of 
 tithe-hay "(q). 
 
 The rule that a record inter partes binds parties and 
 privies, is subject to the general limitation that no one 
 can plead a record for estoppel, unless he himself may be 
 estopped by it (/•). Thus it has been laid down that no- 
 body can take benefit by a verdict, that would not have 
 been prejudiced by it, had it gone contrary (s). 
 
 For an example, a stranger to a record inter partes 
 cannot take advantage of an estoppel arising there- 
 from (/). Neither, it appears, is he bound by any 
 estoppel arising therefrom (u). 
 
 The general rule is laid down in the opinions of the 
 
 dcrman, after a tenant in tail, was 
 not a competent witness for the 
 tenant in tail in ejectment for the 
 entailed property. Doe d. Teynkam 
 v. Tyler, G Bing. 300. 
 
 (p) Buller's N. P. 232 a. 
 
 (y) Travis v. Chaloner, Gwillim 
 on Tithes, vol. iii. 1237. For 
 other examplcsof privies by estate, 
 see Blakemore v. Glamorganshire 
 Canal Co., 2 C. M. & R. 133 ; 
 Helpsv. Hereford, 2 B. & Ad. 242, 
 
 (/•) Bro. Estop, pi. 15; J,'hs/i- 
 worth x. /'< uilii oh , llardrcs, 472. 
 
 («) Per Coleridge, J., in Wenman 
 v. Mackenzie,^ E. & 15. 158, citing 
 Gilbert on Evidence. 
 
 (t) Bro. Estop, pis. G4, 223. The 
 reason given in the old authority, 
 why a stranger cannot take ad- 
 vantage by estoppel of a record 
 upon verdict, is, that the verdict 
 might be reversed by error or 
 attaint, but that the stranger 
 could not reverse it, see ibid. 
 
 (//) Vin. Ab. Estop, pp. 444, 
 44G ; Bro. Estop, pis. 15, 44, 105, 
 169 ; Co. Litt. 352 a. Sec, contra, 
 the rule laid down in Ball v. 
 Wyatt, Cro Car. 338 (cited in Vin. 
 Ab. Estop, p. 442), to the effect 
 that an estoppel by record binds 
 all strangers who would not be 
 disinherited by it.
 
 DOMESTIC JUDGMENTS IN TERSONAM. 55 
 
 judges in the Duchess of Kingston's Case {x) as follows: 
 — " It is a general rule, with certain exceptions, that a 
 transaction between two parties in judicial proceedings, 
 ought not to bind a third. For it would be unjust to 
 bind any person who could not be admitted to make a 
 defence, or to examine witnesses, or to appeal from a 
 judgment he might think erroneous : and therefore the 
 depositions of witnesses in another cause in proof of a 
 fact, the verdict of a jury finding the fact, and the 
 judgment of a court upon facts found, although evidence 
 against the parties and all claiming under them, are not 
 in general to be used to the prejudice of strangers." 
 
 The reason why an estoppel per rem judicatam is 
 limited in its effect to parties and privies, is because it is 
 dependent upon the principle, "Res inter alios acta alteri 
 nocere non potest " (y). So too, it is stated elsewhere, that 
 the verdict ought to be between the same parties, because 
 otherwise a man might be bound by a decision, who had 
 not the liberty to cross-examine : and that nothing can be 
 more contrary to natural justice, than that a man should 
 be injured by ;i determination, that lie, or those under 
 whom lie claims, were not al liberty to controvert (,i). 
 
 A distinction was formerly drawn between the effeel 
 by way of estoppel upon third parties of a record in a 
 real, and in a personal action (<<). Thus, if A. brought 
 
 (x) -Jo St. Tr. pp. 355—651 : McClel. & Y. at p. 169. 
 
 ■J. Smith's I, C (8th ed.), p. 784 (</) /.'. v. AmbergaU &c. /'//. Co., 
 
 7 . .• I Leach, <'.<'. I 16. And I E. & V>. 372 ; and per Ld. Sel- 
 
 see also the rule as l<> theadmissi- borne in /.'. v. Hutchins, L I!, <i <^. 
 
 bility of depositions, &c, in other B. I'. 300. 
 
 actions, as laid down per Hullook, | | Buller'd X. I'. [». 233. 
 
 Jl. } wAttorney'Generalv. Davison, ('/) And sec, as to records iu
 
 56 ESTOPPEL BY RECORD. 
 
 a real action against B., and an issue was found against 
 A., this would estop A. and C, in a subsequent action 
 by them against B., from raising the same issue. But it 
 would have been otherwise in an action of trespass (A). 
 
 A record in an action between A. and B. is no estoppel 
 in an action between A. and C. (c), unless, in the 
 former action, issue was joined upon the title to the 
 property in question in the action, and judgment was 
 given thereon (d) ; and unless B. and C. are joint wrong- 
 doers (<l<l). But a judgment in an action against two 
 persons who had borrowed money from the plaintiffs 
 (though the judgment was unsatisfied) was held to 
 constitute a bar to another action brought by the same 
 plaintiffs against a third person, who was afterwards 
 discovered to have been really interested as a partner 
 with the two debtors in the business, for the purposes of 
 which the money had been borrowed (e). 
 
 But the record in an action between A. and B. would be 
 admissible in evidence in an action between A. and C. (/), 
 
 which the freehold comes in k, S. 475. But see In re Defries, 
 
 debate, Bro. Estop. pi. 15; and Gordon v. Levy, 48 L. T. 7CK>. 
 
 comments thereon in Outram v. (d) Ferrer's Case, 2 Cro. Eliz. 
 
 Morewood, •"> East, 346. 668. 
 
 (I>) Incledon v. Barges*, Com- ('/'/) In which case there is an 
 
 berbach, Rep. 166; 1 Shower, 27. estoppel even if the judgment is 
 
 For a discussion of the differences unsatisfied, Brinsmead v. Hdrri- 
 
 between judgments in real and son, L. R. 7 C. P. 517. 
 
 personal actions, see Ferrer's Case, (/) Kendall v. Hamilton, L. R. 
 
 Co. Rep. vol. Hi. p. 271 ; and per 4 App. Cas. 504. But, as to 
 
 Ld. Ellenborough in Outram v. unsatisfied judgments, cf. Ber- 
 
 Morewood, '■'< East, 346. mondsey {Vestry) v. Ramsey, L. R. 
 
 (c) Kinnersley v. Orpe, 2 Doug!. G C. P. 217. 
 
 51 7: Outram v. Morewood, 3 East, (/) BlaTcemore v. Glamorgan- 
 
 346; Hudson v. Robinson, 4 M. shire Canal Co., 2 C. M. & R. 133 ;
 
 DOMESTIC JUDGMENTS IN PERSONAM. 57 
 
 and a record of proceedings between A. and B. may 
 be pleaded as res judicata in bar to a second action 
 brought by A. on the same cause of action, against a 
 person having privity with B. (g). And where the 
 parties are numerous a judgment against a few selected 
 representatives may bind the rest(A). 
 
 So also a record in an action in which A. was plaintiff 
 and B. and C. joint defendants is not strictly speaking a 
 legal estoppel in a subsequent action in which A. is 
 plaintiff and B. defendant (z), but, if given in evidence, 
 it is conclusive as to the rights of the parties (_/). How- 
 ever, a judgment in an action against A., B., C, &c, sued 
 as joint debtors, in favour of any one of them, is no bar 
 to a subserpient action against the others in respect of 
 the same claim, if it does not appear that the judgment 
 in the earlier action was obtained on a ground which 
 discharged all the alleged debtors (h). 
 
 As to lli'- subject-matter of the action. — In order that a 
 ord inter partes may operate by way of estoppel in a 
 subsequent action, the cause of action must be the same, 
 i.e., there must be a substantial identity (/). For instance, 
 a judgment lor the plaintiff in an action of replevin was a 
 bar to a subsequent action for special damage to the goods 
 
 Parker v. Leu/is, L. R. 8 Ch. App. (./) Sec per Ld. Ellenborough 
 
 1035.. in Strutt \. Bovingdon, 5 Esp. 09 ; 
 
 (<D Strutt v. Bovingdon, 5 Esp. and Blalcemore v. Olamorganshin 
 
 59 ; Lochyer v. Ferryman, I, II. 2 Canal Co., 2 < '. M. & B. 133. 
 A] p. Cas. 519. (k) Phillips v. Ward, 33 L. J. 
 
 (/*) Commissioners of Sewers die. Ex. 7. < !f. Buchland v. Johnson, 
 
 v. Qellatly, L \\. 3 Ch. D. 610. L5 < '. B. I 15. 
 
 Callow v. JenJcinson, 20 L (V) Plummer v. Woodburne, t 
 
 •I. Ex. 321. B. & C. 636.
 
 58 ESTorrKL by record. 
 
 replevied, as the special damage might have been recovered 
 in the action of replevin. But it was no bar to a subsequent 
 action for trespass to the land on which the goods were (7^). 
 
 80 where, in an action at common law, the plaintiff' 
 declared on a promissory note and also for goods sold 
 and delivered, but, upon executing a writ of inquiry after 
 judgment by default, he gave no evidence on the count 
 for goods sold and delivered, and took his damages for 
 the amount of the promissory note only, it was held that 
 the judgment was no bar to the plaintiff recovering, in a 
 subsequent action, for the goods sold (n). 
 
 So, also, the decree of dismissal of a bill in equity was 
 no bar to a new suit in equity, asking the same relief, but 
 stating a different case and giving rise to a different 
 equity. For example, H. filed a bill in equity, in the 
 Supreme Court of Sydney, claiming to be admitted as a 
 shareholder in respect of certain shares, and the Court, 
 after hearing the case on the merits, dismissed the bill. 
 H. subsequently filed a bill in the English Court of 
 Chancery for the same purpose. But, on the ground 
 that the allegations in the former suit were different from 
 those in the latter, the decision at Sydney was held not 
 to be conclusive against the plaintiff in the latter suit (0). 
 
 (m) Gibbs v. Cruikshanh, L. R. v. Green, 2 C. & J. 374 ; and Dans 
 
 8 C. P. 4:. 1. v. Hedges, I, R. G Q. B. GST. 
 
 () ( ) Seddon v. Tutop, G T. II. (0) See per Ld. Westbury in 
 
 607. The judgment in the former Hunter v. Stewart, 31 L. .). Ch. 
 
 action was, however, held to he N. S. 346, reversing Wood, V.-C. 
 
 jjrimdfacie, though not conclusive, And as to the refusal of a former 
 
 evidence that the demand had motion, see In re Anglo-French, 
 
 been inquired into : see thejudg- &c. Socy>, L. R. 14 Ch. D. 533. 
 nicnt of Grose, J., and cf. Hadley
 
 DOMESTIC JUDGMENTS IN PERSONAM. u9 
 
 Moreover, the mere allegation, in a bill for relief in 
 Chancery, of matters which were not and could not be 
 the subject of a decree in the suit, was no bar to a new 
 suit founded upon such matters, subsequent to the 
 decree (p). 
 
 And, in the same way, a judgment in personam in an 
 Admiralty case is no bar to a subsequent action in rem (q). 
 
 But the mere fact that the form of action was not the 
 same, did not under the old system prevent a judgment 
 in one action operating as a bar to another (r). Thus a 
 judgment in trover might operate as a bar to an action 
 for money had and received (s) ; and, if the declaration 
 were framed in such a manner that the causes of action 
 might l»e the same, it was incumbent on the party 
 bringing the action to show that they were not (/). 
 
 And where the demand for which the second action 
 was brought existed prior to the first action, it would 
 seem that it is incumbent on the plaintiff in the second 
 action to show that such demand was not inquired into 
 in the first action ("). 
 
 p) Bainbridge v. Baddeley, 2 
 Phil. 705 ; Toxdmin v. Copland, 
 
 ■2 ri.ii. 7ii. 
 
 (>/) Nehon v. Couch, 15 < '. 13. 
 X. S. <J9 j Tin Bengal, Swabey'a 
 A. Im. 168 : TU John <(• Mary, 
 Swabey's Adra. 171 ; The, Sylph, 
 L R. 2 Adm. 24. 
 
 i r) Clt ve v. PoW( 11, I Moo. & 
 Rob. 228 ; Slate's Case, Co. Rep. 
 vol ii. 1 1 501. 
 
 («) Buckland v. Johnson, 23 L. 
 J. C. P. 204 ; Few v. Backlwme, 
 
 8 A. & E. 789 ; Palmer v. Temple, 
 'J A. & E. 508 j Bristowe v. Fair- 
 clough, 1 M. & G. 1 12. 
 
 (I) See tlic judgment of Ab- 
 bott, C. J., iii Ld. Bagot v. Wil- 
 liams, 3 15. & C. 235. " 
 
 (u) Sec, in the case of a refer- 
 ence to arbitration, Ravee v. Far- 
 mer, I T. I!. I I'i ; and Golightly 
 v. Jellicoe, note ibid. See also 
 Smith v. Johnson, 15 East, 213 ; 
 and Dunn v. Murray, 9 B. & C. 
 780.
 
 60 ESTOPPEL BY RECCED. 
 
 And where the cause of action is the same, and the 
 plaint ill' lias had an opportunity in the former action of 
 recovering, and but. for his own fault might have 
 recovered that which he seeks to recover in the second 
 one. the former judgment is a bar to the second action, 
 even though the claim in the second action is for a very 
 much larger amount (./■). 
 
 Thus where plaintiff sued in an action of assumpsit for 
 money bad and received, and defendant pleaded a judg- 
 ment recovered by default, for £4000, in an inferior court 
 for the same causes of action, and plaintiff replied that 
 the causes of action were not the same ; and at the trial 
 it appeared that defendant had received on account, from 
 plaintiff, and as his steward, sums of money at different 
 times ; and that, on the investigation of the accounts, 
 plaintiff found that there was due to him a much larger 
 sum than that for which he had declared in the inferior 
 court ; but that he had proceeded for the smaller sum 
 under the belief that defendant bad no available property 
 beyond that amount, it was held, that all the sums 
 which plaintiff knew that defendant had received at the 
 time when he commenced the action in the inferior court, 
 were to be considered as causes of action in respect of 
 which he had declared and recovered judgment (y). 
 
 And again, where plaintiff brought an action in the 
 county court for damage to his cab through defendant's 
 negligence, and having recovered the amount claimed 
 
 (x) See the renicarks of Willes, also The PJiospJiate Sewage Co. v. 
 
 J., in Nelson v. Couch, 10 C. 15. Molleson, L. R. 4 App. Cas. 801. 
 X. S. 99, at p. 108; and Barber (//) 1A. Bagot v. Williams, 3 
 
 v. Lamb, 8 C. 13. N. S. 'J-j ; sec 13. & C. 235.
 
 DOMESTIC JUDGMENTS IN PERSONAM. 61 
 
 (€4 3.9. Or?.), brought an action in the Divisional Court 
 against defendant, claiming damages for personal injury 
 sustained by plaintiff through the same negligence, and 
 the jury found for the plaintiff with £350 damages, it 
 was held that, inasmuch as the damages for personal 
 injuries might have been claimed in the first action, the 
 judgment recovered in it was a bar to subsequent pro- 
 ceedings (-;). 
 
 However, facts "noviter peracta et ad notitiam perventa," 
 may be introduced in a subsequent action, even where 
 matter which might have been known by reasonable dili- 
 gence on the former occasion could not be so introduced (a). 
 
 And the distinction should be borne in mind between 
 a continuing cause of action and fresh damages arising 
 out of the same cause of action. Thus, in an action on 
 the case for erecting a nuisance, defendant pleaded a 
 prim - action for erecting the same nuisance and a recovery 
 thereon, and plaintiff demurred, but judgment was given 
 for defendant, for plaintiff might have had an action for a 
 continuance of the same nuisance, but not a new action 
 for the name nuisance (I). On the same principle new 
 consequential damages do not give a fresh right of action 
 for assault, after a former recovery had (c). 
 
 The general principle upon which the plea of res judi- 
 cata depends, and also the rule by which it may be 
 determined whether the cause of action is the same or 
 
 I i Brumden v. Humphrey) L. Clarh v. Yorke, 52 L.J. i'h. 32. 
 I:. II < v >. B. I>. 712. (c) Fetter v Beale, 1 Salk. 11. 
 
 ('ij See per Will's, .1., iii Stt '■' ns But :i summary order is no bar as 
 
 v. 77//,//, I,. R. 6 C. I'. 117. to fresh causes of complaint; Cutler 
 
 [b) Johnson \. Long, 1 Salk. to ; v. Turner, I.. I.'. 9 Q. B. 502,
 
 62 ESTOPPEL 15Y RECORD. 
 
 not, lias been well stated, as follows : — " You shall not 
 bring the same cause of action twice to a final detcrmina- 
 tion. ' Nemo debet bis vexari ' ; upon this we found our 
 judgment ; and what is meant by the same cause of 
 action is where the same evidence will support both the 
 actions (J), although the actions may happen to be 
 grounded on different writs. This is the test to know 
 whether a final determination in a former action is a bar 
 or not to a subsequent action, and it runs through all the 
 cases in the books, both in real and personal actions. It 
 was resolved in Ferrer s Case (e) that when one is barred 
 in any action, real or personal, by judgment upon 
 demurrer, confession, verdict, &c, he is barred as to 
 that or the like action, of the like nature, for the 
 same thing for ever ; for ' expedit reipublicse ut sit finis 
 
 litium' "(,/')• 
 
 Thus, where a suit for declarator of marriage was 
 brought against a lady in Scotland, and after trial was 
 dismissed, and it appeared that the pursuer had at the 
 time of the hearing all the facts within his knowledge, and 
 had the power to raise them, it was held that he was 
 barred from instituting, upwards of thirty years after- 
 wards, a second suit for declarator of the marriage 
 against the lady's trustees, after her death, although it 
 was urged in the second suit, that the decree in the 
 former suit had been obtained through fraud and by false 
 
 (J) See also Ld. Westlmry's 32 L. J. Ch. 249. 
 judgment in Hunter v. Stewart, (e) 2 Cro. Eliz. GG8. 
 
 31 L. J. Ch. N. S. 34G, and V.-C. (/) Hitchin v. Campbell, 2 Sir 
 
 Wood's remarks thereon in Simp- W. Bl. 827. 
 son v. Foyo, 29 L. J. Ch. 657 ;
 
 DOMESTIC JUDGMENTS IN PERSONAM. 63 
 
 evidence (7/). "The object of the rule of res judicata" 
 said Lord Blackburn, " is always put upon two grounds ; 
 the one public policy, that it is in the interest of the 
 State that there should be an end of litigation, and the 
 other the hardship on the individual that he should be 
 vexed twice for the same cause." Again, Lord Penzance, 
 in his judgment in another case, says, " When that which 
 was originally only a right of action has been advanced 
 into a judgment of a court of record, the judgment is a 
 bar to an action brought on the original cause of action. 
 The reasons for this result are given by Baron Parke in 
 King v. Hoare (//). He says : ' The judgment is a bar 
 to the original cause of action, because it is thereby 
 reduced to a certainty, and the object of the suit attained 
 so far as it can be at that stage ; and it would be useless 
 and vexatious to subject the defendant to another suit for 
 the purpose of attaining 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' " (i). 
 
 The plea of res judicata applies, excepl in special cases, 
 not only to points upon which (lie Court was actually 
 required by the parties to form an opinion and pronounce 
 judgment, hut to every point which properly belonged to 
 the suljeet of litigation, and which the parties, exercising 
 reasonable diligence, might have brought forward at the 
 time (/■). 
 
 ((j) LocJtyerv. Ferryman, L. It. son v. Couch, 15 (J. B. N. S. 99; 
 
 2 App. Cas. 519. and per Eyre, C. J., in Philips v. 
 
 (h) 13 M. & W. 491, at p. 504. Hunter, 2 II. Bl. til. 
 
 (i) Kendall v. Hamilton, L I:. (k) Per Lord Kenyon, C.J., in 
 
 4 App. Cas. 501, a1 p. 526 ; NeU Greathead v. Bromley, 7 T. R.
 
 64 FSTOI'IT.L BY RECOUP. 
 
 The elements which, in a civil case, arc, generally 
 speakingj necessary to establish the pica of res judi- 
 cata } arc thus explained in the judgment of Lord 
 O'Hagan in a recent case (/). First, every oppor- 
 ± o tnnity must have been given to all the parties to 
 "'make their respective cases. Secondly, a tribunal per- 
 fectly competent to decide the issues raised between 
 the parties. Thirdly, distinct issues, or a distinct issue, 
 raised between the parties, before the said tribunal. 
 Fourthly, a valid and final adjudication upon the said 
 issues, or issue, so raised. Fifthly, a deliberate acting 
 upon the said adjudication, as between all the parties 
 interested. And therefore the English Courts are re- 
 luctant to interfere with the decision of a competent 
 Court which had, or might have had, but for the fault 
 of one of the parties to the cause, all the materials 
 before it to come to a right conclusion. This is illus- 
 trated by the following case (m). For the purpose of 
 having a contract of sale of a concession set aside on the 
 ground of fraud and repayment of the purchase money, 
 
 455 ; and per Wigram, V.-C, in counter-claim in the first action, 
 
 Henderson v. Henderson, 3 Hare, sec Hindleyv. Haslem, L. R. 3 Q. 
 
 115; cited with approval by B. D. 481. 
 
 Wood, V.-C, in Simpson v. Fogo, (I) Dundas v. Waddell, L. R. 5 
 
 29 L. J. Ch. 657 ; 32 L. J. Ch. App. Cas. 249, at p. 2G9 ; see 
 
 249. Sec also In re 31<<>j, L. R. also per Willes, J., in Langmead 
 
 25 < !h. I). 231. As to the juris- v. Maple, 18 C. B. N. S. 255, 270 ; 
 
 diction of a judge to re-hear an and National Bolivian dec. Co. 
 
 order under the Judicature Act, v. Wilson, L. R. 5 App. Cas. 17G. 
 1873, see hi re St. Nazain Co., (m) PliospJiate Sewage Co., 
 
 L. 11. 12 Ch. D. 88. But as to (Lim.) v. Molleson, L. R. 4 App. 
 
 matters which might have been Cas. 801. 
 pleaded by way of set-oil' or
 
 DOMESTIC JUDGMENTS IN PERSONAM. 65 
 
 a company filed a bill in the English Court of Chancery. 
 At the same time they lodged a claim in Scotland to be 
 ranked as creditors for the amount of the said purchase- 
 money, upon the estates of a firm carrying on business in 
 Edinburgh and London, which had been sequestrated in 
 Scotland. In the claim, the company described the debt 
 as owing under the circumstances set out at length in the 
 bill in chancery, "produced and held as repeated breoitatis 
 causd." The trustee having rejected the claim, a con- 
 descendence and proof was ordered in Scotland. The 
 proof was then adduced. The Court of Session and 
 ultimately the House of Lords, held that the claimants 
 were not entitled to the debt claimed against the seques- 
 trated estates ; and refused to sist the proceedings in the 
 sequestration, pending the issue of the chancery suit (//). 
 The bill in chancery, to which the trustee was a party, 
 as filed alleged certain indicia of fraud : afterwards 
 additional evidence of fraud was discovered, in time to 
 have it inserted, by way of amendment, in the bill, ami 
 before the proof above alluded to had been adduced (o). 
 The bill was then amended, and a decree was made by 
 the Vice-Chancellor (affirmed by the Court of Appeal), 
 rescinding the contract and ordering repayment of the 
 said purchase-money ; and a declaration was added 
 that the plaintiff company should be at liberty to prove 
 in the sequestration suit in Scotland for the amount 
 of the said purchase-money (p ). The company then 
 lodged another claim with the trustee in Scotland. 
 
 (n) L K. 1 A]>]>. Cas. 7*". oeedings on the proof, 
 
 (o) But this additional evidence (p) L. It. ."> eh. I). 394. 
 
 was not made use of in the pro-
 
 0(» ESTOPPEL BY RECORD. 
 
 Again lie rejected the claim, and again a condescend- 
 ence was made up. The company this time put their 
 claim upon the allegations contained in the amended 
 bill. The trustee relied on the plea of res judicata. 
 Held thai the plea of res judicata prevailed because 
 (1), the new allegations of fraud in the amended bill did 
 not constitute a new medium concludendi, and (2), 
 because the alleged facts were within the knowledge of 
 the claimants before the proof was adduced in the former 
 action, and might have been inserted, by way of amend- 
 ment, in their closed record in Scotland. Lord Cairns in 
 his judgment says (q) : " As I understand the law with 
 regard to res judicata, it is not the case, and it would be 
 intolerable if it were the case, that a party who has been 
 unsuccessful in a litigation can be allowed to reopen that 
 litigation merely by saying that since the former litigation 
 there is another fact going exactly in the same direction 
 with the facts stated before, leading up to the same 
 relief which I asked for before, but it being in addition 
 to the facts I have mentioned, it ought now to be allowed 
 to be the foundation of a new litigation, and I should be 
 allowed to commence a new litigation merely upon the 
 allegation of this additional fact. My Lords, the only 
 way in which that could possibly be admitted would be 
 if the litigant were prepared to say, I will shew you that 
 this is a fact which entirely changes the aspect of the 
 case, and I will shew you further that it was not, and 
 could not by reasonable diligence have been ascertained 
 by me before " (r). 
 
 (g) L. R. 4 App. Cas. at p. 814. the courts below. Court Sessions 
 (r) See also the judgments in Cases, 4th series, vol. v., p. 1125.
 
 DOMESTIC JUDGMENTS IN PERSONAM. 67 
 
 The question how far a judgment is conclusive as 
 regards matters incidentally determined by it or col- 
 lateral to it, arose in the case of Barrs v. Jackson (s), 
 where Knight-Bruce, V.-C, in a learned and exhaustive 
 judgment, in which he cited at length several important 
 passages from the civilians, decided that such matters 
 can be investigated afresh in a suit brought for any other 
 purposes. 
 
 The Vice-Chancellor, in his judgment in the above case, 
 lays down the following important restriction upon the 
 general rule against reagitating matters which have been 
 once adjudicated upon. He says : " It is, I think, to be 
 collected, thai the rule against reagitating matter ad- 
 judicated is subject generally to this restriction, that how- 
 ever essential the establishment of particular facts may 
 be to the soundness of a judicial decision, however it may 
 proceed on them as established, and however binding 
 and conclusive the decision may, as to its immediate and 
 direct object, be, those facts are not all necessarily estab- 
 lished conclusively between the parties, and that either 
 may again litigate them for any other purpose as to 
 which they may come in question, provided the imme- 
 diate Bubjecl of the decision he not attempted to be 
 withdrawn from its operation, so as to defeat its direct 
 object" (*). 
 
 («) 1 Y. & C. C. (..'. 585. have ever since been recognized 
 
 Although the judgment of Knight- and noted upon. Sec also Lord 
 
 Bruce, V'.-*'-, was reversed on Westbury's judgment in Hunter 
 
 appeal, on the authority of /!>><>- v. Stewart, 3] L. J. N. S. Ch. 346. 
 
 chier v. Taylor, 1 Bro. P. < '. 708, (t) See also ffobbs v. Hennvng, 
 
 the main principles Laid down by 17 C. 15. N. s. 826 ; and Lord 
 
 him were left untouched, and Selborne'a judgment in A', v. 
 
 i 2
 
 GS ESTOPPEL BY RECORD. 
 
 Thus a judgment in Divorce is not evidence of matter 
 to be inferred from the judgment. For instance, in 
 an action for necessaries supplied to defendant's wife, 
 (who was living apart from him), the separation was 
 alleged to be on account of the cruelty and desertion of 
 her husband (defendant). Defendant produced in evidence 
 a sentence of the Consistorial Court of the Diocese of 
 Cork and Ross, dismissing a suit of separation, from bed 
 and board, instituted by the wife against him on the 
 ground of cruelty and for alimony. This was held to be 
 evidence but not conclusive evidence on the point whether 
 the wife's separation was caused by the husband's mis- 
 conduct or not, and as to the amount of damages, if any, 
 to be given. But it would seem that it was not evidence 
 at all on the point whether the wife was entitled to 
 alimony or not, as the decree merely decided that she 
 was not entitled to a divorce for cruelty, and the question 
 of alimony would be a mere matter of inference from the 
 decree (u). But a decree, in a husband's suit for disso- 
 lution of marriage, dismissing his petition on the ground 
 of his adultery, has been held to be conclusive evidence 
 against him, in a subsequent suit by him for dissolution 
 
 Hutchins, L. II. G Q. B. D. 300 ; issue, does not prevent a party 
 
 see also the judgment of Brett, from bringing forward the same 
 
 L. J., in AboidoffY. Oppenheimer, evidence in a subsequent action 
 
 L. R. 10 Q. B. I >. 295, at p. 307, between the same parties, either 
 
 who says, " I think it true to say to maintain or to defend other 
 
 that the judgment of Knight- issues therein raised." 
 Bruce, V.-C, in Barrs v. Jackson, (u) Day v. Spread, 1 Jebb it 
 
 does show that the mere fact of Bourke's Rep. 1G3; and Appendix 
 
 evidence having been brought for- B, p. 421. 
 ward to substantiate or defeat one
 
 DOMESTIC JUDGMENTS IN PERSONAM. G9 
 
 of marriage, although brought against other co-respon- 
 dents (v). 
 
 The following distinction was also laid down in the opi- 
 nions of the judges in the Duchess of Kingston s Case(.v), 
 between the judgments of courts having concurrent and 
 of those having exclusive jurisdiction, over matters in 
 dispute. "From the cases as to judgments being given in 
 evidence in civil suits, 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 evidence conclusive, 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 parties, coming incidentally in question in 
 another court, for a different purpose. But neither the 
 judgment of a court of concurrent or exclusive jurisdic- 
 tion is evidence of any matter which came collaterally in 
 question, though within their jurisdiction ; nor of any 
 matter incidentally cognizable, nor of any matter to be 
 inferred (xx) by argument from the judgment." 
 
 The following comments are made upon this in 
 Phillipps on Evidence (//). " It is only upon a matter 
 directly in question that the judgment of a court of 
 concurrent jurisdiction is conclusive : while the iudff- 
 
 (v) Conradiv. Conradi, L It. (xx) As to tin' conclusiveness 
 
 I I'. & I ». 5] I. of judgments with respect to the 
 
 (./) 20 St. Trials, pp. 355 — grounds of the decision, see Bank 
 
 651 ; 2 Smith's L. (J. (8th edit.), of Bindustan «Vc, In n Alison's 
 
 p. 784 et seq. ; and 1 Leach C. C, Case, l>. tt. 9 Ch. App. I. 
 146. (>/) See PhilL Ev., voL ii. p. 5,
 
 70 ESTOPPEL BY RECORD. 
 
 ment of a court of exclusive jurisdiction is conclusive, 
 not only when the matter comes in question directly, 
 but also when it comes incidentally in question. This 
 difference in the effect of the judgments arises from 
 the difference in the constitution of the courts which 
 pronounce them. When a matter, over which some 
 other court is allowed to have exclusive jurisdiction, 
 comes in question, whether directly or incidentally, and 
 the judgment of such a court is offered in evidence as 
 proof of the matter, it must necessarily be conclusive. 
 Implicit credit must be given to a court so constituted, 
 while its judgment is unreserved and in full force. For 
 the court in which the particular matter is to be proved, 
 has no authority to examine into the merits of the judg- 
 ment, and must take the matter as judicially and conclu- 
 sively decided." 
 
 Fraud forms another exception to the rule as to the con- 
 clusiveness of judgments. Thus it is laid down in the 
 Duchess of Kingston's Case (z) that fraud is an extrinsic, 
 collateral act, which vitiates the most solemn proceedings 
 of courts of justice. " I think/' said Turner, L.J., in an- 
 other case (o)," that the proceedings of a court of justice may 
 be vitiated and rendered void by fraud and collusion in the 
 same manner and to the same extent, as the most solemn 
 acts and deeds of the parties may be vitiated and rendered 
 void on that ground." Thus in the Ecclesiastical Courts 
 collusion would overturn any sentence that had been 
 pronounced (b). "The common law/' said the judges in 
 
 {z) Appendix B, p. 428 ; and (a) Harrison v. Mayor, dec, of 
 
 see Sliedden v. Patrick <t,ni others, Southampton, 22 L. J. Ch. 722. 
 1 Macq, 535. (b) Meddowcroft v. Hvguenin, 4
 
 DOMESTIC JUDGMENTS IN PERSONAM. 
 
 71 
 
 the Duchess of Kingston's Case(c), "so abhors fraud and 
 covin that all acts, as well judicial as others, though of 
 themselves just and lawful, yet being mixed with fraud 
 and deceit, are in judgment of law tortious and unlaw- 
 ful " (('/). Thus a collusive fine levied with proclamations 
 by a tenant for years or by copy of court roll, in order to 
 deprive the lord of his inheritance was absolutely void, 
 and the lord's right was absolutely unbarred, notwith- 
 standing the expiration of the five years (e). For those 
 who recovered land by covin were held to be in as dis- 
 seisors or trespassers, according to the nature of the 
 actions in which they recovered (/). Thus also a judg- 
 ment in one court might be adjudged to be void in 
 another court, on account of collusion (g), except perhaps 
 in the case of adjudications made final to all intents and 
 purposes, by the special Act of Parliament by which the 
 jurisdiction is created {It). 
 
 But it seems doubtful whether parties would be 
 
 Moo. P. C. C. 38G; Perry v. 
 Meddowcroft, 10 Beav. 122; and 
 see Roach v. Garvan, 1 Ves. senr. 
 L57. 
 
 (c) 20 St. Trials, p. 355. 
 
 i'l) Fermor's Case, Co. Rep. 
 VOL ii. 202. 
 
 (•) Tbid. 
 
 {/) Tbid.; Wimbishr. TaUb 
 Plowdcn's Hop. II : Pro. Ab. k 
 Fitz. Ab., Tit. < ''illusion. So also 
 even the sale of goods in maxki I 
 overt is not good against the true 
 owner, if there is covin. Pro. Ab., 
 Tit. Collusion, i ; and Wikes v. 
 
 More/oofs, 1 Cro. Eliz.86. It seem* , 
 however, that it can he avoided 
 only by a person who had acquired 
 title prior to the sale. Twyne's 
 ( 'a8( , Smith's L. C. (8th cd.) vol.i. 
 p. 1. 
 
 (-/) Barber v. Pullen, referred 
 to in Hargrove's Tracts, p. 481 , 
 Fnrr's Case, Siderfni, 254. So a 
 judgment originally good, may 
 become covinous by a subsequent 
 act, See Tumor's Case, Co. Rep. 
 vol. Lv. 1 03. 
 
 (A) Waygood v. James, L. R. 4 
 C. P. 361. "
 
 72 ESTOPPEL BY RECORD. 
 
 admitted to prove collusion in another court (2) although 
 it might certainly be done in the case of strangers (&), 
 as they could not get the judgment reversed. Thus, 
 it was held (/), that a sentence of the ecclesiastical 
 court to which the defendant was a party, could 
 no! be avoided by him in a subsequent action in the 
 temporal courts on the ground of fraud ; as the proper 
 course for the defendant (being a party) to have taken, 
 was to have applied to the ecclesiastical court to vacate 
 the sentence (m). So also in another case (n), where 
 Fraud had been practised in the consistory court of the 
 Bishop of London, and was discovered in the prerogative 
 court on appeal, the judge of the latter court said, "You 
 must go into the consistory court, where the fraud was 
 practised. I can give you no relief" (0). 
 
 And where money has been levied by a regular execu- 
 tion, under a judgment valid on the face of it, it cannot 
 
 (i) See the opinion of the judges rium Co., L. R. 4 Ex. D. 107. 
 
 in The Duchess of Kingston's Case, (I) Prudham v. Phillips, 2 
 
 Appendix B, p. 428; Bransby Amb. 762. 
 
 v. Ker ridge, 1 P. Wms. 548. But (m) There appears, however, to 
 
 sec now the Judicature Acts and have been another ground for the 
 
 the Bankruptcy Acts, 1883, by decision in Prudham v. Phillips, 
 
 which the superior courts are namely, that Mrs. Phillips, who 
 
 constituted Divisions of the High offered the collusive sentence in 
 
 Court. evidence, was herself one of the 
 
 (/) Fart's Case, Siderfin, 251 ; colluding parties : see a note on 
 
 Appendix B, p. 419. See also the above case in Doe d. Davy v. 
 
 the cases collected in Margrave's Haddon, 3 Dougl. 310. 
 
 Tracts, pp. 479—486; sec (n) Jm<!;/ M 'ayo 's Case, Appen- 
 
 contra, Hatfield v. Hatfield dix B, p. 420. 
 
 (cited by Wallace), Appendix (o) The effect of fraud on eccle- 
 
 B, p. 413; and fa- a recent case, siastical sentences is further dis- 
 
 uee Girdlestone v. Brighton Aqua- cussed in Appendix A, pp. 407-8.
 
 DOMESTIC JUDGMENTS IN PERSONAM. 73 
 
 be recovered back in an action for money had and received, 
 on the ground that judgment was signed, or execution 
 issued, fraudulently ; the proper remedy, in such a case, 
 being to have the judgment or execution set aside on the 
 ground of fraud (p). 
 
 Fraud in one court can only be examined in another 
 court having a concurrent jurisdiction ((/), and the 
 defence of fraud cannot be set up by a person who was 
 himself a party to the fraud (/•). Thus a fraudulent and 
 collusive act of the defendant cannot be set up by him 
 as a defence to a criminal prosecution (s). 
 
 But mere lapse of time will not prevent the Court 
 examining into a question of fraud. Thus- where, on a 
 question of legitimacy in the Court of Chancery, there was 
 evidence of a sentence of nullity of marriage of a minor 
 for want of her father's consenl, and there was also 
 evidence that the sentence had been obtained by fraud 
 and collusion between the husband and wife and that the 
 father had been aware of and did not disapprove of the 
 match, it was held, fifty years after the date of the 
 sentence of nullity, that the marriage should be presumed 
 valid (/). 
 
 I hi I it appears that a decree of divorce would not be 
 sel aside merely <>n the ground of fraud or collusion, 
 after the deaths of all the parties to the proceeding (u). 
 
 i r ) l)\ Medina v. Grove, I" (a) See a case cited by the 
 
 Q. I'.. 170. Solicitor-General in Th Duchessof 
 
 ('/) Per L ( '. A.psley, in .1/"/- Kingston's Case, App. I>, p. 419. 
 dows v. Duchesi of Kingston, 2 (!) Harrison v. Mayor, &c, of 
 
 Ami. 756. Soutlwrnpton, 22 I,. .1. Ch. 722. 
 
 (/■) Prudham \. Phillips, 2 (") Per Ld. Westbury in Shaw 
 
 Anib. 7';:'. v. Gould, L. R. o II. L. at \>. 88.
 
 74 ESTOPPEL BY RECOPvD. 
 
 Finally, when fraud is set up in answer to a judgment, 
 the allegations of fraud and collusion must be specific. 
 And il is not enough to show that somebody has been 
 guilty of fraud in the conduct of the case ; but the fraud 
 must have been on the part of one of the parties to the 
 action in which the judgment was obtained (x) ; and it 
 must appear that the proceedings themselves were 
 actually concocted and conducted in fraud (?/). 
 
 The effect of fraud upon foreign judgments will be 
 discussed in a future chapter. The principles, however, 
 which are applicable to the defence of fraud, arc the 
 same both in the case of domestic and foreign judg- 
 ments (2). 
 
 (r)Floiverx. Lloyd,!,. R 10 Ch. S. C. 1883, fraud as a defence 
 
 D. 327, as explained in Abovloff v. must be specially pleaded. For a 
 
 Ojipenhthner, L. R. 10 Q. 15. D. precedent of such a plea, see 
 
 (C. A.) 295, at p. 308. Girdlestone v. firujldon Aquarium 
 
 {y) Sheddenv. Patrick, 1 Macq. Co., L. R. 2 Ex. D. 137. 
 535 ; Cammell v. Savell, 3 H. k (?) Aboidoff v. Oppenheimer, L. 
 
 X. 617 ; 5 H. & N. 728. By R. 10 Q. B. D. 295, at p. 305. 
 Order XIX., rule 15 of R.
 
 CHAPTER IV. 
 
 DOMESTIC JUDGMENTS IN REM. 
 
 A judgment in rem has been defined as follows: "A 
 judgment in rem, I conceive to be an adjudication 
 pronounced, (as indeed its name denotes), upon the 
 status of some particular subject-matter, by a tribunal 
 having competent authority for that purpose " (a). 
 
 "The terra 'judgment in rem,'" says Phillipps in his 
 work on Evidence (5), "is probably derived from the 
 civil law, where actions were classed as actiones in 
 personam and actiones in rem; the former including 
 actions upon contract or for injuries, (ex contractu vel ex 
 maleficio), the latter referring to actions in which some 
 particular thing was the subject-matter of controversy, 
 (cum movel alicui de aliqua re controversiani). Under 
 llic Roman law, therefore, a judgment in rem, generally, 
 was ' nt rem ipsam restituat (possessor) cum fractious.' ; 
 
 As previously pointed out, judgments in personam, or 
 inter partes, bind only parties and privies and not 
 strangers, hut judgments in rem arc binding upon all the 
 world. A judgment in rem, being a most solemn 
 
 (a) Sin. I,. C. (8th ed.) vol. ii. {/>) Vol. ii. p. 6, note 1. 
 
 p. mi'.).
 
 76 ESTOPPEL BY RECORD. 
 
 declaration from the proper and accredited quarter, that 
 the status of the tiling adjudicated upon is as declared, 
 concludes all persons from saying that the status of the 
 thing adjudicated upon, was not siudi as declared by the 
 adjudication (<■•). 
 
 In the present chapter, which deals only with 
 domestic and not with foreign judgments, we shall dis- 
 cuss judgments in rem under the following heads ((/) : — 
 
 1. Judgments of condemnation of property forfeited ; 
 (a) by the Court of Exchequer, and (j3) by the commis- 
 sioners, or sub-commissioners, of excise, inland revenue, 
 or customs. 
 
 2. Adjudications in the Court of Admiralty on the 
 subject of prize. 
 
 3. Judgments in the Divorce Court. 
 
 4. Grants of probate and administration. 
 
 5. Adjudications in bankruptcy. 
 
 G. Sentences of deprivation and expulsion, whether 
 delivered by the Spiritual Court, a Visitor, or a College. 
 
 7. Judgments of outlawry and declarations of legiti- 
 macy. 
 
 8. Adjudications of settlement by an order of justices, 
 whether unappealed against, or confirmed by a Court of 
 Quarter Sessions on appeal (e). 
 
 (c) Smith's L. C. (8th ed.), vol. L. R. 5 Q. B. D. 353, L. R. G Q. 
 
 ii. p. 809 ; IL v. Harrington, 4 B. D. 300 ; Story's Conflict of 
 
 E. & B. 780 ; Cammell v. Sewell, Laws (7th ed.), § 592. 
 3 II. & N. 017: 5 II. & N. 728; (d) These headings arc taken 
 
 Simpson v. Fogo, 29 L. J. Ch. partly from the arrangement in 
 
 657 ; 32 L .J. Ch. 249; Castrique Pitt-Taylor on Evidence (7th. ed.), 
 
 v. Tmrie, 8 C. B. N. S. 105; L R. pp. 1401, 1402. 
 ] II. L. Ill: R. v. Hutching, (e) Besides the above, it appears
 
 DOMESTIC JUDGMENTS IN REM. 77 
 
 We shall also notice certain other adjudications about 
 which there seems to be some doubt as to whether they 
 operate as judgments in rem or judgments in personam. 
 
 These will consist of: — 
 
 9. Judgments and orders made under special statutory 
 powers, (a) by courts of summary jurisdiction (/3) gene- 
 rally. 
 
 10. Sentences of courts martial. 
 
 11. Judgments of proceedings by way of quo 
 warranto. 
 
 12. Convictions in criminal prosecutions ; and inquisi- 
 tions. 
 
 1 . (a.) Judgments of condemnation of property forfeited 
 by the old Court of 'Exchequer. — This court (/) had, in 
 certain revenue cases, the right to condemn goods, and a 
 judgment of condemnation operated as a judgment in rem 
 and was conclusive against all the world, that the goods 
 so condemned were liable to seizure (//). One "-round 
 why such judgments were regarded as judgments in rem, 
 appears to have been that they occasioned ;t forfeiture of 
 goods, and another because of their notoriety (h). This 
 has Incii laid down by a learned judge ;l s follows (z): 
 
 thai judgments for the Crown in 696 ; Buller's X. I'. 244 • Scott*. 
 
 actions of scire facias for the re- SJiearman, i' Sir W. 111. !»77 ; 
 
 peal of patents formerly operated Roberts v. Fortune Hargrave's 
 
 as judgments in rem. Johnson's Tracts, p. 468 \ Henshaw v. Pleas- 
 
 Patentees' Manual (1879), pp. ance, 2 Sir W. Bl. 1174; PapiUon 
 
 271,272. lint these have now v. Buckner, Hardres' Rep. 178 ■ 
 
 fallen into disuse. Terry v. Huntingdon, Bard] 
 
 (/) Now merged in the Queen's Rep. 180. 
 ch Division of the High Court (h) Scott v. Shearman, 2 Sir 
 
 of .1 ust ice. W. Bl. !>77. 
 
 (■i) Geyer v. Aguilar, 7 T. !;. (i) See the reasons of .Mi-. Jus-
 
 78 ESTOPPEL BY RECORD. 
 
 "Because the property of the goods being changed, and 
 irrevocably vested in the crown by the judgment of 
 condemnation, it follows, as a necessary consequence, 
 that neither trespass nor trover can be maintained for 
 taking them in an orderly manner. For the condemna- 
 tion has retrospect and relation backwards to the time 
 of seizure. . . . This reasoning is supported by authorities 
 expressly in point. In Gilbert's Treatise of the Ex- 
 chequer, Cap. 13, it is clearly shown in what manner 
 these informations in rem, which were instituted in order 
 to give the crown possession of its ancient revenues of 
 wrecks, deodands, est rays, and the like, by degrees came 
 afterwards to be applied to the forfeitures enacted by the 
 statute law, for offences against the laws of the customs 
 and exeise. And it is expressly laid down (p. 181), that 
 the very seizing of the goods is notice to the claimer, 
 and an undertaking to proceed to condemnation, accord- 
 ing to the rules of the court. The retrospect or relation 
 backwards in these informations was the same as in the 
 inquests of office (/-•). . . . The case also of fugitives' 
 (roods is a strong instance to show how conclusive the 
 law esteems the judgment of forfeiture to be, when pro- 
 nounced by a legal and competent tribunal. If the 
 coroner's inquest finds a man guilty of homicide, and that 
 he fled for it : though he may traverse the crime, and be 
 acquitted of the felony, yet he cannot traverse the flight, 
 by which his goods are forfeited to the king (I). And 
 
 tice Blackstone in Scott v. Shear- retrospect in the case of a 
 
 man, ibid. deodand. 
 
 (k) See Keihvcy's Relatione (I) 8th ed. 4. 4 ; 1 Hale's P. C. 
 
 quorundam casitum, p. 68 b, Tit. 416 ; 2 Hale's P. C. 64. 
 Deodand, giving an instance uf a
 
 DOMESTIC JUDGMENTS IN REM. 79 
 
 therefore, though the petty jury expressly acquit him of 
 both the felony and the flight, their verdict as to the 
 flight shall be void : for they ought not to inquire of the 
 flight, after it has been once found, and the forfeiture 
 vested in the crown by the coroner's inquest (m). The 
 reason given in some of the books why this inquest is 
 not traversable, like other inquests of office, is because 
 of the notoriety of the coroner's inquest super visum 
 corporis, at which the inhabitants of all the neighbouring 
 villa are bound to attend : and so the finding of the flight 
 is but in effect recording the absence of the party. 
 There is surely as much notoriety of the information in 
 the exchequer against uncustomed goods: and the 
 absence or default of the party shall be equally con- 
 clusive against him." 
 
 But though a judgment of condemnation by the Court 
 of Exchequer operated as a judgment in rem, a conviction 
 by the same court and concerning the same transaction, 
 of the person committing the illegality was not even 
 evidence in subsequent civil proceedings. 
 
 Thus in Hart v. McNamara(n), which was an action 
 for the price of rum sold by plaintiff, and in which the 
 defence was that the rum was adulterated : to prove the 
 adulteration, a record of condemnation of the rum was 
 offered in evidence: and, to connect plaintiffs with the 
 cause of condemnation, a record was offered in evidence, 
 of proceedings taken by the crown againsl defendant for 
 penalties, in which defendant had been convicted; and il 
 
 (///) Fitz. Ab. Forfeiture :'>■', ■ 301. 
 Staundf. I". C. 183, and Prerog. (//) Cited in A*, v. Horton, 1 
 
 1<; ; Dyer, 238 bj 2 I laic's I'. C. Trice, 154.
 
 80 ESTOPPEL BY RECORD, 
 
 was held byGibbs, 0. J., that the record of condemnation 
 was admissible, being in rem, but lie refused to admit of 
 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. 
 
 It seems doubtful, whether or not an acquittal of goods 
 in the old Court of Exchequer was conclusive evidence 
 in a subsequent action for the goods. The point docs 
 not seem to have been fairly raised in Cooke v. Sholl (o), 
 although it is adverted to by several writers (p) and will 
 be noticed hereafter in dealing with criminal verdicts. 
 
 (/3.) Judgments of condemnation of jn-opeiijj forfeited, 
 by the commissioners or sub-commissioners of excise, 
 inland revenue, or customs. — Formerly these operated 
 as judgments in rem. Thus in an action of trover for tea 
 against an excise oflicer (</), it appeared that plaintiff sent 
 the tea for one L., with a permit : but that the porter on 
 his way called at the house of one R., where, having set 
 down his burthen, defendant seized it as forfeited, and as 
 having been brought to R.'s house, for R.'s use, without 
 a permit if). Defendant, in the action of trover, pleaded 
 not o-uilty, and, to show that the property in the tea was 
 not in plaintiff, he produced a condemnation of the tea by 
 the Commissioners of Excise, upon an information against 
 R. for receiving the tea without a permit, Lee, C. J., 
 
 {,,) 5 T. R. 255. Evidence, p. 338. 
 
 (p) Yin. Ab. Evidence, p. 94, (//) Roherts v. Fortune, Har- 
 
 heading, " Condemnation of goods grave's Tracts, p. 4GS note, 
 
 seized " ; Story's Conflict of Laws (r) The seizAire was under a 
 
 (7th ed.), p. 738 ; Buller's N. P. special statute, namely, 10 G. I. 
 
 245 a, note a; and 1 Phillipps' chap. 10, sec. 16.
 
 DOMESTIC JUDGMENTS IN REM. 81 
 
 said, "The judgment of forfeiture is a judgment on the 
 tiling itself. How the tea came to R.'s house was a 
 matter proper for the consideration of the commissioners: 
 and if the plaintiff was willing to have defended the suit, 
 she might have come in pro interesse suo (s), which not 
 doing, her property is hound: and there is no more in 
 tin's than the common case, namely, that courts of law 
 pay such deference to the judgments of each other in 
 matters within their jurisdiction, that the first determina- 
 tion by a proper authority ought to prevail." Plaintiff 
 was accordingly nonsuited. 
 
 However, in a later case (/) it was decided by three 
 judges that a condemnation of goods by the Commis- 
 sioners of Excise, under the general excise laws, was not 
 conclusive evidence at common law, even in an action of 
 trespass against the officers of excise for seizing the 
 goods. ' It was determined," said they, " very lately in 
 Scott v. Shearman (u) in this court, and lias been uni- 
 formly so bold for above a century, that a condemna- 
 tion of goods in the Exchequer is conclusive evidence 
 againsl all the world. But the reasons and authorities 
 relied on in that and all I he other cases, extend only 
 to that court, being the king's supreme court of revenue, 
 and not to the inferior jurisdictions of the Boards of 
 Excise and Customs " (x), 
 
 («) See us to this doctrine the ceding case in Hargrave's Tracts, 
 
 judgment of Lord Eldonin Lothian p. 468 note. 
 v. Henderson, •"> I'.. a- I'. :»I7, and («) l' Sir W. Bl. 077. 
 
 post, pp. 184, 185. (a?) See further, as to theCom- 
 
 (/) Hi a h. in' v. Pleasance, 2 sir missioners of Excise having only 
 
 W. Bl. I 17 1. Sec also the a limited jurisdiction. Pavilion 
 
 remarks on this and the pre- v. Buckner, Hardres's Rep. 478; 
 
 <■■
 
 B2 ESTOPPEL BY RECOKD. 
 
 It appears therefore very doubtful whether such 
 judgments haw ever operated as judgments in rem. But 
 it seems that in certain cases where the commissioners 
 acted under the authority of special statutes (regulating 
 the customs, or excise duties, on particular articles), such 
 judgments were conclusive, at any rate in subsequent 
 actions of trespass against them or their officers. 
 Thus where A. was convicted by the Commissioners of 
 Excise, of an offence under a statute relating to the 
 revenue (//), viz., of setting up a distillery without first 
 giving notice to the officers of excise, and the statutory 
 penalty was imposed on him, and a warrant of distress 
 issued for its recovery, it was held, in an action of 
 trespass brought by A. against the commissioners, and 
 their under-officers, for taking the money under the 
 warrant, that the conviction by the commissioners was 
 conclusive, and that the truth of the facts on which they 
 had grounded their judgment could not be inquired 
 
 into (,?). 
 
 2. Adjudications in the Court of Admiralty on the sub- 
 ject of prize (a). — A judgment of a Court of Admiralty, 
 condemning a vessel as prize, and ordering it to be sold, 
 
 Terry v. Huntingdon, Havdres's (a) The jurisdiction of the 
 
 Hep. 480. lint Hale, C. B v in ( Ipurt of Admiralty is now trans- 
 
 the latter case said (see at p. ferred to the Probate and Admi- 
 
 483), that though their jurisdic- ralty Division of the High Court 
 
 tion was limited, yet, if they com- of .lustice. A prohibition lay to 
 
 raitted a mistake in a thing that the Court of Admiralty, although 
 
 was within their power, it would it possessed by statute some of 
 
 not be examinable elsewhere. the powers of a superior Court. 
 
 (y) 3 W. & M. Cap. XV. James v. L. £■ S. W. Ry. Co., L. 
 
 (z) Fuller v. Fotch, Carth. 34G. R. 7 Ex. 187, 287.
 
 DOMESTIC JUDGMENTS IN REM. 
 
 83 
 
 is a judgment in rem, and conclusive against all the 
 world (b). And so is the judgment of a Court of Ad- 
 miralty on a claim of salvage, or in an action on a 
 bottomry bond, or in cases of maritime lien. For the 
 purposes of these suits and the effect of the judgments in 
 them are to afford a remedy, not by execution against the 
 person or the general estate of the defendants, but by the 
 appropriation of a specific chattel to satisfy the plaintiff's 
 claim (c). 
 
 J > li t a judgment in rem in Admiralty against a vessel, 
 in a case of collision, is not a bar to a subsequent action 
 for damages against the owner, if the proceeds of the sale 
 of the vessel are less than the damage sustained by the 
 collision (d). Nor is a judgment for damages against the 
 owner a bur to a subsequent action in rem against the 
 vessel, if the damages recovered against the owner are 
 less than the damage sustained by the collision (e). 
 
 ."). Judgments in tin- Divorce Court (/). — A sentence 
 in a matrimonial suit has always been held to be binding 
 as a judgment in ran (,//'), being an adjudication upon the 
 
 (i,) L> Caux v. Eden, ~l Dougl. 
 Gil, and lioti . 
 
 i i In /////" v. Castrique, 8 
 C. I'-. X. S., at pp. Ill, U2, Cock- 
 burn, C. J., -;iys, '■ If a creditor 
 lias a right in a thing other- 
 v, ise tli'' property of his debtor, 
 whereby he is enl itled to follow 
 
 it into wl vet hands it may 
 
 pass, and to have it Beized and 
 sold to sat isfy his claim, it seems 
 to me impossible to doubt (hat a 
 proceeding to enforce such a right 
 
 is a proceeding in n ///." 
 
 (d) \'<ls<>ii v. Couch, 15 C. B. 
 X. S. 99 ; and see ante, p. 59. 
 
 (< ) Th Bengal, Swabey's Adm. 
 Hep. 168 ; Th John and Mary, 
 Swabey's Adm. hep. 171 ; Th 
 Sylph,L. 1!. 2 Adm. 24. 
 
 (/) Sec now the Judicature 
 Act' is?:;, s. 31. 
 
 (/'/') But the decree, if for a 
 divorce, must he absolute ; Nor- 
 man v. VUlar8, L. R. 2 Ex. 1>. 
 
 ". ", i 
 
 59. 
 
 .. -j
 
 84. ESTOPPEL BY RECORD. 
 
 status of the parties (<j) ; and this extends to a decree of 
 nullity of marriage (//). 
 
 Thus a decree of the Spiritual Court declaring a 
 marriage void ah initio has been held to be conclusive as 
 to the status of one of the issue, a pauper, although 
 an order for removal of others of the issue had been 
 made, and confirmed on appeal, on the ground of the 
 validity of the marriage (/). 
 
 But sentences which do not affect the status of the 
 parties do not operate as judgments in rem. For instance, 
 the dismissal of the wife's petition for judicial separation, 
 on the ground that the acts of adultery alleged against 
 the husband had not been proved, although it was held to 
 estop the wife from raising the same issue as a defence to 
 the husband's suit for restitution of conjugal rights (Y/), was 
 held to be conclusive merely between the same parties, 
 upon the same matter (_/). In like manner a sentence in 
 a suit for jactitation of marriage, which does not affect the 
 status of the parties, but which is instituted merely to 
 prevent one party falsely asserting that a marriage took 
 place under certain circumstances does not operate as a 
 judgment in rem (k). And therefore a sentence contra 
 matrimonium in a suit for jactitation of marriage, was 
 
 (g) Da Costa v. Villa Beat, 2 Str. (/) R. v. Wye, 7 A. & E. 761. 
 
 961 ; and Appendix B, p. 414. (ii) And cf. Finney v. Finney, 
 
 See also Bunting v. Lepingioell, L. R. 1 P. & D. 483. 
 
 Co. Rep., vol. ii., p. 35-3; Kenn's (,/) See Sopivith v. Sopwlth, 30 
 
 Case, Co. Rep., vol. iv., p. 136; L .1. Matr. 1:51. 
 
 Meddowcroft v. Hiiguenin, I Moo. (k) See the opinions of the 
 
 P. C. 386; Perry v. Meddowcroft, judges in the Duchess of Kiit>/- 
 
 10 Beav. 122. s/mt's Case, Appendix B, p. 427 ; 
 
 /A i Per James, L. J., in Nihoyel contra, Jones v. Bow, Carth. 225, 
 
 v. Niboyet, L. R. 4 P. D. at p. 9. and Appendix B, p. 411.
 
 DOMESTIC JUDGMENTS IN REM. 85 
 
 held to be not binding on the crown in a subsequent 
 prosecution for bigamy (I). So also the verdict of a jury 
 in a divorce suit, followed by judgment that the wife has 
 been guilty of adultery, but not by a decree of divorce, 
 only binds the parties to the suit, and has not the force of 
 a judgment in rem, as it does not alter the status of the 
 parties (m). And it was held no defence, on the question 
 of agency, in a subsequent action against the husband for 
 necessaries supplied to the wife (n). 
 
 The dismissal of a petition for divorce before the hear- 
 ing, is no bar to a fresh petition. Thus, if a husband 
 petitions for divorce, and the petition is dismissed before 
 hearing, on the petitioner's application, and with the 
 consent of the respondent and co-respondent ; this 
 dismissal is no bar to a fresh petition by the husband 
 containing the same charges (o). And a decree obtained 
 by a husband for a judicial separation does not bar hini 
 from subsequently filing a petition for dissolution of 
 marriage (p). 
 
 4. (Iniiits of Probate "ml Administration (q). — A grant 
 of probate or of administration is in the nature of a judg- 
 ment in rem, and is conclusive against all the world (V). 
 This lias been laid down as follows (s) ; "The firsl ques- 
 
 (/) DucJiess of Kingston's Case, L I!. 3 P. & M. 121. 
 Smith's I., c. /siii ed.) 801, and (7) See now the Judicature Act 
 
 Appendix I'., p. II". L873,s.31; and as to the conclusive 
 
 ( /,/ ) Nei illt'iui v. Bn mm r, L R. effect in England of foreign letters 
 
 1 C. P. 583. "' administration, see MacNiclwl 
 
 I n ) Ibid, v. MacNichol, L. R. 19 Eq. 81. 
 
 (0) Hall v. Hall & Richardson, (/•) Noel v. Wells, I Levin/, 
 
 48 I.. -I. 1'. D. 57. 235 bj and Appendix B,p. 111. 
 
 (p) Mason v. Mason, l>. R. 8 (a) Per Butler, J., in Allenv, 
 
 P. J). -1 1 ; and see Greeny. Green, Dundas, 3 T. R. 125.
 
 86 
 
 ESTOPPEL BY RECORD. 
 
 tion to be considered is, what is the effect of a probate? 
 It has been contended by the plaintiff's counsel, first, that 
 it is not a judicial act ; and secondly, that it is not con- 
 clusive. But I am most clearly of opinion that it is a 
 judicial act; for the Ecclesiastical Court may hear and 
 examine the parties on the different sides, whether a will 
 be or be not properly made ; that is the only court which 
 can pronounce whether or not the will be good ; and the 
 courts of common law have no jurisdiction over the 
 subject. Secondly, the probate is conclusive till it be 
 repealed, and no court of common law can admit 
 evidence to impeach it" (t). 
 
 But a grant of probate of a will is not conclusive, on a 
 subsequent indictment for forging the will of which 
 probate was obtained (u). This may perhaps be con- 
 sidered as an illustration of the general principle affirmed 
 in Barrs v. Jackson 0), that the criminality of the 
 prisoner is a collateral matter which could not have been 
 within the jurisdiction of the Ecclesiastical Court (:/•). 
 
 It may here be noticed that the Chancery Division will 
 not, as a rule, interfere to set aside the probate of a will 
 on the ground of fraud, but application should be made 
 to the Probate Division, which, has (more especially since 
 the Judicature Acts) the same means of arriving at the 
 
 (t) See also Allenx. McPherson, R. & It. C. C. 342 (overruling R. 
 
 5 Bcav. 469 ; followed xxiMeluish v. Vincent, 1 Str. 481). And see 
 
 v. Milton. L. K. 3Ch. J). 27. And Appendix 13, p. 416, note (c). 
 see Da Costa v. Villa Real, 2 Str. (v) 1 Y. & < '. C. C. 585. 
 
 061 ; Bunting's Case, Co. Rep., 
 vol. ii., p. 355 J K'-nits Case, Co. 
 Rep., vol. iv., p. 136. 
 
 (» ) li. v. Buttery >i McXamara, 
 
 (.') See also Blackham's Case, 1 
 Salk. 290 ; and Rubins v. Crulch- 
 ley, 2 Wils. 122.
 
 DOMESTIC JUDGMENTS IN REM. 87 
 
 truth as tlie Chancery Division (y). The Chancery Divi- 
 sion has indeed jurisdiction to grant probate, but it would 
 not be using a sound discretion to exercise the jurisdic- 
 tion (z). 
 
 5. Adjudications in Bankruptcy. — The hie of the pro- 
 ceedings in a bankruptcy has been held to be not in the 
 nature of a record and not to create an estoppel. For 
 instance, the more fact that the proof of a creditor of an 
 undischarged bankrupt had been upon the hie of the pro- 
 ceedings in bankruptcy for upwards of a year, was 
 held not to estop the bankrupt from applying to the 
 Bankruptcy Court (a) to reduce the amount of the 
 proof (b). 
 
 But under the Bankruptcy Act, 1883 (c), orders of the 
 High Court of Justice, sitting in bankruptcy, or of a 
 county court having jurisdiction in bankruptcy (<-), adjudg- 
 ing llie debtor to be a bankrupt are conclusive as to the 
 tact of the adjudication (d). Similarly an order of discharge 
 under Bankruptcy Act of 1883 (*") is conclusive evidence 
 (if the bankruptcy and of the validity of the proceedings 
 therein. And certificates of the Board of Trade, under die 
 Act, are conclusive evidence of the facts certified therein(/). 
 
 (>/) Meluish v. Mil ion, L. R. 3 Court before this Act, see Martin 
 
 i li. I). _'7. following Ml' a v. v. Pawning, L. It. 4 Cli. App. 
 
 ifcPherton, 1 II. L Cas. 191. 356; Eyn v. Smith, L. R. 2 C. 
 
 Per M. R. in Pinney v. I'. I ». 135. 
 
 II mil, I,. I;. 6 Cb. I). 98. (d) Ibid., ss. 20, 132. See a] o 
 
 (a) Under tbe Bankruptcy Act, Revell v. Blake, L. It. 7 C. P. 
 • (32 a :;:; Vic. c. 71;. " 300 ; I.. Et. 8 C. I'. 533, decided 
 
 (b) Expart* Bacon, in re Bond, under tin' Bankruptcy A>\, L869 
 I.. I:. 17 Ch. I). 447. (32 & 33 Vic. c. 71), a. 10. 
 
 (c) 40 cv- 17 Vic. c. 52, B. 92. (e) 8. 30, sub-8. 3. 
 
 As to the jurisdiction of the Hiyli (/) >S. 138 ; s, 110, sub-s. 2,
 
 88 ESTOPPEL BY RECORD. 
 
 But orders of the Board of Trade, releasing a trustee, 
 may be revoked on proof that they were obtained by 
 fraud, or by the suppression or coneealment of any 
 material fact (//). And a debtor is not exempt from being 
 proceeded against for any criminal offence, by reason that 
 he has obtained his discharge, or that a composition, 
 or scheme of arrangement, has been accepted or 
 approved (It). 
 
 6. Sentences of Deprivation and Expulsion, whether 
 delivered by the Spiritual. Court, a Visitor, or a College. 
 • — It appears that sentences of deprivation and expulsion 
 of members of colleges, under statutes of the founders, 
 by the master and fellows and (or) the visitors on appeal, 
 are judgments in rem and conclusive against all the world. 
 Thus, a sentence of expulsion from a college unappealed 
 from, was given in evidence for the defence, on an 
 indictment for assaulting a fellow commoner of Queen's 
 College, Cambridge, by turning him out of the college 
 garden. And it was held conclusive on the ground 
 that it resembled a sentence of the Ecclesiastical 
 Court (/). 
 
 So also in another case involving the effect of a sentence 
 
 of deprivation by the bishop, as visitor of Exeter College, 
 
 Oxford, of the rector of the college (/»;). Holt, C. J., said, 
 
 ' The questions that I make in this case are but these 
 
 two. The first is, whether or no by the constitution of 
 
 [g S. 82, snb-s. 3. (k) Philips v. Bury, 2 T. II. 
 
 (h) S. 1G7. 346, and Appendix B, p. 415. 
 
 (i) R. v. Grundon, 1 Cowper, The opinion of Holt, C. J., though 
 
 315 : Appendix 13, p. 110. Sue opposed to that of the majority, 
 
 also Smith's L. C. (8th ed.) vol. ii. was upheld in the House of 
 
 p. 836. Lords.
 
 DOMESTIC JUDGMENTS IN REM. 89 
 
 this college the Bishop of Exeter had power in this case 
 to give sentence ? The second is, supposing he had such 
 a power, whether the justice of this sentence be examin- 
 able in this court upon this action? It is, I say, 
 not material whether he hath a Court or no, all the 
 matter is whether he hath a jurisdiction ; if he hath 
 a jurisdiction and cognizance of the matter and person, 
 and he giveth sentence in the matter, his sentence 
 must make a vacancy, be it never so erroneous; but 
 there is no appeal, if the founder hath not thought fit to 
 direct one." 
 
 In like manner the decision of the trustee of a school 
 dismissing the schoolmaster for misconduct, is not 
 examinable (/). 
 
 7. Jiidtjincnls of outlawry and declarations of legiti- 
 macy. Judgments of outlawry were judgments in rem 
 and conclusive evidence on behalf of strangers, for 
 ' where the record of the estoppel runs to the disability 
 or legitimation of the persons, then all strangers shall 
 take benefit of that record " (in). And so, it appears, are 
 judicial declarations of legitimacy under the Legitimacy 
 Declaration Act, 1 858 [mm). 
 
 As connected with this subject we may here con- 
 sider the general effect of bastardy orders. It has been 
 considered doubtful whether a bastardy order was even 
 admissible evidence in subsequent civil proceedings for I he 
 purpose of proving the bastardy («). Possibly the reason 
 for this decision was thai bastardy proceedings are quasi- 
 
 / Dot d. Davy \. Haddon, 3 (mm) 2] & 22 Vic. c. 93. 
 
 Dougfl. 310; R. v. Darlington (n) Watson v. Little, 29 L. .), 
 
 School Governors, 6 Q. B. 682. Ex. 267. 
 (m) Co. Lilt. 352 b.
 
 90 ESTOPPEL BY RECORD. 
 
 criminal in their nature (o). And, as will be pointed out 
 hereafter, criminal convictions are not as a rule admitted 
 as evidence in civil proceedings (p). But, it" a bastardy 
 summons is taken out, and the magistrates make an order 
 thereupon, it is not competent for the mother to apply 
 for an extension of the order on a future occasion (q). 
 However, the mere dismissal by the magistrates of an 
 application for a bastardy order, on the ground of want 
 of corroborative evidence, is in the nature of a non-suit, 
 and is not a decision on the merits, and therefore is not a 
 bar to a fresh application for an order (r). If, however, 
 on a bastardy summons, there is a hearing on the merits, 
 and the application is dismissed, and on a fresh applica- 
 tion to the magistrates, it is distinctly brought to their 
 notice that the case had been fully heard and determined 
 on a previous occasion ; they should decline to entertain 
 the second application, and should, consider themselves 
 bound by the dismissal. But if the point is not taken 
 on the second hearing, and the magistrates make an 
 order, the Queen's Bench will not quash it (s). Again, 
 a decision of Quarter Sessions in bastardy, if on the 
 nurits, is a final bar, e.g., if the order is quashed 
 
 (o) The general nature of bas- 11 Q. B. D. 74. 
 
 tardy orders, which are now regu- (>•) Per Lcl. Denman, C. J., in 
 
 luted by the Bastardy Laws R. v.MacJten, 14 Q. B. 74 ; R. v. 
 
 Amendment Act (35 & 3G Vic. Gaunt, L. R. 2 Q. B. 4GG ; Wil- 
 
 c. -~), amended by 3G Vic. c. 9), Mama v. Dairies, L. It. 11 Q. B. D. 
 
 is explained in R. v. Jenkin, Cas. 74, at p. 76. 
 
 Temp. Hardwicke, 301. (.s) Per Cockburn, C. J., in R. 
 
 (p) See per Blackburn, J., in v. Herrington, 3 N. 11. 468; per 
 
 Castrique v. Imrie, L R. 4 H. L. Patteson, J., in Brisbi/s Case, 1 
 
 414. Den. C. C. P. at p. 432. 
 
 (2) Williams v. Dairies, L. R.
 
 DOMESTIC JUDGMENTS IN REM. 91 
 
 on the ground of insufficiency of corroborative evidence. 
 Lut if the order is quashed on the ground that it is bad 
 in form, this decision, not being on the merits, is no bar 
 to a fresh application (t). 
 
 8. Adjudications of settlement by an order of justices 
 whether "imp pealed against or confirmed by a Court 
 of Quarter /Sessions on appeal. — Orders of removal 
 of paupers made by justices, if unappealed against, 
 or confirmed on appeal, operate as judgments in 
 rem. This has been laid down as follows: "There 
 is no proposition in the law of settlements more 
 clear than this, that an order of removal unappealed 
 against is conclusive against all the world. But 
 it does not affect a subsequent settlement " (ft). So 
 a judgment of a Court of Quarter Sessions, confirming 
 an order of removal .made by justices, is not only con- 
 clusive against the parish to which the removal is 
 directed, but, being a judgment in ran, is conclusive 
 against all the world, that the pauper, at the time when 
 the order was made, was set lied in the parish to which 
 he was sent : for that is the point which the Sessions 
 niusl have decided when they confirmed the order of 
 removal (x). 
 
 lint ;i judgment of a Court of Quarter Sessions 
 quashing an order of removal is only conclusive between 
 the contending parishes. This has been laid down as 
 
 (t) Sir per Blackburn, J., in//. (■>■) PerDenmati, ('..!., in R. v. 
 
 v. Glynne, L I!. 7 <>. I'.. al p. l'-">, Wick Si. Lawrence, 5 B. a- Ad. at 
 
 where bastardy orders are fully p. 533. See, however, the remarks 
 
 discussed. of Blackburn, J., in Castrique v. 
 
 (u) Per r.ull. t, j., in /,'. v. Imrie, L. R. 4 H. L 411. 
 Kenilworth, 2 T. R. at y. 599.
 
 92 KSTOPPKL BY RECORD. 
 
 follows (//) : " An order of sessions quashing an order 
 of removal is conclusive between the contending parishes, 
 but it is conclusive only as to the point which it deeides, 
 i.e., that, at the time when the order of removal was 
 made, the appellant parish was not bound to receive the 
 pauper. It is like an acquittal upon an indictment for 
 not repairing a road, on a plea of not guilty, where the 
 question of liability has not been raised on the record. 
 Such acquittal is no evidence that the parish was not 
 liable, because it may have proceeded on a different 
 ground, viz., either that the road was not out of repair 
 or was not a public highway. So an order of sessions, 
 quashing an order of removal, may have proceeded, 
 either on the ground that the pauper was not settled in 
 the appellant parish, or that he was not chargeable, or 
 that he was irremovable. By analogy, therefore, such 
 an order of sessions cannot be conclusive evidence that 
 the pauper was not settled in the appellant parish " (s). 
 
 It was formerly held that orders of removal unappealed 
 against, or confirmed on appeal, were conclusive, not 
 only of the facts directly decided, but of those matters 
 also which it was necessary to decide, and which were 
 actually decided as the groundwork of the decision 
 itself, although not directly the point at issue (a). But 
 the correctness of this decision has been doubted by 
 the Lord Chancellor in a recent case (b). And it 
 
 (v) Per Parke, J., in 7?. v. Wick 3 Q. B. 370. 
 ,sv. Lmn-i-iiri; ■> B. k Ad. 533, at (a) R. v. Harrington, 4 E. & 
 
 p. 535. P,. 794. 
 
 I | Sec also R. v. Clint, 11 A. (h) R. v. Hntchins, L. R. G Q. 
 
 & E. 62 I (note) \ E. v. Evemoood, B. D. 300.
 
 DOMESTIC JUDGMENTS IN REM. 93 
 
 certainly does not seem in accordance with the rule 
 laid down in the opinions of the judges in the Duchess 
 of Kingston's Case (c), that neither the judgment of a 
 court of concurrent or exclusive jurisdiction is evidence 
 of any matter which came collaterally in question, 
 though within their jurisdiction ; nor of any matter 
 incidentally cognizable, nor of any matter to be inferred 
 by argument from the judgment (d). 
 
 9. (adjudgments and orders made by courts of summary 
 jurisdiction^ under special statutory powers. — The follow- 
 ing are examples of these. 
 
 An Act of Parliament (c) empowered justices finally 
 to decide the matter of repair of the highway, and 
 to allot to certain parishes such parts of their common 
 highway as were to be repaired by them respectively ; 
 and it enacted, that after the justices' order for repair 
 had been filed, the inhabitants of the respective parishes 
 to whom the parts had been allotted for purposes of repair, 
 should be bound as of common right to maintain and keep 
 in repair the pails of the common highway so allotted to 
 them, and should be liable to be indicted for neglect of 
 such duty. Held, on an indictment against one of the 
 parishes, to which a certain part of the common highway 
 had been allotted and against which a justices' order had 
 been made, for non-repair of the same, thai the justices' 
 order was conclusive evidence against the said parish, 
 
 (c) AppendixB, p. 121. submitted to them by guardians 
 
 \<i) By 11 & 15 Vic. c. 105, and overseers are in certain ca 
 
 s. 12, orders under Beal made by conclusive between the parties 
 
 the Local Government Board in thereto. 
 
 cases of disputes as to .settlement 0) 3 I Geo. •">. c. 64,
 
 SI ESTOPPEL BY EECOBD. 
 
 of its liability to repair the pari of the highway which 
 had been allotted to it (./'). 
 
 Again, it was enacted by another Act(//), that justices 
 of the peace, having jurisdiction within the limit within 
 which a highway was situated, should have power to 
 make presentment of such respective limit of any high- 
 way as was not well and sufficiently repaired, and that 
 every such presentment should have the same force and 
 effect in law, as if it had been presented and found by the 
 oaths of twelve men. On an indictment for non-repair of 
 part of a highway against the inhabitants of II. , the pro- 
 secution having produced in evidence the record of a pre- 
 sentment made by a justice, under the above statute, aver- 
 ring that the part of the highway in question was out of 
 repair, and that it was in the township of II., and that the 
 inhabitants of that township ought to repair it, and show- 
 ing a submission to the said presentment, and a plea of 
 guilty by two inhabitants of the township of II. on behalf 
 of the said township, a conviction before the quarter 
 sessions, and a sentence of fine ; held, that the record 
 was an estoppel against the township of II., and con- 
 cluded them from showing that the road was not in their 
 township (h). 
 
 But in L\ v. Eutchins (/) defendant was summoned 
 
 (/) R. v. Bidding, 7 Q. B. be binding on all persons and for 
 
 880. This case is sometimes cited all purposes. 
 
 as an instance of a judgment in (,</) 13 Geo. 3, c. 78, s. 24. 
 
 rem (see Pitt-Taylor on Evidence, (h) R. v. Hawjhton, 1 E. & B. 
 
 7th ed. vol. ii. i, but it seems that 501 ; but see R. v. Eutchins, L. 
 
 it was unnecessary, for the pur- It. G Q. B. D. 300. 
 
 poses of the above case, to decide, (/) L. R. 5 Q. B. D. 353 ; L. R. 
 
 and that it was not in fact decided 6 Q. B. D. 300. 
 
 therein that such an order would
 
 DOMESTIC JUDGMENTS IN REM. 95 
 
 by an urban authority, under the Public Health 
 Ail, 1875 (/.■), as owner of premises abutting on a street, 
 for payment of a quota of the expenses incurred by 
 such urban authority in paving &c. such street, and at 
 the hearing before the justices, they dismissed the com- 
 plaint on the ground that the street was a highway repair- 
 aide by the inhabitants of B. at large. Subsequently, 
 similar proceedings were taken by the same urban author- 
 ity against C, another adjoining owner, and, upon evid- 
 ence which was not before them on the first occasion, the 
 justices came to an opposite conclusion, and ordered 
 payment by C. of the amount then claimed against him, 
 on the ground that the said street was not a highway 
 repairable by the inhabitants at large. Subsequently, 
 defendant was summoned a second time by the same 
 urban authority, under the same Act, for payment of 
 another quota of expenses incurred by them in paving 
 &C. the same street ; and it was agreed, on the hearing 
 of the second summons before the stipendiary magistrate, 
 thai all the evidence in C.'s case should be treated as 
 being then before him, and upon that evidence he found 
 defendant liable. Held by the Court of Appeal, Lord 
 Selborne presiding, reversing the decision of the Divi- 
 sional Court, that the order of dismissal l>y the justices, 
 of the first summons, was not conclusive between the 
 parties thereto, in the proceedings on the second 
 summons, on the point as to whether or not the street 
 was a highway repairable by the inhabitants at large; 
 and consequently that the urban authority were not 
 estopped thereby from recovering the quota of expenses 
 
 (k) 38 a- 39 Vice. 55.
 
 96 ESTOPPEL BY RECORD. 
 
 claimed by them on the second summons (kh). Lord 
 Selborne in his judgment says, "We have in this 
 case nothing at all to do with any judgment in rem. If* 
 we had, there might be ground for holding that there 
 were two cross and contradictory estoppels, one by the 
 judgment for the present defendant in 1874 (I), and the 
 other by the contrary judgment against C, the effect of 
 which might have been to set the whole matter at large. 
 But here there is no proceeding in rem, no question of 
 status, and if the case which was quoted to us of The 
 Queen v. The Inhabitants of Harrington (m) was correctly 
 decided (as to which I feel considerable doubt), it is not 
 
 relevant AVe are not in this called upon to 
 
 determine how far, or under what conditions, an order of 
 a court of summary jurisdiction may operate between the 
 parties to it as an estoppel. Assuming that it may do so 
 to some extent and under some conditions, I conceive it 
 to be clear that it cannot so operate, first, as to any 
 matter as to which that court had no authority to 
 adjudicate directly and immediately between the parties ; 
 secondly, as to any matter incidentally coming in question, 
 as to which a finding, if held to be conclusive between 
 the parties, would operate in prejudice of the rights of 
 others not parties to the proceeding ; or, thirdly, as to 
 any incidental matter, not otherwise determined than as 
 having been the particular ground on which the Court 
 dismissed a charge or complaint. 
 
 " The Justices before whom the complaint of the urban 
 
 (/■/.:) See also Leith Harbour (I) if., on the first summons. 
 
 &c. Commissioners v. Inspector of (?n) 24 L. J. M. C. 98: ami 
 Poor, L. R. 1 Sc. App. 17. ante, p. 92.
 
 DOMESTIC JUDGMENTS IN REM. ^ 
 
 authority came, on the 7th of May, 1874 (n), had no 
 jurisdiction to adjudicate directly or immediately between 
 these parties (or between any parties whatever), on the 
 question whether Mill Street (o) was or was not a high- 
 way repairable by the inhabitants of B. at large. That 
 was, at the most, a matter ' incidentally cognisable ' by 
 them. Xo conclusion which they might form upon it 
 would establish (in the one case) or disprove (in the 
 other) any such liability as against or in favour of the 
 inhabitants. Their only jurisdiction was to make or 
 refuse the order for payment of a certain sum of money 
 then claimed as the defendant's statutable quota of certain 
 expenses at that time incurred by the urban authority. 
 
 " To hold the Crown or the urban authority estopped 
 for ever from claiming payment of the defendant's quota 
 of any other expenses of a like character afterwards in- 
 curred in respect of the same street, because, on the 7th of 
 May, 1 874, the Justices of the petty sessions held the street 
 to be a highway, repairable by the inhabitants at large, 
 would (if it were not really such a highway) be to deprive 
 the other adjoining landowners who were not parties or 
 privies t<> the proceeding, of their statutable right to have 
 a jusl rateable contribution from the defendant and his 
 successors in estate to all future expenses apportionable 
 
 a og all the adjoining landowners under section lot) of 
 
 the Public Health Act. And if the decision under appeal 
 is correct, il would follow (perhaps & fortiori) that Mr. C. 
 and all persons claiming under him arc also estopped 
 from asserting thai Mill Sheet is a highway repairable 
 
 („) ie. <>n tin,' tit-' i o l The street in question. 
 
 B
 
 OS ESTOPPEL 15V RECORD. 
 
 by the inhabitants at large. There would, therefore, be 
 within the same district two laws operating simul- 
 taneously in opposite directions, as against different 
 persons in exactly the same circumstances, under the 
 same words of taxation in the same public Act oi 
 Parliament, and either imposing upon some of those 
 individuals, and their privies in estate, a liability which 
 the statute had not in fact imposed, or exonerating others 
 and their privies in estate (to the prejudice of the rest) 
 from their share of a common burden, which the statute 
 had imposed equally upon all. 
 
 " Furthermore, the order of dismissal cannot, in my 
 opinion, have any greater force or effect by way of 
 estoppel than if it had been actually drawn up in the 
 proper form prescribed by 11 & 12 Vict. c. 43, s. 14, 
 Sched., Form L., in which case it would only have found 
 that the complaint of the urban authority was ' not 
 proved.' Such an order, being at the most equivalent in 
 this quasi-criminal proceeding to an acquittal, could not 
 have operated as an estoppel, except against a repetition 
 of the same demand for the same quota of the same 
 expenses. See Buller's Nisi Prius, p. 245 ; 1 Gilbert on 
 Evidence (Loft's edition), p. 34 ; R. v. Inhabitants of 
 Burbcm (/>).' 
 
 (/3.) Judgments and orders made under special statutory 
 powers generally (</). — The facts necessary to give juris- 
 
 ( p) 5 M. iV: S. 392 ; Frumpton Act of Parliament prescribes a 
 
 v. Pettis, 3 Levinz, l'3. particular remedy to be obtained 
 
 (7) As to an order under the by instituting proceedings before 
 
 Extradition Act, 1870, 3)') & 34 a court of summary jurisdiction, 
 
 Vict. c. 52, see R. v. Maurer, this by implication takes away 
 
 L. R. 10 Q. I). D. 513. If an any other remedy; Great Northern
 
 DOMESTIC JUDGMENTS IN REM. 99 
 
 diction must, as a rule, appear on the face of such judg- 
 ments or orders. Thus, even an order made by the Lord 
 Chancellor, under a special statutory power, must show 
 on the face of it whatever is necessary to give him juris- 
 diction (/•). Thus, in the above case, Coleridge, J., says, 
 " However high the authority may be, where a special 
 statutory power is exercised, the person who acts must 
 take care to bring himself within the terms of the statute. 
 Whether the order be made by the Lord Chancellor, or 
 by a justice of the peace, the facts which gave the 
 authority must be stated." 
 
 And in order to determine to what extent such judg- 
 ments and orders are conclusive in their operation, it is 
 usually necessary to examine the Act or Acts of Parlia- 
 ment creating the jurisdiction. Thus, where, by an Act of 
 Parliament, an action might be brought upon the certi- 
 ficate of commissioners that certain monies were due 
 from an agent to officers of the army, it was held 
 that, it' such an action were brought, the certificate 
 of the commissioners was conclusive as to the lad 
 of the monies being owing, and could not be contro- 
 verted (s). Again, under the Stamp Act 1870 (83 & 3 1 
 Vict. c. 97), the decisions of commissioners of Inland 
 Revenue respecting stamp duty, arc in certain cases 
 conclusive. 
 
 Steamship Fishing Co. v. Edgehill, E. 373, 379. The same rule 
 
 L. I:. 11 Q. B. D. 225; and Bee, applies to the judgments of courts 
 
 with respeet to certain proceed- of inferior jurisdiction, see ante, 
 
 to be taken in tlie County pp. 43 15. 
 
 Court, The Employers' Liability (a) Moody v. Thurston, I Str. 
 
 Act, 1880, 13 & I l Vict. c. 42. ' 181. 
 
 (/■) ( 'In istit V. 1',,,1-ni, 1 1 A. &
 
 100 ESTOPPEL BY RECORD. 
 
 So also by Stat. 14 & 15 Vict. c. 105, s. 12, orders 
 made by the Local Government Board in certain cases of 
 dispute as to settlements, are conclusive (t). 
 
 The importance of referring - to the special Act or Acts 
 of Parliament creating a jurisdiction, for the purpose of 
 ascertaining the effect of judgments and orders made in 
 the exercise of that jurisdiction, is further shown by the 
 two following cases which were decided under the 
 Parliamentary Elections Act, 1868 (u). By section 29 of 
 the above Act, the court held by a judge to try an election 
 petition under the said Act, was to be a court of record. 
 By section 11, subsection 13, of the Act, it was enacted 
 that the determination of the judges, on the trial of an 
 election petition, whether the member whose return or 
 election was complained of, or any and what other person, 
 was duly returned or elected, or whether the election was 
 void, should, upon a certificate in writing being given by 
 the said judge to the Speaker of the House of Commons, 
 be final to all intents and purposes. It was accordingly 
 decided in a case under the Act (x) that a determination 
 of the judge under the above Act, after certificate given, 
 was binding and conclusive upon everybody : and that, 
 even in the case of the trial on the election petition having 
 been collusive, it was not competent for the Court of 
 Common Pleas (the court to which, by section 5 of the 
 above Act, the petition had to be presented), to examine 
 
 (/) See "i'tf, p. 93; and, as to (u) 31 & 32 Vict. c. 6 (now 
 
 certificates given and orders made repealed). 
 
 by the Board of Trade, under the I v) Wit//</<><„/ v. James, L. R. 4 
 
 Bankruptcy Act, 1883, see 40 & C. I'. 361. 
 47 Vict. c. ol.
 
 DOMESTIC JUDGMENTS IN REM. 
 
 101 
 
 the collusion, or to order a second investigation of 
 the matter, though it might be in the power of the 
 House of Commons to order one (?/). Again, it was 
 enacted by section 11 of the above Act, that where 
 a charge was made in the election petition, of any 
 corrupt practices (z) having been committed at the elec- 
 tion, the judge should, in addition to his certificate, and 
 at the same time, report thereon to the Speaker : and 
 by section 11, subsection 15, of the same Act, the judge 
 might, at the same time, make a special report to the 
 Speaker concerning any other matters arising in the course 
 of the trial, as he might think proper. But it was held, 
 in another case arising under the above Act, that the 
 judge's report under the Act was not, like his certificate, 
 conclusive of the facts therein stated, in a subsequent 
 election petition (a) 
 
 10. Sentences of Courts-Martial. — Courts-martial are 
 courts of limited jurisdiction established by Act of Parlia- 
 ment. They are not courts of record (/>). 
 
 < //) Sec per Willes, J., L. R. 1 
 I . P. a1 p. 369. 
 
 i By iln' Corrupt ami Illegal 
 Practici I' ■ ■ - enl ion Act, 1883 
 (46 & 17 Vict. c. 51, s. 11), the 
 term '• illegal practices " is sub- 
 stituted for ■■ corrupt pract ii 
 
 (a) Stevens v. Tillett (Norwich 
 election petition), L. I!. 6 < '. P. 
 117. 
 
 (6) Per Kelly, < ( . B., mScott v. 
 Stansfield, L Et. 3 Ex. at p. 223. 
 Their jurisdiction extends over 
 (a) certain offences, in respect of 
 military or naval service, which 
 
 are specified by statute, and (b) 
 certain civil, i.e., non-military or 
 non-naval offences, which are also 
 specified by statute. The juris- 
 
 dictii I' military courts-martial 
 
 is now regulated by the Army 
 Di cipline and Regulation Act, 
 1879, 1 ! & I : Vict, c. 33 ; thai 
 of naval courts martial by the 
 Navy Discipline Act, 1866, 29 & 
 30 Vict. c. 109. The ordinary 
 jurisdiction of courts-martial is, 
 however, extended in certain case i 
 and under certain exceptional 
 circumstances, e.g. t beyond the
 
 1D2 ESTOPPEL BY RECORD. 
 
 There is, however, no court of law in which an appeal 
 ran be brought against the proceedings or sentence of a 
 court-martial, in cases where the prisoner and the offence 
 are within its jurisdiction. 
 
 But courts-martial are subject to proceedings by way 
 of prohibition in the High Court of Justice, if they exceed 
 their jurisdiction. Thus Lord Loughborough, in speak- 
 ing of a court-martial, says (d) : "This court being 
 established in this country by positive law, the proceed- 
 ings of it, and the relation in which it will stand to the 
 courts of Westminster Hall, must depend upon the same 
 rules with all other courts which are instituted, and have 
 particular powers given them, and whose acts, there- 
 fore, may become the subject of application to the courts 
 of Westminster Hall for a prohibition. Naval courts- 
 martial, military courts-martial, courts of Admiralty, 
 courts of prize, are all liable to the controlling authority 
 which the courts of Westminster Hall have from time to 
 time exercised, for the purpose of preventing them from 
 exceeding the jurisdiction given to them ; the general 
 ground of prohibition being an excess of jurisdiction, 
 when they assume a power to act in matters not within 
 their cognizance." 
 
 And, therefore, notwithstanding the sentence of a 
 court-martial, a civil court is not precluded from enter- 
 taining, in a civil action, the question whether or not the 
 offence committed was within the jurisdiction of the 
 court-martial which adjudicated upon it. 
 
 seas, in default of a competent Martial (6th ed.), p. 14. 
 
 civil judicature, in time of war. (d) Grant v. Gould, 2 H. Bl. at 
 
 Arc. See Simmons on Courts- p. 100.
 
 DOMESTIC JUDGMENTS IN EEM. 103 
 
 Thus, it has been decided (<?), that an action of trespass 
 lies for an inferior military officer against his superior 
 officer (both being under martial law), who imprisoned 
 him for disobedience to an order made under colour, but 
 not within the scope of military authority, although the 
 imprisonment was followed by a court-martial, which, it 
 appears, had convicted him. 
 
 There does not seem to be any express decision on 
 the point whether or not the sentence of a court- 
 martial operates as a judgment in rem, though it is 
 considered by some authorities that it may take effect as 
 such (/). 
 
 It appears, however, that it may operate as an estoppel, 
 in a subsequent action for false imprisonment. Thus, in 
 an action for false imprisonment brought by a master of 
 ;i man-of-war against his captain, in which the defence 
 was that the plaintiff was put under arrest, in order to 
 bring him to a court-martial, and that he was brought to 
 a court-martial and was sentenced thereby, it appears 
 that the sentence of the court-martial might have been 
 considered to be conclusive, if it had been pleaded by the 
 defence by way of estoppel ([/). 
 
 There seems, indeed, to be no reason why the sentence 
 of a court-martial, over a matter within its jurisdiction, 
 being the sentence of a court of competent jurisdiction, 
 
 (') Warden*. Bailey^ I Taunt. 681. 
 
 67. («/) The sentence, however, was 
 
 (/) See I'itt Tayloron Evidence doI pleaded, and there was a ver- 
 
 (7th ed.), |>. I in:; : and Smith's diet for the plaintiff for substantial 
 
 1>. ' '. '' x 'th «'d.). \-<>l. ii., p. 835; damages. See ITannaford v. ffunn, 
 
 and Bee /.'. v. Suddis, I East, 306 ; i' ( '. & P. I is. 
 i:< John Walter Poe, 5 B. & Ad.
 
 101 ESTOPPEL BY RECORD. 
 
 should not have an equal binding effect to that accorded 
 to a judgment of any other court of criminal juris- 
 diction (A). On the other hand it would appear unlikely 
 that a court, not of record, having this limited jurisdiction 
 and established under special Act of Parliament for a 
 particular purpose, would, at any rate in time of peace 
 and under ordinary circumstances, have a binding effect 
 given to its decisions superior to that accorded to the 
 decisions of other criminal courts, even of general 
 criminal jurisdiction, throughout the country. 
 
 11. Judgments on proceedings by way of quo warranto. 
 — The old writ of quo warranto was in the nature of a 
 writ of right to the Crown, against him who claimed or 
 usurped any office, franchise, or liberty, to inquire, in order 
 to determine the right, by what authority he supported 
 bis claim. It lay also, in case of non user or long neglect 
 of a franchise, or misuser or abuse of it, being a writ 
 commanding the defendant to show by what warrant he 
 exercised such franchise, office, &c. In case of judg- 
 ment for the defendant, he had an allowance of his 
 franchise, office, &c. But in case of judgment for the 
 Crown, " tor that the party is entitled to no such 
 franchise, &c. (or hath disused or abused it)," the 
 franchise, &c, was either seized into the sovereign's 
 hands, or there was merely judgment of ouster to turn 
 out the party who usurped it. The judgment on a writ 
 of quo warranto was final and conclusive even against 
 the Crown. The old writ of (pin warranto has, however, 
 
 (h) As to the latter, see the trvpu v. Tmrie, L R. 1 If. L 
 remarks of Blackburn, J., in Cas- 414,
 
 DOMESTIC JUDGMENTS IN REM. 105 
 
 been superseded by an information riled in the Queen's 
 Bench by the Attorney-General, in the nature of a writ 
 of quo warranto, wherein the process is speedier, and 
 the judgment not quite so decisive. The proceeding 
 by way of quo warranto is properly a criminal method 
 of prosecution, to punish the usurper by a fine for 
 usurpation, as well as to oust him or seize it for the 
 Crown. But it has long been applied to the mere 
 purposes of trying the civil right, seizing the franchise, 
 At., or ousting the wrongful possessor: the tine being 
 nominal only. It is therefore considered, in modern 
 practice, as merely a civil proceeding, and the court will 
 grant a new trial, though the verdict should have been 
 for the defendant (i). 
 
 The nature of the proceedings on a writ of quo 
 warranto, and also the difference between the effect of 
 a judgment on a writ of quo warranto, and on an 
 information in the nature of a quo warranto, are 
 explained by Holt, C. J., as follows (&) : "A quo 
 warranto is in the nature of a writ of right, to which 
 the defendant can have no plea but to justify or disclaim, 
 and cannot plead not guilty: and judgment both lor and 
 against the king is final. Hut the judgmenl in an infor- 
 mation in the nature of a quo warranto, if against the 
 defendant, is final, but not if against the king." Thus 
 defendant, in answer to a writ of quo warranto, could 
 not plead non usurpavil, i.e., that ho did no| usurp the 
 office (/). 
 
 (/') See Stephen's Commentarii (0 !>'■ v. Blagdi », in Mod. al 
 
 7th ed.), vol. iii.. pp. 638 <i seq. p. 229. Eowever, by 32 Geo. ;i c. 
 
 (/) Anon. Case, li' Mud. 225. 58, it was enacted thai it should
 
 106 ESTOPPEL BY PKPORD. 
 
 There arc one or two decisions on the effect of judg-* 
 ments in ouster on informations in the nature of quo 
 warranto which may be noticed here. Thus, on an 
 information by quo warranto for acting as one of the 
 bailiffs of a corporation, defendant justified by claiming 
 title under two former bailiffs, A. and B. The prosecu- 
 tion thereupon produced a record of a judgment of ouster, 
 mi a quo warranto, against A. and B. Held that this 
 was good evidence against defendant, especially as he 
 claimed under them: and that such judgments have 
 been often given in evidence against third persons. 
 But the Court said that it was not conclusive evidence, 
 for defendant might have proved that the judgment was 
 obtained by collusion, or that the first defendants were 
 restored (m). Again, on an information by quo warranto 
 against defendant for acting as one of the chief burgesses 
 of a borough, a special verdict (on an information by 
 quo warranto against A., who had presided as mayor at 
 the election of defendant into the office of capital burgess, 
 and which resulted in judgment of ouster against A.), 
 was held to be admissible, but not conclusive, evi- 
 dence against defendant, of the facts found therein (n). 
 But in proceedings of mandamus to defendants to 
 certify the election of one W. as recorder of York, in 
 which the point raised was whether W. or S. had been 
 
 be lawful for the defendant, to any tion. See also 7 Will. 4 & 1 Vict, 
 
 information in the nature of quo c. 78 ; and 6 & 7 Vict. c. 89. 
 warranto, for the exercise of any (m) 7?. v. Hebden, 2 Str. 1109 ; 
 
 office, &c., to plead a prescriptive and 2 Selwyn's N. P. (13th ed.), 
 
 title of six years' duration previous p. 1 1 36. 
 to the exhibition of the informa- (n) R. v. Crimea, 5 Purr. 2599.
 
 DOMESTIC JUDGMENTS IN REM. 107 
 
 elected as such recorder, an information by quo warranto 
 against one A., a common councilman, who had voted for 
 S., charging- him with usurping the office of common 
 councilman, and resulting in a conviction and judgment 
 of ouster, was held conclusive evidence against defendants, 
 to show that A. was not a common councilman when he 
 voted for S., and that therefore the election of S. was 
 void (o). 
 
 These decisions seem to be plainly in accordance with 
 the rules laid down in the opinions of the judges in the 
 I )ii<'I/rss of KiiKjstons Case (p), respecting the admissi- 
 bility and effect of judgments and verdicts in subsequent 
 proceedings. It does not appear to have been actually 
 decided in any of them, that a judgment of ouster on an 
 information by quo warranto, operated as a judgment in 
 rem (q). 
 
 12. Convictions on n-iiniind "prosecutions and inquisi- 
 tions. — It may, perhaps, be considered that the definition 
 of a judgment in rem given above (/•), would include con- 
 victions on criminal prosecutions and inquisitions (s), but 
 
 0) R. v. Mayor of York, 5 T. N. I'. (13th ed.), vol. ii., pp. 1110 
 
 I;. 66. Ajb to an estoppel on a et si*/. 
 
 corporation arising from an assess (r) See ante, p. 75, 
 
 menl made by them in oliedience (a) Some learned writers on the 
 
 tn ; adamus, Bee R. v. Sfayor, law of Evidence have criticised 
 
 (fee, of Sandwich, 10 Q. B. 563. this definition with reference to 
 
 !//) Appendix I'., pp. I '1 1 , et the effect of criminal convictions 
 
 seq. It is a noticeable fad that and inquisitions. See Pitt-Taylor 
 
 the expression "judgment in on Evidence (7th ed.), pp. 1400, 
 
 /•//'.'' dues nut occur anywhere in 1101 ; and l'liillipps on Evidence, 
 
 the opinions of the judges in the vol. ii., p. c, note \. Pitt-Taylor 
 
 Duchess of Kim/Sinn's Case. considers that criminal convictions 
 
 (7) See further as to proceed* are subject to the Bame rules as 
 
 on quo warranto, Selwyn's judgments inter partes,
 
 108 ES rOPPEL BY RECORD. 
 
 they cannot be treated for all purposes as on the same 
 footing with judgments in rem, properly so-called, although 
 they do in certain cases resemble them. 
 
 A.S regards the effect of criminal convictions upon sub- 
 sequent civil proceedings, an important distinction which 
 formerly existed between criminal and civil cases must 
 be borne in mind. This distinction arose from the fact 
 that whereas in a civil action neither party was allowed 
 to give evidence in his own behalf (i), if the plaintiff pro- 
 secuted the defendant criminally, he would be allowed to 
 give evidence on behalf of the prosecution ; the reason for 
 this distinction being that the Crown is always in the eye 
 of the law, one of the parties to a criminal prosecution, 
 the prisoner or defendant being the other (u). The result 
 was that a criminal conviction could not be made use of 
 by the prosecuting party in subsequent civil proceedings 
 between him and the convicted party (x), as the convic- 
 tion might have been obtained upon his evidence, and it 
 would in effect be allowing him to give evidence in his 
 o\\i] cause (y). Thus, Best, C. J., says (.2), "I mean not 
 to infringe upon the principle that a verdict in a criminal 
 case cannot be given in evidence by the prosecutor in 
 support of a civil action. We should, as far as we can, 
 take from prosecutors every temptation to go beyond the 
 truth in their evidence (")." 
 
 it) This distinction was abol- 9 ; Hathaway v. Barrow, 1 Camp, 
 
 ished by Lord Brougham's Act, 151. 
 
 H & 15 Vict. c. 99. (y) Gibson v. McCarthy, Cas. 
 
 (//) See Stephen, .J.'s General temp. Bard wicke, 311. 
 
 view of the Criminal Law of (.:) Brook v. Carpenter, 3 Bing. 
 
 England, chap. II.. p. 25. at p. 300. 
 
 [x\ SmUhv. Bummens, 1 C&mp, (") The learned judge says,
 
 DOMESTIC JUDGMENTS FX REM. 
 
 109 
 
 And, in an action by A. against B., for stopping up a 
 road, in which B. sought to bar A. from his action by 
 producing a conviction against him for stopping up the 
 same road, the conviction was held inadmissible (b). 
 Alderson, 11, said, "The Crown and subject were the 
 [tallies to the indictment, and therefore it was not 
 between the two parties to this action. The distinction 
 is shown by the authority cited in Viner's Abridgement, 
 Estoppel, F. 35(c)." 
 
 S also in an action of trespass for battery, after the 
 conviction of defendant of a battery in a criminal prosecu- 
 tion, it was held that the conviction was inadmissible 
 against defendant in the civil action, on the ground that 
 no record of conviction or verdict could be given in evi- 
 dence but such as both parties might have produced (d). 
 
 Another reason may be assigned f*<»r the non-admissi- 
 bility of criminal verdicts as evidence in civil cases, viz., 
 that in the criminal trial defendant could not attaint the 
 jury as he would have been entitled to do if injured in a 
 civil action (e). But, on the other hand, it is slated on 
 
 id authority (/), that there are many cases where a 
 
 however, "This is a general rule, 
 lint : ty has occasioned Borne 
 
 exceptions to it. A prosecutor 
 obtains, by the conviction of ;i 
 felon, restitution of his goods, 
 and yet the pr< secutor is a com- 
 ut witness on the trial of the 
 felon." See also as to exceptions 
 in certain c ises of forfeiture fol- 
 lowing <>ii a conviction, Davis v. 
 '. 6 ('. , v I'. 167. 
 (b) Petri v. tfuttall, 25 I.. .1. 
 
 Ex. 200. 
 
 (c) The passage in Vinerseei 
 however, to he in support of the 
 
 proposition thai a confession 
 which is not absolute, works no 
 ppel ; and see further as to 
 that rule, Bro. Estop, pi. 1 :;■_'. 
 
 (d) /,'. v. Warden of the Fleet, 
 12 Mod. :;::7. 
 
 (e) Gilbert on Evidence, |». .'»;. 
 (/) Buller's N. I'. p. 245, 
 
 i, te ".
 
 110 
 
 KSTOIM KL KY UKCOUM. 
 
 verdict may be given in evidence against a party who 
 could not have an attaint, as for instance: those which 
 establish customs and public rights, where the verdict is 
 always received in evidence against those who are not 
 parties and privies. Thus, in a case already cited (#), 
 Alderson, B., says, " No doubt the judgment in the 
 indictment may be given in evidence upon the trial of 
 the issue as to whether the locus in quo is a public 
 highway, but it cannot be pleaded as an estoppel." 
 
 In the same way, criminal verdicts were not, as a 
 rule, received as evidence in matters over which the 
 ecclesiastical court had exclusive jurisdiction. Thus, if a 
 man had two wives, and was convicted of bigamy, and 
 died, and the second wife claimed dower, the verdict and 
 conviction could not be given in evidence ; but the writ 
 had to go to the bishop : for whether the marriage was 
 lawful or not, was the point in controversy, and that 
 was of ecclesiastical jurisdiction, and was not to be 
 decided at common law (//). 
 
 The same rule appears to have been followed in 
 proceedings on a petition for dissolution of marriage for 
 bigamy and adultery, in which proof of a conviction for 
 bigamy was considered as a matter of course to be 
 insufficient (/). On the other hand, a conviction for 
 
 (g) l J etrir v. NuUall, 25 L. J. 
 Ex. 200. The judges were not 
 unanimous. Martin, B., says, " I 
 feel strongly the force of Mr. 
 Mellish's argument, that if the 
 judgment in this indictment is 
 conclusive against the party con- 
 victed and all persons claiming 
 
 under him, it is absurd that those 
 who are bound by that judgment 
 should be able to bring an action 
 against anyone who uses the high- 
 way." 
 
 (h) Gilbert's Evidence, p. 28. 
 
 (i) March v. March, 28 L. J. 
 P. & Matr. 30. The respondent,
 
 DOMESTIC JUDGMENTS IN REM. Ill 
 
 bigamy in marrying A. was a bar to the convicted party, 
 so as to prevent him subsequently taking proceedings 
 against A. in the ecclesiastical court, pro jactitatione 
 maritagn, and if he did so, A. would be entitled to a 
 prohibition (k). And it appears that a criminal con- 
 viction is at any rate conclusive in a civil case, as to the 
 fact of the prisoner having been convicted. Thus, in 
 Castrique v. Imrie (/), Blackburn, J., says, " A judgment 
 in an English Court is not conclusive as to anything but 
 the point decided, and therefore a judgment of conviction, 
 or an indictment for forging a bill of exchange, though 
 conclusive as to the prisoner being a convicted felon, is 
 not only not conclusive, but is not even admissible 
 evidence of the forgery in an action on the bill ; though 
 the conviction must have proceeded on the ground that 
 the bill was forged." 
 
 The deduction from the cases cited appears to be that, 
 with the exceptions there indicated, criminal verdicts of 
 guilty are not as a rule evidence in civil cases; but on 
 the other hand, a verdict in a civil case may be given in 
 evidence in a criminal case (m). 
 
 It appears, however, that originally criminal con- 
 victions operated to a certain extenl as judgments in 
 
 however, did not appear, and there reason may possibly be that, the 
 
 no discussion on the point ; king is nut hound by estoppels, 
 
 also Wart v. McNamara, 1 though he may take advantage of 
 
 Price 154, note. them. Vin. Ab. Estop. p. 132 j 
 
 (/) Boyh v. Boyle,3 Mod. Hi I. and Co. Inst., [tart ii.. p. •'!!•. And 
 
 and Appendix B, p. 117. it would appeal- from tins that 
 
 (/) I-. I!. 1 II. L. at p. 134. verdicts in civil cases might be 
 
 (///) Richardson v. Williams, \~ used on behalf of the Crown in 
 
 Mod. 319, hut the report is too criminal eases, i Mt ( not on behalf 
 
 scanty to be of much value. One of the prisoner.
 
 112 ESTOPPEL BY RECORD. 
 
 rem (ri). For although verdicts in civil cases did not 
 bind strangers, because they could not have attaint 
 thereof, yet, if a man was Found guilty on an indictment, 
 inasmuch as no one could have attaint of it, it acted as 
 an estoppel towards everybody (o). And although pro- 
 ceedings by attaint are now abolished (/>), the distinction 
 still exists, that verdicts in civil cases may be set aside 
 at the instance of either of the parties thereto, but 
 verdicts in criminal cases cannot. Moreover, criminal 
 convictions for treason, or for a felony if followed by a 
 sentence of death, were like judgments in rem, inasmuch 
 as they were followed by attainder which involved for- 
 feiture and corruption of blood (q). 
 
 It appears that acquittals in criminal cases are not as 
 a rule evidence in civil cases, for much less evidence is 
 necessarv to maintain the action than to attaint the 
 criminal, and therefore his acquittal was no argument that 
 
 (n) Bro. Estop, pi. 163; Yin. that the confession estopped him 
 
 Ab p 44-1. from pleading not guilty and from 
 
 (o) Bro. Estop, pi. 163. If a pleading son assault demesne. See 
 
 party is attainted by his own further, as to the difference 
 
 confession, this is no estoppel to between the effect of a confession 
 
 a stranger. But see Yin. Ab. to an indictment, and a verdict of 
 
 Estop, p. 449, and Bro. Estop, guilty thereon, R. v. Temjrteman, 
 
 pi. 6 t, to the effect that a stranger 1 Salk. 55. 
 
 can take advantage of it, for it (p) 6 Geo. 4, c. 50, S s. 60, 61 ; 
 
 cannot be reversed. In trepass 3 & 4 Will. 4 c. 91, s. 47. 
 for assault the defendant pleaded (</) See Co. Litt. 352 b. As 
 
 ip.t guilty, and plaintiff estopped to judgments that run to the dis- 
 
 him because he was indicted ability or legitimation of the 
 
 thereof at another time, and tra- person, see ante, p. 89 ; and as 
 
 versed it, and said that it was of to judgments involving forfeiture, 
 
 the assault of the plaintiff and so see Mr. Justice Blackstone's 
 
 to issue, and afterwards waived it, reasons in Scott v. Shearman, 2 
 
 and confessed the traverse. Held, Sir W. Bl. 977, ante, p. 78.
 
 DOMESTIC JUDGMENTS IN REM. L13 
 
 the fact was not true (r). Another reason is given in 
 Buller's Nisi Prius (s) viz., " that an acquittal ascertains 
 no fact as a conviction does." However, if a conviction 
 of A. is evidence that he was convicted, it seems a 
 natural inference that an acquittal of A. is evidence that 
 he was acquitted. But it cannot be pleaded as an 
 '-foppel in a subsequent civil action (ss). 
 
 ( 'riminal convictions, in their operation upon criminal 
 eases, appear to be subject to rules similar to those 
 applicable to judgments inter partes. Thus a verdict ot 
 guilty upon an indictment for the non-repair of a road is 
 conclusive evidence in a subsequent indictment against 
 the same parish for non-repair of the same road (t). So 
 also where defendant was indicted for non-repair of a 
 highway, which it was alleged he was liable to repair 
 rntione tenurce, and to prove his liability evidence was 
 given of the conviction of W. S., a former owner and 
 occupier of the same lands, for non-repair of the same 
 highway ; and evidence was also given of the repair of 
 the said highway, subsequently to the said conviction, by 
 the occupiers of the said lands ; and that public notice of 
 the liability to repair was given when the said lands were 
 offered for sale, and that defendant, who purchased the 
 lauds after the said notice, was then the owner and 
 
 (r) Gilbert on Evidence, p. 27. (**) Helsham \. Blackwood, 20 
 
 Neither is the conviction an argu- L. .1. < '. P. 187. 
 tnent that the fad wrastrue. Sec (t) /.'. v. St. Pancras, Peake'a 
 
 Blackburn, J., in Castrique Nisi Prius Cases, 219. In a civil 
 
 v. /<»/■>'<; L. I;. I II. L. at )>. 134, proceeding, it not guilty were 
 
 'tufr, ]>. 111. pleaded, the civil righl was not 
 
 (a) I'. 245, not,' ;i. See also bound ; see R. v. Burbon, 5 M. & S. 
 
 I'billippson Evidence, vol. i. p. 338 ' ; 
 
 i
 
 1 1 I ESTOPPEL BY RECORD. 
 
 occupier of them; it was held, by the majority of the 
 judges, that defendant was estopped from denying- his 
 liability, in consequence of the conviction of W". S. with 
 whom he was privy in estate (u). 
 
 An inquisition, properly so called, is the written state- 
 ment or finding of a jury, returned for the purpose of a 
 particular inquiry, as distinguished from an indictment, 
 which is an accusation by the oath of jurors returned to 
 inquire generally of all offences within the county. 
 "Where it contains the subject-matter of accusation, it is 
 equivalent to the finding of a grand jury (x). 
 
 It appears that the finding in an inquisition taken 
 under a commission is evidence of the facts so found, 
 but not conclusive evidence, so as to bind third 
 parties (?/). Thus an inquisition taken under a commis- 
 sion from the Court of Exchequer was held to be 
 admissible, but not conclusive evidence of the facts 
 stated in the return (z). So also an extent of Crown 
 lands in the Exchequer was evidence in subsequent 
 proceedings on behalf of the Crown, being the result of 
 an inquiry by a public officer on a public matter (a). 
 
 Inquisitions in lunacy are not conclusively binding 
 upon third parties, although they are admissible in 
 
 (a) R. v. Blakemore. 2 Deni- (a) Rowe v. Brenton, 3 M. & R. 
 
 son's C. C. R. 410. 164. See farther as to inquisi- 
 
 (x) Jervis on Coroners (4th ed.), tions by sheriff's juries under the 
 
 p. 242. Lands Clauses Consolidation Act, 
 
 (y) Irish Society v. Bishop of 1845, the cases collected in Ros- 
 
 Derry, 12 CI. & F. at p. 066. coe's Nisi Prius Evidence (12th 
 
 (z) Tookerv. Beaufort, 1 Burr, ed.), pp. 195—11)7. 
 146 ; Sayer, 297.
 
 DOMESTIC JUDGMENTS IN REM. 
 
 115 
 
 evidence against them (l). In fact, such findings are 
 usually ex parte (c). 
 
 The result of a finding on a coroner's inquisition was 
 sometimes forfeiture of goods, e.g., in the case of a pre- 
 sentment of SifugamfeGit (d), or where the coroner found 
 a deodand (e). The finding of fugam fecit before the 
 coroner, it seems, was not traversable in subsequent pro- 
 ceedings (/). But the finding of a deodand was (g). But 
 the former was conclusive in an action of trespass brought 
 against the coroner's officer for seizing the goods for- 
 feited (//). But an inquisition -taken before the coroner 
 ■ uper visum corporis and resulting in a finding offelo de 
 se, is not absolutely conclusive. Thus it is stated as follows 
 in 1 Hale, P. 0. 416 (/'). " But although an inquisition 
 taken before the coroner super visum corporis in the 
 point of felo de se is of great authority and a sufficient 
 record, whereupon process may be made against those 
 
 (b) Faulder v. Selk, '■> Camp. 
 [26; Sergeson v. Sealey, 2 Atk. 
 112; Prinsep & East India Co., 
 v. Dyce Sombre, 1" Moo. P. C. C. 
 
 232. 
 
 (c) Howard v. Smith, [r. Rep. 
 <i Eq. t29 ; Bannatynev. Banna- 
 tym . 2 Robertson's Eccl. Rep. at 
 \<. 476. The effect of inquisitions 
 in lunacy upon subsequent civil 
 proceedings is fully discussed in 
 the arguments inHumt v. Burton, 
 I Ri Igway's I'. R. 204. As to 
 i he presumption arising from an 
 inquisition, Bee Frank v. Frank, 2 
 Moo. <fe Rob. p. -">1 •">, note :>. 
 (c/) Jervis on Coroners (4th ed.), 
 
 I ). 226. 
 
 («?) Jervis on Coroners (4th ed.), 
 p. .'17. Deodiinds are now abolish- 
 ed, sec ibid 
 
 (/) 1 Hale, P. C. 416; and 
 see reasons of Mr. Justice Black- 
 stone in Scott v. Shearman, 2 Sir 
 W. Bl. '♦77. ante, v . 7s. 
 
 (y) 1 Hale, P. < '. 12! ; and see 
 arguments of counsel in Gar mil 
 v. Ferrand, ('» 15. & ('. at p. (ill). 
 
 (h) See reasons of Mr. Justice 
 Blackstone in Scott \. Shearman, 
 2 Sir W. 111. 077, ante, p. 78. 
 
 (i) See also the arguments of 
 counsel in Garnett v. Ferrand, 6 
 15. ,v: c. at p. 616. 
 
 I 2
 
 1 h; ESTOPPEL BY RECOED. 
 
 thai detain the goods found in the inquisition, yet it 
 seems to me that it is traversable (/,•) in the very point 
 so found, for it is but an inquest of office, and where- 
 upon the party grieved thereby can have no attaint : 
 but otherwise it is of a presentment of a fugam fecit 
 before the coroner." But the finding of a felo de se was 
 at any rate conclusive as to the change of property in 
 the goods (by forfeiture) of the deceased, against his 
 executors or administrators (I). But if the inquisition 
 was found, not before the coroner, but before justices of 
 the county or even before the King's Bench, it did not 
 bind the executors or administrators (m). 
 
 (k) But see contra Mr. Justice fecit was not traversable in subse- 
 
 Blackstone's reasons in Scott v. quent proceedings. 
 Shearman, 2 Sir W. Bl. 977. The (I) 3 Inst. 55. 
 
 finding before the co vonerof fugam (m) See ibid.
 
 CHAPTER V. 
 
 FOREIGN JUDGMENTS. 
 
 It lias already been pointed out that foreign judgments 
 do not stand upon the same footing as the judgments of 
 an English court of record (a). 
 
 And it may here be observed, that whatever rules 
 may have been established in favour of the conclu- 
 siveness of foreign judgments, apply with at least as 
 much force to judgments in our own colonies, for, "a 
 regular mode having been provided by which an erro- 
 neous judgment of a colonial court may be examined 
 and reversed, that mode ought to be pursued " (b). 
 Therefore, where a party to a colonial judgment does not 
 pursue that mode of redress, it affords an additional 
 argumenl against him, and in favour of the validity of 
 the judgment. 
 
 'Thejudgmenl of a foreign courl amounts only to an 
 agreemenl on which an action ofassumpsil will lie, but docs 
 not constitute a deb! of a higher order. Although it may 
 amount to accord, it docs not, constitute satisfaction, and 
 
 (a) Ante, Chapter II., p. 18. Q. B. 284; and see Simpson v. 
 
 (6) Per Lord < ampbell in /!"<>/, Fogo, 29 L .1. Ch, <i"'7 ; 32 I.. J. 
 of Australasia v. Nias, 20 L .1. Ch. 249,
 
 lis 
 
 KsTOPPEL BY RECOUP. 
 
 cannot, be a bar to a suit for the original cause of com- 
 plaint " (c). 
 
 So also Story, in his Conflict of Laws (d), writes as 
 follows on the distinction between foreign and domestic 
 judgments. "But there is still a very essential and 
 important distinction between the two. Domestic judg- 
 ments rest upon the conclusive effect of the record, which 
 is absolutely unimpeachable. Foreign judgments are 
 mere matters en pais, to be proved the same as an 
 arbitration and award, or an account stated : to be 
 established as matter of fact before the jury : and by con- 
 sequence subject to any contradiction or impeachment 
 which might be urged against any other matter resting 
 upon oral proof." 
 
 Neither does the foreign judgment create a merger of 
 the original debt (in England) (e). For it does not 
 entitle the plaintiff in whose favour it is given to imme- 
 diate execution here. " The ground on which a plea 
 of judgment recovered bars the plaintiff from any fur- 
 ther action, is that the original nature of the debt, 
 or damage where it may be sought to be recovered, 
 is changed : that he has a higher remedy ; he has a 
 
 (c) i.e., if in favour of plaintiff. 
 See per Bosanqnet, J., in Smith 
 v. Nicolls, 5 Bing. N. C. at p. 223 ; 
 and see per Lord Ellenborough in 
 Hall v. Odber, 11 East, 124. 
 
 (<h 7th ed., § G18t". 
 
 (e) Per Bailey, J., in Hall v. 
 Odber, 11 East, at p. 126 ; and 
 see Bnnk of Australasia v. Hard- 
 ing, 9 C. B. 661 ; Bank of Aus- 
 
 tralasia v. Nias, 20 L. J. Q. B. 
 284 ; Kelsall v. Marshall, 1 C. B. 
 N. S. 241 ; Castrique v. Behrens, 
 30 L. J. Q. B. 163. But see 
 Story, Conflict of Laws (7th ed.), 
 § 618 h, commenting on Uicardo 
 v. Garcias, 12 CI. & Fin. 368 ; 
 and see also Ellis v. McHenry, L. 
 K, 6 C P. -1-2X.
 
 FOREIGN JUDGMENTS. 110 
 
 judgment of a court of record, on which he can issue an 
 immediate execution : and, inasmuch as an immediate 
 execution could be issued on his judgment, it would be a 
 very superfluous matter, and give great encouragement 
 to litigation, if lie were allowed to commence de novo, 
 and bring another action on that which was the original 
 ground of complaint. Therefore, it has been always held, 
 that, whether in an action of debt or for damages, the 
 cause of action has itself merged and become extinguished 
 in a remedy of a higher nature, where there is a judgment 
 obtained in a court of record in this country. . . . But 
 the judgment of a colonial or foreign court cannot be 
 enforced by immediate execution in this country, but, in 
 order to enforce it in this country, a new action must 
 be brought here, in which such colonial or foreign 
 iudo-ment forms evidence of a contract between the 
 
 •J o 
 
 parties " (/). 
 
 It follows, therefore, that a plaintiff who has obtained 
 a foreign judgment in his favour, may nevertheless bring 
 an action in England on the original cause of action (//), 
 and the plaintiff in England is then entitled to use the 
 foreign judgment in his favour as prima facie evidence (//), 
 hut in order to have a conclusive effect, the judgment 
 must, if then- is an opportunity, be pleaded by way of 
 estoppel (e). Or the plaintiff may bring an action in 
 
 (/*) Per Tindal, C. J., in Smith colonial court which was not a 
 
 v. NicolU, 5 Bing. X. < '. at pp. court of record; and see Story, 
 
 220, 221. Conflict of Laws (7th ed.),§ 599 a. 
 
 (g) Hallv.Odber, 11 East, 124; (h) Hall \. Odber, 11 East, 
 
 Smith v. ,\W/>, :. Bing. N. C. 124. 
 
 208; a fortiori, if the judgment (i) See the judgments in Do* 
 
 were obtained by default in a v. Huddart, 2 0, M. & R. 316;
 
 120 
 
 ESTOPPEL BY RECORD. 
 
 England on the foreign judgment itself (/c). And lie may 
 do so whether the foreign court in which the judgment 
 was obtained, is a court of record or not (I). 
 
 A foreign judgment may also be set up as a defence to 
 an action in England for the same cause of action (w). 
 But there has been considerable difference of opinion as 
 to the distinction between the cases, where an action is 
 brought on a foreign judgment, and where a foreign 
 judgment is pleaded in bar to an action. Thus, in 
 Philips v. Hunter (n), Eyre, C. J., who came to a 
 different conclusion from the majority of the court, but 
 whose judgment has often been since cited as an import- 
 ant authority, said, "It is in one way only that the 
 sentence or judgment of the court of a foreign state 
 is examinable in our courts, and that is, when the party 
 who claims the benefit of it applies to our courts to 
 enforce it. When it is thus voluntarily submitted to our 
 jurisdiction, we treat it, not as obligatory to the extent to 
 which it would be obligatory perhaps in the country in 
 which it was pronounced, nor as obligatory to the extent 
 
 and Vooght v. Winch, 2 B. & Aid. 
 662 ; and see post, p. 400. 
 
 U) Walker v. Witter, 1 Dougl. 
 1 ; see also Crawford v. Whittal, 
 1 Dougl. 4, note ; and Thompson 
 v. Blackh/arst, 1 N. & M. at p. 
 273 ; and per Tindal, C. J., in 
 Smith v. Nicolh, 5 Bing. N. C. at 
 pp. 220, 221. 
 
 (I) See Lord Brougham's judg- 
 iiji'iit in Houlditch v. Donegal, 2 
 ( !]. & Fin. 177. Bui see Black- 
 burn, J.'s coiiiinents on thi ca e 
 
 in Godard v. Gray, L. R. 6 Q. B. 
 139; and his judgment mSchibsby 
 v. Westenhok, L. R. 6 Q. B. 155 ; 
 per Parke, B., in Williams v. 
 Jones, 13 M. & W. 628. 
 
 (m) Ricardov. Garcias, 12 CI. & 
 Fin. 3G8 ; Barber v. Lamb, 8 C. 
 B. N. S. 95. 
 
 (n) 2 II. Bl. at p. 410; see 
 also Houlditch v. Donegal, 2 (4. & 
 Fin. 477 ; Bank of Australasia v. 
 Harding, 19 L. J. ('. P. 345 ; 
 Bi inters v. Bruce, 23 Beav. 149.
 
 FOREIGN JUDGMENTS. 121 
 
 to which by our law sentences and judgments are 
 obligatory : not as conclusive but as matter in pais, as 
 consideration primd facie sufficient to raise a promise: 
 we examine it, as we do all other considerations of 
 promises, and for that purpose we receive evidence 
 what the law of the foreign state is, and whether 
 the judgment is warranted by that law. In all other 
 cases we give entire faith and credit to the sentences 
 of foreign courts, and consider them as conclusive 
 upon us." 
 
 The above statement of the law has, however been 
 considerably qualified by more recent authorities, the 
 general effect of which is summarised in Story's Conflict 
 of Laws, as follows : " This subject has been much 
 discussed in England of late, and the well-establislied 
 present English doctrine is, that a foreign judgment is 
 only primd facie evidence iu England, upon the ques- 
 tion whether the foreign court had jurisdiction of the 
 subject-matter, or of the person of the defendant, or 
 whether the judgment was regularly (o) obtained ; but 
 thai it is conclusive upon the defendant, so far as to pre- 
 vent him from alleging thai the promises upon which ii 
 was founded, were never made, or were obtained by 
 
 ad of the plaintiff" (p). The arguments in favour of 
 tin' existence of the above distinction are well staled 
 
 (o) See iilso Don v. Lipmann, v. Druce,23 Ueav. 149; Dc C'osse 
 
 5 CI. & Ion. I. Brissac v. Rathbone, 6 II. & \\ 
 
 (y) Sec Story, Conflict of Laws, 301 ; Vanquelin \. Bouard, |/> < • 
 
 (7th ed), § 606 <f, citing, inter I', \. S. :; 1 1 ; Scottv.Pilkington, 
 
 alia, Bank of Australasia v. Nias, 2 B. a- S. I I ; Ricardo v. Garcia* 
 
 i"i 1-. J. Q. B 284 : Henderson v. 12 (1. A' Fin. ::.,. 
 Henderson-, 6 '». B. 28 ! ; Reimto
 
 122 ESTOPPEL BY KECORD. 
 
 in the same authority, us follows (</) : "In the next 
 I 'lace, as to judgments in personam. And here a 
 distinction is commonly taken between suits brought 
 by a party to enforce a foreign judgment, and suits 
 lu'i night against a party who sets up a foreign judg- 
 ment in bar of the suit by way of defence. In the 
 former case it is often urged that no sovereign is bound 
 jure gentium to execute any foreign judgment within his 
 dominions: and therefore, if execution of it is sought in 
 his dominions, he is at liberty to examine into the merits 
 of the judgment, and to refuse to give effect to it, if upon 
 such examination it should appear unjust and unfounded. 
 He acts in executing it upon the principles of comity (?■) : 
 and has therefore the right to prescribe the terms and 
 limits of that comity. But it is otherwise, it is said, 
 where the defendant sets up a foreign judgment as a bar 
 to proceedings ; for if it has been pronounced by a 
 competent tribunal and carried into effect, the losing- 
 party has no right to institute a new suit elsewhere, and 
 thus to bring the matter again into controversy : and the 
 other party is not to lose the protection which the 
 foreign judgment gave him. It is then res judicata, 
 which ought to be received as conclusive evidence of 
 right : and the exceptio rei judicata? under such circum- 
 stances is entitled to universal conclusiveness and respect. 
 
 (7) 7th ed., § 598, p. 745 ; 20 ; and per M. It. in Reimers v. 
 
 citing, inter alia, Burroivs v. Bruce, 23 Beav. 149. 
 Jemino, 2 Str. 733, and Appen- (r) Robinson v. Bland, 2 Burr, 
 
 dix B, p. 415; Boucher v. Ban:- 1077; and Lord Ellenborough's 
 
 son, Caae8 temp. Hardwicke, 80 j remarks in Power v. W hitmore, 4 
 
 Tarlekmv. Tarleton, I M, & S. M. & S, 150,
 
 FOREIGN JUDGMENTS. 123 
 
 ■ 
 
 This distinction has been very frequently recognized 
 as having a just foundation in international justice." 
 
 The distinction of course depends almost entirely 
 upon what principle is adopted in enforcing or recognizing 
 foreign judgments in England (s). But whatever differ- 
 ence of opinion may exist as to this principle, there are 
 certain recognized propositions as to the conclusiveness N 
 of foreign judgments, upon which the cases are, with 
 some exceptions, agreed. 
 
 1. The English courts 'rill not reckon as conclusive a 
 judgment of a foreign court .which ivas (a) not final and, 
 conclusive ivhere pronounced, or (yS) not a decision on the 
 merits, — (a.) A judgment for defendant in a colonial 
 court of record was pleaded by way of estoppel, to a 
 subsequent action in England between the same parties ; 
 held that the plea was bad, as it did not appear that the 
 colonial judgment was final and conclusive in the colony 
 itself, so as to liar the plaintiff from another action 
 there (t). 
 
 Plaintiff brought assumpsit on a decree of the Hiffh 
 I lourt of Chancery in the island of Jamaica, whereby 
 defendant was ordered to pay a certain sum to plaintiff 
 "ii ;i certain day, first deducting thereout defendant's 
 costs, to be taxed by the proper officer; held that the sum 
 to be deducted not being ascertained, the amount was 
 
 i See post, p. 151. The an- B. & C. 625 ', and see Paid v. Roy, 
 
 thorities on this point up to the 15 Beav. 433; Frayes v. Worms 
 
 tune of Houlditch v. Donegal, 1 10 ('. 15. N. s. I lit ; /■;//;< v 
 
 01. & Fin. 177, are collected in a McHenry, I.. R. i; c. p. 22s, al 
 
 the end of that ease. p. 23 t. 
 
 i/) Plummer v. Woodburne, \
 
 124 ESTOPPEL BY RECORD. 
 
 uncertain, and the decree could nol therefore be the 
 foundation of an assumpsit (w). 
 
 (/3.) Cross actions for collision were brought in England 
 by the owners of two vessels, the owners of one vessel 
 having already obtained judgment by default, in a foreign 
 court, against the owners of the other. The Court in 
 this country, having decided on the merits in favour of 
 the owner w r ho had made default in the foreign action, 
 refused to give effect to the foreign judgment, on the plea 
 of res judicata (x). "The second reason," said Sir R. 
 Phillimore, " is that the foreign judgment, not having 
 been given on the merits of the case, but on matters of 
 form only, cannot be set up as a bar to a decision on the 
 merits." 
 
 2. The English courts will not recognise as conclusive 
 a judgment of a foreign court, (a) which had not com- 
 petent jurisdiction , or (j3) inhere the procedure ions irregu- 
 lar, or the judgment improperly obtained, or (y) which 
 was contrary to natural justice. — (a.) As to the question 
 of jurisdiction. The foreign court may have no juris- 
 diction either over the cause which it professed to de- 
 termine, or over the subject-matter, or over the parties, 
 and want of jurisdiction may be shown by extrinsic 
 evidence (y). 
 
 (n) Sadler v. Robins, 1 Camp. no action can be brought on an 
 
 253 ; see also Newland v. I/ors- interlocutory order of an inferior 
 
 man, 2 Ch, Cas. 74; Obicini v. court. See Emerson v. Lashley, 
 
 Bligh, 8 Bing. 335 ; Callandar v. 2 H. Bl. 248 ; Fry v. Malcolm, 
 
 hittrich, 4 III. & G. 82 ; Behrens 4 Taunt. 705 ; and ante, p. 26. 
 
 v. Sieveking, 2 My. & Cr. 602; (x) The Delta, L. R. 1 P. D. 
 
 Uicardo v. Gareias, 1 2 CI. & Fin. 393. 
 
 And, "ii the Bame principle, (y) See the judgment of Sir
 
 FOREIGN JUDGMENTS. 125 
 
 Thus, where a judgment had been obtained, in the 
 island of Tobago, against a person stated on the face of 
 the proceedings to be " formerly of the city of Dunkirk, 
 and now of the city of London, merchant," and who was 
 cited to appear at the ensuing court to answer the plain- 
 tiffs action by a summons, which was returned served "by 
 nailing up a copy of the declaration at the court-house 
 door," and on which service judgment was afterwards 
 given against defendant by default ; it was held, that no 
 action could be maintained in England upon a judgment 
 so obtained (z). This case was commented upon, and 
 explained by Blackburn, J., in the case of Sehibshy v. 
 Westenholz (a), to the following effect, namely, that it 
 must be determined whether the defendant in the par- 
 ticular (foreign) suit was such a person as to be bound by 
 the judgment which it is sought to enforce. That if the 
 defendant was a subject of the foreign country, or 
 roiddit there at the institution of the suit, or even when 
 the obligation was contracted, he would be liable ; or that 
 if a plaintiff selected a foreign tribunal to sue, its judg- 
 ment would be binding on him (/>). 
 
 Win. Scott in Th<- Flad Open, I diction, contradicted the foreign 
 
 Robinson's Adm. Rep. 135; cited judgment, it would be admissible, 
 
 I, Donaldson v. Thompson, 1 1 lamp, sec Smith's L. ( !. (8th ed.), vol. ii. 
 
 133 note; and in Havelock v. p. 843. 
 
 Rockwood, 8 T. I!. 268. See also < ) Buchanans, Rucker,! C&mp. 
 
 Bowles v. Orr, I V. & Coll. 164; 63. 
 
 tic judgment <>f the M. I!, in (a) Schibsby \\ Westenlwk, L. 
 
 Reimers v. Druce, 23 Beav. L45; K. 6 < v >. I'.. 155. See also per 
 
 i„ v. Stewart, I Stark. 525; Blackburn, J., in Godard v. Gray, 
 
 and Story's Conflicl of Laws (7th I.. I:, n (i B. a1 ]>\<. I In. 151 et 
 
 ed.), § 586. <)n the question •-'"/•; and in Castrique \. tunic, 
 
 whether, if the extrinsic evidence I.. |,\ I ||. L. at p. !.">.">. 
 
 ry to show want of juri (b) General Steam Naingaiion
 
 126 ESTOPPEL BY RECORD. 
 
 The learned judge then says, " We think it better to 
 leave this question open, and to express no opinion as 
 to the effect of the appearance of a defendant where it is 
 so far not voluntary that lie only comes in to try to save 
 some property in the hands of the foreign tribunal. 
 But we must observe that the decision in Be Cosse 
 Brissac v. Rathbone (c) is an authority that where the 
 defendant voluntarily appears and takes the chance of a 
 judgment in his favour, he is bound." But whether 
 the mere fact of holding property in the foreign country 
 where the judgment is pronounced is sufficient to give the 
 court jurisdiction, is a question which was not decided (d). 
 
 The following case (e) throws some light upon what 
 amounts to a voluntary submission, on defendant's 
 part, to the jurisdiction of the foreign court. De- 
 fendant was the holder of shares in a foreign com- 
 pany, having its legal domicil in that foreign country ; 
 and, by the laws of that country, he was bound by 
 the articles of association of the company. It was pro- 
 vided {inter alia) by the articles of association, that all 
 disputes arising, during any liquidation, between the 
 shareholders, should be submitted to the jurisdiction 
 of the foreign court : that every shareholder provoking 
 a contest should elect a domicil, and in default of his 
 
 < .,. ,. GuiUou, II M. & W. 877 ; and see per Fry, J., in Rousillon 
 
 but see Simpson v. Fogo, 29 L. J. v. Rousillon, L. Pi. 14 Ch. D. 351 
 
 Ch. 657 ; 32 L. J. Ch. 249. at p. 371. 
 
 (r) 30 L. J. Ex. 238. (e) Copin v. Adamson, L. R. 9 
 
 (d) See Becguet v. McCarthy, 2 Ex. 345 ; L. R. 1 Ex. D. 17. See 
 
 B. &A4 'T)l ; Dougla8v. Forrest, also Xovelli v. Rossi, 2 B. & Ad. 
 
 4 Bing. at p. 703 ; L. <Se N. W. 757. 
 
 Rail. Co. v. Lindsay, 3 Macq. 99 ;
 
 FOREIGN JUDGMENTS. 127 
 
 so doing, that a domicil should be elected for him, and 
 
 that all summonses, &c, served at such elected domicil, 
 should he considered as validly 'served. The company 
 went into liquidation. Defendant provoked a contest. 
 He did not elect a domicil, and consequently one was 
 elected for him, and he was served with a summons at 
 the elected domicil. He did not appear, and judgment 
 was given against him by default. Held (/'), that de- 
 fendant, by becoming a shareholder in the foreign com- 
 pany, and agreeing to its articles of association, had 
 agreed to submit himself to the jurisdiction of the 
 foreign court, in matters provided for in the said articles 
 of association. 
 
 The circumstances necessary to give a foreign court 
 jurisdiction have been stated shortly, in a recent case (</). 
 by Fry, J., as follows: — "The courts of this country 
 consider the defendant hound, where he is a subject 
 of the foreign country in which the judgment has been 
 obtained ; where he was resident in the foreign country 
 when the action began ; where the defendant, in the 
 character of plaintiff, lias selected the forum in which 
 Ik- is afterwards sued ; where he has voluntarily 
 appeared (//) ; where he lias contracted to submit 
 himself to the forum in which the judgment was obtained 
 and, possibly, if Becquet v. MacCarthy (i) be right 
 where the defendant lias real estate within the foreign 
 
 (/) On the authority. of Bank (g) Eousillon v. Rousillo,*. L 
 
 of Australasia \. //"r</i<i</. I!) L. R. 14 Ch. D. 351, at j.. 371. 
 .1. <'. I". .".I.") ; Bank of Australasia (/<) Even where he was a resi- 
 
 v Nia* } 20 L. .1. Q. B. 284 ; and dent in Englandaf the tun.'. See 
 
 V>i//ee v. Duma-gup, 18 L. J. Ex. Russell v. Smythe, U \f. & W. 819 
 398. (/) 2 13. & Ad. 'j:>l.
 
 1:^8 ESTOPPEL BY RECORD. 
 
 jurisdiction, in respect of which the cause of action 
 arose whilst he was within that jurisdiction." 
 
 (j8.) There are also cases where, although the foreign 
 court had originally the jurisdiction which it assumed, 
 the proceedings may be shown to be irregular in them- 
 selves. For instance, a party who has never been 
 resident within the jurisdiction of a foreign court, will 
 not be bound by a judgment obtained against him there, 
 unless it appears that he was summoned to attend the 
 proceedings (k). 
 
 So also proceedings in attachment issuing from the 
 Tolzey court at Bristol (for this purpose a foreign court), 
 were not enforced by the Court of Common Pleas, as 
 it appeared on the face of the record that the proceedings 
 had not been prefaced by a summons, and a return of 
 non est inventus (I). 
 
 Similarly in an action brought in England on an 
 Irish judgment (m), it was held that the action was 
 not maintainable, as it appeared that the defendant had 
 never had notice of the proceedings, or had been before 
 the Court. Lord Denman, in this case said, "It is 
 sought to put an Irish judgment in personam, on the 
 same footing precisely as the judgment of an English 
 superior court : but, although a record for certain 
 purposes, the inquiry is still open, not indeed into the 
 merits of the action or the propriety of the decision, but 
 
 (/■) Cavan v. Stewart, 1 Stark. 1 ; Ward v. EUayu,Cvo. Jac. 261. 
 
 525. But. as to costs of subse- (m) Ferguson v. Mahon, 11 A. 
 
 quent proceedings in England, see & E. 17f». But see contra, Rey- 
 
 GHpi v . Brady, 39 L. J. Ch. 1 30. nol'dsx. Fenton, 8 C. B. 1 87; Smith's 
 
 (I) Bruce v. Waite, 1 M. & G. L.C.(8th ed.),vol. ii. pp. 844,845.
 
 FOREIGN JUDGMENTS. 
 
 129 
 
 whether the judgment passed under such circumstances 
 as to shew that the court had properly jurisdiction over 
 the party " (w). 
 
 It must, however, be observed, that personal service 
 of the summons may be dispensed with by the laws of 
 the foreign country in which the foreign judgment was 
 obtained (o). Thus, the necessity for notice to De- 
 fendant may be dispensed with by statute (p), or 
 by the general law of the foreign country in which 
 the foreign judgment was obtained (q) ; and a state- 
 ment on the face of the proceedings is prima facie 
 evidence that all the proper formalities have been 
 observed (/•). 
 
 (y.) With regard to the principle on which those 
 decisions, in which the judgment of a foreign court has 
 been held to be contrary to natural justice, are founded, 
 there is considerable difference of judicial opinion. 
 Thus, it has been stated on high authority (s), that the 
 principle of want of jurisdiction will be found to lie at 
 the bottom of those cases in which our Courts have 
 refused t<> enforce judgments obtained in a foreign 
 
 (,/) See iil.se FranMand v. 
 McGwty, 1 Knap].. 27 I ; and as 
 to [rish judgmenl . Guinness 
 v. Carroll, 1 B. a- Ad. 163. 
 
 (o) Sheehy v. Professional Life 
 
 Assurance Co., 13 C. B. 7-7 ; 2 C. 
 
 B. X. S. 241 ; :; C. B. N. S. 597. 
 
 (p) t 'owan v. Braidwood, 1 M. 
 
 ■1. 
 
 v. Dwm i gue, ! Ex. 
 ! v. 77 I - Ex. 
 
 638. 
 
 (r) Molony v. Gibbons, 2 Camp. 
 
 .",11-J ; f'n,r,,,/ \-. /1/ifn/lOOOd, 1 M . 
 
 >.v G. s82. Tin' presumption is, 
 •■ omnia rite i sse acta ; " Arimtt v. 
 Redfem, ."> Bing. •">•"> o • Taylor v. 
 Ford, 29 I.. T. 392. 
 
 («) Per Lord Blackburn in t 
 trique v. Imrie, L. II. I II. L. at \>. 
 135. See also bis comments in 
 th^ Milne case on Story's ( ionflict 
 of Lawsj < 592. 
 
 .
 
 ISO F.STOITEL BY RECORD. 
 
 couutrv, againsl a person not resident in that country, 
 and who had no notice of the suit (/). 
 
 The phrase " natural justice" docs not indeed seem to 
 have received a strict judicial interpretation, but it lias 
 been used by many eminent judges, and in important 
 cases arising on foreign judgments. Thus, in Messina 
 v. Petrococchino- (u) Sir Robert Phillimore, delivering 
 the judgment of the court, says: — "A foreign judg- 
 ment of a competent Court may indeed be impeached, 
 if it carries on the face of it a manifest error, if it is 
 shown to have been obtained by fraud, or to be want- 
 ing in the conditions of natural justice." So too, in 
 Gastrique v. Imrie (x\ Lord Chelmsford says, "It is 
 admitted that if the judgment of the Court of Havre was 
 a judgment in rem, the plaintiff cannot recover in this 
 action unless he can impeach the judgment on the ground 
 < .f fraud, or as being contrary to natural justice." And, in 
 the same case, Lord Hatherley uses the expression "con- 
 trary to justice," but apparently in reference to irregularity 
 of procedure rather than to the substance of the judg- 
 ment. His lordship, when Vice-Chancellor, draws a 
 similar distinction in his judgment in The Liverpool 
 
 (t) Such as Buchanan v. Rucker, this view docs not appear to have 
 
 1 Camp. 63. In Abouloff v. been approved of by the present 
 
 Oppenhdmer, L. R. 10 Q. 15. D. Lord Blackburn in Schibsh/ v. 
 
 295, 298, Lord Coleridge says, WestenJiok, L. R. 6 Q. B. 155, at 
 
 " In BurfaoKiH v. Riich'r, Lord p. 160." 
 
 Kllenborough, C. J., seems to (u) L. R. 4 P. C. 144 ; see also 
 
 li:ive been of opinion that a foreign per Lord Ellenborough in Power 
 
 judgment obtained without giving v. Whitmore, I M. & S. 150. 
 to the defendant notice of the pro- (x) L. R. 4 H. L. 414, at p. 
 
 ceedings, could not be enforced, it 446. *. 
 
 being against natural justice ; but
 
 FOREIGN JUDGMENTS. 131 
 
 Marine Insurance Co. v. Hunter (//), where lie says : 
 "The conclusion at which I arrived in Simpson v. Fogo 
 I ) was simply this : It is undoubtedly part of the law of 
 nations, as was stated by Lord Eldon in Wright v. 
 Simpson (a), to recognize the judgments and the pro- 
 cedure of the tribunals of all nations administering justice 
 among their subjects, pursuant to natural justice and 
 equity. But if, in examining a judgment as we are at 
 liberty to do, we find on the face of it, as appeared to 
 Lord Loughborough in Talleyrand v. Boulanger (6), and 
 as appeared in several other instances which have been re- 
 ferred to at common law (c), that a course of procedure has 
 been adopted which is inconsistent with natural justice, 
 then the court will not give effect to the decision, and to 
 the authority which it would otherwise be perfectly willing 
 to recognize. It sometimes happens, for instance, thai 
 foreign Courts proceed to judgment in the absence of the 
 party against whom ffie proceedings are taken, or afti r 
 Inadequate notice of trial (d). n And in the same case, 
 on appeal, Lord Chelmsford says, with reference to the 
 terra "natural justice:" " It was argued thai the Jaw of 
 Louisiana, which refuses to recognize transfers of property 
 in chattels without delivery of possession, was so contrary 
 to natural justice thai if was entitled to no respeel in this 
 
 (y) L. K. I I'm. 62 ; and I.. R. Soulby, :'. My. & K. 101 ; Carron 
 
 3 Ch. App. 179. Iron ('■'. v. Maclaren, 5 H. L. 
 
 ■ 29 L .1. c|,. 657 : ''•■! L .1. Caa. U6, at p. 1-39 ; Hope v. 
 
 Ch. 249. Carnegie, L. R. 1 Ch App. 320. 
 (a) 6 Ves. 7 1 I. 730. (d) Simpson v. Fogo, however, 
 
 (//) 3 Ves. 117. can hardly he considered to belong 
 
 (c) See BusJtby v. Munday, '■> to this class of cai 
 Madd. l M| 7 : Lord Portarlington v.
 
 L8$ ESTOPPEL BY EECOKD. 
 
 court. ... It is the application of the law to foreigners, 
 and the refusal to recognize their title to chattels — a title 
 which is valid and complete in their own country — unless 
 the property is accompanied with possession, which 
 renders, not the law itself, but the decisions of the Courts 
 of Louisiana upon it open to the reproach of injustice. . . 
 It was therefore the application of the peculiar law of 
 Louisiana to a case which, by the comity of nations, ought 
 to have been excluded from its operation, which makes 
 the decision of Vice-Chancellor Wood in Simpson v. Fogo 
 (e) quite correct, and to be reconciled with his judgment 
 in the present case." 
 
 And, as to the term natural justice being specially 
 applicable to the form of procedure, Bramwell B., in 
 another case (/), says, "I think the term natural justice, 
 which has been used in reference to foreign judgments, 
 refers rather to the form of procedure than to the merits 
 of the particular case. If this were the case of a 
 judgment obtained by reason of untrue statements 
 contained in an affidavit in a foreign court where the 
 procedure is contrary to natural justice, then we might 
 iv fuse to give effect to that judgment ; but if the 
 procedure be not contrary to natural justice, the 
 defendant has a remedy by an application to the foreign 
 court to get the proceedings set aside : so that in all 
 cases there will be a remedy. If the proceedings be in 
 accordance with the practice of the foreign court, but 
 
 (e) 29 L. J. Ch. 657 \ 32 L. J. 414. 
 Ch. 249. But see Lord Black- (/) Crawley v. Isaacs, 1G L. 
 
 1. urn's comments on this case in T. N. S. 529, at p. 531. 
 ( ' i '. ique v Tmi ie, L. R. I II. L.
 
 FOREIGN JUDGMENTS. 133 
 
 that practice is not in accordance with natural justice, 
 this court will not allow itself to be concluded by them, 
 but, on the other hand, if the procedure be in accordance 
 with natural justice, the foreign court itself will interfere 
 to prevent the Plaintiff taking advantage of the judgment 
 improperly obtained. Of course, in the case of the 
 procedure being contrary to natural justice, it would be 
 useless to go to the foreign court and complain of its 
 being so." 
 
 3. The English Courts will not recognise as con- 
 clusive the judgment of a foreign court, whir// has been 
 fraudulently obtained (</). — And, if an action is brought 
 in England on a foreign judgment, a plea of fraud is 
 a good defence thereto (It). 
 
 But the fraud must have been on the part of one of 
 the actual parties to the foreign action in which the 
 judgment was obtained (/). 
 
 And the fraud must have been committed before the 
 Court itself at the trial of the action. Fraud committed 
 previously to the case being brought to a hearing before 
 the Court, is nut sufficient (/.). 
 
 The authorities, however, in t}\o case of foreign judg- 
 
 I n Bowles v. Orr, I V. & C. II. 8 Ch. App. 695. 
 Excheq. in Eq. 464; Pruu v. (i) Crawley v. Isaacs, 16 L. T. 
 
 Dewhurst, 8 Sim. 279 ; Bank of N. S. 529; Flowery. Lloyd, 1.. 
 
 Austrakumy. Nias, 16Q. B. 717; R. inch. |>. 327, as explained in 
 
 Reimers v. Bruce, 23 Beav. I \~> ; Aboulofv. Oppenlieimer, L. R. 10 
 
 Ochsenbein v. Papelier, L I!. 8 Q. B. D. (C. A.) 295, al pp.298, 
 
 ( !i. App. 695 ; Messina v. Petro- :: 
 
 cocchdno, L. R. I P. C. Ill; (k) Flowery. Lloyd,h. R. 10 
 
 Abouhffy. Oppenheimer, I.. R. 10 Ch. I>. 327,aa explained in Ahou- 
 
 Q. B. D (C. A.) 295. loffy. Oppenheimer, L. K. 10 Q. 
 
 (h) Ochsenbein v. Papelier, L. B. D. (C. A.) 295, at p. 308.
 
 ESTOPPEL KY RECORD. 
 
 nieiits in rem, do not appear to lie quite so consistent. 
 But the Court of Chancery seems to have disregarded 
 even a foreign judgment in rem, on the ground of fraud. 
 Thus, in the ease of Price v. Dewhurst(l), where 
 probate of a will had been obtained in a foreign eourl, 
 Shadwell, V.-C. said, " This, I apprehend, I am at 
 liberty to do, namely, to see whether a judgment obtained 
 abroad has been fraudulently obtained or not ; and I 
 apprehend that, if the court finds that certain proceedings 
 abroad have been fraudulent, then it is at liberty to deal 
 with the parties it finds before it, and the subject it has 
 to administer, just in the same manner as if the foreign 
 judgment had never taken place." And further on in his 
 judgment (at p. 304), after citing an unreported case of 
 Blake v. Smith, in which the Court of Chancery had set 
 aside a foreign judgment, on the ground of fraud, he 
 said, "Now I take that to be quite consistent with the 
 principles on which this Court acts ; and it is of no con- 
 sequence where the judgment is given if it appears to 
 have been obtained by fraud ; in every such case the 
 Court will consider it as a nullity." 
 
 But in Castrique v. Behrens (m), which was an action 
 in the Queen's Bench, and in which the declaration 
 alleged that the captain of an English ship, while on 
 a voyage, drew a bill of exchange on the then owners for 
 the necessary disbursements of the ship, and the bill was 
 dishonoured at maturity ; that Plaintiff had in the mean- 
 
 (/) 6 Sim. 279, at p. 302 • (m) 30 L. J. Q. B. 163; a 
 
 cited approvingly by Lord Sel- case which arose out of Castrique 
 
 borne in Oclweribein v. Papelier, v. Imrie, 8 C. B. N. S. 1 ; 8 C. 
 
 I.. R. 8 Ch. App. C95. B. N. S. 405 ; L. EL 4 II. ].. 414.
 
 FOREIGN JUDGMENTS. 135 
 
 time, become mortgagee of the ship ; that, by tbe 
 French law, the bond fide holder for value of such a 
 bill, if a French subject, could take proceedings in rem 
 in the French courts, and attach and sell the ship in 
 a French port, in order to pay the bill ; that Defendants 
 being English subjects and the holders of the bill after 
 it had been dishonoured, conspired with T., a French 
 subject, that they should indorse the bill to him without 
 value, and that he should take proceedings in the French 
 courts, and falsely represent that he was a bond fid 
 holder for value ; that this was accordingly done, and 
 an order was thereby obtained from the French court, 
 that the ship should be attached and sold in a French 
 port ; and that Plaintiff was thus deprived of his pro- 
 perty in the ship ; it was held that the declaration 
 was bad, as an action could not be maintained, whilst 
 the judgment in rem, though in a foreign court and 
 obtained as alleged, remained unreversed. Crompton, J., 
 in delivering the judgment of the Court (himself, 
 Wightman and Blackburn, JJ.), said: "It is averred, 
 and we must on the demurrer assume that it is truly 
 averred, that by the law of F ranee the judgment in 
 rem can only be obtained, if the holder of the bill of 
 exchange be a French subject, and bond 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 procuremenl of the defendants, falsely 
 represented 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
 
 186 ESTOPPEL RY RECORD. 
 
 thai tlie Plaintiff had no opportunity to appear in the 
 French court, and dispute the allegations. Jn the 
 present case it is quite consistent with the averments in 
 the declaration, that the Plaintiff had notice of the 
 proceedings in France, and purposely allowed judgment 
 to go by default, or even that he appeared in the French 
 court, intervened, and was heard, and that the very 
 question whether Troteaux was a holder for value, was 
 then decided against him. We think, on the principle 
 laid down in Bank of Australasia v. Nias (■»), that the 
 Plaintiff cannot impeach the judgment here on such 
 grounds, and that whilst it stands unreversed, this action 
 cannot be maintained." 
 
 On the other hand where, to an action in England 
 claiming the value of certain goods and brought upon a 
 foreign judgment in personam (confirmed on appeal), 
 whereby Defendants had been ordered to return the 
 goods to Plaintiff or to pay her their value, it was 
 pleaded in defence that the judgments of the foreign 
 court had been obtained by the fraud of Plaintiff, and her 
 husband acting in collusion with- her, in fraudulently 
 representing to the foreign courts that the goods in 
 question were not in the possession of Plaintiff and her 
 husband, and in fraudulently concealing from the foreign 
 court, that the goods were in the actual possession of 
 Plaintiff and concealed by Plaintiff and her husband; 
 held on demurrer (affirming the Queen's Bench Division) 
 that the foreign judgment, having been obtained by the 
 fraud of a party to the suits in the foreign courts, could 
 
 (n) 20 T, J. Q. 13. 23 1.
 
 FOREIGN JUDGMES 137 
 
 not be afterwards enforced by such party in an action 
 brought in an English Court and that the defence was a 
 good one ; even although the question whether the fraud 
 had been perpetrated, was investigated in the foreign 
 court, and it was there decided that the fraud had not 
 been committed (o). Lord Coleridge in his judg- 
 ment in the above case said, (at p. 299) ; " It has 
 been argued that the defence is bad, mainly on the 
 ground that upon these pleadings it must lie taken 
 thai these allegations of fraud were brought before the 
 courts at Tiflis ; that the Defendants did state to those 
 courts that the goods were not in their possession, 
 but in the Plaintiff's; that the courts had jurisdic- 
 tion to examine this defence, and did examine it, and 
 came to a conclusion against the Defendants ; and there- 
 fore that, whether this conclusion was right or wroiur on 
 the matters of fact, the question of the Plaintiffs alleged 
 fraud cannot now be tried or litigated in the courts of this 
 
 country Many authorities, from the Duchess of 
 
 Kingston's case (p) down to our own time, have been cited 
 during the argument, but not one of them throws a doubt 
 on the broad proposition that where a judgment has been 
 obtained by the fraud of a party to a suit in a foreign 
 country, he cannol prevent the question of fraud front 
 being litigated in the courts of this country, when he 
 eks to enforce the judgment so obtained. The justice 
 of that proposition is obvious ; if it were not 80, we should 
 have to disregard ;i well-established rule of law that no 
 
 (o) Abouhff v. Oppmlieimer, L. (p) Smith's L < !. (8th ed.), 
 i:. li> <». B. I). (C. A.) 295. vol ii., P . 784 ; post, Appendix 13.
 
 138 ESTOPPEL BY RECORD. 
 
 man shall lake advantage of his own wrong, and we 
 should have to lay down as a legal proposition that where 
 a judgment lias been obtained in the courts of a foreign 
 country by a fraud and by a wrongful act, nevertheless 
 I lie person obtaining it can take advantage of that fraud 
 and of that wrongful act, and in the courts of this country 
 can enforce the judgment so obtained." And, further on 
 in his judgment, he said (at p. 302), " It has been sug- 
 gested that there ought to be some limitation as to the 
 rule, that the obligation arising on the judgment of a 
 foreign court can be annulled by the defence that the 
 foreign court has been misled and not mistaken, if under 
 any circumstances the fraud could have been brought 
 under the notice of the foreign court. I do not think 
 that the general proposition, broad as it is, is to be 
 subjected to any limitation of that kind; and I am of 
 opinion that the fraud of the person who has obtained 
 the foreign judgment, is none the less capable of being 
 pleaded and proved as an answer to an action on the 
 foreign judgment in a proceeding in this country, because 
 the i'acts necessary to be proved in the English courts 
 were suppressed in the foreign court by the fraud on the 
 part of the person who seeks to enforce the judgment, 
 which the foreign court was by that person misled so as 
 to pronounce. Where a fraud has been successfully 
 perpetrated for the purpose of obtaining the judgment 
 of a court, it seems to me fallacious to say, that because 
 the foreign court believes what at the moment it has no 
 means of knowing to be false, the court is mistaken and 
 not misled ; it is plain that if it had been proved before 
 the foreign courl that fraud had been perpetrated with
 
 FOKEIGN JUDGMENTS. L39 
 
 the view of obtaining its decision, the judgment would 
 have been different from what it was " (q). 
 
 The difficulty which seems to be involved in the fore- 
 going decision, is, that although the foreign court may 
 have investigated the defence of fraud when set up, and 
 although it may have given a decision on that point, our 
 courts will nevertheless entertain the same point over 
 again. Putting aside any considerations that might arise 
 from the difference between foreign judgments in rem 
 and in personam, or from the fact of one of the parties 
 to the action being himself involved in the commission of 
 the fraud (r), it seems difficult to reconcile this decision 
 with the judgment in Castrique v. Behrens (s). 
 
 4. The judgment of a foreign court is conclusive on the 
 merits (t). — For this proposition, which is of course 
 subject to the general limitation that if it be a foreign 
 judgment in personam, it is only conclusive on the 
 parties to it, and those who claim through them, there is 
 the authority of the Bank of Australasia v. Nias [u). : 
 the Bank of Australasia v. Harding (sc), and JJc Co 
 Brissac v. Rathbone (y), all of which are cited with 
 
 No reference appears to H. & X. 728. 
 
 ■ made, either in the (*) 30 L. .1. Q. B. L63j "/>'<, 
 
 sibo\ . or in th of p. I •"> I. 
 
 Ochsenbein \. Papelier, I . II. 8 (t) The authorities on this 
 
 Ch. App. 695 (ante, p. L34), to point, up to the time of Houl 
 
 the case above mentioned, of Cos- ditch v. Donegal, 2 CI. <fe Fin. 
 
 V/y<" v. Behrem, 30 L. J. Q. I'.. 177, arc collected a1 the end of 
 
 i 63 ; ant* . p. 13 1. thai case. 
 
 (r) As to thi Viedden v. (u) 20 L. J. Q. B. 284. 
 
 Pati-ick, I Macq. 535 \ and Cam- (x) 19 L. J. C. P. 345. 
 
 mell v. Sewell, 3 II. & X. 617 ; 5 30 I. J. Ex. 238
 
 1 10 ESTOPPEL BY RECORD, 
 
 approval by Blackburn J., in Godard v. Gray (3), and 
 have since been frequently recognised and followed. At one 
 time, however, this was not regarded as a settled point (a). 
 
 "». The judgment of a foreign court cannot be im- 
 ; < ached on the ground that it has mistaken the law of 
 sonic other country including that of England. — Although 
 there is ample authority for this proposition (&), there 
 seems to be some difference of opinion as to the 
 conclusiveness of the foreign judgment, where there is 
 error apparent on the face of it. 
 
 Thus a foreign judgment in personam lias been held 
 to be examinable, inter alia, for error on the face of it, 
 sufficient to show that the Court had come to an 
 erroneous conclusion either of law or fact (c). So also 
 Wood, V.-C. in Simpson v. Fogo (d), said : — " It is 
 now quite settled that a decision inter partes by a 
 foreign court, is conlusive upon the merits of the 
 matter in controversy, between the parties and those 
 claiming under them, in any other country, subject 
 
 (z) L. R. 6 Q. B. 139, p. 150. (a) See Smith's L. C. (8th ed.) 
 
 See also Ilicardo v. Garcias, 12 vol. ii., p. 847 et seq., where the 
 
 CI. & Fin. 368; Kelmtl v. authorities for and against the 
 
 Marshall, 1 C. B. N. S. 241; above proposition are collected. 
 Barber v. Lamb, 8 C. B. N. S. (b) See per Blackburn and 
 
 95 ; Henderson v. Henderson, 6 Mellor, JJ., in Godard v. Gray, 
 
 Q. B. 288 ; 11 Q. B. 1015 ; Van- L. R. 6 Q. B. 139, at p. 150, and 
 
 quelin v. Bouard, 15 (J. B. N. S. cases there cited. 
 341 ; Srnii v. Pilkington, Munroe (c) Reimers v. Druce, 23 Beav. 
 
 v. Pilkmgton, 31 L. J. Q. B. 481 ; 145 ; Dent v. Smith, L. R. 4 Q. 
 
 Ellis v. Mcllenry, L. R. 6, C. P. B. 414. 
 
 228 ; and see per Sir R. Philli- (d) 29 L. J. Ch. 657 ; 32 L. J. 
 
 more in the Delta, L. R. 1 P. D. < 'h. 249. 
 393, at p. 401.
 
 FOREIGN JUDGMENTS. 14 L 
 
 only to the question how far you may examine the 
 judgment for error appearing on the face of it " (e). 
 And, similarly, Hannen, J., in Godard v. Gray (f), 
 stated, that he did not think that any authority bound 
 them, nor was he prepared to decide that a Defendant, 
 not guilty of any laches, against whom a foreign 
 judgment in personam had been given, was precluded 
 from impeaching it on the ground that it appeared on 
 the face of the proceedings to be based on an incorrect 
 view of the English law, even though there might be no 
 evidence that the foreign court knowingly or perversely 
 refused to recognize that law. And in a more recent 
 case in the Privy Council (//), it is laid down, that a 
 foreign judgment of a competent court may be im- 
 peached, if it carries on the face of it a manifest 
 error. 
 
 It may he noticed that Hannen, J., in the above case 
 appears to limit his decision to the case of a foreign 
 judgment where there is an error of English law 
 apparenl on the lace of the proceedings ; and in the case 
 which he was considering it was not strictly necessary to 
 decide anything beyond this. Hut the language of the 
 other judges in that case is opposed to any such distinc- 
 tion being drawn in favour of English law, and is in 
 favour of the conclusiveness of foreign judgments 
 notwithstanding errors apparent on the face of them. 
 
 See also Ricardo v. Garcias, (g) Mestinav. Pefrococchino, L. 
 
 12 CI. a- Kin. 368 ; /> < I:. I I' . < . I I I ; andsee per i 
 
 Brissacv. Rathbone, 30 L. J. Ex. Tenterden in Becquet v \l'Carthy, 
 
 - - 2 B. .v .VI at p. 957 ; an I 
 
 (M 1.. I:, fi Q. B. 13 • ConOid of Laws (7th ed.) § 607.
 
 1 '•? ESTOPPEL I'.v RECORD, 
 
 Thus Blackburn, J., says (A), "but in no case that we 
 know of is it ever said that a defence shall be admitted if 
 il is easily proved, and rejected if it would give the Court 
 much trouble to investigate it. Yet on what other 
 principle can we admit as a defence that there is a 
 mistake of English law apparent on the face of the 
 proceedings, and reject a defence that there is a mistake 
 of Spanish or even Scotch law apparent on the pro- 
 ceedings, or that there was a mistake of English law not 
 apparent on the proceedings, but which the defendant 
 avers he can shew did exist." 
 
 In Meyer v. Ralli (/), a further distinction was drawn 
 between the case of a foreign tribunal making a mistake 
 in its own law and in the law of some other country. 
 " There is,'' says the Court, " this peculiarity in the 
 case, which does not, so far as we are aware, seem to 
 have occurred before, that, upon the express findings in 
 the special case, by which both parties are bound, this 
 part of the judgment seems to be manifestly erroneous in 
 regard to the law of France, on which it professes to 
 proceed." And, after referring to Castrique v. Imrie(L), 
 the judgment proceeds as follows : " But, in that case, in 
 delivering the opinion of the majority of the judges, 
 Blackburn, J., speaking of the judgment as matters of 
 
 (h) Godardv. Gray,"L. R. 6 Q. even if it were only a judgment 
 
 B. 1 39. And see per Keating, J., in personam. 
 in Castrique v. Imrie, L. R. 4 H. (/) L. R. 1 C. P. D. 358, at pp. 
 
 [.. til, at pp. 437—430. Al- 370, 371. See also Alivon v. 
 
 though it was held that this was Fumival, 1 C. M. & R. 277 ; and 
 
 n judgment in rem, Keating, J., Dent v. Smith, L. R. 4 Q. B. 414. 
 hold that it could not lie im- (/) L. R. 4 H. L. 414. 
 
 peached for error on the face of it,
 
 FOREIGN JUDGMENTS. 1 t3 
 
 French law says (/), ' We must (at least till the contrary 
 is clearly proved), give credit to a foreign tribunal for 
 knowing its own law, and acting within the jurisdiction 
 conferred on it by that law. 1 And in the case of B< cq 
 v. M'Carthy (m), Lord Tenterden had said before, ' We 
 ought to see very plainly that the Court has decided 
 against the French law; before we say that their 
 judgment is erroneous on that ground,' — implying that if 
 it clearly appeared, the Court would not give effect to 
 the judgment. Here, the Court expressly professes to 
 proceed on the ground of French law; and although 
 the presumption would be that the Court in delivering 
 judgment would be taken to know its own law, still it 
 clearly appears that that law was not followed, and we 
 arc precluded by the findings in the case from holding 
 that the Court has rightly declared it. The contrary, — 
 to use the words of Blackburn, J. — clearly appears, an J, 
 either from inadvertence or some other reason, the foreign 
 tribunal (in this case a French Court) has gone manifestly 
 wrong. Il does no1 profess to declare what is the law 
 of Austria. It it had, though equally wrong, w<; might 
 have been bound by Castrique v. Tmrie (//) to have given 
 effed t" ii : '"it. it iv a declaration of French law which 
 is wrong. Qnder these circumstances we are of opinion 
 that there is no nil'' of < < >mit \ and no principle on which 
 we are called upon i'> give effed to such a judgment." 
 The language of this judgmenl must, however, be 
 compared with that of Cockburn, C J., in Castriqm 
 
 (I) I.. I:. I ir. L. U l,, mi p. 130. i;. 1 I Ch. I>. 351, at p. 371. 
 (m) -1 B. a- .VI. 951,ai p. 957 (n) L I: i II. L -i I I. 
 
 see also Rousillon v. /.' '■■■>. 1.
 
 1 1 I ESTOPPEL BY RECORD. 
 
 lmrie(p), which although it deals with a judgment in 
 rem, seems to be equally applicable to a judgment 
 in 'personam, as far as regards the parties to it or those 
 claiming under them. 
 
 The iacts of this case were as follows (p) : A., a 
 British subject and the owner of a British ship, whilst 
 she was on a voyage transferred her to B. by a bill of 
 sale, and several subsequent transfers were made from 
 mortgagee to mortgagee. The master had, previously to 
 the first transfer, while at Melbourne, drawn a bill for 
 necessary disbursements upon the owner of the ship, 
 which the latter declined to accept, and which was dis- 
 honoured at maturity. The ship having in the course 
 of her return voyage touched at Havre, the holder in 
 England of the dishonoured bill, to whom it had been 
 endorsed by the payees at Melbourne, indorsed it to a 
 French firm there, who commenced proceedings in the 
 Tribunal de Commerce of that port against the master 
 and against the ship. The master appeared, but did 
 not defend the suit, and thereupon the Court condemned 
 him "en sa qualite de capitaine et par privilege sur le 
 navire," (an expression which was construed in the 
 Exchequer Chamber and the House of Lords to mean 
 that the ship was condemned also byway of maritime 
 law) to pay the amount of the bill, and declared him free 
 from arrest, to which otherwise he would have been 
 liable. Up to this point the owner and the mortgagees 
 of the ship had not been made parties to the suit, nor 
 
 (o) See Tmrie v. Castriqiie, 8 C. Smith's L. C. (8th ed.), vol. ii., 
 B. N. S. 40.1, at p. 417. pp. 861, et seq. 
 
 Op) This report is taken from
 
 FOREIGN JUDGMENTS. 145 
 
 was this necessary by the French law : but afterwards 
 the owner and the first mortgagee were summoned to 
 the civil tribunal of the district in which the Court of 
 Commerce was situated, in order to afford them the 
 opportunity of resisting the judgment directed against 
 the ship. They did not appear, and the original decision 
 of the Court of Commerce was confirmed : and it was 
 ordered that the ship should be sold by public auction. 
 At a later period plaintiff, who was the last mortgagee 
 of the ship, but who had not at that time had the transfer 
 registered to himself, prosecuted a suit before the civil 
 tribunal at Havre, to replevy the ship and release her 
 from custody. In this suit the civil tribunal, miscon- 
 ceiving the law of England, and deeming, erroneously, 
 that by that law no valid transfer could be made of a 
 ship, to the prejudice of creditors, whilst she was on a 
 voyage, unless the sale appeared on the ship's papers, 
 dismissed plaintiff, condemning him in the costs, and 
 upholding the original seizure of the ship. This judgment 
 was affirmed, on appeal to the Court of Appeal at Rouen, 
 which adopted tin' reasoning on which the judgment of 
 the Havre courl was based, although evidence was laid 
 before tin- courl at Rouen as to the real state of the 
 English law. Theship was subsequently sold by auction 
 to defendants. Plaintiffs then brought an action against 
 tlic defendants in England, to recover the ship. It was 
 lid'] however that the English courts were bound to erive 
 effecl to the French judgment, and to the title to the ship 
 which the defendants derived through it. Cockburn 
 C. J., in bisjudgmenl in the above case, says (q) : "The 
 
 (q) 8 C, I'.. N. S. at p. 4 17.
 
 146 ESTOPPEL 15V RECORD. 
 
 result of the authorities on this subject clearly establishes 
 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 
 i iirning on the law of the country to which the tribunal 
 belonged, it had been erroneous with reference to the 
 latter." 
 
 Again, Lord Hatherley, in his judgment in the House 
 of Lords, says (r) : " Now, my lords, without expressing 
 any opinion (for I purposely wish to avoid doing so) with 
 reference to a decision of my own which has been cited, 
 in the case of Simpson v. Fogo (s) as to what might be 
 done in the case of a court wilfully determining that it 
 will not, according to the usual comity, recognise the 
 law of other nations when clearly and plainly put before 
 it(^), without saying as to what would justify the courts 
 in our own country in hesitating to give effect to a foreign 
 judgment, if obtained by fraud or misrepresentation, it is 
 enough for me to say upon the present occasion, that, in 
 this case, the whole of the facts appear to have been 
 inquired into by the French courts judicially, honestly, 
 and with the intention to arrive at the right conclusion, 
 and, having heard the facts as stated before them, they 
 came to a conclusion which justified them (in France) in 
 deciding as they did decide. That decision confirmed 
 the title by sale to the person who became the purchaser 
 at the sale. According to the law of France, that title 
 could not be thereafter disputed or disturbed, the court at 
 
 (,■) I.. R. t H. L. at p. t 15. (0 As to this see per Black- 
 
 (s) 29 L. J. Ch. 657 ; 32 L. J. burn and Mellor, J. J., in Godard 
 Ch. 249. v - Gray, L. R. 6 Q. B. 139.
 
 FOREIGN JUDGMENTS. 117 
 
 Rouen being- the highest court having jurisdiction in the 
 matter. That being so, there being neither a case <>f 
 refusal to attend or listen to anything that might be said 
 to them with reference to our own law. nor to adopt that 
 as the ground of their conclusion, and there being no 
 case, as far as I know, of any fraudulent representation 
 or concealment with reference to any facts in the case, 
 ami the decision having been come to and pronounced, 
 not, as in one of the cases which was cited, in the 
 absence of the parties, but in Castrique's own suit, where 
 lie had every opportunity of bringing forward his own 
 case, the decision cannot be complained of as one contrary 
 to justice, through its being pronounced in the absence, 
 from want of citation, of any of the parties interested. 
 I therefore think we are bound to give effect to the con- 
 clusion arrived at by the French court, and to the title 
 derived through that conclusion." 
 
 ii. // seems tint the English courts will not recognise as 
 conclusive the judgment of a foreign court when it has 
 lir,-,, obtained by a British subject <n/<l is {,< express contra- 
 vention ofthi English statutory law.- This appears to be 
 the decision arrived at in the well-known case of Philips 
 v. //"/-/<,'(">. but, although the majority of the Court 
 decided againsl tin' conclusiveness of the foreignjudgment, 
 the currenl of modern authority seems to be more in 
 accordance with the judgment of Eyre, C. J., who dis- 
 sented from the other judge . 
 
 The statutes which came uw<\rv the consideration of 
 the ('mini iii Philips v. Hunter (x) were L3 Eliz. c. 7, 
 . l', and 1 Jac. L, c. 1 5, sec. 1 .'). 
 
 («) 2 II. Bl. -ioi'. , Ibid.
 
 148 ESTOPPEL BY RECORD. 
 
 By the 13 Eliz. c. 7 sec. 2, the Lord Chancellor was 
 empowered to appoint, in the case of an insolvency, cer- 
 tain commissioners, who should thereupon have authority 
 to take the debtor's lands and also his goods and 
 chattels wherever they might be found, and to sell the 
 same for the benefit of his creditors. Again, by stat. 1 
 Jac. 1, c. 15 sec. 13, the commissioners in bankruptcy 
 were empowered to assign debts due to a bankrupt, for 
 the benefit of his creditors, and it was enacted, that, after 
 any such assignment, the bankrupt should not have any 
 property in such debts, and that the same should not be 
 attached as the debts of the bankrupt, according to the 
 custom of London or otherwise. 
 
 The facts of the case were as follows : — A., B., and 
 C, being partners in trade in England, A. and B. resided 
 in England, and C. went to a foreign country for the 
 special and temporary purpose of transacting certain 
 business there for the English house, which had no place 
 of business except the one in England. D., a resident in 
 England, contracted a debt in England to the English 
 firm of A., B., and C. D. then became insolvent, and C, 
 knowing that D. had stopped payment, and after a com- 
 mission of bankruptcy had in fact issued against D. in 
 England, and a provisional assignment of D.'s goods &c. 
 had been made (under Stats. 13 Eliz. c. 7, and 1 Jac. 1, 
 c. 15, before mentioned), attached in the name of himself 
 and his partners, by legal process, a debt due to D. in 
 the foreign country in which C. then was, and obtained 
 payment of it under the judgment of a court of justice 
 in that country. It was decided by the majority of the 
 Court (six judges, including Lord C. B. j\lacdonald),
 
 FOREIGN JUDGMENTS. 149 
 
 dissentiente C. J. Eyre, that D.'s assignees had a right 
 to recover back the money so obtained by C, in an action 
 against A., B., and C, for money had and received to 
 their use (y). 
 
 Possibly the majority may have considered that the 
 case in question lay outside the province of estoppel 
 altogether, and that there were other considerations in- 
 volved, which prevented the application of the doctrine, 
 or which altogether outweighed it. Or the decision 
 of the majority might be supported on the ground that 
 there was a kind of estoppel arising out of the Acts 
 of Parliament above-mentioned, by which Acts C. as a 
 British subject would be bound, and that this would 
 counteract any estoppel that might arise on the foreign 
 judgment, on the well-known principle that an estoppel 
 against an estoppel sets the matter at large. Or again, 
 the decision might be supported on the ground that the 
 foreign judgment had been improperly obtained by C, 
 i.e., improperly in the sense that, knowing what the 
 English law was, he had no business to have obtained 
 the foreign judgment in his favour, to the exclusion of 
 D.'s assignees in bankruptcy. The English court may 
 in effeel have said to him : "Yon knew what the English 
 law was, you were aware of what had taken place, and 
 you knew that according to English law you could not 
 
 (//; The judgmenl of the ma- distinguishing Le Chevalier v. 
 
 jority depended partly "n the Lynch, I Dougl. 170; < '/> v< v. 
 
 wording of the Btatutea above Mills, Cooke's Bankrupt La 
 
 mentioned. They also relied on vol. i., p. 333; and Allen v. 
 
 Sill v. Worswick, I II. Bl. 665; Dundas,3T. R. 125. 
 and Hunter v. Potts, 1 T. I;. L92,
 
 150 ESTOPPEL BY RECORD. 
 
 obtain a valid title against D.'s assignees. Consequently, 
 if you choose to obtain a foreign judgment in your favour 
 to the exclusion of the assignees, you must not expect to 
 get the benefil of it in England." 
 
 Eyre, C. J., on the other hand, in his judgment 
 treated the judgment of the foreign court as conclusive 
 until it was reversed. He said: "If we suppose a 
 British subject to have obtained a legal judgment here in 
 our own courts, in direct opposition 1o the whole scope 
 and tenor of the bankrupt laws, either for want of 
 proof, or by error of the judge, or in any other manner 
 that can be supposed, may he not lawfully hold that 
 judgment, and pursue it to all its eonsequences until it is 
 impeached in a due course of law, notwithstanding any 
 moral or political obligation he may be said to be under, 
 not to contravene the bankrupt laws?" And, further on 
 in his judgment (z), he said, " Lord Mansfield tried what 
 he could to make of this proposition, that a British 
 subject should not be allowed to contravene the statute 
 law of the land, in one of the strongest cases that can be 
 imagined of wilful contravention, the case of marriage 
 contracted abroad by English subjects, withdrawing 
 themselves from England for the express purpose of 
 contravening the statute law respecting marriages, and 
 he failed altogether " (a). 
 
 He concluded by resting his judgment on the 
 following grounds, viz.: 1. That the plaintiff's demand, 
 
 i i 2 Tl. Bl. at p. 412. tences, post, p. 164. See, how- 
 
 (a) But see Brook v. Brook, ever, the remarks on Brook v. 
 
 f J H. L. Cas. L93. Sec also, Brook, in Bishop's Marriage and 
 
 under Foreign matrimonial sen- Divorce (6th ed.), vol. i., § 382.
 
 FOREIGN JUDGMENTS. 151 
 
 arising as it did out of a transaction in a foreign state, 
 though it might follow the person, must be judged of 
 according to the laws of that state ; and 2. That upon 
 the record there was no means of knowing, and therefore 
 notice could not be taken of, the laws of the foreign state, 
 and therefore the Court could not know that the 
 plaintiffs were entitled to maintain the action. " The 
 conclusion from these two propositions," says the learned 
 judge, "to the particular case of the plaintiffs, appears to 
 me to be irresistible." 
 
 However, in the converse ease of a foreigner suing 
 here, our courts will not consider what personal 
 incapacity he may be under by the laws of his own 
 country (//). 
 
 7. It seems that the English courts will not recognise 
 as conclusive the judgment of a foreign court which is 
 contrary to the comity of nations. — The principle upon 
 which foreign judgments are enforced in England, 
 has been stated somewhat differently by different 
 authorities (e). Thus, Lord Elleiiboroiigh, in Vouwr v. 
 Whitmore (/), says : "By the comity which is paid by 
 us to the judgments of other courts abroad of com- 
 petent jurisdiction, we give a full and binding effeel 
 to such judgments, so far as they profess to bind 
 the persons and property immediately before them in 
 
 (,/) De l'i Vega \. Vianna, 1 P>. Sottomayor v. De Barros, L. R. 3 
 
 & Ad. 284 ; Don v. Lippmann, P. D. 1 : L. If. 5 P. I). HI: Bloxam 
 
 6 01. & Fin. 1 : per Lord Chelma- v. Favre, L R. 8 P. D. 101. 
 ford in Liverpool Marine Co. v. (c) See per Lord Coleridge in 
 
 Hunter, L. R. 3 Ch. App. 179, Abouloffv. Oppenheimer,L.B,. 10 
 
 commenting on Talleyrand v. Q. B. D. 295, at p. 300. 
 Boulanger, 3 Ves. 447. Bui (/) 4 M. & S. 150.
 
 l.v: ESTOPPEL HY RECORD. 
 
 judgment, and to which their adjudications properly 
 relate." 
 
 Again, Lord Westbury, in Shaw v. Gould (//), makes 
 the following observations: "The extent and limits of 
 the comity of nations, or of the obligation which one 
 nation is under to receive and admit the judgments of 
 the courts of another country, are well defined in one 
 of the maxims of Huber as follows : ' Rectores imperiorum 
 id comiter agunt, ut jura cujusque populi, intra terminos 
 ejus exercita, teneant ubique suam vim, quatenus nihil 
 potestati aut juri alterius imperantis ejusque civium 
 prsejudieetur.' 
 
 On the other hand, in Godard v. Gray (h), Blackburn, 
 J., states the principle upon which foreign judgments 
 are enforced in England as follows : " It is not an 
 admitted principle of the law of nations that a state is 
 bound to enforce within its territories the judgment of a 
 foreign tribunal. Several of the continental nations 
 (including France), do not enforce the judgments of other 
 countries, unless where there are reciprocal treaties to that 
 effect. But in England and those states which are govened 
 by the common law, such judgments are enforced, not 
 by virtue of*any treaty, nor by virtue of any statute, 
 but upon a principle very well stated by Parke, ]>., in 
 Williams v. Jones (/) : c Where a court of competent 
 jurisdiction has adjudicated a certain sum to be due from 
 one person to another, a legal obligation arises to pay 
 
 (g) L. K. 3 II. L. ut ]». si. As Rep. 135. 
 to the difficulty of applying the (h) L R. 6 Q. 13. 139. 
 
 principle, see per Sir \Y. Scott in (I) 13 M. it W. at p. 633. 
 
 the Find Oyen, 1 Robinson's Adm.
 
 FOREIGN JUDGMENTS. 153 
 
 that sum, on which an action of debt, to enforce the 
 judgment, may be maintained. It is in this way that 
 the judgments of foreign and colonial courts are 
 supported and enforced.' And taking this as the 
 principle, it seems to follow that anything which 
 negatives the existence of that legal obligation, or 
 excuses the defendant from the performance of it, must 
 forma good defence to the action. . . . If indeed foreign 
 judgments were enforced by our courts out of politeness 
 and courtesy to the tribunals of other countries, one could 
 understand its being said that though our courts would 
 not be so rude as to enquire whether the foreign court 
 had made a mistake, or to allow the defendant to assert 
 that it had, yet that if the foreign court itself admitted 
 its blunder they would not then act : but it is quite 
 contrary to every analogy to suppose that an English 
 court of law exercises any discretion of this sort. We 
 'iiioivr ;i legal obligation, and we admit any defence 
 which shows that there is do legal obligation or a legal 
 excuse for ool fulfilling it." 
 
 The following are authorities in favour of the above 
 proposition. Thus, in the case of Gammell v. Sewell(k) 
 Byles, J., differing from the majority of the Courl (in the 
 Exchequer Chamber), thought thai the foreign judgment 
 was not binding in lliis country, on tins ground, anion 
 others, namely, that the law of Norway, on which tip' 
 foreign judgment was based, was opposed to tin' general 
 maritime law of the world (/), and would not he 
 recognised by the comity of nations (m). 
 
 (k) 5 II. & \. 72 5 I'-, .v AM. 617. 
 
 (I) Freemanv. East India Co., (m) Segredo, otherwise Eliza
 
 154 ESTOPPEL BY RECORD. 
 
 A.gain, V.-C. Wood, in his judgment in (lie case of 
 Simpson v. Fogo (n), says : "It has been held in several 
 cases, especially on the subject of prize, that any 
 peculiar legislation of foreign countries which has not 
 been recognised by the world at large, any peculiar 
 legislation of their own with regard to a special subject 
 matter, may destroy the conclusive effect of a judgment, 
 if it appears on the face of the record as the ground 
 of decision. For instance, it has been decided in an 
 action on a policy effected during a war, on the footing 
 of a declaration that the ship was neutral, that where, by 
 the local legislation of some one country not recognised 
 by the other countries of Europe, ships are held to forfeit 
 their neutrality if they contravene particular regulations 
 not acquiesced in by the world in general, the courts of 
 all other countries are entitled to disregard such special 
 regulations, and to treat even a judgment in rem as 
 inoperative on the question of neutrality." 
 
 There is, however, a difference of judicial opinion, as 
 to how far perverse disregard of English law in a foreign 
 court should cause the foreign judgment to be regarded 
 as in violation of the comity of nations. 
 
 Thus, in Castrique v. Imrie (o), Cockburn, C. J., said : 
 "It is not disputed that a judgment in rem, obtained 
 without fraud, and pronounced by a competent court, is 
 generally binding upon all the world : but it is contended 
 that in this case an exception should be made to the rule, 
 on the ground that, it being clear that the incidents of the 
 
 Cornish, 1 Spinks Eccles. & Adm. (») 29 L. J. Ch. 657. 
 
 Hep. 36: Wolff \. Oxholm, 6 M. (<>) See Imrie v. Castrique, 8 
 
 & S. 92. C. B. N. S. 405, at p. 415.
 
 FOREIGN JUDGMENTS. 155 
 
 contract entered into by the master, on behalf of his 
 owners, were to be governed by the lex loci of the con- 
 tract (in this instance the law of England), the French 
 court knowingly and intentionally set that law at naught, 
 thereby violating the comity of nations, by virtue of 
 which alone the judgments of the tribunals of one country 
 are respected by those of another. It is unnecessary to 
 pronounce any decision upon the principle of law involved 
 in this argument. It is right to say that if it were, some 
 members of the court are strongly disposed to think that, 
 even if the tact on which the argument turns were made 
 out, it would not afford a reason for questioning the 
 validity of a judgment in rem. Others, on the other 
 hand, if it could be shown that, in a case in which the 
 effect of a contract was to be determined by the lex loci 
 contractus, a foreign court perversely insisted on applying 
 its own law, being in conflict with the former, thereby 
 outraging the principle of international comity in a 
 manner amounting in fact to a species of judicial miscon- 
 duct, are by no means prepared to say that in such a case 
 it would not be the duty of a court in this country to refuse 
 to recognize the binding efficacy of such ;i judgment, not 
 indeed, by way of reprisal towards the foreign tribunal, 
 but to protect our own fellow-subjects IV<>ni injustice." 
 
 s. Thi mere }>* ndency of an action in " j>n-> zign tribunal 
 at tin date of an action brought in England between tin 
 sarm 'parties, cannot be set up as a bar to the action in 
 England(p). — And the pendency, in a foreign country, 
 of an appeal againsl ajudgmenl there obtained, though 
 
 The Delta, I.. I.'. I P. D. plicable to actions pending in an 
 .".'.•:;. The name principle is ap- inferior court. See Sparry's C
 
 156 ESTOPPEL BY RECORD. 
 
 it may afford ground for the equitable intervention of an 
 English court {(]), to prevent the possible abuse of process 
 of such foreign court, and on proper terms to stay exe- 
 cution in an action brought in England on such foreign 
 judgment, is not a bar to the action itself (/•). 
 
 However, where there is a litigation pending in a 
 foreign court, and instituted there by parties seeking to 
 establish their title to property situated within the juris- 
 diction of such foreign court, it is contrary to all the rules 
 of the comity of nations, for an English court actively to 
 interfere on behalf of the plaintiffs, bringing an action in 
 an English court to enforce rights respecting such 
 property, and who are or might be parties to the action 
 in the foreign court (5). But nevertheless the question 
 whether a court having ample authority to decide the 
 matter brought before it, should await the expected 
 adjudication of another tribunal, having only similar 
 authority, by a stay of proceedings, is merely one for the 
 exercise of judicial discretion (t). 
 
 Co. Rep., vol. iii., 123 ; Dudfield (q) The Peshawur, L. R. 8 P. 
 
 v. Warden, Fitzgibbon, 313. And D. 32. 
 
 as to the practice in staying- pro- (r) Scott v. Pilkington, Munroe 
 
 ceedings, see McHenry v. Lewis, v. PUMngton, 4 B. & S. at p. 41. 
 
 [.. 1!. 21 Ch. D. 202; L. II. '-'2 (s) Norton v. Florence Land <Ss 
 
 Ch. D. 397, and the cases there Public Works Co., L R. 7 Ch. D. 
 
 cited. Some distinction appears 332. 
 
 to be drawn between the practice (t) PJwsphate Sewage Co. v. 
 
 applicable in cases in rem and in Molleson, L. R. 1 App. Cas. 780. 
 
 personam, per Chitty, J.
 
 CHAPTER VI. 
 
 FOREIGN JUDGMENTS IN REM. 
 
 The distinction between judgments in rem and in 
 personam has already been adverted to (a), but in the 
 case of foreign judgments under which property has been 
 sold, it appears to have been, in many cases, a matter 
 of some difficulty to determine whether such judgments 
 should be regarded as judgments in rem or in perso- 
 nam. For instance, in Simpson v. Fogo (/;), the judgment 
 of the Court of Louisiana was held to be a judgment 
 personam, as it only decreed the sale of the mortgagor's 
 interest in the ship, and was a proceeding analogous to 
 an English fi. fa. Now, a sale by a sheriff under a fi. 
 In. (against A.) of a particular chattel, does not prevent 
 1). from setting up a title to the chattel, either against 
 the sheriff or agaiusl the purchaser from the sheriff, and 
 therefore it is properly considered to be a proceeding in 
 personam, whereas a sale, under an order of a Couri of 
 Admiralty, of perishable property in their hands, which 
 has been attached, confers a til!'' against all the world (c). 
 
 (a) Ante, p. 75. Castrique v. Imrie, I.. R. 4 II. L. 
 
 (/,, 29 I.. .1. Ch. 657 ; 32 I.. .1. Ill, ai pp. 427, 428; and per 
 
 Ch. J 1'J. I ord Hatherley, ibid, pp. I 12, 
 
 l See | er Blackburn, •'., in 4 J.'!.
 
 158 ESTOPPEL BY RECORD. 
 
 Again, in ( 'ammell v. Sewell (d), there was a difference 
 of opinion amongst the judges as to whether the sale m 
 Norway was a proceeding in rem or in personam. The 
 judges of the Court of Exchequer held that it was a 
 proceeding in rem. The judges of the Court of . 
 Exchequer Chamber, however, held it to be a proceeding 
 in personam^ as they were not satisfied that the proceed- 
 ing at the auction was a judicial proceeding, although it 
 appears to have been treated as such by the law of Nor- 
 way (e). On the other hand, in Castrique v. Imrie (,/'), 
 the sale under an order of the French court, was held to be 
 a proceeding in rem. And in the latter case, Blackburn, J., 
 in the course of his judgment in the House of Lords (//), 
 made some valuable remarks, in which he points out 
 what are the necessary criteria for determining in cases 
 of this kind, whether the transaction operates in rem or 
 in personam. After stating the difference that exists 
 between judgments for the sale of property by tribunals 
 which have jurisdiction merely over the rights of the 
 parties, and by tribunals which have jurisdiction to 
 determine, not merely the rights of the parties, but the 
 disposition of the property itself, he says, that to 
 constitute a judgment in rem in a case of this kind, it is 
 not essential that there should be an actual adjudication 
 
 {d) 3 H. & N. 617 ; 5 H. & N. Land (a.) of a stranger's goods 
 
 728. nnder a distress for rent, (b.) in 
 
 (e) Byles, J., however, in his market overt, as it was an inter- 
 judgment in the Exchequer national and not a domestic tran- 
 Chamber (5 H. & N. 728), pointed suction. 
 out that the sale under the (/) L. E. 4 H. L. 414. 
 alleged law of Norway may be {g) L. R 4 H. L. 414, at pp. 
 distinguished from a sale in Eng- 427, 428.
 
 FOREIGN JUDGMENTS IN REM. 159 
 
 upon the status of the thing. He then cites a passage 
 from Story's Conflict of Laws (/<), as follows : — 
 
 "The same principle (viz. that a judgment in rem is 
 
 conclusive) is applied to all other cases of proceedings in 
 
 rem, against movable property, within the jurisdiction of 
 
 the Court pronouncing the judgment. Whatever the 
 
 Court settles as to the right or title, or whatever 
 
 disposition it makes of the property by sale, revendica- 
 
 tion, transfer, or other act, will be held valid in every 
 
 other country, where the same question comes directly 
 
 or indirectly in judgment before any other foreign 
 
 tribunal. This is very familiarly known in the eases of 
 
 proceedings in rem in foreign courts of admiralty, 
 
 whether they are causes of prize, or of bottomry, or of 
 
 salvage, or of forfeiture (*'), or of any of the like nature over 
 
 which such courts have a rightful jurisdiction, founded 
 
 on the actual or constructive possession of the subject 
 
 matter (res)." He then says : " We may observe that 
 
 the words as to an action being in rein or in 'personam^ 
 
 and the common statement that the one is binding "ii 
 
 third persons, and the other not, are apt to be used by 
 
 English lawyers without attaching any very definite 
 
 meaning to those phrases. We apprehend the true 
 
 principle to be that indicated in the passage from Story. 
 
 We think the inquiry is, first, whether (he subjeel matter 
 
 was so situated as to be within the lawful control of the 
 
 State, under the authority of which the Court sits, and 
 
 econdly, whether the sovereign authority of that state 
 
 (h) <l\h <•<!.) § . r >92. last editor of Story,and refen 
 
 (/) Or by damage by collision, in note thereto. 
 See a paragraph inserted by tin 1
 
 L60 
 
 ESTOPPEL BY RECORD. 
 
 has conferred on the Court jurisdiction to decide as to 
 the disposition of the thing, and the Court lias acted 
 within its jurisdiction. If these conditions are fulfilled, 
 the adjudication is conclusive against all the world " (Jc). 
 
 An exception to the conclusiveness of foreign judg- 
 ments, which may be noticed here, arises in the case of 
 foreign criminal proceedings. Thus it has been laid 
 down (/) that crimes are in their nature local, and the 
 jurisdiction of crimes is local. And similarly Lord 
 Loughborough, in another case (m), says, "The penal 
 laws of foreign countries are strictly local, and affect 
 nothing more than they can reach, and can be seized by 
 virtue of their authority ; a fugitive who passes hither 
 comes with all his transitory rights ; he may recover 
 money held for his use, stock, obligations, and the like ; 
 and cannot be affected in this country by proceedings 
 against him in that which he has left, beyond the limits 
 of which such proceedings do not extend." 
 
 Thus, in a case in Chancery, where defendant, a 
 foreigner sojourning in this country, declined to produce 
 certain documents, on the ground that their production 
 
 (Jc) As to the nature and effect 
 of proceedings in rem, see also the 
 judgment of Jervis, C. J., in The 
 Bold Buccleuch,7 Moore's P. C. 
 267 ; and as to whether the decree 
 of a foreign court, declaring the 
 status of a person, and placing 
 him or her, as an idiot or prodi- 
 gal, under guardianship, should 
 be treated as a judgment in rem 
 or not, see Story's Conflict of 
 Laws(7thed.),§594,p. 740, and 
 
 references there given. 
 
 (I) Per De Grey, C. J., in 
 Rafael v. Verelst, 2 Sir W. Bl. at 
 p. 1058. 
 
 (m) Folliott v. Ogden, 1 H. Bl. 
 123, at p. 135; see also Buller, 
 J., in Ogden v. Folliott, 3 T. R. at 
 pp. 733, 734 ; per Lord Ellen- 
 borough in Wolff "v. Oxholm, 6 M. 
 & S. 99 ; and Warrender v. 
 Warrender, 2 CI. & Fin. 488.
 
 FOREIGN JUDGMENTS IN REM. 161 
 
 would expose him to criminal proceedings in his own 
 country, the Court nevertheless made the order, on the 
 ground that the English courts had no regard to the penal 
 laws of a foreign country (n). And, although a criminal 
 acquittal in a foreign country may be pleaded in bar 
 to a subsequent indictment in England for the same 
 offence (o), this is not on the ground of estoppel, but upon 
 a principle applicable solely to the criminal law, that no 
 man should be placed in peril twice for the same offence. 
 We shall, in this chapter, consider the effect in 
 England of: — 
 
 I. Foreign Matrimonial Sentences. 
 
 II. Foreign Sentences in Admiralty. 
 
 111. Foreign Bankruptcy Proceedings. 
 
 I. Foreign Matrimonial Sentences. — A foreign sentence 
 adjudicating upon the matrimonial status is a judg- 
 ment in rem, and is binding on all the world, if the 
 court pronouncing the sentence has the proper jurisdic- 
 tion {/>). Thus, in an early case (y), in which the validity 
 of a marriage in France between minors, one of whom 
 was an English subject, was in question, Lord Hard- 
 wicke said, "It has been argued to be valid from being 
 established by the sentence of a court in France, having 
 proper jurisdiction. And it is true, that if so, it is con- 
 
 (n) King of the two Sicilies v. Bee the cases cited in Bishop on 
 
 Willcox, I Sim. N. S. 301- Marriage and Divorce (6th ecL), 
 
 Hutchinson! & Co. • . Buller's vol. ii., § 7.~>1, note. 
 N. 1'. i'. 245. (■/> Roach v. Garvan, 1 Ves, 
 
 Story'a < lonflicl of Law a. L57. 
 
 .'. 740 
 
 it
 
 162 ESTOPPEL BY RECORD, 
 
 elusive, whether in a foreign eourt or not, from the law of 
 nations in such eases : otherwise the rights of mankind 
 would be very precarious and uncertain. But the 
 question is whether this is a proper sentence, in a proper 
 
 cause, and between proper parties ' (/•). And in a 
 modern ease (s) Brett, L. J., in delivering his judgment, 
 said, "A judgment or decree determining what is the 
 status of an individual is a judgment or decree in rem. 
 It is, therefore, if binding at all, not only a binding judg- 
 ment as between the parties to the suit, but is to be 
 recognized as binding in all suits and by all parties. Such 
 a judgment, where the jurisdiction of the Court which 
 made it is recognized, is treated as binding and final, not 
 only by all the courts of the same country, but by the 
 courts of all countries." 
 
 In dealing with the question of the binding effect of 
 a foreign sentence of divorce, the chief consideration is 
 the domicile, whether original or adopted, of the parties. 
 But in the case of a foreign sentence of nullity of 
 marriage, the English courts will also consider, at all 
 events in the case of English subjects, the validity of 
 the contract, and the place where it was made (t). 
 
 And though, in the case of foreign subjects married 
 in their own country, the English courts would probably 
 consider a sentence of nullity obtained in that foreign 
 country as conclusively binding upon them ; there does 
 
 (r) See also Cottington) '» Case in (t) Brett, ] j. .1., notices a dis- 
 
 a note to Kennedy v. Cassilis, 2 tinction between the two classes 
 
 Swanst. 320. of sentences in Niboyetv. Niboyet, 
 
 (s) Niboyet v. Niboyet, L. R. 4 L. If. 4 P. D. 1, at p. 19. 
 P. D. 1, at p. 12.
 
 fo'reign judgments in rem. 163 
 
 not seem to be any authority to extend the proposition 
 to a foreign sentence of nullity, in the case of English 
 subjects. In fact, the cases that will be cited are to the 
 contrary effect. It will perhaps, therefore, be convenient 
 to consider separately the effect of foreign sentences of 
 nullity of marriage, and of foreign sentences of divorce : — 
 (i.) Foreign Sentences of Nullity of Marriage. — "The 
 contract of marriage," says Lord Robertson {u), "is 
 the most important of all human transactions. It is the 
 very basis of the whole fabric of civilized society. The 
 status of marriage is juris gentium, and the foundation 
 of it, like that of all other contracts, rests on the consent 
 of parties. But it differs from other contracts in this, 
 that the rights, obligations, or duties, arising from it, 
 are not left entirely to be regulated by the agreements 
 of parties, but are, to a certain extent, matters of 
 municipal regulation, over which the parties have no 
 control by any declaration of their will. It confers the 
 status of legitimacy on children born in wedlock, with 
 all the consequential rights, duties, and privileges thence 
 arising: it gives rise to the relations of consanguinity 
 and affinity : in short, it pervades the whole system of 
 civil society. Unlike other contracts, it cannot, in 
 general, amongst civilized nations, be dissolved by 
 mutual consent, and it subsists in full force, even 
 although one of the parties should be for ever rendered 
 incapable, as in the ease of incurable insanity, or the 
 like, from performing Ids part of the mutual contract." 
 
 (u) See Fergusson on Mar Laws (7th ed.), § 10'j. See also 
 riage find Divorce, pp. 397 to .''>!>'.', Story's Conflict of Laws (7tli ed.), 
 cited by Story in his Conflict of § 200 
 
 M 2
 
 i 64 
 
 ESTOPPEL BY RECOED. 
 
 The question of marriage or no marriage should be 
 decided by the law of the place where the marriage was 
 celebrated (x). 
 
 But this rale applies only to the forms and solemnities 
 of constituting a marriage, and to the proof of the parties 
 having made a contract (y). Thus in Brook v. Brook (z), 
 it was decided that the law of the country in which a 
 marriage is solemnized cannot give validity to a marriage 
 prohibited by the laws of the country of domicile and 
 allegiance of the contracting parties ; so that a marriage 
 with a deceased wife's sister, although valid in Denmark, 
 would be invalid here ; and that, therefore, the rule that 
 the lex loci contractus determines the validity of the 
 marriage, ought to be limited by an implied proviso that 
 such marriages, if between English subjects, are not 
 contrary to the laws of this country (a). 
 
 The authority of Brook v. Brook (Z>), was recognized 
 and acted upon in the case of Mette v. Mette (c), although 
 there the husband had obtained letters of naturalization 
 in Germany before contracting the second marriage 
 prohibited by English law. 
 
 (x) Per Cresswell, J., in Brook 
 v. Brook, 3 Sm. & G. 481, at p. 
 512; and Story's Conflict of Laws 
 (7th ed.), § 113. There are some 
 exceptions to this rule, for in- 
 stance in the case of polygamous 
 marriages. See Story's Conflict 
 of Laws (7th ed.), p. 117. 
 
 ('/) Pur Cresswell, J., in Brook 
 v. Brook, 3 Sm. & G. at p. - r 'l •">. 
 
 (z) 3 Sm. & G. 481 ; (see 
 
 especially the judgments of Lord 
 ( 'ranworth and Lord Wensley- 
 dale). 
 
 (a) See also Harford v. Morris, 
 2 Hagg. Consist. 423 ; and pet- 
 Lord Brougham in Warrender v. 
 Warrender, 2 CI. & Fin. 488. 
 
 <l>) 3 Sm. & G. 481. 
 
 (c) 1 Sw. & Tr. 41G. See also 
 Fenton v. Livingstone, 3 Macq. H. 
 L. Cas. m 7.
 
 FOREIGN JUDGMENTS IN REM. 165 
 
 So also in the case of Sottomayor v. De Barros (d), 
 it was held by the Court of Appeal that the marriage in 
 England of first cousins, being aliens not domiciled in 
 England, if forbidden by the law of their own country, 
 was invalid here. 
 
 But the prohibition must, in order to affect the 
 validity of the marriage, be on a matter affecting 
 the personal capacity of the parties to contract the 
 marriage. Thus, in Simonin v. Mallac (e), where the 
 objection to the validity of the marriage, which was 
 solemnized in England, was the want of consent of 
 parents required by the law of France, but not, under 
 the circumstances, by that of this country, it was held 
 that this consent must be considered as a part of the 
 ceremony of marriage, and not as a matter affecting 
 the personal capacity of the parties to contract the 
 marriage (/). 
 
 And in the case of a foreign marriage which would 
 be considered valid by our courts, viz., where (1) the 
 ceremony has been in accordance with the law of the 
 place of celebration, and (2) the marriage is not pro- 
 hibited, in respecl of matters affecting the personal 
 capacity of the parties to contract the marriage, by the 
 laws of tie' country of their domicile ami allegiance, a 
 
 «/ 7 
 
 sentence of nullitv of marriage, if obtained in a foreign 
 
 • {<!) L I:. •'; P. 1>. 1 ; but see in Niboyetv. Niboye^ I. R I I'. 
 
 also Sir I.'. Phillimore's judgment l>. I, al \>. is. 
 
 in I.. R. 5 I'. I). 94. This case (/) See the remarks uti tin, 
 
 followed in Bloxam v. Favre, case in Sottomayor v. De Barro . 
 
 L. R, 8 P. I>. 101. I.. U. 3 I'. D. I, at p. 7 ; I, R 5 
 
 2 Sw. .v Tr. 07. But sec I'. D. 94. 
 Brel t, I,. J.'s, doubts on tin- ca e
 
 166 ESTOPPEL BY RECORD. 
 
 country, which was not the country in which the 
 marriage was celebrated, and of which the contracting 
 parties were not subjects, would not necessarily be 
 considered conclusive in England. 
 
 Thus in the case of Sinclair v. Sinclair (//), where the 
 husband appeared under protest to a divorce brought by 
 the wife, alleging, in bar of proceedings, that such suit 
 could not be entertained by the Court, for that the 
 marriage had been celebrated at Paris, and had since 
 been dissolved by a sentence of the court of Brussels on 
 proceedings instituted by him for divorce by reason of 
 cruelty and adultery, Sir William Scott said, "Something 
 has been said on the doctrine of law, regarding the 
 respect due to foreign judgments : and undoubtedly a 
 sentence of separation, in a proper court, for adultery, 
 would be entitled to credit and attention in this court ; 
 but I think the conclusion is carried too far, when it is 
 said, that a sentence of nullity of marriage is necessarily 
 and universally binding on other countries. Adultery 
 and its proofs are nearly the same in all countries. The 
 validity of marriage, however, must depend, in a great 
 degree, on the local regulations of the country where it 
 is celebrated. A sentence of nullity of marriage, 
 therefore, in the country where it was 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, 
 uor had between subjects of that country, would be 
 universally binding. For instance, the marriage, alleged 
 
 (q) 1 llagg. Consist. 294.
 
 FOREIGN JUDGMENTS IN REM. 167 
 
 by the husband, is a French marriage ; a French 
 judgment on that marriage would have been of consider- 
 able 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." 
 
 And it would appear from this case and from 
 Scrimshire v. Scrimshire (h), that even where the 
 sent. Mic' ot nullity of marriage was pronounced in the 
 same country where the marriage was celebrated, it is 
 Dot, at all events in the case of English subjects, 
 necessarily conclusive in England; though it will be 
 admitted as evidence, in the proceedings in England, of 
 the law of the foreign country, which may be material 
 for the English Court in determining whether the 
 marriage is valid by the law of England or not, Sir 
 Edward Simpson, in delivering judgment in the above 
 case, said, " This is a suit brought by Miss Jones for 
 restitution of conjugal rights. She pleads a marriage in 
 France, clandestine and forbidden by the laws of both 
 countries, with this difference, that by the laws of 
 France, such marriages are, in all cases, absolutely null; 
 whereas, by th- laws of England, they are only irregular, 
 but qoI null, unless under special circumstances that 
 
 warranl th' C i to put thai construction upon them. . . 
 
 A sentence of the Parliamenl of Paris, declaring the 
 marriage null, is . . . pleaded, not as bar to entering 
 into the question iii this Court, whether the marriage I"' 
 good or not, hut as evidence of the law of France, which 
 
 h) 2 Hagg. Consist. 3!
 
 168 i STOPPEL BY RECORD. 
 
 may be material for the consideration of this Court in 
 determining whether this be a good marriage by the law 
 of England, or not. . . The process is for restitution uf 
 rights; and the marriage being denied, a question arises 
 
 incidentally, whether it is a marriage or not, to 
 determine whether the party is entitled to restitution or 
 not, under the marriage which has been pleaded. . . The 
 Court was of opinion then, and still is, that a foreign 
 sentence alone could not, of itself, be a bar to entering 
 into a consideration of the question, whether this 
 marriage between English subjects was good or not by 
 the law of England? The Court thought, however, that 
 such sentence was proper to be pleaded, as a circum- 
 stance, or a fact, to make evidence of the law of France, 
 with respect to the question here, on the validity of a 
 marriage celebrated in France. Accordingly, the 
 sentence was pleaded, and admitted in that light; and in 
 that light it seems to be very properly before the Court ; 
 as I think the laws of France are very material to be 
 considered, in determining, even by our law, on the 
 validity of a contract of marriage had and made in 
 France. So that the Court, by rejecting the sentence 
 when pleaded in bar, has not determined that the sen- 
 tence in France, when pleaded as a circumstance, is of no 
 avail." The learned judge then cites some passages from 
 foreign jurists and some earlier English cases, showing 
 that in marriages abroad by English subjects, the English 
 law takes notice of the foreign law. And he afterwards 
 says: "In the present ease there has been a sentence 
 of the proper forum, pronouncing on the whole facts of 
 the case, and the principles of the laws of France, as
 
 FOREIGN JUDGMENTS IN REM. 169 
 
 applied to them. In matters that belong to the jus 
 fjeutiam, our Courts always regard the sentences of a 
 proper Court " (i). 
 
 ( ii. ) Foreign Sentences of Divorce. — -The English ( lourts 
 will examine the validity of foreign decrees of divorce in 
 the same manner, and on the same rules, by which the 
 conclusive effect of other foreign judgments has to be 
 determined (k). Thus they will not pay regard to a 
 foreign sentence of divorce, if it appears that it was 
 contrary to natural justice, or that the court which 
 granted it had no jurisdiction (I). 
 
 The influence of the lex domicilii. — In support of the 
 influence of the law of domicile in questions affecting 
 marriage, Lord AVcstbury cites the following passage 
 from Rodenberg in Shaw v. Gould (ra) : " Unicum hoc 
 ipsa rei natura ac necessitas invexit, ut cum de statu et 
 conditione hominum quaeritur, uni solum modo Judicii, et 
 quidem Domicilii, universum in ilia jus sit attributum." 
 And Lord Brougham in his judgment in the case of 
 Warrender v. Warrender (/?), says: "It certainly 
 may well be urged, both with a view to the general 
 question of lex l<»i, and especially in answering the 
 argument <>f the alleged essential quality of indis- 
 
 | Sec also Sir W. Scott's judg- Shaw v. Gould, L. R. 3 II. L. at 
 
 merit in Sinclair v. Sinclair, I p. 85. 
 
 Hagg Consist. 294, and ante, p. (I) Shaw v. Attorney-General, 
 
 166. And as to the admissibility L EL 2 P. & D. L56. 
 in England of foreign sentences in (m) L El. 3 IT. L. at p. 83. 
 
 affirmation of marriage as evidence (n) 2 CI. & Fin. 283. The 
 
 of reputation, see Smith's L. 0., passage is cited at length in Story's 
 
 vol. ii. (8th ed.), p. 871. Conflict of Laws (7th ed.), pp. 247, 
 
 (k) See per Eiord Westbury in 248, note
 
 170 ESTOPPEL BY RECORD. 
 
 solubility, that the parties to a contract like this (o) 
 must be held emphatically to enter into it with a 
 reference to their own domicile and its laws : that the 
 contract assumes, as it were, a local aspect, but that at 
 any rate, if we infer the nature of any mutual obligation 
 from the presumed intentions of the parties, and il 
 we presume those intentions from supposing that the 
 parties had a particular system of laws in their eye, 
 there is fully more reason to suppose they had the law 
 (if their own home in their view, where they purposed to 
 live, than the law of the stranger under which they 
 happened for the moment to be." 
 
 So also Lord Selborne, in his judgment in Harvey v. 
 Farnie (7), says: "Let it be granted, (and I think it is 
 well settled,) that the general rule, internationally recog- 
 nised, as to the constitution of marriage, is that when 
 there is no personal incapacity attaching upon either 
 party, or upon the particular party who is to be 
 regarded by the law to which he is personally subject, 
 that is the law of his own country, then marriage is held 
 to be constituted everywhere if it is well constituted 
 secundum legem loci contractus. But that merely 
 determines what in all these cases is the point you 
 start from. When a marriage has been duly solemnized 
 according to the law of the place of solemnization, the 
 parties become husband and wife. But when they 
 become husband and wife, what is the character which 
 the wife assumes? She becomes the wife of the foreign 
 husband in a case where the husband is a foreigner in 
 
 i.e., the contract of marriage. 
 [.. R. 8 A pp. Cars, at pp. 50, 51.
 
 FOREIGN JUDGMENTS IN REM. 171 
 
 the country in which the marriage is contracted. She 
 no longer retains any other domicile than his, which she 
 acquires. The marriage is contracted with a view to that 
 matrimonial domicile which results from her placing 
 herself by contract in the relation of wife to the husband 
 whom she marries, knowing him to be a foreigner, 
 domiciled and contemplating permanent and settled 
 residence abroad. Therefore it must be within the 
 meaning of such a contract, if we are to inquire into it, 
 that she is to become subject to her husband's law, 
 abject to it in respect of the consequences of the 
 matrimonial relation and all other consequences 
 depending upon the law of the husband's domicile. 
 That would appear to be so on principle. ... It would 
 appear, therefore^ that if this question is to depend on 
 any principle at all, it must be upon the principle of 
 recognising the law of the forum and matrimonial 
 domicile, when, as in this case, they both concur." 
 
 The cases that have arisen, and been decided, upon 
 I In' effect of foreign matrimonial sentences in England, 
 seem to establish the following propositions : 
 
 1. .1 foreign tribunal has, as jar as legal <<nis<- 
 (juences in England are concerned, no authority to pro- 
 nounce a decree of divorce, a vinculo matrimonii, in tin 
 case qf mi English marriage between English subjects, 
 unless such subjects <ir<', at tin tinn when such decree is 
 pronounced, bond fide domiciled in suchforeign country 
 where suchforeign tribunal has jurisdiction (/■). — Hence 
 it' such a divorce is obtained, our courts will, Dotwith- 
 
 i, ) See Story's < !onfli< I of Laws (7th ed.), $ 227 ".
 
 172 l - L'OPl'EL KY RECOKD. 
 
 standing it. entertain a subsequent petition for divorce 
 in England (s). 
 
 This proposition was established in the celebrated case 
 of //. v. Lolley(t), although the grounds of the decision 
 there given have been much misunderstood, owing, as it 
 seems, to an erroneous note, which Lord Brougham, who 
 was counsel for the prisoner, appears to have taken of a 
 passage in the judgment in the House of Lords. Thus 
 in Toveg v. Lindsay (u), Lord Brougham (counsel for 
 the appellant), informed the Court that he took a note at 
 the time when the judgment was delivered in Lolley's 
 rase, as follows : " That the judges were unanimously 
 of opinion upon the points reserved, that a marriage 
 solemnized in England, was indissoluble by anything 
 except an Act of the legislature." And Lord Eldon 
 seems at first, in the course of the argument, to have 
 adopted this view of the decision, though he afterwards 
 upon consideration, took a different view (v). Lord 
 Brougham was apparently influenced by the same 
 erroneous notion of the decision in Lolleys Case, in giving 
 judgment in the case of McCarthy v. De Gale (to), a case 
 which has been entirely disapproved of in the recent and 
 important case of Harvey v. Farnie(x) in the House of 
 Lords, and in which Lord Brougham reduced ad 
 absurdum the supposed doctrine in Lolley's Case (y). 
 
 (.<) Tottemachev. Tollemaclie, 30 (u) 1 Dowl. at p. 127. 
 
 L. J. Matr. L13. (v) See Lord Selborne's judg- 
 
 (t) 2 CL & Fia 507. This ment in Harvey v. Farnie, L. R. 
 
 case is very briefly reported. See 8 A pp. Cases at p. 55. 
 Dr. Lushington'8 comments there- {to) 2 Russell & Myl. 614. 
 
 on in Conway (otherwise Beazley) v. (x) L. R. 8 App. Cas. 43. 
 
 Beazley, 3 llagg. Eccles. CD'J. (y) In McCarthy v. De Caix,
 
 FOREIGN JUDGMENTS IN REM. 173 
 
 And again in Warrender v. Warrender (z), Lord 
 Brougham, in his judgment, says of Lolley's Cose, " the 
 resolution in Lolleys ( 'ase was that an English marriage 
 could not be dissolved by any proceeding in the Courts 
 of any other country, for English purposes. In other 
 words, that the Courts of this country will not recoo-nUe 
 the validity of a Scotch divorce of an English marriajre, 
 but will hold the divorced wife dowable of an English 
 estate, the divorced husband tenant thereof bv the 
 curtesy, and either party guilty of felony by contracting a 
 second marriage in England." But this view of the 
 decision in Lolley's Case, although it was again adopted 
 by the counsel for the appellant (Mr. Benjamin) in the 
 case of Harvey v. Farnie (a) in the House of Lords, has 
 been finally condemned by the unanimous opinions of Lord 
 Selborne, Lord Blackburn, and Lord Watson in the same 
 case. The actual facts and actual decision in Lolley's 
 i 'ase, as taken partly from the judgment of Lord Black- 
 burn in Harvey v. Farnie (/>), were as follows : — 
 
 An English husband married an English wife in 
 England : he was a domiciled Englishman, she was a 
 domiciled Englishwoman. Tiny continued to be 
 domiciled Englishman and Englishwoman down to the 
 moment when, going into Scotland fur a temporary 
 purpose, he there committed adultery, and she, 
 
 2 Rubs. & Myl. 61 I, Ld. Brougham dissolve a marriage contracted in 
 
 is reported to have said that tlic England.' 1 
 
 judges in Lolley's Case, "gave ;i i i 2 CI. & Fin. at pp. 540, et 
 
 r and unanimous opinion thai seq. 
 do divorce, or proceeding in the (a) L. K. 8 App. Cases, 13. 
 
 natui divorce, in any foreign Tbid. at p. 
 
 country, Scotland included, could
 
 I] t ESTOrrEL BY RECORD. 
 
 therefore, caused him to be divorced in a Scotch Court. 
 He subsequently married again in England, and was pro- 
 secuted for bigamy. The counsel for the defence relied 
 on the Scotch sentence of divorce as dissolving the first 
 marriage, but the prisoner was convicted, subject to the 
 question of law which was reserved, whether the Scotch 
 sentence of divorce dissolved the first marriage or not (r-). 
 Upon the above facts, it was decided by the twelve 
 judges, upon the point reserved, that there was an 
 English domicile throughout, the whole period of the case, 
 and that under those circumstances the marriage could 
 not be dissolved by a foreign court (d). 
 
 The above proposition is also, to a certain extent, 
 supported by the judgment of Lord Eldon in Tovey v. 
 Lindsay (e), but in that case, in consequence of doubts 
 entertained by Lords Eldon and Redesdale as to whether 
 
 (c) Although there was evi- a domiciled Englishman. See 
 dence of fraud in obtaining the per Lord Selborne in Harvey v. 
 Scotch divorce, the question of Farnie, L. R. 8 App. Cas. at p. 
 fraud was not left to the jury, 46. Lord Blackburn (see p. 59) 
 and was therefore left out of con- thinks the judges meant a mar- 
 sideration in the reserved case, riage where the domicile was 
 See Harvey v. Farnie, L. R. 8 English from the beginning to 
 App. Cases at p. 59. the end of the transaction. Possi- 
 
 (d) See further some comments bly Lord Brougham's misinter- 
 on Lo/fey's Case in Shaw v. Gould, pretation of the case may have 
 L. R. 3 J I. L. 55 ; per Lord West- arisen from his adopting the first 
 bury at p. 76 ; and per Lord of the above meanings stated by 
 Chelmsford at p. 86. The ex- Lord Selborne. 
 
 pression used by the judges in (e) 1 Dowl. pp. 117 & 131. 
 
 Lolley* Case was an "English And see per Lord Selborne in 
 
 marriage." These words may Harvey v. Farnie, L. R. 8 App. 
 
 mean either, (1) the contract of Cas. at p. 55, and per Lord 
 
 marriage performed in England, Watson at p. 63. 
 or (2) a marriage performed with
 
 FOREIGN JUDGMENTS IN REM. 175 
 
 the pursuer had acquired a domicile or not, and tin- 
 great importance of the question of jurisdiction, then 
 formally raised for the first time, it was remitted for 
 further consideration ; and the pursuer dying in the 
 meantime, no further steps were taken. It is also 
 supported by the decision of Dr. Lushington in Conway 
 (otherwise Beazley) v. Beazley (/), the facts in which 
 were similar to those in LoHey's < 'ase, except that 
 the second marriage took place in Scotland. 80 also 
 in Tollemache v. Tollemache (//), Williams, J., says, 
 
 Without going into the question whether the divorce 
 obtained in Scotland is valid with reference to a 
 subsequent marriage in Scotland (//), or expressing any 
 opinion as to the status of the children of that marriage 
 we are of opinion that, as an English Court of Divorce, 
 we cannot recognise the decree of the Scotch Court, 
 which affected to divorce a domiciled Englishman, as a 
 dissolution of the bond of marriage." 
 
 A like decision was given in Pitt v. /'///(/), in which 
 the matrimonial domicile was English, and the solemni- 
 zation of the marriage was in England, and Colonel Pitt, 
 the husband, had gone to Scotland, but had not acquired 
 an actual domicile there. The wife, however, did not go 
 to Scotland, and the alleged adultery was not committed 
 
 (/) Z Hagg. Eccles. 639. 390, as explained by him in 
 
 (:/i 30 L J. M'ifr. a1 p. I 16. Shaw v. Gould, ibid. 
 (A) That a Scotch divorce, (i) I Macq. Rep. 627 ; and 
 
 though invalid in England, may Lord Selborne's remarks on the 
 
 be valid in Scotland, see Shaw v. case in Earvey v. Farnie, I.. R. 8 
 
 Gould, L. I:. :; II. L. at p. 88; App. Cases a1 p, 56; see also 
 
 and Lord Cranworth's judgment Geilsv. Geik, 1 Macq. Rep. 255. 
 in Dolphin v. Robins, 7 II. L.
 
 L76 
 
 ESTOPPEL H V RECORD. 
 
 in Scotland. Similarly, in Shaw v. Gould (j) t it was 
 decided by Lord Westbury, that if the parties marry in 
 England, and the husband, in pursuance of a concerted 
 arrangement between the parties, subsequently goes to 
 Scotland, merely in order to acquire a domicile so as to 
 give the Scotch Courts jurisdiction to grant a divorce, 
 and then a divorce is obtained in Scotland ; such divorce 
 would have no binding effect in England, and that the 
 issue of the wife who subsequently married again in the 
 lifetime of the husband, even if the second marriage was 
 valid in Scotland, would not be considered legitimate in 
 England (/■). 
 
 It also appears from Lord Selborne's judgment in the 
 above case of Harvey v. Farnie (I) that the domicile of 
 the wife follows that of the husband, a point which often 
 comes incidentally in question in considering the con- 
 clusiveness of a foreign sentence of divorce. So too, in 
 ir Sueur v. Le Sueur (m), where the parties had been 
 married in Jersey, and the wife had been deserted by 
 the husband, who went to reside in the United States ; 
 
 (./) L. R. 3 H. L. 55. 
 
 (/.•) See also Shaw v. Attorney- 
 ■ eral, L. R. 2 P. & D. 156. 
 
 (/) L. R. 8 A pp. Cas. at pp. 
 r>0, 51. From Shaw v. Attorney- 
 General, L. R. 2 P. & D. 156, it 
 would appear that the petitioner 
 (the wife in that case), might 
 have acquired a legal domicile in 
 the foreign state apart from her 
 husband, and that if she had 
 acquired one, and her husband 
 hud submitted himself to the 
 jurisdiction of the foreign court, 
 
 the English courts would have 
 recognized and acted upon the 
 foreign divorce which the peti- 
 tioner had obtained. The divorce 
 was not recognized in England as 
 dissolving the marriage, but the 
 decision was given also on the 
 ground of the foreign divorce pro- 
 ceedings being contrary to natural 
 justice, as no personal notice of 
 the proceedings had been given 
 to the husband, who had never 
 been within the state. 
 (m) L. R. 1 P. D. 139.
 
 FOREIGN JUDGMENTS IN REM. L77 
 
 and the wife acquired a bond fide domicile in England, 
 and presented a petition in England for the dissolution 
 of her marriage : the original place of the matrimonial 
 domicile having been in England, and the husband never 
 having acquired a domicile in England, it was hold that, 
 even it' the petitioner, without a sentence of judicial 
 separation, could acquire a distinct domicile in England, 
 she could not make her husband amenable to the lex 
 fori of her new domicile (a). 
 
 ■2. (a.) The English courts will recognize as valid a 
 sentence of >iirorce a vinculo matrimonii pronounced by 
 a competent foreign tribunal, where tin' matrimonial 
 domicile is throughout in fin- foreign country m which 
 the foreign sentence was pronounced (ft.), even though the 
 marriage was celebrated in England, ami was dissolved 
 for a cause which would not have been sufficient to 
 obtain a divorct in England. — (a.) The first part of 
 this proposition is supported by the remarks of Lord 
 Westbury in Shaw v. Gould (o) as follows: " The 
 position that the tribunal of a foreign country, having 
 jurisdiction to dissolve the marriages of its own subjects, 
 i- competent to pronounce a similar decree between 
 English subjects who were married in England, but 
 who, before and at the lime of the suit, are permanently 
 domiciled within the jurisdiction of such foreign tribunal, 
 such decree being made in a l><>mi fide suit, without 
 collusion or concert, is a position consisted with all the 
 English decisions." 
 
 also,aa to the domicile I- J!. I I'. D. • '>•"•. Bu< sr<> Briggs 
 •ii" wife being thai of the v. Briggs, I>. R. 5. I'. I». 163, 
 huab in !, /•' brace I L. R. 3 H. I. al p. v -».
 
 178 ESTOPPEL BY RECORD. 
 
 ll is also in accordance with the cases cited in the 
 House of Lords in Harvey v. Farnie (p\ and especially 
 with Warrender v. Warrender (q). There is, however, 
 
 some difference between the facts in the two latter cases. 
 In Warrender v. Warrender^ the petition was presented 
 by the husband, the adultery was alleged to have been 
 committed out of Scotland, and the wife was resident 
 out of Scotland, whereas in Harvey v. Farnie. the 
 petition was presented by the wife, the crime (adultery) 
 was alleged to have been committed in Scotland, and 
 the husband and wife were both resident in Scotland. 
 However, in both the above cases, the same conclusion 
 was arrived at, viz., that the Scotch sentence of divorce 
 was conclusive in England. 
 
 (/3.) The second part of the proposition depends 
 principally upon the case of Harvey v. Farnie (r) above 
 mentioned. The facts in this case were as follows : — 
 A domiciled Scotchman married, in England, an English- 
 woman. Immediately after the ceremony the married 
 couple went to Scotland and resided there as their 
 matrimonial home. Two years after, the wife obtained in 
 Scotland a divorce a vinculo matrimonii, on the ground of 
 her husband's adultery. The husband came to England, 
 and married there another Englishwoman, the first wife 
 being still alive. In a suit in England for a decree of 
 nullity of the second marriage at the instance of the 
 second wife, it was held in the House of Lords, 
 affirming the decisions of the President of the Probate 
 and Divorce Division, and of the Court of Appeal, that 
 
 (p) L I!. 8 App. < 'as. 43. oiLolley's Case adopted in Briggs 
 
 (q) 2 CI. & I'm. 488. v. Briggs, L. It. 5. \>. D. 10:'., at 
 
 lr) Notwithstanding the view p. 165.
 
 FOREIGN JUDGMENTS IN REM. 170 
 
 the Scotch divorce was a sentence of a court of 
 competent jurisdiction, and was effectual not only in 
 Scotland, but in England also. It is also supported, even 
 more strongly by the case of Maghee v. McAllister (s), 
 as in that case the husband and wife were not both in 
 Scotland when the proceedings for a divorce in Scotland 
 were instituted (t). 
 
 Notwithstanding the cases that have been cited, there 
 appear to be at any rate two important points connected 
 with the subject of foreign divorce, which have not been 
 clearly and satisfactorily determined. 
 
 First : — It does not yet seem to have been positively 
 decided whether or not a foreign court has jurisdiction 
 to dissolve a marriage celebrated in England between 
 English subjects domiciled in England, if they have 
 subsequently to the marriage, removed to the foreign 
 country in which the foreign sentence of divorce was 
 pronounced, and bond fide acquired a domicile there (u). 
 
 Thus Lord Solborne, in his judgment in Harvey v. 
 Farnie(x), says that Lord Eldon in Tovey v. Lindsay (y) 
 certainly did not decide the important question which 
 might nave arisen it' the change to an Euglish domicile 
 had been established, namely, how far a subsequent 
 change of domicile would affect the jurisdiction to dissolve 
 the marriage. 
 
 The Bame point is stated by Lord Selborne in another 
 pari of the case I ). as follows: — "If the parties were 
 
 («) 3 rrish Chanc. 604. (7th ed.), § 227 a. 
 
 (/) See Lord Selborae's remarks (ar) L R. 8 App. Cas. at p. 55 
 
 "ii the case in I.. I!. 8 < Ihanc. I I >owl. 1 I 7. 
 
 App. at p. •").",. i) I.. |;. 8 App. ( !as. at p. 17 
 
 a) Story's Conflict of Laws 
 
 N 2
 
 L80 ESTOPPEL BY RECORD. 
 
 domiciled in England at the time of the marriage, the 
 question then might arise, if the husband changed his 
 domicile, whether there was not a breach of the contract, 
 and it could not be dissolved according to the law of the 
 
 new domicile." 
 
 It is submitted that perhaps, in the case put by Lord 
 Selborne, the English courts might, in considering the 
 jurisdiction of the foreign court, draw a distinction be- 
 tween the case where the proceedings for dissolution in 
 the foreign court were instituted by the party who had 
 broken the contract {i.e., the husband), and by the wife. 
 Possibly in the former case they might consider that the 
 foreign court had not jurisdiction to dissolve the marriage, 
 and in the latter case that it had such jurisdiction. 
 However the point remains yet to be decided by judicial 
 
 authority {a). 
 
 Secondly : — It does not appear to have been satis- 
 factorily decided whether anything short of an actual 
 domicile, e.g., bond fide residence of both the parties in 
 the foreign country, can give the foreign court jurisdiction 
 to dissolve the marriage. 
 
 The point arose in Niboyet v. Niboyet (b), the facts in 
 which were as follows : A marriage was celebrated at 
 Gibraltar, between a Frenchman and an English woman 
 who was a British subject at the time of the marriage. 
 After the marriage, the husband resided for several years 
 
 / 1 If the decision in Niboyet v. English courts will have jurisdic- 
 
 Niboyet, L. R. 4 P. D. 1, is correct, tion to grant a divorce. Accord. 
 
 ems that a fortiori, when there Wilson v. Wilson, L. R. 2 P. &, M. 
 
 been a change of domicile from 435. 
 
 a foreign country to England, the (6) L. II. 3 P. 1>. 59.
 
 FOREIGN JUDGMENTS IN REM. 181 
 
 in England, but retained his domicile of origin, being 
 French consul. The husband filed a petition in the 
 English court for dissolution of his marriage, and after- 
 wards consented to its dismissal. The wife then pre- 
 sented a petition in England tor a divorce. The adultery, 
 and the greater part of the desertion, relied on, occurred 
 in England. The husband entered an appearance in the 
 proceedings.' It was held in the Court of Appeal (over- 
 ruling Sir K. Phillimore), by James and Cotton, L.JJ., 
 ssentienti Brett, L.J., that the English courts had 
 jurisdiction ro grant a divorce. 
 
 The judgment of the Court depended partly upon the 
 construction to be put upon the Matrimonial Causes Act 
 (1857) {(•). James, L.J., in his judgment (d), said: 
 ' I find myself unable to arrive at the conclusion that 
 the domicile of the complaining party ought to determine 
 the existence of the limits of the jurisdiction given by 
 the statum to the English Court. The only limitation 
 which I can find, is the limitation of the jurisdiction to 
 those matters which come under the category of matri- 
 monial matters in England, to every one of which the 
 English law, with all its consequences, so far as England 
 ►ncerned, musl be applied." 
 On ih'' other hand Brett, L.J., in the course of an 
 elaborate judgment, in which he cited several American 
 decisions (e), said: "On the ground then of the nature 
 
 (c) 20 & 21 Vice, B5, sec. \!7. and Divorce (6th ed.), and referred 
 
 (d) I. I:. I I'. I), at p. 9. to in §§ 709, 721, 7 In. 7 11, 745. 
 I,. I:. I I'. I>. al p. I'.'. The learned judge also cited 
 
 especially those collected in Story's Conflict of Laws (7th ed.), 
 Bishop's Treatise on Marriage § 1 1 <>, which contains some
 
 182 ESTOPPEL BY RECORD. 
 
 of the subjed matter of the suit, of the nature of the 
 judgment given in such suit, of the interest of the 
 country in which the dispute arises, of the comity due 
 to other nations, of the immense mischief of a judgment 
 of such a nature being given under circumstances which 
 will prevent it from being recognised everywhere, and of 
 the preponderance of authority in England; I am of 
 opinion, that unless the statute has otherwise enacted, 
 the domicile of the husband in England at the institution 
 of the suit, is, according to the true construction of the 
 statute, the fact which gives jurisdiction to the English 
 Divorce Court to decree a divorce : that, with such a 
 domicile, the Court has jurisdiction over a foreigner as 
 well as over an Englishman : that, without such a 
 domicile, the Court has no jurisdiction, though the party 
 is an English subject. The same rule, I confess, seems 
 to me to apply, for the same reason, to its power to grant 
 any relief which alters in any way that relation between 
 the parties, which arises by law from their marriage. It 
 applies therefore, as it seems to me, to suits for judicial 
 separation, or for the restitution of conjugal rights, but 
 not to suits for a declaration of nullity of marriage, or in 
 respect of jactitation of marriage." 
 
 The judgment of Brett, L.J., in the above case 
 certainly seems strictly in accordance with general 
 principles, and, to use an expression of Lord Selborne 
 iu Harvey v. Farm'e (,/'), with the whole stream of 
 
 remarks of Lord Lobertson, taken (/) L. 11. 8 App. Cas. at p. 
 
 from Fergusson on Marriage and 57. 
 |)ivi>rce, ]>\>. .'J'.'? to .'599.
 
 FOREIGN JUDGMENTS IN REM. 183 
 
 sound authority on the subject of foreign divorce. It is 
 moreover supported by the judgment of Sir R. Phillimore 
 in the Court below (//). And, from the remarks made 
 on the case in Harvey v. Farnie (I/), it would appear 
 that neither Lord Selborne nor Lord Blackburn were 
 altogether satisfied with the decision of the majority in 
 the ( \>urt of Appeal. 
 
 II. Foreign Sentences in Admiralty. — A sentence of 
 a foreign court of Admiralty condemning a ship as prize 
 is a judgment in rem, and is binding on all the world 
 as to the express point decided thereby, namely, as to 
 the change of property in the ship effected by the con- 
 demnation (/). 
 
 It is also held conclusive in England, in actions on 
 policies of insurance between the assured and the 
 underwriter, upon every subject immediately and properly 
 within the jurisdiction of the foreign court and upon 
 which it professed to decide judicially, for instance, on the 
 poinl as to the neutrality of the ship at the time of 
 
 (a) See also Connelly v.Gonnelly, to extend the comity which has 
 
 1 I Jur. l-">7, referred to in Story's been shown to these sentences of 
 
 Conflict of Laws (7th ed.), § 596 a. foreign admiralty courts. I shall 
 
 (h) See per Lord Selborne at pp. die, like Lord Thurlow, in the 
 
 55 56 ; and per Lord Blackburn belief thai they oughl never to 
 
 ; ,t p. 60. have been admitted. The doc- 
 
 (/; Hugh* 8Y.( 'ornelius, 2 Shower, trine in their favour rests upon an 
 
 232; and Appendix B, p. H5 j authority in Shower which does 
 
 i also KindersUy v. Chase, Park no1 fully Buppori it, and the 
 
 on Insurance, vol. ii. p. 743. practice of receiving them often 
 
 Lord Eldon, however, says in Leads in its consequences to the 
 
 J)onald$on v. Tliompson, I Camp, greatesi injustice." 
 I 20, " I am by no means disposed
 
 LS4 ESTOPPEL BY RECORD. 
 
 condemnation (/•). Thus, in an action in England, on a 
 policy of insurance, it appeared that the ship, warranted 
 American, had been condemned as enemies' property 
 by the sentence of a French Court of Admiralty, for want 
 of having on board a role d'equipage or list of the crew, 
 sucli as was required by the marine ordinances of France 
 and adjudged by the court there to be requisite within 
 the meaning of the treaty of commerce between France 
 and America. Held, that the sentence was conclusive 
 evidence against the warranty of neutrality, though in 
 fact the ship was American (I). 
 
 Again, a sentence of a French Court of Admiralty, 
 adjudging " as lawful prize all the goods and effects 
 which compose the cargo of the ship, since the whole, 
 owing to the captain not being provided with proper 
 and regular despatches and papers, is to be deemed 
 the property of the enemies of the French Republic/' 
 was held conclusive, in an action in England on a 
 policy of insurance, against the warranty of neutrality (m). 
 Lord Eldon, in the above case, said, "The practice of 
 receiving these sentences as conclusive evidence for 
 collateral purposes, and not merely in suits between 
 the identical parties in the foreign courts, may possibly 
 have first obtained in those cases where the plaintiff 
 himself produced the sentence, in order to prove his 
 loss; and 1 have reason to believe that the practice 
 
 (k) Bernardi v. Motteux, 2 17 C. B. N. S. at pp. 823, 826. 
 Dougl. 575; Bolton x. Gladstone, (I) Geyer v. AguUar, 7 T. Et. 
 
 5 East, 160; Lothian v. Hen- 696. 
 
 derson, 3 B. & P. 517 ; and the (///) Loth inn v. Henderson, 3 B. 
 
 judgments in Hobbs v. Henning, & P. 517.
 
 FOREIGN JUDGMENTS IN REM. 185 
 
 of allowing the underwriters to make use of them, 
 was founded on a notion that every man might come 
 into a Court of Admiralty pro interesse sua (n), and that 
 all mankind, therefore, were virtually parties to such 
 proceedings. That notion, I apprehend, and am 
 informed, is a mistaken notion, and that the assured, 
 in a policy of insurance with a warranty of neutral 
 character, could not be admitted parties to the proceed- 
 ings in a court of admiralty, for such collateral purposes 
 as those for which they must of course claim to be 
 admitted. It does not become me, however, for that 
 reason now to impugn a practice acted upon for so 
 long a series of years, and that by men whose judicial 
 character must ever be looked up to with reverence in 
 this country. I well know, also, how much property 
 has been affected by this principle, and how much more 
 may now be afloat on the faith of that long train of 
 decisions in Westminster Hall, by which the principle 
 in question has been sanctioned." In order, however, 
 for such a sentence to be conclusive in England as 
 to the grounds of condemnation, such grounds must be 
 clearly stated on the face of the sentence, without 
 ambiguity (o 
 
 Except in the cases above mentioned of actions on 
 policies of insurance between the assured anil the under- 
 
 (n) See judgment of Lee, C. J., I Dougl. 224; Pollard v. Bell, 
 
 in Roberts v. Forttme, Hargrove's 8 T. I!. 134; Birdv. Appletoi 
 
 Tracts, |>. Pis, note; and "//'-, T. Et. 562 ; Dalgletshv. Hodg 
 
 pp. 80, 81. 7 Bing. 195 \ //<>/,/,,< v. Henning, 
 
 (o) Bemardi v. Molteux, 2 17 C. B. N. S. 791. 
 A. -n't ; Salwcci v. Jo/mson,
 
 L86 i:si(»riM'.L by kkcorp. 
 
 writer, doubts have been entertained as to the admissibility 
 of such sentences in English courts, as evidence on col- 
 lateral matters, so as to affect the rights of third persons, 
 not actual parties to the sentence (/>). And, at any 
 rate, such sentences are not pleadable on such collateral 
 matters, by way of estoppel (q). Nor, are they conclusive 
 as to any of the premises that led to the adjudication (r). 
 In the absence of special grounds for the sentence, it is 
 presumed to have been pronounced on the ground of the 
 ship being enemies' property, unless the contrary dis- 
 tinctly appears on the face of the sentence (s). Con- 
 sequently, the onus does not lie upon the party producing 
 the sentence of showing that it proceeded upon the ground 
 of enemies' property, but upon the other party who 
 objects to the sentence, of showing that it proceeded upon 
 some other ground (t). Thus, where a ship, warranted 
 neutral, was condemned as " good and lawful prize," 
 these words were deemed sufficient to negative the 
 neutrality of the ship, because, as no special grounds of 
 condemnation appeared, the Court held themselves bound 
 to suppose that it proceeded upon the ground of the ship 
 being enemies' property (u 
 
 (p) See per Lord Alvanley, (r) Christie v. Secretan, 8 T. R. 
 
 C. J., in Baring v. Clagett, 3 B. 196. 
 
 & P. at 215; and Christie v. (s) Pollard v. Bell, 8 T. R. 
 
 Secretan, 8 T. R. 196. But see 435; and per Lord Alvanley, 
 
 us to cases in which the collateral C. J., in Baring v. Clagett, 3 B. 
 
 matters appear on the face of the & P. at p. 216. And see Bar- 
 
 sentence, Lothian v. Henderson, 3 zillai v. Lewis, 3 Dougl. 126. 
 B. & P. 545. (t) Per Sir W. Grant, M.R., in 
 
 (7) Hobbs v. limning, 17 C. B. Kmdersley v. Clw.se, Park on 
 
 N. S. 791 : Pari? on Insurance, Insurance, vol. ii. p. 743. 
 vol. ii. p. 756. (y) Saloucci v. Woodmass, 6
 
 FOREIGN JUDGMENTS IN REM. Is7 
 
 If however the condemnation does not plainly proceed 
 upon the ground of enemies' property, or that of the ship 
 not having complied with subsisting treaties between her 
 own country and that of the capturing power, but pro- 
 ceeds upon the ground of local regulations arbitrarily 
 imposed by the capturing power, to which neither the 
 government of the captured ship, nor the other powers of 
 Europe, have been made parties, or upon other grounds 
 that do not warrant the condemnation, and such grounds 
 appear on the fare of the sentence, the sentence of con- 
 demnation will not lie admitted as conclusive against the 
 warranty of neutrality (x). 
 
 But if it appears, on the face of the sentence, that the 
 foreign court came to the conclusion that the ship was, or 
 was to be deemed or considered, as enemies' property, no 
 matter by what deductions they came to that conclusion, 
 the English Courts will consider themselves bound by that 
 conclusion, without being at liberty to examine the 
 premises (//). However, when there is any ambiguity on 
 the face of the foreign sentence, the reasons for the 
 sentence are examinable; for the reasons are not always 
 to be considered as of themselves the grounds upon which 
 the condemnation proceeds, but as the media of proof from 
 
 Dougl. 345 ; Bolton v. Gladstone, (y) Per Le Blanc, J., in Lothian 
 
 ."» East, 160. v. Henderson, '■'> B. a- P. :. 1 7 , 
 
 )Maym v. Walter, Park on In Maym v. Walter, Park mi In 
 
 surance, \<>|. 1. p. |.;|, vol. ii. p. surance, vol. i. p, 431, vol. ii. p. 
 
 730 ; Pollard v. Bell, 8 T .R. 435 ; 730; Pollard v. 11,11, 8 T. \\. 
 
 Bird v. Appleton,8 T. I!. 562; 135; Bird v. Appleton, 8 T. I!. 
 
 Baring v. Clagett, 3 B. & P. 214 ; 562 ; Price v. Bell, I East, 663 ; 
 
 Hobbs v. Henning, 17 C. B. X. S. Baring \. Clagett, 3 B. & V. 21 I. 
 791.
 
 188 ESTOPPEL BY RECORD. 
 
 whence a presumption may be drawn as to whether the 
 ship is or is not lawful prize (.:). 
 
 The sentence ^ a foreign court of admiralty is evidence 
 only of what it positively and specifically affirms in the 
 adjudicative part of it, and not of what may be gathered 
 from it by way of inference (a). Thus, in an action on a 
 policy of insurance on goods warranted American, on 
 board a ship from London to Virginia, a sentence of a 
 foreign court which, after reciting that forasmuch as the 
 true destination of the vessel was for the English 
 islands, having been hired and loaded at London and 
 having on board eighty barrels of gunpowder, proceeded 
 to declare the ship and cargo a good prize, was held to 
 be not conclusive evidence against the warranty of 
 neutrality, because the special grounds assigned for the 
 ^■iitence did not necessarilv lead to that conclusion. 
 Seinble, if no grounds at all had been assigned for the 
 condemnation, the sentence would have been con- 
 clusive (/>). 
 
 Finally, the English Courts will not recognise the 
 sentence of a prize court of a foreign belligerent power, if 
 it was pronounced in the dominions of a neutral power (c). 
 It will be recognised, however, if pronounced in the 
 dominions of a co-belligerent (r7). 
 
 (z) Kindersl&y v. Chase, Park (c) The Flad Oi/en, note to 
 
 on Insurance, vol. ii. p. 743; Havelock v. Rocltwood, 8 T. R. 270; 
 
 Baring v. Clagett, 3 B. & P. at p. Havelock v. Rockwood, ibid. ; 
 
 l! 1 G. Donaldson v. Thompson, 1 Camp. 
 
 a , Fish i v. Ogle, 1 Camp. 418 ; 429. 
 
 Dalgleish v. Hodgson, 7 Bing. 495. (d) Calvert v. Bovill, 7 T. R. 
 
 (b) Calvert v. Bovill, 7 T. R. 523. 
 523.
 
 FOREIGN JUDGMENTS IN REM. 189 
 
 IH. Foreign Bankruptcy proceedings. — We shall con- 
 sider, under the above heading, the effect that is given 
 in England to, 1st. The discharge of a debtor's lia- 
 bilities, under the bankrupt or insolvent laws of a foreign 
 country; 2ndly. The assignment of a debtor's property, 
 under the bankrupt or insolvent laws of a foreign 
 country; and 3rdly. Attachments, in foreign countries, 
 of debts owing to an English insolvent, after the pro- 
 perty has become vested in, others under the English 
 bankruptcy law. 
 
 1st. Discharges under foreign bankruptcy laics. — 
 (a.) Foreign discharges obtained under the laws of the 
 foreign country in which the debt arose. 
 
 These, as a rule, are considered conclusive and binding 
 everywhere, and effect is given to them in other countries 
 on the ground of comity (e). Care, however, should be 
 taken to distinguish between those cases where the foreign 
 insolvent laws are of such a nature, that a discharge 
 thereunder operates as a virtual or direct extinguishment 
 of the debt itself, and those where the discharge operates 
 merely as ;i partial extinguishment of the remedy on the 
 debt ( /'), for it is only where the discharge extinguishes 
 the debt or liability, and does not merely interfere with 
 the remedies or course of procedure to enforce it, that it 
 will be an effectual answer to a subsequent claim in 
 another country (g). 
 
 Story's Conflict of Laws (7th ed.), § 338. 
 (7th I .; 338,note l ; Pottei v. » Ellin v. McHmry, L. R. 6 
 
 Brawn, 5 East, l_l. ('. P. 228, at p. 234, and the 
 
 ' : : ot Laws references there given.
 
 190 KSTOIM'KI. HY RKCORD. 
 
 (/3.) Foreign discharges obtained under the laws of a 
 foreign country other than the one in which the debt 
 
 arose. 
 
 These are not, as a rule, considered conclusive in other 
 countries (//). Thus a discharge under a commission of 
 bankruptcy in a foreign country is no bar to a subsequent 
 action in England against the debtor, by an English sub- 
 ject, for a debt which arose in England (/). 
 
 2ndly. Assignments of a debtor's property, under 
 foreign bankruptcy latos. — Here a distinction should be 
 drawn between assignments of movable (/. e. personal) 
 property, and of immovable (/. e. real) property. 
 
 With regard to personal property, (including choses in 
 action), the general rule is, that an assignment thereof, 
 according to the lex domicilii of the owner, passes the 
 property therein, wherever it may be (/.'). Hence an 
 assignment, under foreign bankruptcy laws, of the 
 personal property of a debtor domiciled (/) in that 
 foreign country at the time, is conclusive in England as 
 to the change of property effected by such assignment ; 
 and is therefore conclusive against creditors seeking to 
 attach debts owing to the debtor in England, subse- 
 
 i/i) See ibid. See ibid. 
 
 (i) Smith v. Buchanan, 1 East, (h) Sill v. Worswick, 1 H. Bl. 
 
 C. But, semble, if the discharge 6G5 ; Hunter v. Potts, 4 T. R. 
 
 took place in England under 192 ; Philips v. Hunter, 2 H. BL 
 
 English law, it would be conclu- 402, 405 ; Story's Conflict of Laws, 
 
 sive in a subsequent action in §§ 40-3 et seq., 409, and 423 e. 
 
 England for the debt. Ellis v. And, as to the American law 
 
 McHenry, L. R. ( '. P. 228, at p. relating to foreign proceedings in 
 
 234. And, a fortiori, if the debt bankruptcy, see ibid. § 410 et seq. 
 
 hud arisen in the British colonies. (/) Re Blithman, 35 Beav. 219.
 
 FOREIGN JUDGMENTS IX REM. 191 
 
 quently to the date of such assignment (m). But it is no 
 bar to an action in England for the debt, if the action is 
 founded on a fresh promise made in England subse- 
 quently to the foreign assignment, and given for a fresh 
 consideration (n). With regard to immovables, the rule 
 is, that the priorities and privileges respecting such 
 property are to be adjusted, and the distribution made, 
 according to the lex loci ret sitae (o). Therefore an 
 assignment of such property, under foreign bankruptcy 
 laws, does not affect real estate of the debtor which is 
 siluated in England (//). 
 
 3rdly. Attachments of del>t* in foreign countries. — 
 I In the principle above mentioned (q), namely that an 
 assignment of movables, according to the lex domicilii 
 of the owner, operates to transfer the property 
 therein wherever it may be, the title of the trustees 
 to such property under the English bankruptcy law, 
 over-rides that of a (British) creditor, who has 
 attached debts owing to the insolvent debtor in a 
 foreign country, subsequently to the time when the 
 property vested in the trustees (?■). And therefore 
 
 (m) Solomons v. Ross, 1 II. Bl. I Story's Conflict cf Laws 
 
 1:51. note (a) ; Jollet v. Depon- (7th e<L), § 123 a. 
 thieu, 1 II. Bl. l32,note. And (p) Ibid, \ I •_':;.. p. 529. 
 
 the foreign assignees will he (#) See ante, p. 190; see also per 
 
 allowed to sue in England for the L ( '. in Selkrigv. Davis, 2 Ro i 
 
 debt : per Parke, I'.., in Alivon v. Bankruptcy Cases, 291, at p. 315. 
 Fumival, 1 C. M. & R. at p, 296, (r) Wilson's Case, cited in Sill 
 
 citing Dutch West India Co. v. v. Worswich, I II. Bl. at p. 691 ; 
 
 Moses, 1 Str. 612, and National ExparU D'Obree, 8 Ves. Junr. 81 ; 
 
 Bankof St. Charles v. DeBernales, Neali v. Cottingham, 1 II. Bl. 
 
 I Ry. & Moo. 190. 1 3i?, note; Quelin v. Moisson, I 
 
 (in Ex parte. Burton, 1 Atk. Knapp. 266, note; Ex parti 
 
 255. Blakes, 1 Cox, 398.
 
 192 
 
 KSTOPPEL UV RECORD. 
 
 whenever the property is brought into England by a 
 (British) creditor who lias so attached it in a foreign 
 country, the trustees may recover it from him for the 
 benefil oi' all the creditors (s). And this rule, though 
 restricted, in the foregoing cases, to attachments in 
 foreign countries by British subjects, has, it appears, been 
 extended, in some cases, to attachments by foreign 
 creditors (t). But it does not appear to apply to attach- 
 ments by foreign creditors not subjected to British laws, 
 in cases where the local laws, under which the foreign 
 attachment was made, conferred on such foreign attach- 
 ing creditors an absolute title to the property 
 attached («). 
 
 (s) SUl v. Worswich, 1 H. Bl. 
 665; Hunter v. Potts, 4 T. R. 
 192 ; Philips v. Hunter, 2 H. Bl. 
 t02, 405, and ante, p. 147 et seq. 
 
 (t) Royal Bank of Scotland v. 
 
 (u) Le Chevalier v. Lynch, I 
 Dougl. 170; Cleve v. Mills, 
 Cooke's Bankrupt Laws, vol. i. p. 
 333 ; Allen v. Diindas, 3 T. R. 
 125 ; Story's Conflict of Laws 
 
 Cuthbert, Stein's Case, 1 Rose's (7th ed.), §§ 409, and 423 e 
 Bankruptcy Cases, 462 (Appx.). (p. 528).
 
 CHAPTER VII. 
 
 DEEDS. 
 
 Estoppels by deed are the second class of estoppels 
 referred to by Lord Coke in his division of the subject (a) 
 and are called by him estoppels by " matter in writing," 
 which means by deed (b). If a man, says an old authority, 
 claims by prescription, liberties, rent, common, and the 
 like, and then takes a grant by letters patent, or deed, 
 this determines his prescription by conclusion, for writing 
 determines contracts and matters in fait (c). 
 
 For the proposition that a man is estopped by his own 
 deed, there is abundant authority in the older books (d). 
 Thus, in the case of Goodtitle v. Bailey (e), which was an 
 action of ejectment, Lord Mansfield said: "In such an 
 action, if a man has made a solemn deed, covenanting (f) 
 that another shall enjoy the premises, and likewise for 
 further assurance, it shall never lie in bis mouth to 
 dispute the title of the party to whom he has so under- 
 
 3ee . p. 1. d) See the c lected in 
 
 Shep T nch. 32 121 ; Via A.b. Estop. (M) ; and see 
 
 Uon v. Rastatl, 2 T. R. 366; Com. Dig. Estop. (A 2). 
 
 v. Key, 3 B. & \<I. 313; (<■) 2 Cowp. 597. 
 
 Lamport v. Corke,5 B. & .VI. 606, 3ee, however, as to whether 
 
 I See a ease in Brooke' New an estoppel can aris< a coven- 
 
 I 1 ant, post, pp. -1 I. 215.
 
 !!U ESTOPPEL BY DEED. 
 
 taken ; no more than il shall be permitted to a mortgagor 
 to dispute the title of his mortgagee. No man shall be 
 allowed to dispute his own solemn deed (g)." 
 
 And, in the case of Lainscm v. Tremere(h), defendant, 
 the obligor of a bond, was precluded, in an action on the 
 bond, from contradicting, or rather correcting, an error 
 in the condition of the bond. Again, in the case of 
 Bowntree v. Jacob (/), where plaintiff sued for money had 
 and received, and defendant produced a deed of assign- 
 ment of the money to himself, containing a recital that 
 the consideration money was paid, it was held a good 
 discharge, although there was pregnant evidence of 
 suspicion that the consideration was falsely recited, and 
 that the money had in reality never been paid. So also 
 in the ease of Harding v. Ambler (Jc), a release of cer- 
 tain moneys due in respect of the purchase of a policy 
 of insurance was held binding, although plaintiff's 
 attorney had under-calculated the sum due by £34 (I). 
 So also, where commissioners who had executed two 
 mortgages, one later in date than the other, were sued in 
 ejectment by the later mortgagee, it was held that they 
 were estopped from setting up the fact of the earlier 
 
 (;/) See also Friend v. Easta- (h) 1 A. & E. 792. 
 
 brook, 2 Sir W. Bl. 1152 ; Right \i) 2 Taunt. 141 ; mi post, p. 
 
 v. Proctor, 4 Burr. 2209 ; Jul,,,- 213. 
 
 on v. Mason, 1 Esp. 88; Wood (Ic) 3. M. & W. 279; see also 
 
 v. /J"//, 7 Taunt. 646 ; and Bottrell v. Simnnert, 2 Y. & J. 
 
 Bonner v. Wilkinson, 5 1!. & 412, 414. 
 
 Aid. 682, where, on a writ of (I) However, both these two 
 
 error to reverse an outlawry on latter cases were decisions of a 
 
 the ground of misdescription, court of common law, at a time 
 
 defendant was held estopped by when equitable relief was only 
 
 the description in his bond. obtainable elsewhere.
 
 DEEDS. 1 95 
 
 mortgage, in order to defeat the legal estate of plaintiff's 
 lessor (///). 
 
 An estoppel by deed binds parties and privies, that is 
 to say, extends to persons claiming under the party 
 estopped (n). And an heir is bound by the will of his 
 ancestor as if it were a deed (o). However, in the case 
 of a deed poll, only the party making the deed is 
 estopped, while by a deed indented both parties are 
 concluded (p). 
 
 To the above rule, that a man is estopped from dis- 
 puting his own solemn deed, there are the following 
 limitations and exceptions : 
 
 1. A person is not estopped, by executing a deed, 
 from showing that the transaction of which the deed 
 formed a part was tainted with fraud or illegality, or that 
 the deed itself was an imperfect instrument, or void. 
 
 'J. Infants and married women are not estopped, by 
 executing a deed, from pleading infancy and coverture as 
 a disability to contract. 
 
 :;. ' !orporations, and companies which are incorporated 
 and other bodies which have special powers given to 
 them, by An of Parliament, arc, in certain cases, not 
 
 opped, by executing a deed, from sheltering themselves 
 behind their Ad of Parliament, and pleading a statutory 
 disability to enter into the particular contract in question. 
 
 1. Fraud. — Fraud, as has been already pointed out ( (/ . 
 
 (,k) D<h d. Levy \. Home, •"> (/<; Co. Litt. 17 i> : Lewis v. 
 
 • I', 760. Willis, I Wils. .".1 l : Litt. 8. 693. 
 
 in) Taylor v. Needham, 2 Taunt. (</) See <//,/-, p. 70; and as to 
 
 278 ; b<» v. Stone, ■'< C. B. 176. fraud ami imposition opening an 
 
 O// Hi". Estop pi. 93, estoppel by deed, in favour of the
 
 L96 ESTOPPEL BY DEED. 
 
 vitiates all proceedings, whether judicial or otherwise. 
 Its operation on deeds is, however, subject to the following 
 rules: — (1.) In order to vitiate a contract by deed, or 
 to render it a nullity on the ground of fraud, it must 
 l)c fraud dans locum contractu! (r) ; (2.) No man may 
 allege his own fraud in order to invalidate his own 
 deed (s). 
 
 Thus, where an assignment of goods was made in 
 fraud of creditors, this, though void as against the 
 creditors, was nevertheless held to pass the property in 
 the goods as between parties thereto and strangers (t). 
 
 An heir may, however, in certain cases, impeach the 
 validity of a deed on the ground of his ancestor's fraud (>/). 
 And, similarly, it appears that a devisee may in certain 
 cases set up his devisor's fraud as a defence to pro- 
 ceedings on a deed. Thus, a settlor by deed pur- 
 ported to grant an annuity out of certain land, and 
 to grant a term of 100 years to a trustee to secure 
 the said annuity. The settlor, however, had no power 
 to grant the term, as the legal estate in the land was at 
 the time outstanding in mortgagees. The settlor died 
 after devising the land to his three sons, who paid off 
 
 ion imposed upon, see Hayne j>. 216. 
 
 v. Maltby, 3 T. R. 438. (t) Bessey v. Windham, 6 Q. B. 
 
 I / ) National Exchange Company 1G6. But where both parties are 
 
 of Glasgow/ v. Drew, 2 Macq. 1 03. in pari delicto, it might be other- 
 
 Doe d. Roberts v. Roberts, 2 wise ; Taylor v. Bowers, L. R. 1 
 
 B. & Aid. 367; PhUlpotts v. Q. B. D. 291 ; see also Bowes v. 
 
 PhUlpotts, 10 C. B. 8-5; except Foster, 27 L. J. Ex. 262. 
 
 where the matter alleged stands (») Doe d. Williams v. Lloyd, 5 
 
 with the deed, Prole v. Wiggins, Bing. N. C. 742. 
 3 Bing. N. C. 230; and post,
 
 DEEDS. 197 
 
 the mortgage, and the mortgagee reconveyed the estate 
 to the uses of the will. The devisees then sold the 
 land to a purchaser without notice of the annuity. The 
 annuitant then filed a bill in chancery against the trustee 
 of the term and the purchaser, to recover the annuity. 
 But the hill was dismissed by James, V. C, on the 
 ground that the equity of redemption in the testator was 
 not such an estate as enabled him to grant a term, and 
 that the devisees under the will, and the purchaser who 
 took under them, were not estopped from denying the 
 grant of the term (x). 
 
 And a distinction has also been drawn between 
 cases where an estate passes, and where it does not. 
 Thus it appears that the grantor of an estate who is 
 particeps criminis in a fraud affecting the grant, is 
 estopped from setting up the fraud as a defence to an 
 action on the instrument, if an estate passed to the 
 grantee, but not so if no estate passed (?/). 
 
 If the consideration on a deed is illegal, the illegality 
 may be set up as a defence to an action on the deed (:.), 
 and, in the case of a bond, even though the tact that the 
 consideration is illegal, is inconsistent with the condition 
 
 /,-) Clemow v. Geach, L. I!, (i question is legal." 
 
 Ch. App. 117. Lord Hatherley, (y) Smith's L. C. (8th ed.), vol. 
 
 who affirmed the decision on ii., p. 551, note on Merryweather 
 
 appeal, declin< 'l'-';irlu the v. Nixan, commenting on /><>■ d. 
 
 questi f estoppel. II 1, said, R ■ v I 2 B & Aid. 
 
 " | am inclined to think that 367. 
 
 there is no estoppel, but the (z) Co item, Smith's 
 
 whole doctrine of estoppel is of L. < '. (8th ed.), vol. i., p. 387, 
 
 extreme nicety, and I prefer i<> and notes thereto 
 le on the ground that the
 
 i r <^ ESTOPPEL BY DEED. 
 
 of the bond (a). This depends upon the well-known rule 
 of law — ' Exturpi causa non oritur actio.' The principle is 
 well stated by Abinger, C. B., in Gas Light and Coke 
 Company v. Turner{b\ as follows: "All the decisions 
 show that at common law a contract entered into to effect 
 an illegal purpose is void, and cannot be enforced, and it 
 makes no difference that the contract is under seal .... 
 It is true that you cannot add to a contract under seal 
 anything to vary the contract, but you may show dehors 
 the instrument, that such contract was entered into for an 
 illegal purpose. Such proof does not vary the terms of 
 the contract, but merely shows the illegal object." So 
 also, Martin, B., in Ilorton v. Westminster Improvement 
 Commissioner s(e) says: "The meaning of estoppel is 
 this : that parties agree, for the purpose of a particular 
 transaction, to state certain facts as true ; and that, so far 
 as regards that transaction, there shall be no question 
 about them. But the whole matter is opened where 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." 
 
 It appears that it is on the above principle that the 
 following rule depends, namely, that a party cannot, by 
 his own private instrument, defeat the object of an Act of 
 Parliament, to the prejudice of others who were not 
 parties to the deed. 
 
 (n) Pole v. Harrobin, 9 East. C. J., in the court below, 5 Bing. 
 
 Ill) (note); Paxton v. Popham, N. C. at p. 675. 
 East. 408, 421 ; Greville v. (c) 7 Ex. 780, at p. 791 ; see 
 
 Attkms, 9 B. & C. 462. also Royal British Bankx. Tur- 
 
 (6) 6 Bing. X. C. at p. :;-J7 ; quand, ') E. & li. 248 ; G E. & B. 
 
 see also the judgment of Tindnl, .'327,
 
 DEEDS. 109 
 
 Thus the trustees under a public Act of Parliament, 
 which empowered them to mortgage the tolls, but not 
 the toll houses, lest any particular creditors should gain 
 priority over others, mortgaged the toll houses. hi 
 ejectment against them by the mortgagees, held that the 
 trustees were not estopped by their deed from insisting 
 that the Act gave them no such power (d). A party may 
 however waive the provisions of an Act of Parliament, 
 which were intended for his own benefit, and the waiver 
 of which does not operate to the prejudice of others (e). 
 
 Similarly, if two parties enter into a contract, though 
 under seal, for the express purpose of evading the pro- 
 visions of an Act of Parliament, then, in an action on 
 the contract by one of them, the other is not estopped 
 from setting up that fact as a defence. Thus, in eject- 
 ment by the grantee of an annuity against the grantor, 
 to recover the premises on which the annuity had by 
 deed been secured, it appeared that no memorial had 
 been enrolled under the Annuity Act (/). Held that 
 defendant was not estopped from showing that the 
 am in it v 1 1 ad been granted in contravention of the Act, 
 even assuming thai a covenant by defendant, contained 
 in the deed, amounted to a declaration which, if true, 
 would bave made the enrolment unnecessary (//). Again, 
 ,i covenanl by a party t<» a ^-n\, that premises were of 
 
 (,/) Fairtitle v. Gilbert, 2 T. It. Q. I', <JIl'. 
 169 : !>"■ 'I. Baggaley v. Hares, I (<) Per Abbott, ('. J., in Bonner 
 
 a & A.I. 135; and as to Hie v. Wilkinson, 5 B. & Aid. 682. 
 grounds of tin' deci ions in tb /) 53 <!. •">. c. 141. 
 
 . ee Doe '1. Levyv. Home, '■'< (g) Doe d. Chandler v. Ford, '•'> 
 
 Q. B. 766; see also Webb v. A. & E. 649. So also a party is 
 
 Il'im Bay Commwoner*, I.. R, 5 net estopped from Bhowing thai a
 
 aoo 
 
 ESTOPPEL BY DEED. 
 
 certain value (and therefore came within a certain statu- 
 tory exception) was held not to estop the parties from 
 showing that the premises were not really within the 
 statutory exception, and that the covenant in the deed 
 was in reality an attempt to evade the provision oi* an 
 Act of Parliament (//). And it was held a good plea, to 
 an action on a covenant in a lease, that the premises had 
 been let to defendant by plaintiff, for the express purpose 
 of being used by defendant for a purpose forbidden by 
 statute (t). 
 
 But, in an action brought upon an annuity deed of a 
 testator against his executors, held that they were 
 estopped from pleading that the deed was made 
 fraudulently and collusively between testator and 
 plaintiff, for the purpose of multiplying votes, and 
 subject to a secret trust and condition that no estate or 
 interest should pass beneficially to plaintiff by the deed. 
 For under the statutes (7 & 8 W. 3, c. 25, s. 7, and 
 10 Ann, c. 31, s. 1) a fraudulent conveyance, made for 
 the mere purpose of conferring a vote, was void only 
 to the extent of preventing the right of voting being 
 acquired, but was valid and effectual, as between the 
 
 deed is void under the Mortmain 
 Act, 9 G. 2, e. 36. See Doe d. 
 Preece v. Hoivells, 2 B. & Ad. 744. 
 
 (A) Doe d. C/i" ndler v. Ford, 3 
 
 A. iV E. 649. This decision may, 
 
 however, he supported on the 
 
 and that no estoppel arises out 
 
 ,f a mere covenant, see post, pp. 
 
 21 :. 215. 
 
 (ij Gas I ight & Coke Co. v, 
 
 Turner, 6 Bing. N. C. 324 ; and 
 see further, as to the rule that 
 there can be no estoppel in face 
 of an Act of Parliament, the 
 notes to Coffins v. Bfantern, 
 Smith's L. C. (8th ed.), vol. i., p. 
 387 : and the remarks of Bacon, 
 V.G.f in In re Stapleford Coffier// 
 Co., Barrow's Case, L. II. 1 I Ch, 
 D. 432, at p. 441.
 
 DEEDS. 201 
 
 parties, to pass the interest. It was on the ground also 
 of illegality, that deeds of separation were formerly not 
 pleadable in the ecclesiastical court, as a bar to its 
 further proceedings, being considered to be illegal 
 contracts, implying a renunciation of stipulated duties, 
 and an assumption of a false character, contrary to the 
 real status persona? (/•). 
 
 The true test whether a demand connected with an 
 illegal transaction is capable of being enforced at law or 
 not, depends on the question, whether or not plaintiff 
 requires any aid from the illegal transaction to establish 
 ln's case. If he does, he cannot enforce his claim. For, 
 Allegans suara turpitudinem non est audiendus ' (/). If 
 he does not, he can recover, unless he is in pari delicto 
 with defendant; for in the latter case the rule applies, 
 'In pari delicto potior est conditio defendentis aut possi- 
 dentis '(m). 
 
 Thus, plaint ill' laid an illegal wager with B., and 
 defendant assumed a part in the bet. Plaintiff won the 
 Int. It was expected that B. would pay on a certain 
 day, before which time, plaintiff, at defendant's request, 
 lent liim bis share of the winnings, advancing th<- money 
 t<> him. 1>. died insolvent before the day of payment, 
 ■wid the Let was never paid. Ibid that, inasmuch 
 
 [k) See per sir W. Scott in L.R. 4Ch. D. 150. Butifmoney 
 
 Mortimer v. Mortimer, 2 Hagg. has been paid under compulsion 
 
 Consist. ;it p. 318, cited by Lord and bo that, though both pari 
 
 Westbury in //"/// v. ////,//. :; ] are in delicto, they are nol 
 
 L. J. Ch. 161. pari delicto, tin' money may It 
 
 (h I li'-t- 279. recovered back. Atkinsonv.jDei 
 
 per James, L.J., in In G II. & V 778; 7 11. A N. 934, 
 fapleb i- /, /.'< parti < 'aldecoti,
 
 202 3TOPEEL BY DEED. 
 
 .1- plaintiff could not establish his case without the aid of 
 the illegal wager, he could not recover (n). 
 
 Plaintiff, being in embarrassed circumstances, in 
 pursuance of an arrangement between himself and A., 
 made over to A. all his stock in trade, and fictitious bills 
 of exchange were given by A. in plaintiff's favour. 
 Possession of the goods was given to A., together with 
 an inventory, but no bill of sale was executed by 
 plaintiff. The object of the transaction was to prevent 
 plaintiff's creditors getting hold of the goods, and so 
 g paid in full. Defendant was a creditor for £100, 
 ai d was cognizant of what had been concocted between 
 A. and plaintiff. After A. had removed the goods from 
 plaintiff's premises, two meetings of plaintiff's creditors 
 were held, but no compromise was effected with the 
 creditors. Some months afterwards A. executed a bill 
 of sale of the goods to defendant, for the alleged 
 purpose of securing the debt due from plaintiff' to 
 defendant, but plaintiff was no party to the bill of sale, 
 nor did he sanction or know of it. Plaintiff having 
 demanded the goods from A. and defendant, brought an 
 action against defendant for their detention. Held, that 
 the fraudulent purpose not having been carried out, 
 plaintiff was not relying on the illegal transaction, but 
 was entitled to repudiate it, and to recover his goods from 
 A., and that defendant had no better title than A., as he 
 knew how A. had become possessed of the goods (o). 
 
 Tt must be remembered, however, in applying the 
 
 in) Si m i iso, i. v. Bloss, 7 Taunt. Q. B. D. 291 ; see also Boives v. 
 246. Foster, '11 L. J. Ex. 2G2. 
 
 i,,) Taylor v. Bowers, L. It. I
 
 DEED-. 203 
 
 above principle, that the defence of illegality depends 
 partly upon the question whether or not the contract 
 sued upon is executory or executed. For certain 
 contracts, though invalid whilst they remain executory, 
 are considered valid when executed, in accordance with 
 the rule ' Quod fieri non debuit factum valet '(/')• 
 
 Imperfect and void deeds. — A person, by executing 
 a deed, is not estopped from showing that the deed is 
 imperfect or void. Thus, in an action on a covenant con- 
 tained in a lease by indenture, where the counterpart had 
 been executed by the lessee (defendant), but the original 
 lease had only been executed by two out of the four 
 lessors, held, that defendant was not estopped by his 
 execution of the counterpart, from showing, under a plea 
 of non est/actum^ that only two lessors had executed the 
 original lease (7). Tt does not appear, however, that 
 this rule, though applied as above to a covenant 
 contained in a lease by deed, would be applicable to 
 a covenant contained in an ordinary deed. For, in 
 Pitman v. Woodbury {r\ Parke, B. draws the following 
 distinction between the two cases. He says, "The cases 
 1 atablish, thai a covenantee in an ordinary indenture, 
 who is a party to it, may sue the covenantor who 
 
 (v) Ayerstv. Jenkins, L It. L6 weatlier v. Nixan, in Smith's L. 0. 
 
 Eq. I'm 1, and for a list of older (8th ed.), vol. ii., ]». 551. 
 
 where relief was granted or (7) Wilson v. Woolfryes, G M. 
 
 refused in equity under similar & S. .".II ; Cardwellx. Lucas, 2 
 
 circumstances, see Benyon \. Net- M. & W. Ill ; Bee, however, 
 
 tie/old, 3 Mac. & G. LOO, at pp. Cooch v. Goodman, 2 Q. B. 598; 
 
 100, 101. and for further in- Aveline-v.Whisson, 12 L. J.CP.58. 
 formation, ee tin' notes to .1/"/ (r) 3 Ex. II ; see also Swatman 
 
 riott \. Hampton, and Merry- v. Ambler, 8 Ex. 72,
 
 201 I STOPPEL BY DEED. 
 
 executed it, although he himself never did: for lie is a 
 party, although he did not execute, and parties to an 
 indenture may sue, though strangers cannot; and it 
 makes no difference that the covenants of the defendant 
 are therein stated to be in consideration of those of the 
 covenantee. Of this there is no doubt, nor that a 
 covenant binds without consideration. But with respect 
 to leases by indenture, the older authorities show that 
 the covenants, which depend on the interest of the lease, 
 and are made because the covenantor has that interest, 
 such as those to repair and pay rent during the term, 
 are not obligatory if the lessor does not execute ; not 
 because the lessor is not a party, but because that 
 interest has not been created to which covenants are 
 annexed, and during which only they operate ; as such 
 covenants undoubtedly do not, if the term ends by 
 surrender, and are suspended by eviction by the lessor, 
 so they do not begin to operate unless the term 
 commences. The foundation of the covenant failino:, the 
 covenant fails also. Unless there be a term, a covenant 
 to repair during it is void. But with respect to 
 collateral covenants not depending on the interest in the 
 land, it is otherwise, and they are obligatory. This rule 
 of law is to be found in the older authorities, which are 
 collected in Com. Dig. 'Covenant ' (F)." 
 
 Again, a person is not estopped by a statement con- 
 tained in a deed which lie did not execute, unless he 
 claims under a person who executed it (s). And neither 
 party to a deed is estop] ted, by executing it, from ob- 
 
 («) Doe <]. Shelton v. Shelton, 3 A. k E. at p. 283.
 
 DEEDS. 
 
 205 
 
 jecting to its validity, that it is not properly stamped (/). 
 Further, no estoppel arises out of a void deed (u). 
 
 2. Infants and Married Women. — These are not 
 estopped, by executing a deed, from pleading their 
 infancy or coverture respectively. 
 
 Thus an old writer says (.*;), " If an infant delivers 
 a deed which bears date two years after, and at the 
 end of the two years he is of full age, he shall not be 
 estopped to show the delivery before the date, neither 
 shall a feme covert." So if a feme covert were bound 
 by the name of A. S., widow, or if an infant were bound 
 by the name of J. S., of 30 years old, yet the feme might 
 plead coverture, and the infant infancy (//). Again, 
 if a feme covert or infant joined in granting a lease, 
 the lessee was not estopped from pleading nil habuit 
 tenementis : for estoppels must be mutual, and as the 
 feme covert or infant could not be estopped, neither 
 would the lessee (,?). A married woman is, however, 
 hound by estoppel by a recital in a deed duly executed 
 and acknowledged by her (a). 
 
 {n Steadman v. Duharru I, 1 C. 
 
 i', a 
 
 Per Parker, < '.J., in Mitch I 
 v. Reynolds, I P. Wms. 19G. 
 And a recital in a void bond 
 raises no estoppel. NorfoWs 
 Case, Hardres, 164. Bui it i> 
 otherwise in tin' ease of deeds 
 which are merely voidable ; Bee 
 I), i, hi . Wyman, 5 1 L. J. Q. B. 
 G23. 
 
 i Plowden's Queries, ". 121, 
 
 (//) Yin. Ab. Estop, p, 171, 
 
 citing B tp. pi. 98, and Vin. 
 
 Al». Estop. |>. 132 J, citing L 
 v. Hboke, t; Mod. :;i !. 
 
 ■>n v. Evans, '2 » 
 Eliz. 700 ; see also a note in 
 James v. Landon, I Cro. Eli ■ 
 \ h im ■.,,; rt might, however, be 
 
 pped by a record, e.g., a line 
 recorded. Hum' v. Burton, I 
 Ridgway's I'. R. at p. :>t;:. Bui 
 
 ii this estoppel only continued 
 during her coverture. 
 i !om. 1%. Estop, p. 195. 
 
 ■ n Jom > v Frost, I. R. 7 Ch 
 
 App. ::■■
 
 &06 ESTOPPEL I'.Y DEED. 
 
 Where an infant, being disabled from contracting bv 
 53 <!. 3 3 c. 1 II, s. 8, granted an annuity with A., and 
 they covenanted jointly and severally to pay it, held, 
 that the infancy of the grantor did not exonerate A. 
 from his separate contract. But qucere, by Tindal, C.J., 
 whether, if the covenant had been merely a joint one, 
 the statutory avoidance as to the infant might not have 
 avoided it as to both (b). Infants are now incapacitated 
 from contracting, except for necessaries, by the Infants' 
 Relief Act, 1874 (c). And married women's contracts 
 are regulated by the Married Women's Property Act, 
 1882 (d). 
 
 3. Cor i /orations and Companies which are incor- 
 porated, and other bodies which have special powers 
 given to them, by Act of Parliament. 
 
 The law respecting the liability of corporations which 
 are created by Act of Parliament, is well stated by 
 Parke, B., in South Yorkshire By. Co. v. Great Northern 
 lli). Co.(e), as i follows : ' Generally speaking, all corpora- 
 lions are bound by a covenant under their corporate seal, 
 properly affixed, which is the legal mode of expressing 
 the will of the entire body, and are bound as much as an 
 individual is by his own deed. Contracts with partner- 
 ships stand upon a different footing. They relate to the 
 power of one member of a partnership to bind the other, 
 and constitute a branch of the law of principal and 
 agent. In partnerships, where all the members do not 
 concur in the contract (and it is often that they do not), 
 
 (b) Gilfow v. lillie, 1 Bing. (d) 45 & 46 Vic. c. 75. 
 X. C. 696. \e) 9 Ex. 55. 
 
 (c) 37 & 38 Vic. c. 62.
 
 DEEDS. 207 
 
 one partner may bind the other in all contracts within 
 the scope of their ordinary partnership dealings; in those 
 beyond, the individual partners making the contract arc 
 bound, not the other partners. But corporations, which 
 are creations of law, are, when the seal is properly 
 affixed, bound just as individuals are by their own 
 contracts, and as much as all the members of a partner- 
 ship would be by a contract in which they all concurred. 
 But where a corporation is created by an Act of Parlia- 
 ment for particular purposes, with special powers, then 
 indeed another question arises. Their deed, though 
 under their corporate seal, and that regularly affixed, 
 does not bind them if it appear by the express provisions 
 of the statute creating the corporation, or by accessary 
 or reasonable inference from its enactments, that the 
 deed was ultra vires, that is, that the legislature meant 
 that such a deed should not be made .... The 
 question then appears to me to be simply this, whether 
 it can be reasonably made out from the statute that this 
 covenant is ultra circs, or, in other words, forbidden to 
 be entered into by either the plaintiffs or the defendants ; 
 and that question must depend on the construction of 
 the genera] Act (incorporated with the particular Ad 
 iblishing each of these litigating companies (/)." 
 h is beyond the scope of this work to enter into any 
 
 (f) See also per Lord Selborne purposes of its corporation, as de 
 
 in Ashbury /•'//. Carriagi Co. v. fined in its special Act." See also 
 
 Riche, L I!. 7 If. L 653, as fol- Chambers v. Manchester ds MUford 
 
 lows : " \ statutory corporation, By. Co., 5 B. & S. 588 ; and Eley 
 
 ted by Act of Parliament, is v. I'nsiiir,- Assurana Co., L. R. I 
 
 limited as to all its powers bythe Ex. I>. 20 d
 
 208 ESTOPPEL K1 DEED. 
 
 detail into the question of the liability of incorporated 
 companies on their contracts under seal. The discussion 
 of this question more properly belongs to a work upon 
 contract or ultra vires, or especially devoted to company 
 law. 
 
 However, one or two instances may be here given 
 which may serve to illustrate the principle applicable to 
 company cases, where ultra vires is relied upon as an 
 answer to a plea of estoppel by deed (g). 
 
 The original mode of forming a joint stock company 
 was by means of a deed of settlement, which constituted 
 trustees of the partnership property, directors of the 
 partnership affairs, auditors of its accounts, and other 
 officers, defined the number of shares into which the 
 capital was divided, and the form and mode of transferring 
 them, and laid down rules for periodical meetings of the 
 shareholders. In the absence of legislative interference, 
 the rights and liabilities of the members of such bodies, 
 in relation to the public, were the same as those of other 
 members of ordinary partnerships, their rights and 
 liabilities, inter se, depended on the provisions of the deed 
 of settlement (h). But in the case of companies incorpo- 
 rated under the Companies Act of 18G2, the articles of 
 association take the place of the deed of settlement, and 
 the memorandum of association regulates the rights and 
 liabilities of the company with regard to the general 
 public. Thus in Ashbury l?<iihr<t>i Carriage Co. v. 
 
 i 4 her company cases .are (h) Kerr's Blackstone (4th ed.), 
 
 given in the chapter dealing with vol. i., p. 479 ; see also per Lord 
 
 estoppels by representation. See Wensleydale in Ernest v. Nicholls, 
 
 post, pp. 380 et G H. L. Cas. at p. 423.
 
 DEEDS. 209 
 
 Riche(k) Lord Cairns, L. C, says, "I will ask your 
 lordships to observe the marked and entire difference 
 there is between the two documents which form the title 
 deeds of companies of this description — I mean the 
 memorandum of association on the one hand, and the 
 articles Qf association on the other. With regard to the 
 memorandum of association, your lordships will find, as has 
 often been already pointed out, although it appears somewhat 
 to have been overlooked in the present case, that that is, 
 as it were, the charter, and defines the limitation of the 
 powers of a company to be established under the Act. 
 W ith regard to the articles of association, those articles 
 play a part subsidiary to the memorandum of association. 
 They accept the memorandum of association as the 
 charter of incorporation of the company, and, so accepting 
 it, the articles proceed to define the duties, the rights, and 
 the powers of the governing body as between themselves 
 and the company at large, and the mode and form in 
 which the business of the company is to be carried on, and 
 the mode and form in which changes in the internal 
 regulations of the company may from time to time be 
 made. With regard, therefore, to the memorandum of 
 association, if you find anything which goes beyond that 
 memorandum, or is qoI warranted by it, the question will 
 arise whether that which is so done is ultra vires, net 
 only el' the directors el' the company but of the company 
 itself. With regard to the articles of association, if you 
 Ihi'l anything which, still keeping within the memorandum 
 
 l . I!. 7 II. L. at p. 664 ; v. Positive Assurana Co., I.. I!. I 
 and - Amphlett, B.,in Eley Ex. I>. at p. 24.
 
 210 
 
 ESTOPPEL BY DEED. 
 
 of association, is a violation of the articles of association, 
 or in excess of them, the question will arise whether 
 that is anything more than an act extra vires the directors, 
 but intra circs the company." 
 
 Thus acts done by the directors which are merely in 
 contravention of the articles of association (or of the deed 
 of settlement under the old system), may be ratified by 
 the subsequent assent of the whole body of shareholders (/), 
 but not so acts which are not warranted by the memo- 
 randum of association (m). 
 
 But it appears that even if a company execute a 
 deed in contravention of its Act, it may nevertheless 
 be liable on it, if there is nothing illegal on the face 
 of the instrument, and if by its means the company 
 has obtained money which it has applied for its legiti- 
 
 (l) Spackman v. Evans, Evans 
 v. Smallcombe, and Houldsworth 
 v. Evans,L. R. 3 H. L. 171 ; and 
 see Bargate v. Shortridge, 5 H. 
 L. Cas. 297, where a distinction 
 is drawn by Lord St. Leonards, 
 between acts of commission and 
 omission on the part of the 
 directors. 
 
 (m) Ashbury Railway Carnage 
 Co. v. Ricke, L. R. 7 H. L. 653. 
 Incorporated bodies are, in certain 
 cases, not liable on contracts 
 which are either (</) unconnected 
 with the purposes of their in- 
 corporation, or (b) beyond the 
 scope of their powers. (<i) Mayor 
 of Norwich v. Norfolk Ry. Co., 
 \ K. & 13. 413; Attorney-General 
 
 v. Great Northern Ry. Co., 1 D. 
 & S. 154; (b) Eastern Counties 
 Ry. Go. v. HawJces, 5 H. L. Cas. 
 at pp. 347, 355. But where no 
 offence is to be committed against 
 the public, and there is a mere 
 want of authority for a trans- 
 action amongst private indi- 
 viduals or commercial companies, 
 which authority can only be ob- 
 tained by Act of Parliament, no 
 objection whatever can success- 
 fully be made to the parties 
 entering into an agreement for 
 completing the transaction when 
 the necessary authority is ob- 
 tained. See ibid., at pp. 358,
 
 DEEDS. 2 1 1 
 
 mate purposes ; there being no actual fraud in the trans- 
 action, and the shareholders not having been injured 
 thereby (n). 
 
 Thus a railway company issues Lloyd's bonds, contrary 
 to statute. The bonds are therefore void, but they 
 contain on the face of them a representation which, if 
 true, makes the transaction legitimate. The company 
 subsequently goes into liquidation, and the holders of tin* 
 bonds make a claim against the company's assets. Held 
 that their claim is good for those sums of money in respect 
 of which the bonds were given, and of which the company 
 had the benefit for its legitimate purposes (o). Per 
 Gitfard, L. J. (at p. 762), " In so far as the company 
 has had the benefit of those loans for its legitimate 
 purposes, it must be taken to have adopted the transaction. 
 It cannot be heard to say the contrary, and to that extent 
 must be held liable." 
 
 .Moreover, the onus lies on a defendant company which 
 i^ sued on an illegal instrument, of showing that it was 
 executed in contravention of their Act. Thus, Parke, J., 
 in ///// v. Manchester & Salford Water Works 
 Company (p) says "It was for the company, if thc\ 
 
 (//) ffill v. MancJiestei & Sal- Hunt v. Wimbledon Local Board, 
 
 i Water Worl Co., 2 B. & Ad. I.. R. I C. P. D.48; Fishmonger 
 
 ll ; and Bee Webb v. TJu Com- Co. v. Robertson,5 M. & <:. 192, 
 
 missionert oj flerm Bay, L. K. S Copper Miners v. Fox, IG Q. P>. 
 
 Q.B. 642. And see further as to the 229, Boileau v. Rutlin, 2 Ex. 
 
 liability of incorporated bodies on 665. 
 
 oontraci thoiigh not under (o) Tn r< Cork <(• Youghal 
 
 1) of which tlicy have had the /«'//. Co., I.. I!. I Ch. App. 7 is. 
 • Eastern Counties By. Co. v. (p) 2 B. & Ad. at p. 553. And 
 
 ffawkes, 5 II. I.. Cas. at p. 372; it must be clearly Bhown that 
 
 p 2
 
 ~I2 ESTOrPEL BY DEED. 
 
 disputed their liability, to open the estoppel arising from 
 their own admissions by showing that the consideration 
 of the bonds was illegal, or inconsistent with the statutes 
 under which they acted, or that there was no con- 
 sideration." 
 
 And further, it is necessary to distinguish between 
 cases where the statutory provisions in contravention of 
 which the company has acted are imperative, and cases 
 where they are merely directory. For, it is only im- 
 perative enactments which cause an act done contrary to 
 them to be void (q). 
 
 Thus, by a local statute, the trustees of a turnpike 
 road were empowered to let tolls by writing under their 
 hands and seals ; the rent to be made payable to the 
 treasurer, in default of which, every lease made by the 
 trustees was to be null and void to all intents and 
 purposes whatever. Held, that the words were impera- 
 tive, and that a lease making the rent payable to the 
 trustees or their treasurer was absolutely void ; and that 
 the lessee's surety might take advantage of the defect, 
 in an action against him by the trustees, on his cove- 
 nant, for arrears of rent, even although the lessee had 
 taken the tolls for several years under the lease (?•). 
 Per Taunton, J., at p. 96, "I understand the dis- 
 tinction to be, that a clause is directory where the pro- 
 
 the contract was in contravention v. Burnett, 2 Bing. N. C. at pp. 
 
 of the Act. See per Lord St. 39, 40 ; In re Alum Spinning 
 
 Leonards in Eastern Counties Co., Bottomless Case, L. R. 1G 
 
 By. Co. v. Hawkes, 5 H. L. ('as. Ch. D. 681. 
 at p. 381. (r) Pearce v. M,,,rice, 2 A. A: 
 
 ('/) Per Parke, 13., in Gwynne E. 84.
 
 DEEDS. 213 
 
 visions contain more matter of direction, and nothing 
 more ; but not so, where they are followed by such 
 words as are used here, namely, that anything done 
 contrary to such provisions shall be null and void to all 
 intents. These words give a direct, positive, and absolute 
 prohibition." 
 
 The effect of an estoppel by deed is to prevent the 
 1 >arty who has executed it from impugning the general 
 effect of the deed, or any particular statement or clause 
 therein contained (s). For instance, it has been held 
 that the receipt for the consideration money, if contained 
 in the body of the deed, is binding upon the parties at 
 law (7), though equity will grant relief on proof that the 
 money was not paid(w). But the receipt for the con- 
 sideration money indorsed on a deed, being no part 
 of it, is not an estoppel, but only evidence (x). 
 
 It is a general rule, with respect to estoppels arising 
 from statements in deeds, that no estoppel can arise by 
 deed, except on a representation of an existing fact (y). 
 Thus, where the condition of an obligation was to pay 
 20d. weekly for die keeping of a bastard, according to an 
 order made by justices, defendant, in an action on the 
 
 Cowp.600; Co. I.itt, 17/,: AM. 606; Graves v. A'-//,:; It. & 
 
 Do, <1. Chandler v. Ford,3 A. & E. A.!. 313. 
 
 ('.lit; Gwyn v. Neath Canal A' (y) Ami, iu order to ascertain 
 
 gation Co., I.. R. •"• Ex. 209. what is the precise representation 
 
 (/) Roumtree v. Jacob, 2 Taunt, relied upon us an estoppel, it is 
 
 111 ; Baker v. Dewey, I B. & C. necessary to look t<> the general 
 
 704 ; Potts v. Nixon, 5 It. R. C. L. effect of the deed. See per 
 
 [5 Ji 'I, M.K., in General Finana 
 
 {a) EyU v. Haggle, I Jac. a- Co. v. Liberator Building Society. 
 
 W. 234. I.. R. 10 Ch. I». L5, citing Crofts 
 
 ( >■) Lampon v. Corke, 5 !'>. a- v. Middleton, 2 K. <fc J. I' 1 '
 
 Ml 
 
 ESTOPPEL BY DEED. 
 
 bond, was held estopped from pleading that no such 
 order was made. But it would have been otherwise if 
 the condition had been according to an order to be made, 
 for that is executory (z). 
 
 Thus it has been doubted whether an estoppel can 
 arise on a covenant contained in a deed (a). However, 
 where an underlessee covenanted to perform all the 
 covenants contained in the original lease, in an action for 
 breach of covenant brought against him by his lessor, 
 held, that he was estopped from saying that there were 
 no such covenants in the original lease (b). And, in 
 ejectment, a covenant for further assurance, contained in 
 a deed of release, w T as held to estop plaintiff from disputing 
 the title of defendant, to whom he had covenanted (c). 
 But the covenants for title in a mortgage deed of 
 freeholds, that the mortgagor has full power to grant 
 and convey the premises in manner aforesaid, have been 
 held not to amount to that precise averment, that the 
 mortgagor is seised of the legal estate, which is 
 necessary to create an estoppel, as against him and 
 those claiming under him (d). For it was pointed out 
 
 (z) Germin v. Randal, Noy's 
 Rep. 79 ; see also Bensley v. 
 lUn-don, * L. .1. Ch. 85, cited by 
 Jessel, M.R., in General Finance 
 Co. v. Liberator Building Society, 
 L. K. 10 Ch. D. 15. 
 
 ('/) Per Lord Denman, C.J., in 
 Doe d. Chandler v. Ford, 3 A. A: 
 E. 649, at p. 655 ; and per Jessel. 
 M.I!., in General Finance Co. v. 
 Liberatoi Building Society, ~L, \l 
 
 10 Ch. D. 15, at pp. 23, 24. 
 
 (b) Atkinson v. CoaUworth, 8 
 Mod. 33 ; 1 Strange, 512 ; and for 
 another case, in the older reports, 
 of an estoppel arising on a 
 covenant, see Barivicke v. Gybson, 
 Cro. Jac. 297, case 4. 
 
 (c) Right v. Proctor, 4 Burr. 
 2209 ; t! oo,l title v. Bailey, 2Cowp. 
 597, and ante, p. 193. 
 
 (</) General Finance Go. v.
 
 DEEDS. 
 
 215 
 
 by Jessel, M. R., in his judgment (e), that such a 
 covenant, when its effect is considered in conjunction 
 with the whole deed, is not a mere assertion that the 
 covenantor has the legal estate, but an agreement really 
 that if he has it not, he will pay for it. "It is a bargain," 
 says the learned judge, " that he has power to convey; 
 but not an assertion that he has the estate, and so it does 
 not appear to me to be at all clear that that would 
 amount to that precise averment of a fact, which is 
 necessary in order to support the doctrine that a subse- 
 quent conveyance of the legal estate will, so to say, till 
 up the estoppel previously created." 
 
 Before the Real Property Amendment Act (/) the 
 word " grant ' ; in a deed of conveyance, created an 
 implied warranty of title, but the law on this point was 
 altered by sec. 4 of the above Act, and now, by the 
 Conveyancing Act, 1881 (</), the word " grant " is not 
 necessary in order to convey tenements or hereditaments, 
 corporeal or incorporeal. And, even if the word grant 
 were used, no estoppel would arise upon it {It). 
 
 Estoppels arising out of recitals in deeds. — Ksloppels 
 by recitals, and conditions in bonds, depend principally 
 upon u rule which maybe formulated thus: a person 
 is not estopped by executing a deed, from saying a thing 
 
 Liberator Building Society, I.. I!. Ad. 278, at p, -2S-2 ; Com. Dig. 
 
 Ch. I>. 15. Estop. A, -2 ■ Heath v. Crea- 
 
 (c) ll.nl, lurk, I, \l. to Ch. App. 30; 
 
 B a- 9 Vic. '•. L06. General Finance Co. v. Liberator 
 
 It ,v 15 Vice. !l,s. I'.i. Building Society, L. R. LO Ch. D 
 
 'I'lic section is retrospective in its 15, dissenting from tin' opinion of 
 
 • ration. Sir John Leach in Bensley v, 
 
 (k) Right v. Bucknell, 2 B. & Burdon t 2 S, a- S, •">!!'.
 
 216 ESTOPPEL BY DEED. 
 
 that stands with the deed, that is to say, lie is not 
 estopped from giving evidence which explains the deed, 
 
 and shows the intention of the parties thereto (/). Thus 
 no estoppel can arise on a deed, so as to prevent the 
 parties alleging the truth, if the truth appears on the 
 face of the deed (k). 
 
 The older authorities on the subject of estoppel by 
 recital are somewhat conflicting, and it is difficult to 
 ascertain from tliem when a recital operated as an 
 estoppel, and when it did not (7). Lord Coke says, 
 " Every estoppel ought to be a precise affirmation, not 
 a rehearsal. Therefore a recital concludes not because 
 it is not direct affirmation (ra)." However, there are 
 - veral old authorities to the contrary (h). 
 
 And with respect to the above dictum of Lord Coke, 
 Lord Denman, C. J., in Bowman v. Taylor (o), says, "As to 
 the doctrine laid down in Co. Litt. 352 b., that a recital 
 doth not conclude because it is no direct affirmation, the 
 
 (i) Yin. Ab. Estop, pp. 4G9 — Vin. Ab. Estop, pp. 153 et seq. 
 
 4 73; Doe d. Free/and v. Burt, 1 (m) Co. Litt. 352 6; Vin. Ab. 
 
 T. I J. 701 ; StroughUl v. Buck, Estop, p. 454 ; Bro. Estop, pi. 
 
 14 Q. B. 781 ; South Eastern 127 ; Fitz. Estop, pi. 207. 
 
 Rtf. Co v. Warton, 6 H. & N. (n) Corrant's Case, Dyer, 196a, 
 
 520; Morton v. Woods, L. II. 4 note (41); and see a case in Jen- 
 
 Q. B. 293; and the other cases kins' Rep. (fifth cent.), case 
 
 cited in the discussion on estoppel IV., p. ]'JC, J cited in Vin. Ab: 
 
 by recital, post, p. 219 et seq. Estop, p. 461. See also as to 
 
 i /. i Doi d. Lumley v. Earl of when a recital operated as an 
 Scarborough,^ A. & E. 2 ; Doe d. estoppel, the references in Bran- 
 Barber v. Lawrence, I Taunt. 23; thwait's Case, 3 Leon, lis, and 
 Saunders v. Merry weather, '■'> II. Rawlins 7 Case, Jenkins' Rep. (sixth 
 
 ( . 902. cent.), case XLVL, p. 254. 
 
 i7) See the instances given in (o) 2 A. & E, 278.
 
 DEEP. . 217 
 
 authority of Lord Coke is a very great one; but still, if 
 a party Las by his own deed recited a specific fact, 
 though introduced by a " whereas," it seems to me 
 impossible to say that lie shall not be bound "by his own 
 assertion, so made under seal.'' This is in accordance 
 with the older, and also with modern authorities. Thus, 
 in Salter v. Kidl&y (/;). Holt C. J. said, "General 
 recital is not an estoppel, but a recital of a particular 
 tact is so. 
 
 But, there must be no ambiguity about the meaning 
 <»f the statements in a recital in a deed, in order that ii 
 may estop the parties to the deed from showing the 
 existence of a different state of facts from that which 
 would appear from such statements (q). Thus, in Bight 
 v. Buchnell (/•), it was held, that a recital in a deed of 
 release, that releasor was " legally or equitably " entitled 
 to an estate, was held not to be sufficiently certain to 
 create an estoppel. Similarly it was held, in Heath v. 
 < 'realock (*), that a recital in a deed of conveyance, that 
 the grantor's estate was " free from incumbrances " did 
 
 (/-) 1 Show. 56, case 52 ; sec Manchester <Ss Salford Water Works 
 
 also Vin. Ab. Estop. (!'); Com. Co., 2 15. k Ad. 544 j Horton v. 
 
 Dig. Estop. (A 2) ; Willoughbyv. Westminster Improvement Com~ 
 
 Brook, 2 Cro. Eliz. 7~><i ; Hart v. missianers, 7 Ex. 780. 
 Buckminster, Aleyn's Rep. 52 j (q) Kepp v. Wiggett, 10 c. B. 
 
 Rainsford v. Smith, Dyer L96 a, 35. 
 note; Slrowdv. Willis, L Cro. Eliz. (/•) 2 B. a- Ad. l'78. 
 362; Shelley v. Wright, Willes, («) I,. II. loch. A pp. 30; see 
 
 9; Eaym v. Maltby, 3 T. I;, also per Jessel, M.R., in General 
 
 \:„- ; Oldham v. Langmead,3T. Financt Co. v. Liberator Building 
 
 \\. t.".'j; l)o< d. ihih'hn ■ v. .!/#«- Society, L II. 10 Ch. D. 15, ai p 
 
 grave, 1 M. & Q. 625 ; Lainson y, 30. 
 Tremere, 1 A. & E, 792 ; ///// v
 
 218 ESTOPPEL BY DEED. 
 
 not create an estoppel, so as to prevent the grantor 
 denying that lie had the legal estate 
 
 The following are instances in which a statement con- 
 tained in a recital in a deed has been held to be binding. 
 
 In an action against an executor on a bond given by 
 him lor the payment of a legacy, it having been recited 
 in the bond that testator gave so much by his will, 
 held, that defendant was estopped from pleading that he 
 revoked that will, and made another last will (t). 
 
 A recital in a freehold lease, that the lands " are now in 
 the occupation and tenure of the lessee and his under- 
 tenants," was held to estop the lessor from contending 
 that the lessee was not in possession, and therefore from 
 denying that livery of seisin was unnecessary (u). 
 
 In an action by an administrator on a covenant in a 
 mortgage deed executed by the intestate, a recital in a 
 ul (sequent mortgage deed made between the intestate 
 and a third party, A. (not a party to the action), to the 
 effect that A. had agreed to convey the premises to the 
 intestate free from incumbrances, was held conclusive 
 against plaintiff, that the first mortgage had been paid 
 off at the date of such subsequent mortgage deed (x). 
 
 A bond was conditioned for the payment of £170 as 
 the rent of certain premises, and it was recited in the 
 condition of the bond that the premises were demised by 
 indenture at a certain specific rent as by the said inden- 
 ture mentioned. In an action on the bond against the 
 
 *s< 
 
 t) Backwell v. Bardue, 1 Mod. Lloyd, Wightwick, 12:5. 
 ] ] ."». (.>■) Jones v. Williams, '1 Stark. 
 
 Bees d, Chamberlain v. 52,
 
 DEEDS. 219 
 
 obligor, held, that he was estopped by the recital from 
 pleading that the rent reserved by the indenture was 
 £140, and not £170, and that the former sum, and not 
 the latter, had always been paid (?/). 
 
 The tendency, however, of modern authority on 
 estoppels of this kind is certainly to restrict them within 
 as narrow limits as possible (z). 
 
 In considering the effect of a recital, or of any estoppel 
 arising from a (\w<\, it is necessary to look to the inten- 
 tion of the parties, and to the general tenor of the deed, 
 in fact, to interpret the deed (a). Thus, a recital of a 
 particular fact only estops both parties to an indenture 
 where it is intended to be the agreement of the parties to 
 admit such fact ; and it is a question of construction 
 whether the recital was so intended. For instance, by 
 indenture between plaintiff and defendant, reciting, inter 
 'ilia, that defendant had advanced money to 0. on the 
 security of certain deeds, and that defendant was inter- 
 ted in those deeds to that extent, and that it had been 
 agreed that plaintiff should make further advances to ()., 
 and thai defendant should assign the deeds and his 
 interesl therein to plaintiff as a security, defendant 
 igned them to plaintiff, and convenanted that the 
 
 (y) Laimon v. Tremere, I A. & I.. R. 10 Ch. D. L5. 
 
 r 792. Lord Denman, C.J., in (") Smith Eastern Railway Co. 
 
 Bowman v. Taylor, 2 A. & E. v. Warton, § II. & N. 520 j and 
 
 278, speaks of the above case as per Brett, L. J., inSimmv. Anglo- 
 
 strong ;i case as can be American Telegraph Co., L. I;. 5 
 
 conceived." also Guardian Q. B. D. I <s« ; and ante, p. 216 
 
 Assuranc* Co. v. Avon-more, 6 Ir. Ami see Bac. A!b. Tit. Leases and 
 
 Hep. K'|. 391. terms of years, I.. ■"». vol. iv., 836, 
 
 Per M.R. in General Fmanci citing Bro. Ab. Tit. Lease, 13, 
 ('■*. v. Liberator Building Society,
 
 » JO ESTOPPEL BY DEED. 
 
 money so advanced to 0. by defendant was due and 
 unsatisfied. In an action on the deed, assigning as 
 breach that the money was not due at the time of making: 
 the covenant, it was held that the recital that the money 
 had been advanced was to be taken as the language of 
 defendant only, and therefore did not estop plaintiff' from 
 showing that it had not really been advanced (b). 
 
 And the mere fact of a state of things appearing by 
 legal inference from a statement contained in a deed, 
 does not estop the parties from denying that such a state 
 of things actually existed, if the estoppel would operate 
 in a manner contrary to the intention of the parties, and 
 to the whole scope and tenor of the deed (c). Moreover, 
 no estoppel arises from the recital in a deed of matter 
 which is foreign to the contract between the parties (d). 
 And the effect of a recital in a deed may be done away 
 with by a subsequent agreement between the parties, 
 even by parol (r). But a recital in a deed may restrain 
 the effect of statements in the operative part of the deed. 
 Thus the operation of the words of the release and receipt 
 for the consideration money, though contained in the 
 body of the deed, may be restrained by the recitals in the 
 deed, if they show that the money has not been paid(/). 
 
 (6) StrmghUl v. Buck, 14 Q. A. & E. 265; Fraser v. Pendle- 
 
 B. 781. bury, 31 L. J. C. P. 1 ; Giliett v. 
 
 (c) Judgment of Kelly, C. B., Abbott, 7 A. & E. 783 ; and Vin. 
 
 in Morton v. Woods, L. R. 4 Q. Ab. Estop, pp. 153 el seq. 
 B. 293, explaining Jolly v. Ar- (e) Per Mellish, L. J., in ex 
 
 buihnot, 28 L. J. Ch. 54 7 ; see /»trte Morgan, in re 'Simpson, 
 
 also Dancer v. Eastings, 1 Bing. 2. L. R. 2 Ch. D. 72, at p. 89. 
 
 (</) Kepp v. Wiggett, 10 C. 13. (/) Lamport v. Gorke, 5 B. & 
 
 35 : Doo <1. Shelton v. Shelton, 3 Aid. GOG ; Alncr v. George, 1
 
 DEEDS. 
 
 :l:l\ 
 
 The above rule, that the general tenor of the deed, and 
 the intention of the parties, should be looked to, together 
 with the rule that no estoppel can arise on matters that 
 are immaterial (g), serves to explain the ratio decidendi 
 of some of the older eases, in which it was held that 
 there could be no estoppel by a mere recital. For, where 
 a recital was necessary to interpret the meaning of the 
 body of the deed, it became material, and created an 
 estoppel (A). 
 
 Moreover, a recital which recited a mistake of fact, 
 did not, it appears, even at common law, create an 
 estoppel with respect to that fact, contrary to the inten- 
 tion of the parties (i), and certainly not in equity (Jc). 
 Thus, where there was a mistaken recital in a settlement, 
 that a mortgage was for £1,200 instead of £1,400, but in 
 subsequent deeds, executed by the parties, and proved in 
 evidence, the mortgage was recognized as being lor 
 £1,400, it was held that the Court would treat the 
 settlement as having been made subject to a mortgage 
 
 < lamp. 392 ; Legh v. Legh, 1 I!. 
 & I'. I 17 ; Hickey \. /;»,-/, 7 
 Taunt. I- : Jones v. Herbert, 7 
 Taunt. 1-1; Payne v. Rogt rs, 1 
 Dougl. l (| 7. And see further as 
 t.) whether menl in a deed 
 
 after the word a ■• In Witness, &c.," 
 operates as a. recital, so as to 
 p i party proved to h 
 
 cuted t he indent me from deny- 
 ing the execution by the others, 
 Pearo v. ,1/w rice, 2 A. & E. 8 I ; 
 D i ..it i E2). 
 
 i./; See ante, p. 7. 
 
 (h) _' Leon. 11. pi. 17 ; see 
 also per ( flench, .1., in Si m rn \. 
 Clerk, 1 Leon. 122, pi. L64, who 
 says, "The recital of itself is 
 nothing ; but, being joined ami 
 considered with the rest of the 
 deed, it is material." 
 
 1 1) Rawlins* Case, Jenkins' 
 Rep. (sixth (•(jut.), case XLVI., 
 p. l'.") I : and /''/'• v. Huntingdon, 
 \ aughan's Rep. 82. 
 
 (/•) Brooke \. Haymes, I. It 6 
 Eq. 25.
 
 222 ESTOPPEL P.Y DEED. 
 
 tor £1,400, without any suit to rectify it (/). And, in a 
 more recent ease, where E. had executed a mortgage 
 deed, which he believed to be in common form, but 
 which contained an erroneous recital that E. was a 
 member of a building society, and subsequently the 
 building society went into liquidation, and E.'s name was 
 placed on the list of contributories, it was held that the 
 mortgage deed did not represent the real transaction 
 between the parties, and that E.'s name must be removed 
 from the list of contributories (in). If, however, the 
 recital is conclusive at law, and it is sought to rectify the 
 deed in equity on equitable grounds, the evidence 
 tendered to contradict the recital must be of a direct 
 and conclusive character (n). 
 
 Besides the instances given above, there are certain 
 exceptions to the rule that a recital of a particular fact 
 in a deed is binding, in the case of certain persons who 
 are incapacitated, or temporarily disabled, by law from 
 contracting ; e.g., in the case of infants, married women, 
 lunatics, or persons under duress (o). 
 
 Conditions in bonds. — The same principles apply with 
 
 (I) Scholefidd v. Loci-wood, 33 (o) Bro. Estop. 49. But, if a 
 
 L. J. Ch. 10G. single woman executes a bond 
 
 (m) Empson's Case, L. R. 9 Eq. in which it is recited that she 
 
 597 ; and by the Judicature Act, is a feme covert, it nevertheless 
 
 1873, sec. 25, sub-sec. 11, in case binds her. See Rawlins' Case, 
 
 of conflict between the rules of Jenkin's Rep. (sixth cent.), case 
 
 equity and common law on the XL VI., p. 254; presumably upon 
 
 same matter, the rules of equity the principle that no one can set 
 
 are to prevail. up his own wrong to invalidate 
 
 (w) Ex />'irte Morgan, in re his own deed. 
 Simpson, L. R. 2 Ch. D. 72 & 91.
 
 1 
 
 DEEDS. - ' ■"■ 
 
 regard to estoppels arising from conditions in bonds as 
 from recitals. Tims, a general condition in a bond 
 raises no estoppel, but a particular condition does(y>). 
 And the condition, in order to raise an estoppel, mui I 
 not be executory (7). 
 
 There is another rule relating to estoppels by deed, 
 which may be stated thus : a person is not estopped, 
 by executing a deed, from denying any statement 
 therein contained, in a subsequent action between the 
 parties which is not founded on the deed, or brought 
 to enforce the right arising out of it, but which is 
 wholly collateral to it. Thus Parke, B., in Carpenter 
 v. Butter (r) says, "If a distinct statement of a par- 
 ticular fact is made in the recital of a bond, or other 
 instrument under seal, and a contract is made with 
 reference to that recital, it is unquestionably true that, 
 as between the parties to that instrument, and in an 
 action upon it, it is not competent for the party bound to 
 deny the recital By his contract, on the instru- 
 ment itself, a parly is assuredly bound, and must fulfil it. 
 Bui there is no authority to show that a party to the 
 
 fp) l I;... Al'. 872, 873 6, v. Povy, 1 Levin/.,."); Paramoun 
 
 ■ p. d'); Doddingtoria Case, v. During, Moore, 420 j SMpvnth 
 
 l Rep., vol. i., p. 519 : A*, v. v. Steed, 2 Cro. Eliz. 769 ; Karm 
 
 PersevaU, I Rolle'i Rep. L30 j v. Pryther, Cro. Jao. L, 375: 
 
 and Bee further as to estoppels Holloway's Case, I Mod. 16 ; 
 
 mil' from conditions in bonds, Boverton v. Evans, Vin. AI>. Estop. 
 
 JewelVs Case, I Rolle's Rep. 108; p. 466, and D'Anvers' Ab., vol. hi., 
 
 Fletclter v. Farrer, I Etolle's Rep. 269 ; Hosier v. Searle, 2 B. & P. 
 
 83 ; Fitch v. Bissie, Browusl. & 299. 
 
 Goldesb. Rep. 57; Cvllvngworth's (7) Germin v. Randal, Noy's 
 
 Case, Godbolt, 177 ; Paim v. Rep. 7 ( .». 
 SMtrom, Style, 17-; Ramsfordx. (r) 8 M & W. 209. 
 Smith, 2 Dyer, 196a ;. Eudland
 
 :!:ll ESTOPPEL BY DEED. 
 
 instrument would be estopped, in an action by the othei 
 party, nol founded on the deed and wholly collateral to 
 it, to dispute the facts as admitted." 
 
 Thus A. is party to a deed of transfer of mortgage 
 from B. to C. In a subsequent action by A. against B. 
 for money had_ and received (the money in question 
 being part of the consideration for the transfer), A. is not 
 • stopped by a recital in the deed of transfer to the effect 
 that the money was due and owing to B., from showing 
 that the money was not in fact due to B. at the time it 
 was paid (5). 
 
 A. and B. were in partnership together as paper manu- 
 facturers and iron merchants. The partnership was 
 dissolved by deed, which recited that it had been agreed 
 that the business of a paper manufacturer should belong 
 exclusively to B. and the business of an iron merchant to 
 A., but that A. should receive out of the stock, paper to 
 the value of £898. 4«s. lid. which should remain in the 
 paper mill for a year, at his option. It was also recited 
 in the deed, that in performance of that arrangement, 
 paper to the value of £898. 4s. llr/. had been delivered 
 to A. and that the same was then in the mill, as A. 
 acknowledged. It was then witnessed, that, in perform- 
 ance of the arrangement, A. and B. dissolved partnership, 
 and A. assigned to B. the stock-in-trade of the business of 
 a paper manufacturer, except the £898. 4.s. lid. worth of 
 paper so delivered to A., as aforesaid, and B. assigned to 
 A. the business of an iron merchant. No paper what- 
 ever having been set apart or delivered to A., A. brought 
 an action of trover for the paper against B. Held that, 
 
 (-1 Fraser v. Pendlebwy, 31 !.. J., C. P. 1.
 
 DKEDS. 
 
 225 
 
 as the action was brought to enforce rights arising out of 
 the deed and was not wholly collateral to it, B. was 
 estopped by the deed from saying that the paper had not 
 been delivered to A. (and consequently that an action of 
 trover was not maintainable therefor) (s). 
 
 Estates by estoppel — One result of the rule that a man 
 is not permitted to dispute his own deed is, that if A. 
 leases premises to B. by indenture, A. having at the 
 time no title to the premises comprised in the lease, on 
 the one hand B. is estopped from disputing A.'s title to 
 the premises at the time when he leased them (t) ; and, 
 on the other hand, A., and those claiming under him, are 
 estopped from disputing that a good title to the premises 
 passed to B. under the indenture (u). The title obtained 
 by the lessee in such a case, is called an estate or title by 
 estoppel. The advantage of such an estate is that if, at 
 any subsequent time, during the continuance of the lease, 
 the lessor, or those claiming under him, acquires an 
 actual beneficial title to the premises in question, he or 
 they are considered in law as having made good the lease 
 to the lessee, and as having conferred upon him a bene- 
 
 {.-, Wiles v. Woodward, 5 Ex. 
 ~>:>7 : see also Carter \. Carter, 3 
 K. & J. 645 : South Eastern Rail. 
 Co. v. Warton, 6 II. a- N. 520, 
 ante, pp. 216, 219 ; Ex parti 
 Morgan, I K n Simpson, I.. !!• '-' 
 i ;h. I ». 72 : Cracknall v. J<i,> 
 L. R. 11 < !h. I». I ; Burnand v. 
 Rodocanachif 1.. )!. 7 App. ( ■ 
 
 ./ v. Willis, I ( i'm. Eliz. 
 
 ■ : Palmer v. Ekins, 2 Str. 817; 
 
 27, md Win " Id - Case, •"• 
 
 Leon. 203. 
 
 (//) A similar rule existed, in 
 the oa8e of :> Rue levied by a 
 person having no interest in the 
 
 [iivuiises the snhject of the tine. 
 
 See Sir G. Broim's Case, < !o. Rep., 
 vol. ii., pp. 138, 165 ; Helps \. 
 Hereford, 2 I'.. <Sz AM. 242. And 
 a ■ miliar rule exists iii tin' case of 
 ppela generally, but is most 
 frequently exemplified in estoppels 
 by deed. See Smith's I.. C. (8th 
 
 e 1. 1, vol. ii., i'- ^~~< ■ 
 
 'i
 
 226 ESTOPPEL BY DEED. 
 
 ficial title to tlie premises, to which before he had only a 
 title by way of estoppel. This is what is meant l>y the 
 rule, that an interest when it accrues feeds the estoppel. 
 This result only occurs when the original title conferred 
 upon the lessee by the indenture, took effect by way of 
 estoppel and estoppel only. If any quantum of interest 
 whatever passed out of the lessor to the lessee at the 
 time of the execution of the indenture, the lease would be 
 said to take effect by way of interest, and not by way of 
 estoppel, and this is what is meant by the rule that there 
 is no estoppel where an interest passes. In such a case, 
 consequently, the doctrine of feeding the estoppel would 
 not apply, even if the lessee did not acquire under the 
 indenture all that he bargained for, and the lessor, or those 
 claiming under him, acquired, during the continuance of the 
 lease, an additional interest in the premises. The following 
 authorities will serve to explain and illustrate the above 
 rules. The principle is explained by Lord Coke as 
 follows: — "A., lessee for the life of B., makes a lease 
 for years by deed indented, and afterwards purchases the 
 reversion in fee. B. dies. 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. 
 lint, if A. had nothing in the land, and made a lease for 
 years hy deed indented, and after purchase the land, the 
 lessor is as well concluded as the lessee, to say that the 
 lessor had nothing in the land ; and here it works only 
 on the conclusion, and the lessor cannot confess and 
 avoid as he might in the other case " (?/). 
 
 i //) Co. Litt. 47//: see also p. 11!): Slyh- v. Hearing, fro. 
 Rawlins's Case, Co. Rep., vol. ii., Juc. J, 73 j and London's Case,
 
 DEEDS. -117 
 
 The estoppel only arises in the case of a lease by 
 indenture, and not in the ease of a lease by parol, or by 
 deed poll (z). And it does not operate, as between the 
 lessor and a third party, a stranger to the lease (a). It 
 however binds the lessor, and all those claiming under 
 him (I). Thus, it' A. leases by indenture to 13., for say 
 six years, having nothing in the land, and afterwards 
 acquires an interest in the land and leases to C. by 
 indenture for say twenty-one years, C. is bound by the 
 estoppel, and takes only an interest in futuro, unless B. 
 attorns tenant to him (c). But it appears doubtful 
 whether the estoppel would bind them, as against an 
 assignee of the lessee. For, according to an old autho- 
 rity, an assignee of the lessee cannot take advantage of 
 a lease by estoppel, nor can he bring an action on the 
 covenants contained therein (//). 
 
 In order for the estoppel to arise, the lease must be of 
 tin- land itself; a lease of the herbage only, will not 
 suffice (e). And the indenture must contain some precise 
 description of the parcels (/). 
 
 Anderson, 128, where the same ever, B. attorns tenant to C, this 
 principle ie applied to the case of will create a reversion by estoppel 
 ;i man taking a lease for years, hy in ('. to B.'s lease, to which the 
 1 indented, of his own land. renl on B.'s lease will be incident, 
 Bro. \l>. Tit. Confess. <v and recoverable by C. in prassenti. 
 Avoid, pi. 3, citing Littleton, Tit. Rawlins's Cast as reported in Jen- 
 Tenant for years ; Co. I.itt. \~/>: kins's Rep. (sixth cent.), Case 
 Brooke's New Cases, \<. I"-. XLVL, p. 254 ; Palmerv. Ekins, 
 
 (a) Ferret \. Borough, 2 I po 2 Lord Raymond, 1550. 
 
 Eliz. 665. (d) Noh \. Awder, I Cro. Eliz. 
 
 I Edwards v. Omelliallum, 136 ; see, however, per Tindal, 
 
 March. <i I. < '. .1., in Webb v. [ustin, 7 M. it 
 
 Rawlin ■ < ■■•■■ . as citi d in <!. ;it p. 72 I. 
 
 Weale \. Lower, Pollexfen, 6 Co. Lift. 17 //. 
 
 Vin. Ab. Estop, p. 162. If, how- (/) Rawlins' I •■. Jenkin
 
 ::s ESTOPPEL BY DEED. 
 
 So the lease will not take effect by way of estoppel, if 
 the fact that the lessor had nothing in the lands, appears 
 on the face o£ the indenture of lease itself by recital or 
 otherwise. Thus where a church was during the incum- 
 bent's lifetime appropriated in futuro to a body corporate, 
 and the said body corporate, reciting that fact, made a 
 lease by indenture, to take effect during the life of the 
 incumbent, held, that the lease did not take effect by 
 way of estoppel, but was void (g). The estoppel only 
 continues during the term created by the indenture (//). 
 The estoppel arises by virtue of the indenture. Thus, it 
 appears, that formerly, if a man took a lease for life by 
 indenture of his own land, no estate by estoppel would 
 be created, as such a lease formerly took effect by force 
 of the livery and not of the deed : but it would have been 
 otherwise if he were to have taken a lease for years (/). 
 So also, if a copyholder of inheritance took a lease for 
 years from his lord, he was estopped from claiming the 
 inheritance, but not so if he took a lease for life (k). 
 
 An estate by estoppel runs with the land, and binds 
 all those into whose hands the land comes by descent or 
 otherwise, and whether they be heirs or assignees (/). 
 
 Rep. (sixth cent.), Case XLVI., unanimous. See also Vin. Ab. 
 
 p. 254. Estop, p. 462. 
 
 (g) Ibid. (£) Vin. Ab. Estop, p. 401, 
 
 (h) Rawlins's Case, Co. Rep. vol. citing- Southcot v. Adams, cited 
 
 ii., p. 419 ; Style v. Hearing, Cro. also in Belfield v. Adams, 3 Bulstr. 
 
 .1 ..-. ], 73 : London's Case, An- 81. 
 
 derson, L28 ; Webb v. Austin, 7 (I) 1 Ro. Ab. S71 (N), pis. 2, 
 
 M. & G. at p. 724. 5; Co. Litt. 12 a, 47 b, 48 a; 
 
 li) Anon. Case, Gouldsb. ;">;}, Rawlins's Case, Co. Rep., vol. ii., 
 
 I se 5 ; but the judges were not 54 a; Palmer v. Ekins, 2 Str.
 
 DEEDS. 
 
 229 
 
 On the other hand if a man having nothing in the land 
 leases by indenture, lie has, unless the lease be of such a 
 nature that no reversion remains in the lessor (m), a 
 reversion by estoppel, which is assignable to a third 
 party (n) ; except perhaps in cases where the indenture 
 of lease itself discloses the fact that the lessor has no 
 legal estate (o). And such reversion is presumed to be 
 ;i reversion in fee simple, until the contrary is shown (p). 
 This applies also in the case of a demise by indenture by 
 ;i person having only an equitable estate, if it operates 
 by way of estoppel. Thus if a mortgagor in possession 
 grants a lease, and then assigns his equity of redemption 
 to a third person, who sues the tenant on a covenant to 
 repair contained in the said lease, the latter would be 
 estopped from denying that the lessor had such a legal 
 estate as would warrant the lease (7). Finally, il a 
 lessee by estoppel subsequently acquires the legal estate 
 his estate by estoppel takes precedence of his estate 
 
 si 7 : ZVi vivian v. Z"" 1 / ■ rice, 1 
 Sulk. 27»'> : and an estoppel which 
 bound the i.e., ran with 
 
 the land, was not unfavoured in 
 equity. S< e Weali v. Lower, 
 Pollexfen, ( i". 
 
 (m) Poultney v. Holmes, 1 Str. 
 lei ; Preea r. 1 'orrie, 5 B 
 25 ; Pollock \. Stacy, 9 V- B 
 
 103 
 
 1 ll} Cutlibi 1 1 '■-•a v. Irving, III. 
 I \. 7 12; in error, •'> II. & V 
 
 (0) PargeU r v. Harris, 7 Q. B. 
 708 ; Disney \. Butler, 2 Hud. & 
 Br. 199, cited in -' Wms. Saund. 
 
 (ed. 1871), pp. 829 et seq. 
 
 (/.) Cuthbertson v. Irving, 4 II. 
 & X. 642 : in en-Mr, 6 II. & N. 
 135 : notes to Walton \. WaU i - 
 house, 2 Wms. Saund. (ed. 1871), 
 pp, 829 et seq., citing Sturgeon v. 
 Wingfield, L5 M. .v W. 224. 
 
 (,p Cuthbi rtson v. /> ree/, I II. 
 .v \. 7 II' : in error, 6 II. & V 
 L35; Gouldsworth v. Knights, II 
 M. & \V. 343, explaining Whiiton 
 Peacock, l> Bing. N. C. Ill ; 
 
 also ( 'hurch v. Dalton, ~ [r. 
 ( '. I., l;. 2 19, where the authori- 
 
 are discussed,
 
 230 ESTOPPEL BY DEED. 
 
 under the assignment, &c. For instance, if a mortgagor 
 leases by indenture, and afterwards procures the money 
 to be repaid, and an assignment to be made by the 
 mortgagee to the lessee, the lessee's title to the lease by 
 estoppel, takes precedence of his title under the assign- 
 ment from the mortgagee (r). 
 
 There is no estoppel where an interest passes (s). — The 
 following instance is given by Lord Coke: A. lessee for 
 the life of B., makes a lease for years by deed indented, 
 and after purchases the reversion in fee. B. dieth. A. 
 shall avoid his own lease, for he may confess and avoid 
 the lease, which took effect in point of interest, and de- 
 termined by the death of B. (f). 
 
 In order however for the estate to be vested in the 
 grantee by way of interest, and not by way of estoppel, it 
 is not essential that the grantor should convey the actual 
 interest which he lias in the estate, for if he grant a larger 
 interest than he is entitled to, still as some interest passes 
 by the conveyance, though it be for a shorter period than 
 he intended and the conveyance professes to grant, it 
 is sufficient (u). 
 
 Thus A., tenant for life, conveyed to trustees to the 
 nse of himself for life, remainder to B. for life, remainder 
 to C. in fee. A. died, and C. brought an action of waste 
 against B. B. was not estopped from showing that A. 
 
 (r) See a case cited in Wlialey & \\. 728 ; Walton v. Waterhouse, 
 
 v. Anderson, Keble, 876. '2 Wins. -Saund. fed. 1871), p. 
 
 (.?) Treport's Case, Co. I to])., 829. 
 vol. iii-, P- 285 j Andrew v. (7) Co. Litt. 47 b. 
 
 Pearce, 1 B. & P. N. R. L58 ; (u) 2 Wms. Saund. (ed. 1871), 
 
 /,, , d! Strodi v. Seatm, 2 < '. M. pp. 829, *W.
 
 DEEDS. 231 
 
 the grantor was only tenant for life, and that upon his 
 death the limitations in the conveyance determined. For 
 in this case some interest passed under the conveyance 
 to B. and C. as well as to A. For if A. had committed 
 a forfeiture of his estate, B. might have entered and held 
 the estate during- A.'s lifetime ; and so might C. or his 
 heir if B. were, after his entry, to commit a forfeiture or 
 die during A.'s lifetime (x). 
 
 But in order that some interest may pass to the lessee 
 under the indenture, the estate out of which the lease for 
 years is carved must be some greater estate in law than the 
 term of years itself (//). Thus, it' a tenant for life leases 
 by indenture for 1000 years, the lease takes effect byway 
 of interest, and not by way of estoppel, because a freehold 
 estate is a greater estate in law than any term; and so, 
 if the tenant for life subsequently purchases the reversion 
 and dies, his heir may avoid the lease, as it took offeei 
 by way of interest. But if a tenant, say for 20 years, 
 makes a lease by indenture for 1000 years, this takes 
 
 effect 1)V Way of estoppel, and if tile lessor sill >Se< | IK'l 1 1 ly 
 
 purchases the fee simple in the land, the lease binds him 
 and his heirs (:.). However, even if a lease takes effect 
 by way of interest, there will he a mutual estoppel 
 between lessor and lessee during the continuance of the 
 term actually created, but no longer; hut this estoppel 
 arises from the relationship of landlord and tenanl 
 
 i 2 Wms. Saund. (ed. L871), (z) Rawlins's Case, as reported 
 
 ,, 330, in Jenkins's Rep. (sixth cent.), 
 
 (y) Gilrkan v. //»"/., I Sulk. case XLVL, p. 254 ; and Anon. 
 
 275 : reported r Holman \. //■< r< . Case, Moore, 2-0, 
 
 ilk. 151.
 
 282 ESTOPPEL BY DEED. 
 
 betweeD them («). The estoppel arising between land- 
 lord and tenant will be discussed in the following 
 chapter. 
 
 In consequence of the rule that a lease by indenture 
 takes effect by way of interest if the estate out of which 
 it is carved is a greater estate in law than the term 
 itself (/;), in an action by the lessor, or those claiming 
 under him against the lessee in respect of anything 
 arising out of the lease, for instance for breach of 
 covenants contained in the indenture of lease, the lessee 
 would not be estopped from traversing any particular 
 estate of the lessor in the land, so long as he did not 
 assert either that the lessor had no estate in law, or that 
 he had an estate which was a smaller one in law than 
 the term of years in question. For instance, in such an 
 action, if lessor claimed as tenant in fee, the lessee would 
 not be precluded from showing that he was only tenant 
 for life (r), or that he was only seised in respect of his 
 wife for her life, and that she died before any breach of 
 covenant occurred (d). 
 
 Certain instances are given in the older authorities, 
 showing when a lease by indenture operates by way 
 of interest, and when by way of estoppel. "Thus,'' 
 says Lord Coke, " if tenant of the land and a stranger 
 
 , Treport's Case, Co. Rep., 1 B. & B. 531 ; Weld v. Baxter, 
 
 vol. iii., p. 285. 11 Ex. 816 ; affirmed in error, 1 
 
 (6) GUman v. Hoare, 1 Salk. H. <&rN. 568. 
 
 275 ; reported as Holman v. Hore, (d) Blake v. Foster, 8 T. It. 
 
 ■'! Salk. 151. 187 ; Bill v. Saunders, 7 D. & R. 
 
 (c) Brudnell v. Roberts, 2 Wils. at p. 24. 
 143 ; see also Carvich v. Blagrove,
 
 DEEDS. 23-3 
 
 join in a lease for years by indenture, this is the 
 lease only of the tenant, and the confirmation of the 
 stranger, and yet the lease as to the stranger operates 
 by way of conclusion " (e). Again, if baron and feme 
 lease for years by indenture, rendering rent, where 
 the baron had all the estate in the land and the feme 
 in 'thing, this does not as to the feme operate by way of 
 conclusion (/). Hence it appears that if a married 
 woman leases, or joins in making a lease, having nothing 
 in the land, no lease by estoppel would be created; for 
 estoppels by deed must be mutual (//). Again, if A. is 
 seised of 10 acres, and B. of other 10 acres, and they join 
 in a lease for years by indenture, the indenture operates 
 not by conclusion but by interest, so also if two tenants 
 in common join in a lease for years by indenture (//.). 
 But if two joinl tenants in fee or for life, join in a 
 lease for years by indenture, reserving rent to one only 
 of them, this enures to him only by estoppel, by force 
 of the indenture (/). 
 
 A lease may operate by way of estoppel, even if it 
 commences by way of interest, if the lessor's interest is, 
 at the time of liis making the lease, defeasible and is 
 afterwards actually defeated (/.•). And on the other 
 hand, a lease may commence by way of estoppel, and 
 
 i . Litt. m. Cro. .lac L66 : Yin. A.b. Estop. 
 
 /"; Brereton v. Evans, 2 Cro. p. 182 j /.'<</• v. Beer, 12 < '. B. 
 
 Eliz. 700. 81. 
 
 (g) Ludford v. Barber, I T. II. (t) Co. I. ill. 17. 
 
 \k) Vin. A I .. Estop. i>. 183, 
 
 (7; ) Co. Litt. [5a 1 , Craddock citing Paulin v. Hardy, Skinner, 
 
 v. Jones, Brownl & Gold. pp. 39, 2, •">. 
 to, l:'. I ; Uantl v. Wollmgtm,
 
 284 ESTOPPED BY DEED. 
 
 operate afterwards by way of interest. Thus if A. leases 
 by indenture to 13. for 40 years, and a year afterwards 
 leases by indenture to C. for 40 years, the lease to C. 
 will opera!.' for the first 39 years by way of estoppel, 
 and for the last year will take effect by way of interest (/). 
 An interest when it accrues feeds the estoppel. — This 
 is explained in the ease of Doe <1. ( 'hristmas v. Oliver (m) 
 to mean, that if A. binds himseli by estoppel or 
 conclusion as long as a certain contingency continues, 
 when the contingency happens, the estate by estoppel 
 becomes an estate in interest, of the same effect as if the 
 contingency had happened before A. bound himself. 
 The principle is stated by Tindal, C. J., in Webb v. 
 Austin (n) as follows: "It (i.e. the indenture of 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 land- 
 lord and tenant ; and there is a term commencing by 
 estoppel, but for all purposes it becomes an estate or 
 interest. It binds the estate of the lessor, &c, and there- 
 fore continues in force against the lessor, his heirs, &c. 
 It also binds the assigns of the lessor and of the lessee. 
 If one makes a lease for years by indenture, of lands 
 wherein he hath nothing at the time of such lease made, 
 
 (I) Gilman v. Hoare, 1 Salk. 109 ; Walton v. Waterhouse, 2 
 
 275 ; reported as ffolman v. ffore, Wms. Saund. (ed. 1871), p. 829. 
 
 3 Salk. 151. -(») 7 M. & G. at p. 724, 
 
 m) 10 B. C. & 181 ; Smith's citing Preston on Abstracts, and 
 
 J.. C. (8th ed.), vol. ii., 773. Baa Ab. Tit. Leases (0) ; see 
 
 See also Hal. MSS., Co. Litt. also Govldsworth v. Knights, 11 
 
 (Hargr. & Butler's ed.), 47 &,note M. & W. 337 ; Parget^ry. Harris, 
 
 307 ; Tselmm v. ¥orrice,Cro. Car. 7 Q. B. at p. 728.
 
 DEEDS. -">•"' 
 
 and after purchases those very lands, this shall make 
 good and unavoidable his lease, as well as if he had been 
 in the actual possession and seisin thereof at the time of 
 such lease made." 
 
 Thus A., a contingent remainderman in fee, granted a 
 lease to B. by fine and indenture. After A.'s death the 
 contingency happened, and his heir entered. Held, that 
 the estate which came to the heir on the happening of 
 the contingency, fed the estoppel, and that the estate by 
 estoppel, then became an estate in interest, and had the 
 same effect as if the contingency had happened before the 
 fine levied (o). An heir apparent conveyed, during the 
 life of his ancestor, an estate which afterwards descended 
 upon him. Held, that he was estopped from saying that 
 he had no interest at the time of the conveyance (p). In 
 1742 land was demised by the Broderers' Company to F. 
 f<u- 100 years, with a covenant for perpetual renewal. In 
 1827 the residue of this term had become vested in II. 
 who in that year assigned it by way of mortgage, with pro- 
 viso for redemption. In 1828 H. demised the land by 
 indenture for 21 years to plaintiff. In 18.'5G the mort- 
 gagees and II. surrendered the premises to the company, 
 who forthwith demised tlieni to II. for 100 years. Shortly 
 afterwards the unexpired residue of this term of loo 
 years, and all the estate and interest of H. in the premises, 
 
 (p) Weal v. Lower, Pollexfen, at p. Ml. The same rule would 
 
 tlso I '"■/■ v. Edwards, '■'> apply if he levied ;i fine of tin 
 
 1'. Win'-. -">7l' ; Doev. Martyn t 8 B. lands. See Edwards v. Rogers, 
 
 a- < '. 527; Dairies v. Bush, I Sir W. Jones, 756 : Wright v. 
 
 McClel. a- V. 58 ; Fearne, ^>'>. Wright, I Ves. Sen. 11:' 
 
 (p) llaym v. MaHby, 3 T. II.
 
 236 I STOPPEL BY DEED. 
 
 wove assigned to defendant. Subsequently plaintiff 
 brought an action against defendant for breach of cove- 
 nants contained in the lease for 21 years. Defendant 
 pleaded, 1st. That II. did not demise to plaintiff, 2nd. 
 That the reversion on the term of 21 years did not vest 
 in defendant. Held, that both these issues should be 
 entered for plaintiff; for that the lease for 21 years, being 
 by deed, was a good demise by estoppel, and that a 
 reversion in H. by estoppel was thereby created, which 
 pnmd, facie was a reversion in fee, and consequently was 
 not surrendered to the company, but passed to defendant. 
 Per Parke, B., " All the reversion of H. which was a 
 reversion by estoppel, passed to defendant. This estoppel 
 was fed by the demise for 100 years from the Broderers' 
 Company to H., and thereby the lease from him to 
 plaintiff became good in point of interest" (7). 
 
 The above doctrine however does not seem to have 
 been regarded favourably in equity, for, even after the 
 Statute of Uses, a cestui que use could not take advantage 
 <>f it. Thus where A., made a feoffment by deed indented 
 to B. of Blackacre in which he had nothing, to the use 
 of C. ami the heirs of his body, remainder to B. and his 
 heirs, and afterwards purchased Blackacre, C. was not 
 allowed to take advantage of the above doctrine (r). 
 Moreover, the above doctrine does not apply so as to 
 bind persons who, after improperly, and even fraudu- 
 lently, making a conveyance of property to which they 
 are not entitled, subsequently acquire the legal estate 
 
 (q) Sturgeon v. Wingfield, 15 Irving, 4 H. & N. at p. 754. 
 M. & W. 224 ; see also per (r) See a case in Freeman's 
 
 Martin, B., in Cuthbertson v. Rep., p. 475, pi. 651.
 
 DEEDS. 237 
 
 as trustees only. Thus, where A., as lessee, under a 
 fictitious lease of freeholds from a fictitious freeholder, 
 mortgaged it by sub-demise to 13., and subsequently 
 acquired the legal estate in the freehold as trustee for C, 
 who was a confederate with him in granting the fictitious 
 lease ; held, that the mort2ra°;e by sub-demise was not 
 perfected by estoppel through the acquisition by A. of 
 the legal estate, so as to confer a title upon the mort- 
 gagee as against a subsequent purchaser for value (s). 
 Per Bacon V. C. (at p. 577), " There is no case in 
 which a trustee, having made a fraudulent representation 
 by which he is bound, or even a fraudulent conveyance, 
 when he got his legal estate, but still remaining a 
 trustee, was so estopped as to deprive the persons 
 beneficially entitled to the estate which was theirs, and 
 of which he was the trustee, and trustee only." And 
 further, the doctrine does not apply in cases where the 
 interesl from which it is sought to feed the estoppel, 
 arises from a conveyance which was obtained fraudu- 
 lently, and which the Court would order to be can- 
 celled (0. 
 
 Finally, the doctrine docs not apply to the surrender 
 of copyholds. Thus, it has been held that no estate 
 by estoppel arises from the surrender of copyholds in 
 which the surrenderor had no estate at the lime of the 
 surrender, bul which descended to him subsequently to 
 the surrender, so as to bind his heir at law (w). And 
 
 («) KmU v. Phi/lips, I- I!. Is 215; on appeal in L R. loch. 
 
 Ch. I'. 560. .\|.p. ;.•:.». 
 
 3ee remarksof Bacon, V.r, ( w ) Goodtith v. M ■ - , :i T. R. 
 
 //■„//, v. Cn dock, I.. R. 18 Eq. 371 ; Rot v. Hi . 2 Wils. 13.
 
 ESTOPPEL BY DEED. 
 
 devisees* of contingent remainders in copyholds, not 
 being in the seisin, cannol make a surrender, so as to 
 bind either the parties or their heirs by estoppel (x). 
 For no estoppel that runs with the land (?/), and in fact 
 it appears no estoppel at all (s), arises from the surrender 
 of copyholds ; and unless such surrender is valid at the 
 time, no estate passes thereunder into the hands of the 
 lord of the manor (a). 
 
 (x) Doe d. Blacksell v. Tomkins, Sen. 230 ; Doe v. Wilson, 4 B. & 
 
 1 1 East, 1 85. Aid. 303 ; Doe d. Baverstock v. 
 
 (y) Morse v. Faulkner, 1 Anstr. Rolfe, 3 N. & P. 648. 
 11-3 Swanst. 429. (a) Taylor v. Phillips, 1 Ves. 
 
 (z) Taylor v. Phillips, 1 Ves. Sen. 230.
 
 CHAPTER VIII. 
 
 LANDLORD AND TENANT. 
 
 The term estoppel in pais, according to Lord Coke, 
 originally meant an estoppel arising from "matter in the 
 country/' as distinguished from an estoppel arising from 
 "matter in writing'' (a). The instances which Lord 
 I !oke gives of estoppels of this kind, are (1) by liverie, 
 (2) by entry, (3) by acceptance of rent, (4) by parti- 
 tion (/>), and (5) by acceptance of an estate (c). 
 
 The following remarks are made by Parke, B., in his 
 judgment in Lyon v. Reed (</) : "The acts in pais which 
 l.ind parties by way of estoppel are but few, and are 
 pointed oul by Lord Coke. They are all acts which 
 anciently really were, and in contemplation of law have 
 always continued to be, acts of notoriety, not less formal 
 and solemn than the execution of a deed, such as livery, 
 entry, acceptance of an estate, and the like. Whether a 
 party had or had not concurred in an act of this sort, 
 was deemed a matter which there could be no difficulty 
 in ascertaining, and then the legal consequent 
 
 (a) Co. Litt. 352 a, 352 b ; ante, L706, et seq, 
 
 ].. t. (c) See Moore, p. 679, Tit, 
 
 For in toppele Dower, pi. 928. 
 
 bypartition, • I i. Litt. 17"./. (</) L3 M. & W. at p. 305.
 
 £40 ESTOPPEL IN PAIS. 
 
 followed." The above classification does not, however, 
 include the more modern estoppels in pais, or equitable 
 
 estoppels as they are sometimes called (V), but the 
 present chapter deals with those cases of estoppel which 
 are most nearly connected with Lord Coke's enumera- 
 tion, viz., the estoppel subsisting- between landlord and 
 tenant. Certain eases of estoppel between landlord and 
 tenant, have indeed already been eited in the chapter on 
 Estoppels by deed, but in those cases the foundation of 
 the estoppel was the deed itself, and not the particular 
 relationship of landlord and tenant. 
 
 In dealing with this branch of estoppel in pais, 
 Bigelow, in his work on Estoppel, makes the following 
 observations (,/) : "The origin and character of the 
 modern estoppel of the tenant, is to be found in the 
 ancient action of assumpsit for use and occupation. Tn 
 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 be 
 established; and, when established, the modern estoppel 
 in pais arises. Enjoyment by permission is the founda- 
 tion 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. . . . Let it, then, be borne in mind 
 that two conditions are essential to the existence of the 
 estoppel : first, possession, secondly, permission ; and that 
 
 (e) Per Lord Selborne in Citi- 6 II. L 352, at p. 360. 
 zeni Batik of Louisiana v. First (/) Bigelow on Estoppel (2nd 
 
 National Ba ' of ' . I.. It. ed.), p. 350.
 
 LANDLORD AND TENANT. '- I 1 
 
 when these conditions are present the estoppel arises" (g). 
 The general principle, that a tenant is estopped from 
 disputing his landlord's title, may be more accurately 
 stated as follows : — 
 
 A tenant, whilst in possession, is estopped from 
 disputing that, at the time when lie received possession, 
 the In milord from whom he received it had a good title 
 to the premises (h). — Thus in Doe d. Knight v. Smythe (i), 
 Dampier, J., says : "It has been ruled often that neither 
 the tenant, nor anyone claiming under him, can dispute 
 the landlord's title. He cannot put another person in 
 possession, but must deliver up the premises to his own 
 landlord." Again in Attorney- General v. Rotham (,/), 
 Sir Thomas Plumer, M.R., says : " It would be contrary 
 to the principle upon which the relation between landlord 
 and tenant exists, to allow the tenant to dispute his 
 landlord's title : for there is an implied covenant that the 
 landlord shall protect the tenant's enjoyment, and the 
 tenant shall guard the landlord's title." 
 
 The principles upon which this estoppel depends are 
 
 Well explained in the case of Morton V. Woods (//), 
 
 where Lush, .)., says (7): "Inasmuch as the parties have 
 
 See also Doe d. Bullen v. (/<) VecUe \. Warner, 1 Wins. 
 
 Mills, t M..v<:. at p. 29, where Saunders (ed. 1871), 325, and 
 
 a distinction i^ drawn between an notes. 
 
 ppel by indenture of lease, i) I M. & S. 347. 
 
 which ceases with the ces er of (./) I Turn. & ttuss. at p. 220. 
 
 the term, and estoppel by (k) I.. R. 3 Q. B. 658; I.. K. I 
 
 e of possession, which con- ( v >. B. 293 : Bee also Dancer v. 
 
 tinuea *;ll thai | ession has Hastings, I Bing. J; Jolly v. 
 
 red to • from Arbuthnot, I DeG. & J. 224. 
 
 whom i f wa ■ I) L. R. 3 Q. I', al \>. til I. 
 
 K
 
 ESTOPPEL IN PAIS. 
 
 affreed thai thev should stand in the relation of landlord 
 and tenant, and the one accordingly receives possession 
 from the other and enters on the premises, so long as he 
 continues in possession he cannot be heard to deny the 
 state of tacts which he has agreed shall be taken as the 
 basis of the arrangement: in other words he cannot set 
 up that the landlord has no legal title." 
 
 The limits of the above rule are laid down by Park, J., 
 in Gravenor v. Woodhouse (m), as follows: " Of the 
 o-eneral rule of law, that a tenant shall not be allowed to 
 question the title of his landlord where he has originally 
 received possession from him and has paid him rent, 
 there is no doubt, ever since the case of Syllivan v. 
 Stradling (u). It always furnishes a strong primd facie 
 case : but to the generality of this rule there are excep- 
 tions : for, although on the one hand the general rule is 
 most wise and politic, in not allowing a tenant lightly to 
 use, to his landlord's detriment, that title the possession 
 (.f which he has entrusted to him ; so on the other it is 
 most just so far to guard the tenant, that he may not be 
 carelessly put into the hazardous situation of paying his 
 rent twice over, and being put to the trouble and expense 
 of an action to recover that which he may have been 
 compelled to pay." 
 
 The following cases may be cited as illustrating the 
 rule above enunciated : — A. brings an action of replevin 
 against B., to which B. makes a general avowry under 
 1 1 Gr. 2, c. 19, s. 22. A. is precluded from pleading in 
 answer, that B. nil liahuit in tenementis (o). 
 
 (m) I Bing. at \>. I'-'. (o) Syllivan v. Stradling, 2 
 
 (n) 2 Wile. 208. Wils. 208; see also Parry v.
 
 LANDLORD AND TENANT. 243 
 
 B. claiming under A., lets lands for a year to C, and 
 dies, and A. afterwards brings ejectment against C. C. 
 cannot dispute A.'s title (p). 
 
 A. being in possession of premises, B. distrains on his 
 goods for arrears of rent. A. had never paid rent 
 personally to B., but lie did not replevy the goods, and 
 they were ultimately sold to satisfy the rent. Sub- 
 sequently, B. brings an action against A. for use and 
 occupation of the premises. Held, that A. is precluded 
 from denying B.'s title to the premises (7). 
 
 A. attorns tenant to B. Several years afterwards B. 
 distrains for rent, and then A. brings an action of replevin 
 against B. B. puts in the attornment. A. is precluded 
 from showing a title derived by him from a third person 
 through whom B. claims (/•). 
 
 A. hires apartments by the year of B. B. afterwards 
 lets the entire house to C, who brings an action for use 
 and occupation against A. Held, that A. cannot impeach 
 C.'S title (.9). 
 
 A., a copyholder, is admitted to a tenemenl ami does 
 fealty to the lord ol the manor, lie is estopped, in an 
 action againsl him by the lord lor a forfeiture, from show- 
 ing thai tip' legal estate was not in the lord at the time 
 <»r the admittance (t). 
 
 A. is in possession "I premises under an indenture of 
 
 House, ll"lt - Rep. 188, and note (r) Oravenor v. WoodJiouse, 1 
 
 on p. 1:91. Bing. 38. 
 
 (p) Baruiicl d, Mayon of Rich- («) Rennit v. Robinson, I Bing, 
 
 mond v. Tkomp on, 7 'I'. I:. 188. I 17. 
 
 (</) /'■in/-, a \. Jones, '■'• Camp. (/; Doe d. Nepean v. Budden, 
 
 372. '■> T, & AM. 626. 
 
 1: 2
 
 •: I !• ESTOPPEL IN PAIS. 
 
 lease. B. claiming them by an alleged title adverse to that 
 of the lessor, and prior to the lease, demands them of A., 
 and ultimately obtains possession by paying him a sum 
 of money. The landlord afterwards brings ejectment 
 against 11, the term having been forfeited. Held, thai 
 B. cannot setup his adverse title against the landlord (u). 
 
 Defendant took certain premises by agreement, from 
 F. and B., "agents for the trustees of the joint estate of 
 T. and S. B!" Plaintiffs subsequently as "trustees of the 
 joint estate of T. and S. B.," sued defendant for use and 
 occupation. It appeared, by plaintiffs' own evidence that 
 at the date of the agreement they were trustees for the 
 estate of S. B. only. Held, that defendant was estopped 
 from taking advantage of the discrepancy (x). 
 
 A. mortgages in fee to B. C, claiming by anterior 
 title, grants A. a lease. B. brings an action of eject- 
 ment against A. A. is precluded from setting up C.'s 
 title (y). 
 
 A. granted a lease of certain property to B. Sub- 
 sequently C.j who had built a house upon some adjoining 
 waste land, but had never acquired a title to it, gave up 
 possession of it to B., who let it to the defendant at a 
 yearly rent. In an action of ejectment brought by A.'s 
 assignee and B. against defendant, held, that defendant 
 was estopped from denying B.'s title to the said house 
 
 (it) Doe d. Bullen v. Mills, 2 (x) Firming v. Gooding, 10 
 
 A. & I'.. 17: see also Doc d. Bing. 549. 
 
 Manton v. Plomer, 9 Bing. II ; (,/) Doc d. Ogle v. Vickers, 4 A. 
 
 and as to the estoppel on an & E. 782 ; see also Doe d. H 
 
 under-tenant, see Johnson v. v. Clifton, 4 A. <fe E.809; Alchome 
 
 Mason, 1 Esp. i - v. Cmmm-, 2 Bing. 54.
 
 LANDLORD AND TENANT. 245 
 
 and that B. was estopped from denying A.'s title to the 
 same (z). 
 
 C. H. let certain stamping mills to a mining company 
 from year to year, and subsequently gave a notice to quit 
 to the company, and then brought ejectment against 
 them. Defendant, who was a partner in the company, 
 defended the action on their behalf. Held, that de- 
 fendant was estopped from disputing the title of C. H., 
 although C. H. had admitted, in an answer in Chancery, 
 which was in evidence, that he had no legal title (a). 
 
 S., husband of A., being in possession of lands, con- 
 veyed them in fee to a purchaser for value : but it was 
 verbally agreed between S. and the purchaser, that during 
 their joint lives the possession of S. should not be dis- 
 turbed. The purchaser died and S. received notice to 
 quit. S. then died. The notice to quit having expired, 
 and A., the widow, still retaining possession of the 
 premises, ejectmenl was brought against her by the pur- 
 chaser's representatives. Held, that she could not set up 
 against them the title of a person to whom her husband, 
 before the said conveyance, had mortgaged them for 
 ],(l()l) years (b). 
 
 A., ;m occupier of certain rooms, devised them to 1). 
 ' who had resided in the rooms in A.'s lifetime, for the 
 purpose of attending on him, remained in possession of 
 
 />.,. .1. Wheblev. Fuller, I Bion ; see Doe d. Manvert v. Mizem, 
 
 Tyr. a- Gr. 17 ; Bee also 11'"/'/ v. .' Mm,,. ,v l,\ 56. 
 
 Ryan, 10 If. Rep. C. I.. 17: and Francisv. Doe d. Uarv 
 
 Wogan v. Doyle, \i I- It. [r. 69. 1 M. & W. 331. 
 
 [n ejectment, a person defending (6) /><<. d. teeming v. Skirrow, 
 
 landlord i- bound by the same 7 A. a- I-:. 157. 
 estoppels ae the tenant in po
 
 : IT. ESTOPPEL IN VA\*. 
 
 them after his death. In an action of ejectment by B. 
 against C, held thai C. was precluded from setting- up a 
 
 title adverse to B.'s, as he came in under B/s devisor (c). 
 
 X., having no title to certain premises, lets them by 
 parol to A., and receives rent from him. Subsequently 
 another claimant, B., demands the rent ; and N., being 
 satisfied with B.'s title, informs A., in B.'s presence, that 
 he had given up the premises to B., who was now the 
 landlord, and that the rent was thenceforward to be paid 
 to B. A. acquiesces, and, upon B. demanding the next 
 quarter's rent, A. pays part of it on account. Held, that 
 A. cannot afterwards set up the title of a third person, 
 who had demanded rent, but had taken no steps to eject 
 him ((f). 
 
 A. occupied premises under B., and paid rent to him 
 as the landlord. In an action for use and occupation 
 brought by B. against A., held, that A. could not allege 
 that B. had only the equitable estate, or that he was 
 entitled only as co-executor with others who did not join in 
 the action, even though B. at the trial disclosed that fact 
 in proving his case(e). 
 
 A. becomes tenant by agreement of certain premises 
 to B., the devisee of his late landlord, and pays rent to 
 him. In ejectment by B. against A., held, that in the 
 absence of fraud A. could not offer evidence to show that 
 the devise to B. was void by reason of the incapacity of 
 testator (/). 
 
 (c) Dot d. Willis v. Birchmore, (e) Dolby v. lies, 11 A. & E. 
 
 9 A. a- E. 662. 33:». 
 
 (<l) Hall v. Butler, 10 A. .v- E. (/) Doe d. Marlow v. Wiggins, 
 
 204. 4 (}. B. 307.
 
 LANDLORD AND TENANT. 2 1 7 
 
 Tenant for life, under a devise with a leasing power, 
 let to defendant by a lease which did not notice the 
 power. After the death of the lessor, a succeeding 
 tenant for life, under the same devise, brought ejectment 
 against defendant, on the ground that the lease was not 
 a valid execution of the power. Held, that defendant 
 was not (.-stopped from setting up an outstanding term of 
 years in trustees, which was created by a tenant in fee 
 from whom the devisor had inherited^). 
 
 A.. B. and C. arc joint tenants of an estate. A. and 
 B. grant a lease of their shares to C, who enters into 
 exclusive possession of the whole estate. During the 
 continuance of such exclusive possession, C. is estopped 
 from denying his tenancy (A). 
 
 A., a mortgagor in possession, grants a lease of the 
 premises to 15., and then assigns the reversion expectant 
 on the lease to C. In an action of ejectment brought by C. 
 
 linst B., held, that B. was estopped from denying that 
 < '. had such a legal estate as would warrant the lease (/). 
 
 The above rule applies, whether the tenancy is one 
 from year to year, or at will, or by sufferance (k). It was 
 al one time, supposed thai the rule was limited to the 
 
 case of an action of ejectmenl (I). Bui it has been held 
 
 Do* d. Egremontr. Langdon, per Heath, J., in Ogh v. Atkinson, 
 
 [2 Q. B. 711. 5 Taunt. 7 •">'.» ; ami Cheesmanv. 
 
 (h) ' rv. Fletcher, l',. & E all, 6 Ex. 341, where Pollock, 
 
 S. d; l. C. B. en p. :;i h approves of the 
 
 (t) Cuthbertson v. Irving, I II. judgment in Ogle v. Atkinson, 
 
 \. 742; 6 II. a N. 135. and Martin, B., (at p. 346) dis- 
 
 (k) /'■■ d. Bailey v. Foster, 3 Bents from it. But see also Delaney 
 
 C, B. 229. v. Fox, -1 ('. B. \. S. 768, al p. 
 
 Wat on v. Lane, I I Ex. 772 ; 777.
 
 : |S l BTOPPEL IN PAIS. 
 
 to apply also to actions for use and occupation (m), of 
 replevin (rc), and for trespass (o) ; but not, it appears, to 
 actions for the recovery of chattels (p) ; and in an action 
 bv a landlord against a tenant for breach of a covenant to 
 deliver up certain fixtures, which had been claimed by 
 and delivered up to the landlord's mortgagee, it was held 
 that the tenant was not estopped from setting up the 
 mortgagee's title to the premises (</). 
 
 To the above rule there are the following limitations 
 and exceptions. 
 
 (a.) A tenant is not estopped from disputing the title of 
 d person from whom he did not actually receive possession 
 of the premises (r). — Of this, the following cases may be 
 given as illustrations. 
 
 A. demises certain premises to B., and gives him 
 possession. Subsequently, A. assigns the premises to C, 
 and B. attorns tenant to C. A. being bankrupt, C. 
 brings ejectment against B. and the assignees under A.'s 
 bankruptcy. Held, that B.'s acknowledgment of C. as 
 his landlord does not estop him from showing that A. 
 was bankrupt at the date of the assignment to C, and 
 that consequently the assignment was invalid (s). 
 
 (m) Dolby v. lies, 1 1 A.& E. 335. (</) Watson v. Luie, 11 Ex. 769. 
 
 ( Il} Syllivan v. Stradling, 2 (r) Gregory v. Doidge, 3 Bing. 
 
 Wils. 208, and other illustrations, 474 ; Brook v. Biggs, 2 Bing. 
 
 -,,..,,,, 242 ei seq. N. C. 572. 
 
 (o) Delaney v. Fox, 2 C. B. (s) Doe d. Plevinv. Broum, 7 
 
 N. S. 768. A. A- E. 447. The proper course, 
 
 (p) Ogle v. Atkinson, 5 Taunt. however, for the tenant to take, 
 
 759, aa explained by Williams, J., if he wishes to contest the title of 
 
 in Delaney v. Fox, 2 < '. B. X. S. a party who has not actually let 
 
 :it p. 777. mm '" l0 possession, is first to give
 
 LANDLORD AND TENANT. 210 
 
 M., being seised in fee of certain premises, lets a part 
 of them in 1826 to B. as yearly tenant. In 1829 M. 
 mortgages the premises to plaintiff's lessor. Subse- 
 quently B., on demand from plaintiff's lessor, pays the 
 rent to him from time to time. In 1833, plaintiff's lessor 
 demises the part not already let to B., to C. as yearly 
 tenant, who pays rent to him till 1834, and afterwards 
 underlets to W. In 183;"), both B. and W. refuse to pay 
 rent to plaintiff's lessor, and he serves on them notices to 
 quit, and then brings an action of ejectment. At the 
 trial, defendants offer to prove that M. had, in 1821, 
 mortgaged the premises to N. in fee, himself remaining 
 in possession, and that in 1835, N. had assigned his 
 interest to S. in fee, and that subsequently S. had given 
 notice to defendants to pay him the rent, and that they 
 had paid him accordingly. This evidence was rejected 
 <«n the trial, but a rule for a new trial was obtained, on 
 the ground of its rejection (t). Per Lord Denman, C.J., 
 (at p. 313), "The defendants stand in different situa- 
 tions. \V. is precluded from denying that- plaintiff's 
 lessor ever had a title, and must show that such title 
 ;,^ he had is determined. B. is precluded from denying 
 thai M. had a title, bul he is at liberty to deny that 
 plaintiffs lessor ever had any derivative title from M., 
 mil<'>- iIm- payment el' rent concludes him. We do not 
 think that he is so concluded, because he, being tenanl 
 to .M.. and having aotice el' a subsequent mortgage by 
 M. to plaintiff's lessor, had no right to question it, nor, 
 
 up possession of the premises, and P. & l>. ;it p. .">77. 
 
 then to bring ejectment. Per it) Dot d. Higginbot1u.im v. 
 
 p a tt< .... •!., in lh ill v. r,«H<r, -1 Barton, I I A. & E. 307.
 
 260 ESTOPPEL IN PAIS. 
 
 until he received notice from S. of the prior mortgage, 
 had he any reason to doubt that the legal estate had 
 passed to plaintiffs lessor. He may truly be said to 
 have paid the rent under a mistake, and then he may 
 show, not that M. had not a title bv which he, B. would 
 be estopped as against M. himself, but that M.'s title was 
 not such a one as would enable him to pass a legal 
 estate to plaintiff's lessor. As to W., he is bound to 
 admit that plaintiffs lessor had a title when he, W., was 
 let into possession."' 
 
 (/3.) A tenant is not estopped from showing that Ms 
 hi milord's title expired at a period subsequent to the date 
 when he, the tenant, teas let into possessioyi (u) ; or that 
 the landlord has, at such subsequent period, been treated 
 as a trespasser (x) ; or has sold his interest in the 
 premises (y) ; or lias mortgaged them (z). — The tenant 
 must, however, in order to be allowed to show the 
 expiration of his landlord's title, solemnly renounce such 
 title at the date of its expiration, and commence a fresh 
 holding under some other person (a). 
 
 («) England v. Slade, 4 T. R. Waterhouse, 1 Wms. Saund. (ed. 
 
 682; Neave v. Moss, 1 Bing. 1871), p. 418. In the case of an 
 
 360 ; Pope v. Biggs, 9 B. & C. at action of ejectment, the tenancy 
 
 p. 251 ; Doe d. Marriott v. Ed- must have expired previously to 
 
 wards, •"> l>- & Ad. 10G5 ; Mount- the commencement of the action ; 
 
 noy v. Collier, 1 E. & B. 030; Gibbinsy. Buckland,! H.&C. 736. 
 
 Delanep v. Fox, 2 C. B., N. S. (.») Doe d. Higgiribotham v. 
 
 768 ; Downs v. Cooper, 2 Q. B. Barton, 11 A. & E. 307. 
 
 l:.")') ; Doe d. Strode v. Seaton, 2 (y) Doe d. Lowden v. Watson, 
 
 C. M. a- E. 728; Doe d. Higgin- 2 Stark. 230. 
 
 boiham v. Barton, II A. & E. («) Waddilove v. Barnet, 2 Bing. 
 
 31 17 : Langford v. & Inn s, ."> K. & J. N. ( '. 538. 
 
 220 ; and see notes to Walton v. (a) Halt* v. Westwood, 2 Camp.
 
 LANDLORD AND TENANT. 251 
 
 Thus, where A. brought an action against B. for use 
 and occupation of copyholds and it was proved at the 
 trial that B. entered on the premises under A., and paid 
 rent to him till within the last two years, and that he 
 still continued in possession of the same, it was held, that 
 B. was precluded from setting up a forfeiture of the 
 estate into the hands of the lord of the manor ; but that 
 B. nii"'lit show that he solemnly renounced A.'s title at 
 the time of the forfeiture, and commenced a fresh holding 
 under another person (/>). 
 
 Again, A. is let into possession by B., as tenant for 
 one year certain, at a rent payable quarterly. B. 
 undertakes to finish the house by a certain time, and to 
 give A. the option of a lease at the end of the year. B. 
 himself has no other title to the premises than an 
 agreement with C, of a date previous to the commence- 
 ment of A.'s possession, by which C. agreed to grant B. 
 a lease after he had finished the houses, reserving to 
 himself a power of re-entry, and avoiding the agreement 
 if the houses were net completed within six months. 
 The houses an- not finished, and C, before any rent is 
 due from A. to !>., re-enters and turns A. out of 
 possession, and finishes the houses himself. Subse- 
 quently, A. takes the houses from C. under a new Lout) 
 ill, agreement, by which a fresh rent is reserved, and 
 
 II. Qucere, whether the ex- 630. A tenant may, however, 
 
 piration "I the landlord's title us sot up another title in himself to 
 
 to part of the premises, is a defence pari of the premises; Clark \. 
 
 pro tanto to an action for use and .I'//-. I.. R. 2 App. Cas. 423. 
 
 occupation of the whole, nnd sec (i) Balls v. Westwood, - Camp. 
 
 Mmtntnoy v. Collier, 1 !•'.. A I'.. 1 1.
 
 ESTOPPEL IN PAIS. 
 
 takes possession under the same. B. then distrains on 
 V tor rent, and A. brings an action of replevin against 
 B. Held, that the above facts are evidence for A. upon 
 
 tile is>in i o( lion ten Hit (c). 
 
 (y.) A tenant may dispute his landlords title, if he 
 has been evicted (d) by title paramount, and by a party 
 entitled to the immediate possession of the premises ; or if 
 under threat of eviction by a party having a title para- 
 mount and entitled to the immediate possession of the 
 premises, he has attorned tenant (e). 
 
 (8.) A tenant may dispute his landlord's title, if he 
 can show a better title in himself. — 'For instance, he may 
 show a prior title (/), or an affirmative title, in himself, 
 from which any title his landlord had was derived (y). 
 
 Tims, A. brings ejectment against B. ; A. claims under 
 a conveyance from C. ; B. claims under a subsequent 
 conveyance from (J. ; B. is not estopped from showing 
 that C. had no title at the date of his conveyance 
 to A. (h). 
 
 (c) Ilopcraft v. Keys, 9 Bing. 768. See, however, Bigelow on 
 615. As to what is sufficient to Estoppel (2nd ed.), p. 364, citing 
 create a fresh tenancy under the Doe d. Higgiribotham v. Barton, 
 mortgagee, where the landlord 11 A. & E. 307; Ifawkesv. Orton, 
 has mortgaged the premises, see 5 A. & E. 367, and Emery v. 
 Waddilove v. Barnet, 2 Bing. Burnett, 4 C. B. N. S. 423. 
 
 N. C. 538; Doe d. Higginbotham (e) Mayor of Poole v. Whitt, 15 
 
 v. Barton, 11 A. & E. 307; M. & W. 571. 
 contra Wiltonv. Dunn, 17 Q. i>. (/) Doe d. Colemere v.Whitroe, 
 
 294 : Evans v. Elliot, 9 A. & E. 1 Dowl. & R. N. P. Rep. 1. 
 342. (//) Ford v. Age?; 2 H. & C. 
 
 (d) The eviction must, how- 279. 
 
 ever, it appears, he actual and (h) Doe d. Oliver v. Powell, 1 
 
 not merely constructive, see A. & E. 531. 
 Delaney v. Fox, 2 < '. I'.. X V S.
 
 LANDLORD AND TENANT. 253 
 
 (e.) A tenant is only estopped from disputing Ms 
 landlords title to the extent of the interest grouted. — For 
 instance, he is not estopped from doing so after the 
 termination of his lease (7), even though he holds over 
 and after notice to quit (/.'), or after he has restored 
 possession of the premises to his landlord (/). 
 
 Thus, A. being in possession of a house and premises, 
 B. asked leave to get vegetables in the garden, and 
 having obtained the keys for that purpose, he fraudu- 
 lently took possession of the house, and set up a claim of 
 title. A. then brought ejectment against B. Held, that 
 B., having entered by leave of the party in possession, 
 could not defend an ejectment, but was bound to deliver 
 up the premises before contesting the title (m). Per 
 Coleridge, J. (at p. 11)2), "There is no distinction 
 between the case of a tenant and that of a common 
 licensee. The licensee, by asking permission, admits 
 that then- is a title in the landlord." 
 
 Similarly a licensee under a patent cannot in any way 
 question its validity during the continuance of his license. 
 Hut In- may show that what he has done (in respecl 
 of which patent royalties are claimed from him), does 
 
 Doe d. Oliver v. Powell, I The same rule holds good where 
 
 L -:;| ; /.. ,i- .V. IT. />>/. ('■>. :t person has taken a lease of his 
 
 v. West, L. I!. - ' '■ I'- 553 i Clark own laud, ibid. See also Eng 
 
 r. Adie, L. R. 2 App. Cas. 423, at v. Slade, I 'I'. 1!. 682. 
 
 p. 435. Conf. Co. I.i". 17 A; estoppel, it appears, does oot 
 
 . Moore, I continue after the death <>t' the 
 
 </•) Watson v. Lane, II Exch. parties, Co. Litt. 17 '• ; /.' 
 
 v. Evans, 2 Cro. Eliz. 700 
 . .'■ tal Death Insurance I Doe d ' 
 
 . \fcK n . f> I.. 'I'. N. S. 20. 3 \. i E. 188.
 
 254 ESTOPPEL IN PAIS. 
 
 not fall within the limits of the patent, but is something 
 extraneous to it (it). 
 
 And a mortgagor, remaining in possession of the 
 mortgaged premises, is estopped from denying the title 
 of his mortgagee (o). On a similar principle, a devisee 
 is estopped from disputing the title of the devisor through 
 whom he claims. Thus, A. being tenant by the curtesy 
 of certain premises, devises them by will to trustees for 
 his daughter R. for life, with remainder to his grandson 
 W. Upon the testator's death, R. enters into possession 
 of the premises, and remains in undisturbed possession 
 for over 20 years. W. conveys his remainder to 
 plaintiff. R., after being in possession for over 20 
 \ ears, conveys the premises in fee to defendant, who, on 
 her death, takes possession. Plaintiff brings ejectment 
 against defendant. Held, that R., having entered under 
 the will, defendant claiming through her is estopped as 
 against all those in remainder (under the will), from 
 disputing the validity of the will, and that plaintiff can 
 recover (p ). Again, A. devises real estate to B. for life 
 remainders over, and dies, and B., claiming as tenant for 
 life under the will, enters into possession of the estate, 
 and remains in possession for a period long enough to 
 acquire a title by adverse possession under the Statute 
 of Limitations. B. then by his will devises the estate to 
 
 (n) Clark v. Adie, L. R. 2 Pope v. 7%/*, 9 B. & ('. at p. 
 
 App. Cas. 423. 251 ; Hitchman v. Walton, 4 M. 
 
 (o) .\/o.<s\. < lall'i more, 1 I )ongl. & W. 409; Doc d. U.i</<i!nl,otli(iiii 
 
 279; Birch v. Wright, 1 T. R. v. Barton, 11 A. & E. 307 & 314. 
 378 & 383 : Partridge v. Bere, 5 (p) Hoard v. Board, L. R. 9 
 
 B. & AM 004 : per Bayley, J., in ( v >. B. 48.
 
 LANDLORD AND TENANT. 255 
 
 defendants, and plaintiffs, the remaindermen under A.'s 
 will, bring an action for recovery of possession against 
 defendants. Held that, assuming A.'s devise to be void, 
 and consequently there to be an intestacy as to his estate, 
 B. is not estopped from setting up his statutory title to 
 the estate, by having wrongly claimed to enter as tenant 
 for life, or by his acknowledgment that he was in 
 possession only as tenant for life (7). The principle 
 upon which estoppels of this kind depend is well 
 explained by Jessel, M. R., in his judgment in the above 
 case, as follows (r): "It is said, the tenant for life 
 entered, claiming as tenant for life having no title what- 
 ever, and because he claimed as tenant for life, and for 
 many years thought he was till he found out his mistake, 
 therefore he cannot deny there was a remainder, thai is 
 to say, because a man wrongly claimed and succeeded in 
 his wrong claim, he cannot suggest that anybody else 
 may have a wrong claim. I do not understand that al 
 all. I do understand the doctrine of the numerous cases 
 cited, which may be divided into two elasses. The firsl 
 is, that when' a man having no title obtains possession 
 of land under a demise l»y a man in possession, who 
 n» give him title as tenant, he cannot deny his 
 landlord's title; ;is for instance, it he takes for twenty- 
 one years and he finds the landlord has only live years 
 
 title, he cannol after the live years set, up against the 
 
 (q) //' n Stringer's h'.</"/< : here assumed for tin- purposes of 
 
 Shawv. Jones-Ford, I. I«' <i Ch. illustration, that the devise wa 
 
 I). I. Jessel, M.IJ.'s decision as void. 
 
 to the non-validity of A.'s devise (r) I.. R. <"> ch. 1>. at p. 9. 
 
 . : I on appeal ; bul i' 1
 
 256 ESTOPPEL IN PAIS. 
 
 landlord the Jus tertii^ though of course the real owner 
 can always recover against him. That is a perfectly 
 intelligible doctrine. Be took possession under a 
 contract to pay the rent as long as lie held possession 
 under the landlord, and to give it up at the end of the 
 term to the landlord, and having taken it in that way, he 
 is not allowed to say that the man whose title lie admits, 
 and under whose title he took possession, has not a title. 
 That is a well-established doctrine. That is estoppel 
 by contract. Another class of cases, of which several 
 instances were referred to, is this — A man is in 
 possession of land with a defective title, but he has 
 possession. In fact under the old law he could not have 
 devised without, except in the case of certain reversions. 
 He devises to a man for life, with remainder over. The 
 devisee, having no title except under the will, enters 
 under the will. It has been held that he cannot deny 
 that the testator had a right to devise in the way he has 
 devised; that is, that the testator had a sufficient title to 
 support the devise as far as the devisee is concerned, not 
 to make the devises valid which were invalid, because 
 the devises were invalid per se if the testator had 
 insufficient title. Therefore the whole of the estoppel is 
 this, 'You have entered under the will of a man who had 
 possession : as far as you are concerned, possession is the 
 fee ; you cannot say, you having no title, that he had 
 less than the fee which he purported to devise. You 
 are estopped from denying his title to dispose of that fee, 
 though you may have found out afterwards that he was 
 only tenant for years, or tenant from year to year, 
 or tenant for life, or an} thing else. You have got
 
 LANDLORD AND TENANT. 2-".7 
 
 possession under that will, and possession in law, as far 
 as von are concerned, of the fee.' All that I understand. 
 That is a little extension of the principle of estoppel by 
 contract, but it follows on the same principle. But now we 
 come to a suggested third extension, and that is this. A 
 man enters under a will which contains an invalid devise. 
 
 It is alleged that by claiming under that will and 
 
 getting possession, he affirms the invalid devise; if he him- 
 self enters without title, it is said that because he has no 
 title himself, his entry gives a new title to the remainder- 
 man. I cannot see it How can it be said that his 
 
 entry, though wrongful as tenant for life, estops him 
 from doing anything? why cannot he set up the defect 
 against the remainderman? can it make any difference if 
 it happens to be the same defect ? why cannot he admit 
 the defect, and say, ' I find now I have no claim to the 
 propertv.' It does not appear to me to be within the 
 doctrine of estoppel at all." 
 
 A tenant may also be estopped by certain acts of his, 
 such as attornment, and payment of rent, from disputing 
 the title of the person to whom he has attorned or paid 
 rent. The general principle with regard to such acts is 
 n a follows : — 
 
 A i- mi lit cannot dispute the title of the person to whmn 
 hi> /ms attorned truant and i»ii<l rent, in tli<> absence of 
 any fraud, mistalce (s), or misrepresentation, in the cir- 
 cumstances under which the attornment an<, payment of 
 • nt took i>l'i<-e {' . 
 
 ./. -/• v. Wood, i Iraig. & P. <fe C. 171. 
 [85 j Gravenor v. Woodhottse. I (t) Per Bayley, J., in Pant ■ 
 
 Bing. 38; Cornishv. Searell,8 B. v. Jones, 3 Camp. 372; Doe d. 
 
 B
 
 1 ?:>S ESTOPPEL IN PAIS. 
 
 The following cases may be given as illustrations oftlio 
 above principle. 
 
 In an action of replevin, it appeared that plaintiff had 
 come into occupation of the premises under a person who 
 had paid rent to defendant upon a distress. Held, that 
 alter proof of this fact, plaintiff was estopped from disput- 
 ing defendant's title to the rent, notwithstanding that 
 defendant inadvertently put in evidence a document, 
 which showed that plaintiff's predecessor occupied under 
 a lease to which defendant was in law a stranger (n). 
 
 A tenant, on his landlord's decease, agreed to retake 
 the premises from his landlord's devisee for a term, and 
 retained possession, and attorned tenant and paid rent to 
 the devisee. In ejectment by the devisee against the 
 tenant, held that the tenant was estopped by the attorn- 
 ment and payment of rent, from disputing the devisee's 
 title under the will (x). 
 
 A. grants B. a lease, subject to a former lease still 
 subsisting. B. pays rent to A. under his lease. A. 
 brings ejectment against B. for breaches of covenant. 
 Held, that B. cannot dispute A.'s title by setting up the 
 former lease, even though the defect in A.'s title appears 
 on the face of the instrument on which he relies (y). 
 
 Payment of rent is alone evidence of an attornment, 
 and raises the presumption of one. But this presumption 
 
 Jackson v. Wilkinson, 3 B. it C. (u) Cooper v. Blandy, 1 Bing. 
 
 W.',: Dot d. Manton v. Plomer, 9 X. C. 45. 
 
 Bing. 41 ; Cooper v. Blandy, 4 (x) Doe d. Marlowv. Wiggins, 
 
 Mom. & *r. 562; Doe d. Marlow 4 Q. B. 3G7. 
 v. Wiggins,^ Q. B. 367 : Williams {y) Duke v. Askby, 7 H. & N. 
 
 v. Eeales, I- I!. 'J <'. p. 177. COO.
 
 LANDLORD AND TENANT. 
 
 ?59 
 
 may be rebutted by other circumstances, e. //., that the 
 tenant when lie paid the rent was not acquainted with all 
 the circumstances of his landlord's title (2), or that the 
 person to whom payment of rent was made, had no legal 
 interest in the premises («), or that his title was de- 
 fective, even though payment was made under a dis- 
 tress (/;). For, generally speaking, acceptance of rent by 
 a person who has no title, does not raise an estoppel (<■). 
 And where a tenant has paid rent or acknowledged a 
 tenancy to a party who did not originally let him into 
 possession, he is not precluded thereby from showing 
 that the rent was paid under a mistake, or that the pay- 
 ment was induced by misrepresentation, and that the 
 party to whom it was paid had in reality no title to the 
 premises (d). And if the party who originally let the 
 tenant into possession dies, and the tenant afterwards 
 pays rent or attorns tenant to another party who claims 
 under the deceased (e), the tenant is not thereby precluded 
 from requiring him to prove his title to the premises (/). 
 On the other hand a party, by occupying premises, or 
 
 / ennei v. Duplock, 2 I'.ing. 
 
 10. 
 
 (a) Dot d. Harvey v. Francis, 
 2 Moo. & Rob. -"'7. 
 
 (6) Knight v. Cox, 1- C. B. 
 645. 
 
 (c) Co. Lilt. 3526. 
 
 (./) Rog< > v. Pitcher, 6 Taunt. 
 202 D< d. Nepean v. Buddt n, 
 5 B. & \M. 626 : Clarify, v. 
 McKenzie, I M. & 0. I 13. 
 
 , Lnt it appears thai it is 
 erwiae if the party to whom 
 
 rent is paid docs not claim under 
 d< ceased, e.g., where A., tenant 
 for life, granted a void lease to 
 B., who, on A.',-, deal h, paid rent 
 to the remainderman <'.. held, 
 that B. or his assigns could n »1 
 
 dispute < !.'s title in an action of 
 replevin. Johnson v. Mason, I 
 Lsp. 89 : see also Solomon V. 
 Turner, I Stark. 51. 
 (/ ) ./- w v. Wood, < 'raig. & P. 
 
 8 2
 
 ' ESTOPPEL IN PAIS. 
 
 paving, or receiving rent therefor, after another party's 
 decease, may under certain circumstances, as in the case 
 of an executor de son tort, be precluded from denying his 
 own title to the premises, and he hold personally liable on 
 covenants, &c. 
 
 For example. — A. demises to B. certain lands for one 
 year certain, and then from year to year so long as the 
 parties should think proper, with power to determine 
 the tenancy on giving notice to quit. B. dies, and his 
 executors occupy the premises and pay rent, and no 
 notice to quit is given them. Held, that they are charge- 
 able in their personal character upon the terms contained 
 in the original demise ; as their occupation, coupled with 
 the fact that the landlord abstains from giving them 
 notice to quit, raises an implied promise on their part to 
 abide by the terms of the original contract (/_/). Again, 
 plaintiff's predecessors in title grant a lease to A. his 
 executors, administrators, and assigns. A. subsequently 
 dies intestate. His widow administers his estate, and 
 remains possessed of the lease till her death. After 
 her death her son-in-law (defendant's father) without 
 administration takes possession of the premises, and 
 receives the rent, and pays the ground rent till his death. 
 After his death defendant receives the rent, and, after 
 paying ground rent, hands over the balance to his mother; 
 
 ■/) Buchvorih v. Simpson, 1 tration had been taken out to 
 
 < M , !'. 334. Mere payment the intestate's estate, is not suf- 
 
 of rent, however, on the part of ficient to vest the lease in such 
 
 an assignee of the leasehold estate assignee, as executor de son tort, 
 
 of an intestate, who is without by operation of law. Paull v. 
 
 notice that no letters of adminis- Simpson, ( J Q. B. '565.
 
 LANDLORD AND TENANT. 261 
 
 and after her death defendant continues to receive the 
 rent and pay the ground rent, no further administration 
 being taken out. In an action against defendant on the 
 covenants in the lease, held, that the defendant has 
 estopped himself from denying that he was assignee of the 
 lease, by continuing to receive the rents and pay the 
 ground rent after his mother's death (h). 
 
 Not only may the tenant be estopped by payment of 
 rent, from disputing his landlord's title, but the land- 
 lord may, by receiving rent from the tenant, be es- 
 topped from denying that he let the premises to the 
 tenant (t). Or again, a landlord may by requiring 
 his tenant to pay rent to another person, be estopped 
 from setting up his relationship of landlord against 
 him (k). 
 
 Surrender by operation of law. — The question of 
 estoppel between landlord and tenant is sometimes 
 raised by the surrender of an estate. By the Statute of 
 Frauds (/) and the Real Property Amendment Act (m), 
 surrenders of estates, excepting copyholds and customary 
 i states and those interests which by law may be created 
 withoui writing, musl be by deed. A surrender of this 
 kind, which may be called a statutory surrender, would 
 therefore, if it operated as an estoppel, lake effecl as an 
 estoppel by deed. Bui besides this class of surrender, 
 there is another, which arises from some act or agree- 
 ment of the parlies themselves, and to which effect is 
 
 (A) Williams v. Hecdes, L R. 9 in Downs v. Cooper, 2 Q. B. 25fi, 
 
 • P. 177. at p. 262. 
 
 (t) Bro. Estop, pi. D)'' . Sum- (I) 29 Oar. II. c. 3, s. 2. 
 
 v. Scolfield, 13 L T. 763. & d 9 Vict. c. L06, b. 3. 
 
 i / | Per Lord Denman, < '. J.,
 
 262 ESTOPPEL IN PAIS. 
 
 •riven at common law, and which is called a surrender by 
 operation of law. This, if it operates as an estoppel, 
 takes effect as an estoppel in pats. The general nature 
 of a surrender by operation of law is well explained by 
 Parke, B., in his judgment in Lyon v. Reed (n), as 
 follows: — "We must consider what is meant by a 
 surrender by operation of law. This term is applied to 
 cases where the owner of a particular estate has been a 
 party to some act, the validity of which he is by law 
 afterwards estopped from disputing, and which would not 
 be valid if his particular estate continued to exist. Thus 
 if the lessee for years accepts a new lease from his lessor, 
 he is estopped from saying that his lessor had not power 
 to make the new lease ; and as the lessor could not do 
 this until the prior lease had been surrendered, the law 
 -ays that the acceptance of such new lease is of itself a 
 surrender of the former. So, if there be tenant for life, 
 remainder to another in fee, and the remainderman comes 
 on the land and makes a feoffment to the tenant for life, 
 who accepts livery thereon, the tenant for life is thereby 
 estopped from disputing the seisin in fee of the remain- 
 derman, and so the law says that such acceptance of 
 livery amounts to a surrender of his life estate. Again 
 if tenant for years accepts from his lessor a grant of a 
 rent issuing out of the land and payable during the term, 
 he is thereby estopped from disputing his lessor's right to 
 grant the rent, and as this could not be done during his 
 term, therefore he is deemed in law to have surrendered 
 his term to the lessor In such a case as this 
 
 (n) 13 M. a- \\\ 285, at p. 30.5.
 
 LANDLORD AND TENANT. 263 
 
 there can be no question of intention. The surrender, is 
 not the result of intention. It takes place independently, 
 
 and even in spite of intention The surrender 
 
 would be the act of the law, and would prevail in spite 
 of the intention of the parties" (o). 
 
 There is, however, considerable doubt, arising from the 
 conflicting character of the leading decisions on the point, 
 .1- to what conduct of the parties is sufficient to constitute 
 ;i surrender by operation of law. The doubt arises where 
 in eases of leases of corporeal hereditaments, a newtenant 
 is substituted for the old one before the termination of the 
 existing lease; and the real point of difficulty is whether 
 or not an acceptance by the landlord of the new tenant, 
 with the consent of the old one, is sufficient to constitute 
 a surrender in law of the old lease. The leading case of 
 Tin, mas v. Cookr(p), followed by Walker v. Richard- 
 son (7), Turner v. Hardey (r), Lynch v. Lynch (s), and 
 Nickells v. Atherstone (/), and the principle of which was 
 applied to freeholds in Mellow v. May ("), decided thai 
 it was sufficient. On the other hand Swift \ . Heath (.<■), 
 and Lyon v. Reed (y), followed by Greagh v. Blood (z), 
 decided that it was not. The question is fully and ablj 
 discussed in tin' note to the Duchess of Kingston's ease, 
 
 (0) See also Bro. Ab. Surrender, (q) 1! M. & W. 882. 
 
 1.1. I- . Bao. Ab. Leasees. 2 ; Eto. (r) 9 M. & W. 77<>. 
 
 Ab. >v Vra. Ab. Tit. Surrender («) (i Ir. L I!. 131. 
 
 (F and Q); Comyn'a Dig. Tit. (t) 10 Q. B. '.Ml; see also 
 
 Surrender (T and I. 2); Shep- Davison v. Gent, I H. & N. 744. 
 
 pard'a Touchstone, p. 301 ; ;m<l (u) Moore, 636, cas. 876. 
 
 Fvlmerston v. Steward, Plowdi 1 Carth. 110. 
 
 Rep. 102. 13 M. & W. 285. 
 
 (,,) 2 B. & Aid. 119, l ) 3 J. & Lat. L33.
 
 264 ESTOPPEL IN PAIS. 
 
 in -Smith's Leading Cases (a), and we do not propose to 
 enter upon it here. There are, however, certain rules 
 respecting surrenders-in-law which appear to be free 
 from doubt, and which are as follows: — 
 
 (1.) Where there is an agreement between a landlord 
 and a tenant under a lease, that the latter shall vacate 
 and the former shall resume possession of the premises, 
 and possession is taken accordingly, that amounts to a 
 surrender of the lease by operation of law (/>). But, in 
 order to constitute such a surrender there must be 
 mutuality of consent between landlord and tenant (c), and 
 an actual retaking of possession by the landlord, or an 
 act or acts equivalent thereto (d). The agreement itself 
 however need not be in writing, but may be by parol, 
 notwithstanding the Statute of Frauds (e). 
 
 (2.) Without any express agreement, a surrender in 
 law may result from acts done by the landlord and tenant, 
 which are inconsistent with the continuance of the 
 tenancy. For instance, if the landlord grants the tenant 
 a new lease during the continuance of the former one, it 
 will be presumed that it was intended that the former one 
 should be surrendered, and consequently it will be con- 
 sidered as surrendered by operation of law (/). But a 
 
 {a) Smith's L. C. (8th ed.), 103; Walker v. Gode, 6 H. & N. 
 
 vol. ii., p. 886 et seq. 594 ; Cadie v. Moody, 30 L. J. 
 
 (I,) Grvmman v. Legge, 8 B. & Ex. at p. 387 ; Pheiie v. Popple- 
 
 ('. 324 ; Dodd v. Acklom, 7 Scott's well, 12 C. B. N. S. 334 ; Oastier 
 
 N. Et. 415. And, as to the effect v. Henderson, L. It. 2 Q. B. D. 
 
 ■ •f taking possession of part of 575 ; Moss v. James, 37 L. T. 
 
 the premises only, sec Holme v. N. S. 715; 38 L. T. N. S. 595. 
 
 BrumMl,h. R3Q.B.D. 495; and (e) Corey. Wright,* A. & E. 
 
 Jones v. Bridgman, 39 L T. 500. 118. 
 
 (c) Morrison v. Chadwich, 7 ( /') Per Parke, B., in Lyon v. 
 
 ( . B. 266. Reed, 13 M. k W. 285, at p. 305, 
 
 (c/) Mollttt v. Brayne, 2 Camp, and ante, p. 262.
 
 LANDLORD AND TENANT. 265 
 
 void lease, e. g., a lease made under a power of leasing 
 which is invalid, owing to the power not having been 
 properly exercised, cannot operate as a surrender of a 
 prior valid subsisting lease (//). The following cases may 
 be given as illustrations of the above rule : 
 
 Defendants, the tenants of certain premises, left the 
 key at the counting house of the landlord, and the latter, 
 although he at first refused to accept it, afterwards put 
 up a board to let the premises, and used the key to show 
 them, and painted out the tenants' names, and then gave 
 them formal notice that he had resumed possession. In 
 an action by the landlord for rent for three quarters, com- 
 mencing the day before the date of the notice, held, that 
 the return of the key, coupled with the landlord's 
 subsequent acts, amounted to a surrender by opera- 
 tion of law, and that the action was not maintain- 
 able (h). 
 
 Plaintiffs let a house to defendant for seven years from 
 Ladyday, 1868. Defendant entered and occupied till 
 .Michaelmas, when he left England for America. He left 
 the keys with an agent to dispose of the house if he could, 
 and, if not, to make the best bargain he could with plain- 
 lilt- for the surrender of the term. The agent was unable 
 to find a tenant, and gave the keys in December, L868, lo 
 plaintiffs. They employed a house agent to let the house, 
 and gave him the keys tor that purpose. The house 
 
 (,,, Wilson v. Sewell, t Burr. < x >. B. 7ol' ; Doe d. Biddulph t. 
 
 [980 1 Davison <\. Bromley \. Poole, II Q. B. 713. 
 Stanley, l Burr. 2213; Rot d. (//) Phene v. Popplewetl, 12 
 
 Berkeley*. York,6 East, 36; Dot 0. I'.. X. S. :;:ti. 
 i!. Eyi < mont v. ( '■mri. nay, J 1
 
 266 ESTOPPEL IN PAIS. 
 
 nt put up bills in the house, and advertised it to let, 
 and charged plaintiffs with the costs of the bills and ad- 
 vertisements. The house agent, with plaintiffs' authority, 
 frequently showed applicants over the house during I860, 
 and only returned the keys to plaintiffs for a short time 
 in L870, when they wanted the use of the two rooms for 
 their workmen, who occupied the same for a short time 
 for the purpose of plaintiffs' business. The house was not 
 let till Ladyday, 1872, when a new tenant was put in. 
 Plaintiffs then brought an action against defendant for 
 rent from Michaelmas, 18G8, to Ladyday, 1872. Held, 
 that there had been no possession of the house by plain- 
 tiffs so inconsistent with the continuance of defendant's 
 term, as to estop plaintiffs from alleging the continuance 
 of it, i. e., that there had been no surrender of the term 
 by operation of law (/). 
 
 (3.) If it is wished to substitute a new tenant for the 
 outgoing tenant before the expiration of the latter's lease, 
 in order for a surrender in law of the former lease to take 
 place, there should be a " triangular " agreement to that 
 'fleet between the owner of the reversion, the outgoing 
 tenant, and the new tenant (/»•). And the outgoing tenant 
 must also give up possession to the new tenant, in order 
 to complete the surrender (/). Thus, A. being tenant 
 of a close under B., and K. tenant of another close 
 
 (,) Oastier v. Henderson, L. R. 235. 
 
 2 Q. B. D. 575 ; see also Moss v. (I) Doe d. Huddlestone v. John- 
 
 James,37 L. T. N. S. 715; 38 ston, McClel. & Y. 14 1 ; Johnstone 
 
 L T. X. S. 595. v. Huddlestone, 4 13. & C. 922; 
 
 (/•) IVr Martin, K, in C'uUe v. contra, Doe d. Egremont v. F<>r- 
 
 Moody, 30 L. J. Ex. at p. 387 ; wood, 3 Q. B. 027. 
 see also Stone v. Whiting, 1 Stark.
 
 LANDLORD AND TENANT. 
 
 S67 
 
 under ])., A. and K. agreed by parol to exchange 
 closes, and to pay each other's rent. Each took possession 
 of the other's close, pursuant to the arrangement, which 
 was assented to by C, who was the steward of both the 
 landlords. Held, that on these facts there was evidence 
 to go to the jury of a surrender by operation of law of 
 K.'s interest to his landlord (on). 
 
 A mere demise of incorporeal hereditaments by the 
 landlord to a stranger with the tenant's consent, would 
 appear to be alone insufficient to constitute a surrender 
 of the tenant's interest, unless the tenant were actually a 
 party to it (n). In the case of corporeal hereditaments, 
 the law is as we have stated (o), doubtful. But it would 
 
 m that in any case such a demise would bind the 
 reversioner who granted the lease (//), or the stranger 
 who took it (q), though it might not bind the tenant who 
 was not a party to it (/•). And a distinction might 
 possibly be drawn between a case where a stranger is put 
 in by the landlord with the consent and authority of the 
 tenanl (s), and a case where the stranger is admitted pre- 
 
 (m) Bees v. Williams, 2 ( '. M. 
 . I: 581. 
 
 (n) Lyon v. Reed, 13 M. & W. 
 •J--"'. The reason appears to be 
 t h.it incorporeal her< ditaments by 
 the common law lie in grant, 
 only In' conveyed by 
 1. ('-. Liu. 9 " ; Sh ip. 
 'I'. .u<li. 228. Ami, therefore, in 
 such ' case, a urrender by deed 
 would be advisable. 
 
 •><>■ , |>. ->''■'> . and tli.' 
 t here referred 
 
 (//) Thomas v. Cook, 2 B. & 
 AM. I 19. 
 
 (y) Phipps v. Sculthorpe, I B. 
 & Aid. 50. 
 
 (/) Lyon v. Reed, 13 M. & W. 
 285. And it would certainly not 
 bind liiiu if lie merely jstond l.y 
 while his landlord granted a fresh 
 lease to another. See (',;■„,,/, v . 
 Blood, 3 J. & Lat. 133. 
 
 («) Nickelh v. 
 Q. B. 944. 
 
 therstone, In
 
 268 
 
 l>TOPPEL IN PAIS. 
 
 viouslv to any agreement being made between the land- 
 lord and the tenant (t). 
 
 Finally it may be remarked that a surrender of a lease 
 does not bar the lessor who accepted it from bringing an 
 action against the tenant on any cause of action which 
 arose prior to the surrender, e.g., on a covenant to repair 
 which was broken before the surrender (u). 
 
 Analogous cases to those of landlord and tenant. — In 
 analogy to the rule that a tenant is estopped from dis- 
 puting his landlord's title, a bailee, agent, or licensee (#), 
 is estopped, except under certain circumstances, from 
 denying the title, to goods, of the bailor, principal, or 
 licensor, respectively, (a), who entrusted him with the 
 goods, or (/3), whose title to the goods he has acknow- 
 ledged. The rule with regard to principal and agent is, 
 that an agent must account to his principal, and cannot 
 set up the jus tertii against him, except when the prin- 
 cipal has been acting under a hond fide misapprehen- 
 sion as to the rights of some third person, or has been 
 fraudulently acting in derogation of those rights. And 
 the same rule applies in the case of bailor and bailee (y). 
 
 (t) Thomas v. Coo/-, 2 B. & 
 Aid. 119. 
 
 (u) Vin. Ab. Estop, p. 461, 
 citing Bro. Estop, pi. 201. 
 
 (x) For instances of the es- 
 toppel arising between a licensor 
 (or assignor) of a patent and his 
 licensee (or assignee), see Hayn< 
 v. Maliby, 3 T. R. 438 ; Hall v. 
 Conder, 2 C.B.N.S. 22; Lawes v. 
 Purser, 6 E. & B. 930 ; Taylor v. 
 Hare, I B. & P. X. R. 260 ; Woton 
 
 v. Brooks, 7 H. & N. 499 ; Crossley 
 v. Dixon, 10 H. L. Cas. 293 ; 
 Clark v. Aflic, L. R. 2 App. Cas. 
 435. 
 
 (//) Anon. Cose, cited in Laclouch 
 v. Towle, 3 Esp. at p. 115; 
 Stonard v. Dunkin, 2 Camp. 344 ; 
 Dixon v. Hamond, 2 B. & Aid. 
 310 ; Nicholson v. Knowles, 5 
 Maddock, 47 ; Roberts v. Ogilby, 
 9 Price, 269 : Gosling v. Birnie, 
 7 Bing. 339 ; White v. Harriett, 9
 
 LANDLORD AND TENANT. 269 
 
 Thus Blackburn, J., in Biddle v. Bond(z), says, " The posi- 
 tion of an ordinary bailee, where there has been no special 
 contract or representation on his part, is very analogous 
 to that of a tenant, who, having accepted the posses- 
 sion of land from another, is estopped from denying his 
 landlord's title, but whose estoppel ceases when he is 
 evicted by title paramount." The estoppel ceases when 
 the bailment on which it is founded is determined by 
 what is equivalent to an eviction by title paramount, 
 because the bailee has no better title than the bailor; 
 and consequently if a person entitled as against the 
 bailor to the property, claims it, the bailee has no 
 defence against him (a). But it is not enough that the 
 '■ ailee has become aware of the title of a third person (b). 
 And a bailee can only set up the jus tertii against his 
 bailor, if he defends upon the right and title, and by the 
 authority, of that person (c). Thus he cannot set it up, 
 if the person making the claim, has, with full knowledge 
 of the circumstances, abandoned his claim (<!). For, to 
 allow a depositary of goods <>r money, who has acknow- 
 ledged the title of <>ne person, to set up the title of 
 another, who makes no claim, or who has abandoned his 
 claim, would enable the depositary to keep for himself 
 
 Bing. 378; Hott v. Griffin, 10 (a) Wilson v. Anderton, I B. & 
 
 246 : Eawes v. Watson, 2 A<1. t50. 
 
 C. 540; Cheesman v. Exall, (b) /!<</<//■ v. /;.,„,/,(; I',. & s. 
 
 ;il . Biddle v. Bond, 'i B. 225, ai \>. 231 (per Blackburn, J.). 
 
 I Thome v. Tilbury, 3 II. A: 
 
 ■ B S.225, at p. '-'.'.I : see V 534 (per Pollock, < '. I'..) 
 
 Shelbury v. Scotsford, Yelver (rf) Betteley v. Reed, 1 Q. li. 
 
 i v. A ■, : 511. 
 
 I
 
 £70 ESTOPPEL IX TATs. 
 
 thai to which he does not pretend to have any title in 
 himself whatever (e). Nor is it enough that an adverse 
 claim is made upon a bailee, sufficient to entitle him to 
 relief under an interpleader (f). Nor is a mere notice of 
 an adverse claim, given to the bailee by a third person, 
 sufficient ; for an agent to receive for the use of another 
 cannot, by a mere notice from a third person, be con- 
 verted into an implied trustee for him (//). But if a 
 bailee, knowing of two adverse claims to goods, elects to 
 take the part of one of the claimants and to sell the goods 
 as his, in that case he is afterwards estopped from deny- 
 ing that claimant's title (h). And if a bailee, by attorning 
 to a purchaser of goods, in effect represents to him that 
 the property has passed to him, though such was not the 
 fact, and thereby induces him to alter his position and 
 pay the price to his vendor, he is estopped from denying 
 the property of the person to wdiomhe has thus attorned, 
 by setting up a title in a third person inconsistent with 
 the representation on which he had induced the purchaser 
 to act (i). But generally speaking, where there is fraud 
 on the part of one of the claimants, a bailee will, in the 
 case of an adverse claim, be entitled to relief under an 
 interpleader (/). And, even where there is no fraud, 
 
 (e) Bettdey v. Reed, 4 Q. B. v. Bond, 6 B. & S. 225, at p. 231. 
 
 511; Biddfrv.Bond,&B. & S. 225. The representation is analogous 
 
 (/) Thome v. Tilbury, 3 H. & to a warranty of title for good 
 
 ST. 534. consideration to the purchaser. 
 
 (a) Nicholson v. Knowles, 5 See ibid. 
 Maddock, 47. (/) Cheesman v. Exall, 6 Ex. 
 
 (/<) Ex parte Davies, in re 341 ; Attenborough v. London & 
 
 Sadler, L R. 19 eh. D. 8G. St. Katherines Dock Co., L. R. 3 
 
 (i) Per Blackburn, J., in Biddle C. P. D. 450.
 
 LANDLORD AND TENANT. S7l 
 
 although a person in possession of goods may be tech- 
 nically estopped from denying the claim of the person 
 who entrusted him with such possession, yet if a bond 
 fide claim is made to them by a third person, a jury 
 should disregard the technical estoppel, and direct an 
 issue under the interpleader Acts, to try the question as 
 to the property between the plaintiff and the claimant (k). 
 
 The following may be given as illustrations of the 
 estoppel arising between bailor and bailee, principal and 
 agent, licensor and licensee, and in analogous cases. 
 
 Plaintiff sued a bailee in assumpsit for a horse, viz., 
 for breach of his contract to re-deliver it. Defendant 
 pleaded that J. S., the true owner of the horse, took it 
 from him. After verdict for defendant, it was moved in 
 arrest of judgment that, notwithstanding the verdict, 
 judgment ought to be given against defendant on his 
 own confession, by his plea in bar. But, by Fenner and 
 Felverton, contra. For the matter alleged by defendant 
 duo in law discharge the promise, by reason of the 
 former property of the horse in .1. S., and then it is as an 
 eviction of the horse out of defendant's possession, which 
 discharges the promise, as well as an eviction of the 
 less<-<- t'«>r years discliar-'- all rents, bonds, and cove- 
 nants, in any sort depending on the interest (/). 
 
 (/.; Per Brett, I.. .1 . in Atten- the original owner. See Sheridan 
 
 boroughv. London&St. Katherine'a v. .\ r eiv Quay Co., I < '. I!. X. S. 
 
 DockCo., L. I:. •"<<'• I'- !»■ t50, 618; and note at end of case 
 
 ■,i p. |f,o ; see, howevi r, Crawshay (;it p. <i"><n, referring t" Story on 
 
 v. Thornton, 2 Myl. & Cr. 1. A Bailments (2nd ed.), § 582. 
 
 fortiori, this would be done in a (/) Shelbury \. Scotsford, Yel- 
 
 ■ where the property in the verton, 22. 
 goods had never passed oul <•(
 
 278 ESTOPPEL TN PATS. 
 
 A warehouseman, on receiving an order from the 
 seller of malt to hold it on account of the purchaser, gave 
 a written acknowledgment to the purchaser that he so 
 held it. In an action by the purchaser against the 
 warehouseman of trover for the malt, held, that defen- 
 dant was precluded from adducing evidence to show that, 
 by the usage of trade, the property in malt is not 
 transferred till it is re-measured, and that, before the 
 malt in question was re-measured, the seller became 
 
 bankrupt (m). 
 
 Defendants sold 348 barrels of flour, out of a 
 
 larger quantity in their possession as warehousemen, to 
 
 C, who sold them to plaintiffs and handed to them the 
 
 delivery order. Upon plaintiffs presenting the delivery 
 
 order to defendants, they said it was all right, and 
 
 transferred the flour in their books from the name of C, 
 
 to that of plaintiffs, who thereupon paid part of the 
 
 price to C. C, having become bankrupt without having 
 
 paid for the flour, and defendants refusing to continue 
 
 the deliveries to plaintiffs, held that defendants were 
 
 estopped from saying that no property in the flour had 
 
 passed to plaintiffs, although no specific portion had 
 
 been appropriated to them (n). Per Pollock, C.B., (at 
 
 p. 174), " The real question was, whether the defendants 
 
 had so conducted themselves that the plaintiffs had a 
 
 right to say, ' We call upon you to deliver us the flour 
 
 which yon say you held on our behalf.' The question 
 
 (m) Stimardv. DunUn, 2 Camp. 2 C. & M. 530 ; Hawes v. Watson, 
 
 ;u4 2 B. & ('. 540; and Blackburn 
 
 („) Woodley v. Coventry, '1 H. on Contract of Sale, p. 161. 
 a C. 164 ; see also Gillett v. Hill,
 
 LANDLORD AND TENANT. :'"•"> 
 
 u whether the property passed, as between vendor and 
 vendee, never arose ; the only question was, whether the 
 defendants had acknowledged that they held the flour on 
 behalf of the plaintiffs, for, if so, according to law and 
 justice, they were bound to deliver it or pay the 
 damages " (o). 
 
 M. purchased of defendant, a corn dealer, with his 
 warehouse next a railway station, eighty quarters of 
 barley, which were not specifically appropriated to him, 
 and for which he did not pay. Subsequently M. sold 
 sixty quarters of the barley to plaintiff, who paid for 
 them, and then M. sent a delivery order for the barley 
 through the station-master to plaintiff. Plaintiff enclosed 
 the order in a letter to the station-master, requesting 
 him to confirm the transfer and to send him samples. 
 The station-master thereupon saw defendant, and showed 
 him both documents, whereupon defendant said, ' All 
 light ; when you get the forwarding note, I will put 
 the barley on the line." After this plaintiff gave a 
 forwarding note to the station-master for the barley, 
 which lie presented to defendant. M. in the meantime 
 having become bankrupt, and not having paid defendant 
 for the barley, defendant refused to deliver the barley. 
 I'pon an action of trover for the barley brought by 
 plaintiff againsl defendant, held, that defendant, by his 
 statement \<> the Btation-master, had estopped himself 
 from denying that he hel 1 the barley for plaintiff (p). 
 
 See noti (in. \>. 272. Cotton, L.JJ., in Simm \. Anglo- 
 
 i/o Knights v. Wiffen, I- K. 5 American Telegraph <'"., L. R. ■> 
 Q B. 660. See also the com- Q. I'.. I>. 188, a1 pp. 212, 216. 
 meats thereon by Brett and 
 
 i
 
 Ill ESTOPPEL IN PAIS. 
 
 Defendant was employed by plaintiff to sell, us an 
 auctioneer, certain goods in plaintiff's possession. Before 
 the sale, a notice was given to defendant by the assignees 
 of an insolvent, that the goods were their property as 
 such assignees, and that they had been fraudulently 
 removed by collusion between plaintiff and the insolvent. 
 Defendant, after that notice, sold the property, and 
 rendered an account of the sale to plaintiff; but, on an 
 indemnity being given to him by the assignees, he refused 
 t ( ) pay over to plaintiff the money arising from the sale ; 
 and, in an action brought against him by plaintiff, he set 
 up the title of the assignees in defence. The jury at the 
 trial affirmed the title of the assignees, and found that 
 plaintiff obtained possession of the goods by a fraud 
 1 (ctween him and the insolvent. Upon this judgment 
 was given for the defendant (q). 
 
 Goods sold to A. are afterwards claimed by B., and 
 delivered to him. In trover by A. against the vendor, 
 held that the latter cannot set up B.'s title (r). 
 
 Plaintiff, being possessed of some plate, transferred 
 it by bill of sale to M. and B., for valuable consideration, 
 but in order to defeat the execution of a judgment 
 creditor, plaintiff continued in possession of the plate, 
 and the creditor, having assigned his judgment to M. 
 and B., they issued execution thereon ; whereupon 
 plaintiff, in order to defeat the execution, deposited the 
 plate with defendant. Plaintiff then brought trover 
 for the plate against defendant. One of the questions 
 
 ( 7 ) Hardman v. WUlcoch, 'J (r) Kieran v. Sandars, 6 A. &, 
 
 Bing. 382. K. 515.
 
 LANDLORD AND TENANT. 275 
 
 left to the jury was, whether the plate was pledged by 
 defendant for a debt, or was given fraudulently, and to 
 
 defeat the execution. The jury found that the plate was 
 pledged fraudulently, and to defeat the execution. Judg- 
 ment for defendant on this finding («). 
 
 Certain goods of R. were seized by plaintiff under a 
 distress for rent of a house alleged to have been demised 
 by plaintiff to R., and were delivered by plaintiff to 
 defendant to sell as his auctioneer. When the sale was 
 about to begin, R. served a notice on defendant that the 
 distress was void, and requiring him not to sell, or, if Ik 1 
 sold, to retain the proceeds for him. Defendant sold 
 the goods, but refused to pay over the proceeds of sale 
 to plaintiff, and defended an action brought against him 
 by plaintiff, relying on the right and authority of R. 
 The distress was actually void and tortious, as the 
 relation between plaintiff and R. was not that of landlord 
 and tenant ; but, although plaintiff was a wrong doer, 
 there was no fraud on his part, as he thought he had a 
 right to dist lain. Beld, on the above facts, that 
 defendanl mighl set up the jus tertn of J{. as an answer 
 to the action (t). 
 
 An auctioneer took possession of goods on behalf of a 
 bill of sale holder, and, when the sale was stopped by 
 injunction, remained in possession of them eii behalf of 
 the receiver under a petition in bankruptcy, and 
 eventually sold them for the trustee in bankruptcy. On 
 receiving ;i notice from the bill of sale holder, the 
 
 («) r/„, man v. A'-///, 6 Ex. (t) Biddh v. Bond, 6 B. a S 
 
 341. 225.
 
 -76 ESTOPPEL IN PAIS. 
 
 .auctioneer declined to pay over the proceeds to the 
 trustee. Held, that the money, which had by consent 
 been paid into court, must be paid out to the trustee, on 
 the ground that the auctioneer had, with full knowledge 
 of the adverse claim, deliberately elected to sell the 
 goods for the trustee, and was therefore estopped from 
 denying his title (u). 
 
 (u) Ex parte Dames, in re Sadler, L. R. 19 Ch. D. 86.
 
 CHAPTER IX. 
 
 NEGOTIABLE INSTRUMENTS. 
 
 The law of estoppel bears a somewhat different 
 relation to negotiable instruments from that which it 
 bears to deeds. This distinction was pointed out in the 
 celebrated case of Swan v. North British Australasia// 
 Company (a), and seems to rest upon the ground that 
 deeds take effect by delivery, whereas negotiable instru- 
 ments derive their peculiar attributes from the law 
 merchant (h). Thus Byles, J., in his judgment in the 
 above case (c), says, " The arguments drawn from ne- 
 gotiable instruments appear altogether inapplicable. 
 The objecl of the law merchant as to bills and notes 
 made or become payable to bearer, is to secure their 
 circulation as money: therefore, honest acquisition con- 
 I, rs title. To this d< spotic bul necessary principle, the 
 ordinary rules of the cunMin.ii law arc made to bend. 
 The misapplication of a genuine signature written across 
 
 (a) 7 C. B. .V S. 100 ; 7 II. & bo far ae they are inconsistent 
 
 \. 603 j 2 II. & < '. L75 ; and Bee with the express provisions of the 
 
 pp. 357 et ■-'■/■ let, Bhall continue to apply to 
 
 (h) By the Bills of Exchange l>ills of exchange, promissory 
 
 \.t, r> & 16 Vic. c. 61), notes, and cheques, 
 
 the rules of common law, in- I 2 II. & C. 175. 
 eluding the la* merchant, save in
 
 278 ESTOPPEL IN PAIS. 
 
 a slip of stamped paper (which transaction being a 
 forgery would in ordinary cases convey ho title), may 
 give a good title to any sum fraudulently inscribed 
 within the limits of the stamp (J), and in America, where 
 there are no stamp laws, to any sum whatsoever. Negli- 
 gence, in the maker of an instrument payable to bearer, 
 makes no difference in his liability to an honest holder 
 for value: the instrument may be lost by the maker 
 without his negligence, or stolen from him, still he must 
 pay. The negligence of the holder, on the other hand, 
 makes no difference in his title. However gross the 
 holder's negligence, if it stop short of fraud, he has a 
 title. . . . The truth is, that in the case of a bill of 
 exchange or promissory note, as well as in the case of 
 a deed, the law respects the nature and uses of the 
 instrument, more than its own ordinary rules." Again, 
 Williams, J., in his judgment in the same case (e), says, 
 " In Marston v. Allen (,/'), Alderson, B., refused to adopt 
 the proposition that the previous party to a bill is 
 estopped from setting up the defence of fraud against 
 the case of a bond fide holder for value, and thought it 
 better to say that by the law merchant every person 
 having possession of a bill, has, notwithstanding any 
 fraud on his part, either in acquiring or transferring it, 
 lull authority to transfer it to a bond fide holder for 
 value (<j). It seems, therefore, doubtful whether the 
 cases as to the liability of a man who signs a blank bill 
 
 ('/; See now, however, 15 & 16 (y) See, in confirmation of this, 
 
 Vic. c. 61, s. 24. in the case of negotiable instru- 
 
 (e) 7 < . B. X. S. tOO. menta payable to hearer, Goodwin 
 
 ) s \|. ,v W. I !tk v. Robarts, L It. I App. ("as.
 
 ( 
 
 NEGOTIABLE INSTRUMENTS. 279 
 
 or note or cheque, are founded on the doctrine of estoppel, 
 
 «»r on a rule of the law merchant, that an actual authority 
 
 is thereby conferred on the person in whose hands the 
 
 instrument is. It is however plain, that none of the 
 
 decisions as to the effect of signing instruments in blank, 
 
 extend beyond the case of negotiable instruments. And 
 
 it seems to me, that it would be inconvenient and 
 
 langerous to apply the principle of them any further." 
 
 The difference between the principles of estoppel, and 
 
 the rules of the law merchant, is also well explained in 
 
 the judgment of Wilde, .!>., in the same case (//), as 
 
 follows: "It lias been contended that the doctrine of 
 
 estoppel is limited in its application to cases arising on 
 
 negotiable instruments. But why should it be so? It 
 
 rests upon a ground totally different from that which 
 
 lenders negotiable instruments valid. The law ot 
 
 negotiability is the law of property passing by delivery. 
 
 [1 gives to actual transfer the effect of real title. The 
 
 law merchanl validates, in the interest of commerce, a 
 
 transaction which the common law would declare void 
 
 for want of title or authority : and transactions within its 
 
 operation are as absolutely valid and effectual, as if made 
 
 with title or authority. But how different is the principle 
 
 of estoppel! It validates no transaction whatever. It all 
 
 along implies ;i transaction itself invalid, and a person 
 
 who is forbidden for equitable reasons to set up that 
 
 invalidity. It is therefore independent of negotiability ; 
 
 it operate iii ;i different way; founded upon principles ol 
 
 equity and fairness between man and man, it rests on a 
 
 I7»'> : Rvmballv. Tin Metropolitan p: 368. 
 
 Bank, I.. R. 2 <«>. I'.. I'. I'M. po*t, (h) 7 1 1. &. V 60S.
 
 280 ESTOPPEL IN PAIS. 
 
 wider basis than the principle which supports title in 
 negotiable instruments ; and as it has no relation to 
 commercial intercourse or the exigencies of trade, so 
 it is not confined to instruments which have become 
 negotiable by the demands of commerce." 
 
 But many of the cases on negotiable instruments which 
 arc noticed in this chapter, although, strictly speaking, 
 they may not be cases of estoppel, have been decided on 
 principles closely analogous thereto. The net result of 
 some of them is contained in the Bills of Exchange Act, 
 1882 (/), but occasional reference will be made to them 
 for the purpose of illustrating or explaining the statutory 
 " preclusion " which the Act has created in their place. 
 
 By sec. 22 of the above Act it is enacted as follows : 
 
 (1.) Capacity to incur liability (h) as a party to a bill 
 is co-extensive with capacity to contract. Provided that 
 nothing in this section shall enable a corporation to make 
 itself liable as drawer, acceptor, or indorser of a bill, 
 unless it is competent to it so to do under the law for 
 the time being in force relating to corporations. 
 
 (2.) Where a bill is drawn or indorsed by an infant (/), 
 minor, or corporation (m), having no capacity or power 
 to incur liability on a bill, the drawing or indorsement 
 
 (i) 45 & 46 Vic. c. 61. Most a note, that plaintiff, to whom 
 
 of the decisions before the Act note was made, was at the time 
 
 are collected in Chalmers's book an uncertificated bankrupt, 
 
 on Bills of Exchange, Notes and (/) Accord. Grey v. Cooper, 3 
 
 Cheques. Dougl. 65; Lebel v. Tucker, 8 
 
 (/■; As to capacity to benefit by B. <fc S. at p. 833. 
 
 a bill <»r note, see Kitchen v. (m) As to corporations, accord. 
 
 Bartsch, 7 East, '<■'>. where it was Smith v. Johnson,3 II. A- X. 222. 
 held a good plea to an action on
 
 NEGOTIABLE INSTRUMENTS. 28] 
 
 entitles the holder to receive payment of the bill, and to 
 enforce it against any other party thereto. 
 
 A corporation incurs no liability by drawing, indorsing 
 or accepting a bill, unless expressly or impliedly em- 
 powered by its Act of incorporation so to do (n). Thus, 
 a joint-stock company is incorporated for the. purpose of 
 forming a sociStS anonyme abroad for the construction of 
 railways. The directors are empowered by the memo- 
 randum and articles of association to do whatever they 
 may from time to time think incidental or conducive to 
 the main object of t lie company. These terms cover the 
 issue of hills, and such a company is liable on its accept- 
 ance^). A railway company incorporated under an 
 ordinary Railway Act, accepts bills which are negotiated. 
 The company is not liable on its acceptance (p). 
 
 By sec. 23, no person is liable as drawer, indorser, or 
 acceptor "fa bill, who lias not signed it as such. Provided 
 that : 
 
 (1.) Where a person signs a bill in a trade or assumed 
 name, he is liable thereon, as if he had signed it in his 
 own name : 
 
 (2.) Tlir signature of the name of a firm is equivalent 
 to tli^ signature by the person so signing, of the names 
 of all |mts<»iis liable as partners in thai firm. 
 
 Tims A., ;i retiring partner, omits to inform (Ik; custo- 
 mers <>f the firm, in the usual mode, that the continuing 
 partners are no longer authorised to act as his agents. 
 
 in! /,'< Peruvian Ry. Co., I.. R. 206, and post, pp. : i 7 s ,i seq, 
 l ( 'li. App. 61 7. As i" i lir (o) Ibid. 
 
 icity of married women and (/>) Bateman v. Mid-Wale* Ru, 
 
 int. nit . to contract, ee "»/- , p. ( '<<., I.. [{. I ( '. P. 199.
 
 28: 
 
 ESTOPPEL TN PAIS. 
 
 The firm accepts lulls, subsequently to A.'s retirement. 
 A. is liable on them(g'). E. orders goods from A., and 
 they arc invoiced to E. and son. A bill is drawn for the 
 price on E. and son. This bill is accepted in the son's 
 handwriting - , in the name of E. and son. The son is not 
 a partner, but his conduct leads A. to believe that E. and 
 the son are in partnership together, and A. acts on the 
 belief. The son is liable on the bill (/•). 
 
 By sec. 24, subject to the provisions of this Act, where 
 a signature on a bill is forged or placed thereon without 
 the authority of the person whose signature it purports 
 to be, the forged or unauthorised signature is wholly in- 
 operative, and no right to retain the bill or to give a 
 discharge therefor or to enforce payment thereof against 
 any party thereto can be acquired through or under that 
 signature, unless the party against whom it is sought to 
 retain or enforce payment of the bill is precluded from 
 setting up the forgery or want of authority (s). Provided 
 that nothing in this section shall affect the ratification of 
 an unauthorised signature not amounting to a forgery (t). 
 
 ('/) See per Parke, ]>., in Free- 
 man v. Cooke, 2 Ex. 654 ; and 
 Set,-/ v. Jardine, L 1!. 7 App. 
 Cas. at pp. 349, :!.">7, post, p. 378. 
 
 (r) Gurney v. Evans, •"> IT. & 
 X. 122. And see, as to the 
 principles upon which a man may 
 he held liable as a partner by 
 estoppel, Mbllwo, March & Co. v. 
 Court of Wards, L I!. 1 P. <'. at 
 p. 135, and illustrations in Chap- 
 ter X., post, pp. 326—328. 
 
 ) Mead v. Young, I T. R. 28 : 
 
 Bank <>f Bengal v. Fagan, 7 
 Moore's P. C. at p. 72 ; Robarts 
 v. Tucker, 16 Q. B. 560; Harrop 
 v. Fisher, 30 L. J. C. P. 283; 
 EeUbutt v. Nevill, L. R. 5 C. P. 
 478 ; Arnold v. Cheque Bank, 
 L. 11. 1 C. P. D. 578 ; Charles v. 
 Blackwell, L. R. 2 C. P. D. at p. 
 157. 
 
 (t) V>y see. 7-*>, except as other- 
 wise provided in this Part, the 
 provisions of this Act applicable 
 to :t hill of exchange payable on
 
 NEGOTIABLE INSTRUMENTS. 283 
 
 The result of the above section therefore, is, that forged 
 or unauthorised signatures to bills are wholly inoperative, 
 except (a.) in certain eases specially provided for by the 
 Act ; (/3.) in cases not provided for by the Act, where 
 the party against whom it is sought to retain or enforce 
 payment of the lull, is estopped from setting up the 
 forgery or want of authority; (y.) in cases where there 
 has been a ratification of a signature, which does not 
 amount to a forgery. 
 
 (a.) Cases <>f fon i<><l or unauthorised signatures 
 
 specially provided for A// the Act— (I.) By sec. 20, when 
 
 a bill is wanting in any material particular, the person in 
 
 possession of it has a prima facie authority to fill up the 
 
 omission in any way he thinks fit. But, in order that 
 
 any such instrument when completed may be enforceable 
 
 against any person who became a party thereto prior to 
 
 its completion, it must be tilled up within a reasonable 
 
 time, and strictly in accordance with the authority given. 
 
 Reasonable time for this purpose is a question of fad. 
 
 Provided thai if any such instrument after completion is 
 
 uesrotiated to a bolder in due course, it shall be valid and 
 
 effectual for all purposes in his hands, and he may enforce 
 
 il as il'il had been filled up within a reasonable time and 
 
 strictly in accordance with the authority given. 
 
 demand, apply t<> ^ cheque. Ily missory notes. [The maker of a 
 
 $9 f aubjeel t" the provisions note corresponds with the ac 
 
 in tin-, Part, and excepl as by ceptor of a bill, and the first 
 
 tins section provided, tin' pro indorser of m note corresponds 
 
 .1 is of tins Ad relating to with the drawer of au accepted 
 
 hills of exchange, apply, with tin' hill payable to drawer's order. | 
 h i v modifications, to ptfo?
 
 284 
 
 ESTOPPEL IN PAIS. 
 
 (2.) By sec. 54 (w), the acceptor of a bill, by accepting 
 it, is precluded from denying to a holder in due course (i.) 
 the existence (x) of the drawer, the genuineness of his 
 signature (y), and his capacity (z), and authority (a) to 
 draw the bill ; (ii.) in the case of a bill payable to 
 drawer's order, the then capacity of. the drawer to in- 
 dorse (b), but not the genuineness or validity of his 
 indorsement ; (iii.) in the case of a bill payable to the 
 order of a third person, the existence of the payee and 
 his then capacity to indorse (c), but not the genuineness 
 or validity of his indorsement (</). 
 
 The following case may be given as an illustration : 
 B., a member of the firm of W. and B., solicitors, drew 
 and indorsed for value to plaintiff, in the partnership 
 name, a bill of exchange payable to the order of W. and 
 B., which defendant accepted without consideration. 
 
 (u) Subject to any renunciation 
 of rights. See sec. 62. 
 
 (x) Accord. Cooper v. Meyer, 
 10 B. & C. 468 ; Ashpitel v. 
 Bryan, 5 B. & S. 723. 
 
 (y) Accord. Jenys v. Fawler, 
 2 Str. 946 ; Smith v. Chester, 
 1 T. R. 654; Sanderson v. 
 Collman,i M. & G. 209; Beeman 
 v. Duck, \ 1 M. A- W. 251 ; contra, 
 Wilkinson v. Lutvridge, I Str. 648. 
 
 (2) Accord. Smith v. Marsack, 
 6 ( '. B. 486 ; Hallifax v. Lyle, 3 
 Ex. 446. 
 
 (a) Accord. Braiihuoaite v. Gar- 
 diner, 8 Q. B. 473; Smith v. 
 Marsack, ibid. ; Hallifax v. Lyle, 
 ibid. 
 
 (h) Accord. Pitt v. Chappelow, 
 
 8 M. & W. 616 ; Smith v. 
 Marsack, 6 C. B. 486 ; Hallifax 
 v. Lyle, 3 Ex. 446. 
 
 (c) Accord. Drayton v. Z)«/c, 2 
 B. & C. 293. 
 
 (r/) Accord. Smith v. Chester, 1 
 T. R. 654 ; J/ear/ v. Young, 4 
 T. R. 28 ; Robinson v. Ta/row, 7 
 Taunt. 455 ; Beeman v. .£)?«•&, 11 
 M. & W. 251. The acceptor, 
 supra protest, is bound by the 
 estoppels which bind an ordinary 
 acceptor ; and also by the estoppels 
 which would bind the party for 
 whose honour he accepted ; see 
 Chalmers on Bills of Exchange, 
 p. 176, citing Phillips v. Im Thurn, 
 18 C. B. N. S. 694 ; L. R 1 
 ('. P. at p. 171.
 
 NEGOTIABLE INSTRUMENTS. 285 
 
 The indorsement was in respect of an entirely private 
 matter of business between B. and plaintiff, unconcerned 
 with partnership purposes. B. had no authority from W. 
 either to draw or to indorse the bill. In an action by 
 the indorsee against defendant, defendant by a plea 
 traversed the indorsement. Held, that defendant was 
 not estopped by his acceptance from giving evidence in 
 support of the plea(<°). Per Blackburn, J., delivering 
 the judgment of the court : " If the defendant had 
 accepted the bill with the intent that B. should indorse 
 the bill, and so raise money on it, it might have been a 
 serious question whether she would no1 have been estopped 
 from denving the indorsement (/) : but no such fact is 
 found. And, in the absence of such a fact, the acceptor 
 (generally), though he admits the authority of the person 
 drawing the bill to draw it, does not admit the authority 
 of the same person to indorse it.'" 
 
 (3.) By sec. 55, sub-sec. 2 (//), the indorser of a 
 bill, by indorsing it. (i.) is precluded from denying to a 
 holder in due course the genuineness and regularity 
 in all respects of the drawer's signature (It), and all 
 previous indorsements (/), (ii.) is precluded from deny- 
 ing to his immediate or a subsequent indorsee, that 
 the bill was at the time of his indorsement a valid and 
 
 i. i Garland v. Jacomb, L. R. Salk. Il'7. 
 
 Ex. 216. (') Accord. Critchlowv. Parry, 
 
 ■ , Beeman v. Duck, II \l. & 2 Camp. 182; Ex part Clai 
 
 W. 251. 3 Bro. C. C. 238 ; Thicknessi s. 
 
 Subject to any renuncia- Bromilow, 2 Cr. <fc J. 125 ; Armani 
 
 •fright til'. v. Castrigue, L3 \l. & W. II.".; 
 
 (In Accord. Lambert v. Pack, I McGregor v. Modes, 6 E. <& B. 21
 
 Osi; 
 
 KST01TEL IX PAIS. 
 
 subsisting hill, and that lie had then a good title 
 thereto (k). 
 
 (4.) When a hill payable to order on demand is drawn 
 «n) a hanker, and the hanker on whom it is drawn pays 
 the bill in good faith and in the ordinary course of busi- 
 ness, it is not incumbent on the banker to show that the 
 indorsement of the payee or any subsequent indorsement 
 was made by or under the authority of the person whose 
 indorsement it purports to be, and the hanker is deemed 
 to have paid the bill in due course, although such indorse- 
 ment has been forged, or made without authority (/). 
 
 The protection afforded to bankers by the above sec- 
 tion (and the one referred to in the note), only applies 
 to bills payable to order on demand, drawn on bankers, 
 />., to cheques (see sec. 73). Thus it does not provide 
 for a case like the following one. An insurance com- 
 pany were in the practice of paying losses due to country 
 customers, by accepting drafts on the company in 
 London, drawn by their country agent to the order of the 
 customer. The drafts were not drawn till the company 
 in London gave the agent leave to draw ; nor accepted, 
 till they bore the indorsement of the payees, and were 
 found, on examination, to correspond with the leave to 
 
 (/■) Accord. Burchfield v. Moore, 
 23 L. J. Q. B. 2G1. By sec. 56, 
 where a person signs a bill other- 
 wise than us drawer or acceptor, 
 he thereby incurs the liabilities 
 of an indorser, to a holder in 
 due course. 
 
 (I) Sec. 60. A similar protec- 
 tion to bankers is afforded by 
 
 16 & 17 Vic. c. 59, s. 19, a 
 section which still remains in 
 force ; and, for decisions there- 
 under, see 0<i<1en v. Benas, L. It. 
 9 C. P. 513 ; Charles v. Blachwell, 
 L. R. 2 C. P. D. 151. Further, 
 for the statutory protection af- 
 forded to bankers paying crossed 
 cheques, see 39 & 40 Vic. c. 81.
 
 NEGOTIABLE INSTRUMENTS. - ' s 7 
 
 draw. When accepted, they were made payable at the 
 bank of R., the London banker of the company, li. was 
 not informed of this practice. A loss of £5,000 became 
 due to I. at Manchester. The agent of the company at 
 Manchester, in pursuance of their leave, drew on the 
 company a draft for £5,000 payable to the order of I., 
 and delivered it to l.'s solicitor. This draft, purporting 
 to be indorsed by I. to the order of J. and L. (London 
 bankers), was by J. and L. presented for payment to the 
 company, and accepted by them, payable at R.'s bank. 
 On maturity, it was there paid to J. and L. This 
 payment was debited to the company in the pass-book 
 delivered to them, and they credited R. with the payment. 
 No objection was made till, six months afterwards, it was 
 discovered that the indorsement purporting to be that of 
 I., was a forgery by the solicitor, and the company were 
 compelled to pay 1. In an action brought by the 
 company against R., to recover the amount of the bill, 
 ii was held (by the Court of Exchequer Chamber in 
 error), first, that the acceptance of a bill of exchange 
 payable at a banker's, is tantamount to an order to the 
 banker, to pay the bill to any person who, according to 
 the law merchant, can give a valid discharge for it, and 
 not merely to the lawful holder; and that the banker 
 may debit his customer with such payment. Secondly, 
 
 that a banker cannot debil his customer with a payment 
 made to one who claims through a forged indorsement, 
 
 and so can no! give a valid discharge for the bill, unless 
 there he circumstances amounting to a direction from the 
 customer to the hankers, to pay the bill without reference 
 to the genuineness of the indorsement, or equivalent to
 
 28S ESTOPPEL IN PATS. 
 
 an admission of its genuineness, inducing the banker to 
 alter his position, so as to preclude the customer from 
 shewing- it to be forged ; that the facts in the case 
 afforded no evidence to go to the jury of such a direction, 
 or of such an inducement, and that therefore plaintiffs 
 were entitled to recover (m). 
 
 But where S. K., an agent of S. and Co., plaintiffs, 
 having authority to sell goods for them and to receive 
 payment by cash or cheque, but not having authority 
 to indorse cheques, received from defendants, in pay- 
 ment for goods supplied, a cheque on their bankers 
 drawn payable to S. and Co. or order ; and S. K. in- 
 dorsed it " 8. and Co., per S. K., agent," received the 
 money from the bankers, and misappropriated part of 
 it, and the bankers returned the cheque to defendants, 
 and the amount was allowed in account by defendants ; 
 it was held, affirming the decision of the Common Pleas 
 Division, that such payment by the bankers was within 
 the protection of the before mentioned Act (;/) ; and that 
 plaintiffs could not maintain an action against defendants, 
 either for the price of the goods or for the cheque (o). 
 
 (/3.) Cases not provided for by the Act, where the party 
 against whom it is sought to retain or enforce payment of 
 tin' bill, is precluded from setting up the forgery or want 
 of authority. — These maybe classified as follows: — 
 
 (1.) Cases where the party whose signature has been 
 forged or placed on the bill without his authority, has 
 
 (to) Robartsw. Tucker, Hi Q. B. ante, |>. 286, note (/). 
 560; explained in Woods v. (o) Charles v. Blachwell, L. R. 
 
 Thiedemann, 1 H. k C. at p. +95. 2 C. P. D. 151. 
 
 in) 16 a: 17 Vic. c. 59, s. lit,
 
 NEGOTIABLE INSTRUMENTS. 
 
 289 
 
 led a bond fide holder for value to believe that the 
 nature is genuine, and the belief has been acted 
 upon (/»). Thus, B.'s acceptance to a bill is forged. 
 C, a bond fide holder for value, being informed that the 
 signature is not B.'s, writes to B. to inquire; B. writes 
 back, acknowledging the signature. C. then retains 
 the bill, and afterwards sues B. on it. B. is liable on 
 the acceptance (7). 
 
 (2.) < 'ases where the party whose signature is un- 
 authorized, has, by his conduct, consented to the exercise 
 by the person who signs without authority, of an 
 authority to sign his name, and the bill is negotiated to 
 a bond fide holder for value without notice. Thus, B., 
 a partner in a trading firm, fraudulently accepts a hill in 
 the firm's name for a private debt of his own. It is 
 negotiated to a bond fide holder for value without notice. 
 The firm is estopped from setting up B.'s fraud (/•)• Per 
 AVilk-s, J., "The reason why, in the case of a partner- 
 ship, a party i> hound by an acceptance which is not his 
 own, but that of his co-partner, is a reason founded on 
 
 (,,, 'I'Ih; mere facl that the 
 
 party paid :i ''ill on a formi r 
 
 ision which bore the same 
 
 icmature. ie rtol relevaul < \ idence 
 
 under this heading. Morris v. 
 
 Bethell, I.. I;. 5 C. I'. 17. As to 
 
 the course <>f dealing necessary t<> 
 
 i, auch :> belief, see Barber 
 
 v. Gingell, '■'< Esp. 'i* 1 : and cf. 
 
 McKentii v. British Limn Co., 
 
 I., l:. •; \|.i Ca . p. 350. 
 
 (,/) Wilkinson v. Stoney, I -J. 
 
 I Hogg v. Skeen, Is ( '. 1!. 
 X. S. at p. I •'.•-'. A bond fide 
 holder for value without uotii 
 denominated in the Art a holder 
 in due course (see sec. 29). The 
 rights of a holder in due course 
 belong to all those who derive 
 title td t he lull through him, and 
 an' nut t hemselves pari ies to any 
 fraud "i' illegality affecting it 
 [ibid.). Sir also sec. 30, sul>- 
 
 -.
 
 -Mil KSTOI'I'KI. IN PAIS. 
 
 the law of estoppel in pais. Having consented to the 
 exercise by another of an apparent authority to accept 
 bills so as to bind him (even though such authority has 
 been fraudulently exercised), as against a person who has 
 taken the bill bond fide and without notice of the fraud, 
 the acceptor is estopped from denying the acceptance." 
 
 (3.) Cases where a party, who would not otherwise 
 be estopped from denying the genuineness of a signature 
 which is forged, has negotiated the bill with knowledge 
 of the forgery. Thus, a bill of exchange, purporting to 
 be drawn by B. & W. (a really existing firm) payable to 
 their order, and indorsed by them, is negotiated by the 
 acceptor with that indorsement upon it. The drawing 
 and indorsement are forgeries, but the bill is accepted, 
 and negotiated by the acceptor, with knowledge of the 
 forgery. He is estopped from denying the genuineness 
 of the indorsees signature, as well as that of the 
 drawer (s). 
 
 (4.) Cases where a party is estopped from denying the 
 genuineness of a signature which is forged, owing to his 
 own negligence. The negligence, however, in order to 
 operate as an estoppel must be (a) in the transaction 
 itself, and not merely collateral to it ; (/3) the proximate 
 cause of leading the third party into mistake ; and (y) 
 the neglect of some duty which is owing to such third 
 party or to the general public (t) ; and, if the instrument 
 
 (*) Beeman v. Dvd; II M. & 7 H. &, X. 603 ; 2 H. & C. 175 ; 
 
 \V. 251. Arnold v. Cheque Bank, L. R. 1 
 
 (/) Freeman v. Cooke, 2 Ex. C. P. D. 578; Baxendale v. 
 
 654 : Swan v. North British Am Bennett, L. R. 3 Q. B. D. 525. 
 tralasian Co., 7 C. B. X. S. 400:
 
 NEGOTIABLE INSTRUMENTS. :>'.>! 
 
 is inchoate (?/), it must (8) have been issued with the 
 intention of its being used. Thus, defendant gave H. 
 his blank acceptance on a stamped paper, and authorized 
 H. to fill in his name as drawer. H. returned the 
 blank acceptance to defendant in the same state in which 
 he received it, Defendant put it into a drawer of his 
 writing table at his chambers, which was unlocked, and 
 it was lost or stolen. C. afterwards filled in his own 
 name, without defendant's authority, and an action was 
 brought on it by plaintiff as indorsee for value. Held, 
 that defendant was not liable on the bill : per Brett, 
 L. J., on the ground that, after the return of the blank 
 acceptance by H., defendant had never authorized any one 
 to fill in a drawer's name, and that he had never issued 
 the acceptance with the intention of its being used (./•). 
 
 If the above conditions arc fulfilled, the rule laid down 
 in Lickbarrow v. Mason (ij), applies, namely, that when- 
 ever one of two innocent persons must suffer by the act 
 of a third, lie who has enabled such person to occasion 
 tlic loss must bear it. Of this rule the following cases 
 mav be given as illustrations, although the first two have 
 recently been doubled as authorities (z). 
 
 (u) By sec. 20 of the Act, Letois,L. R. L0 Q. I'-. D. 30 j and 
 
 where a Bimple signature on a accord. Russell v. Langstaffe, 2 
 
 blank stamped paper is delivered Dougl. ">l I ; Young \. Grote, l 
 
 by the signer, in order that it Bing. 253; Montague v. Perkins, 
 
 may be converted into a bill, it 22 L.J. C. I*. 187. 
 
 operates as a primdfacie authority (x) Baxendah v. Bennett, L. I!. 
 
 to fill it up a a complete Mil for 3 ',> B. D. 525. 
 
 any amount the stamp will cover, (//) 2 T. I!. <>•">. 
 
 using tb nature for thai of I ) See post, pp. 292, 293, nnti 
 
 tin' drawer,or tin- acceptor, or an (a) and (6) 
 indorser. See also Garrard v.
 
 : >.' ESTOPPEL IN TAls. 
 
 A rust omer of a bank delivered to his wife certain 
 printed cheques signed by himself, but with blanks for 
 the sums, requesting his wife to fill up the blanks accord- 
 ing- to the exigency of the business. She caused one to 
 be filled up with the words fifty pounds two shillings, the 
 fifty being commenced with a small letter, and placed in 
 the middle of a line. The figures 50 were also placed at 
 a considerable distance from the printed £. She delivered 
 the cheque in this state to her husband's clerk to receive 
 the amount : whereupon he inserted at the beginning of 
 the line in which the word fifty was written, the words 
 three hundred and, and also the figure 3 between the £ 
 and the 50. The bankers having paid the £350 2s., held, 
 that the loss must fall on the customer, the drawer of the 
 cheque, on account of the negligent way in which it had 
 been filled up by his wife (a). 
 
 V. accepted a bill, and gave it to B. '(who put his 
 name thereto as drawer), for the purpose of his procuring 
 it to be discounted, and handing over the proceeds to A. 
 B. having failed to discount the bill, returned it to A., 
 who tore it in half, and threw the two pieces into the 
 street. B. picked up the pieces in A.'s presence, and 
 afterwards pasted them together, and put the bill in cir- 
 
 (a) Young v. Grote, t Bing. < '. P. D. at p. 587 ; and followed 
 
 253, as explained by Lord Cole- in Halifax Union v. Wheeltoright, 
 
 ridge, C. J., in Arnold v. Cheque L. R. 10 Ex. 183 (post, pp. 293-5); 
 
 Bank, I.. El. 1 C. P. I>. at p. 587. but has since been doubted by 
 
 Young v. Grote, was cited and not Brett, L. J., in Baxendale v. 
 
 pproved of in Swan's Case, Bennett, L. li. 3 Q. P>. D. at p. 
 
 post, pp. 357 et seq., approved of in 534 ; and see now sec. 64 of the 
 
 Foster v. Green, 7 II. & V 881, Act, post, p. 296. 
 and Arnold v. Cheqm Bank, I.. I!. 1
 
 NEGOTIABLE INSTRUMENTS. 293 
 
 dilation, and it came into the hands of a londfide holder 
 without notice, who sued A. on the bill. The tearing 
 of the bill was done in such a way that the appearance 
 of the bill was consistent with its having been divided 
 for the purpose of safe transmission by post, as well as 
 with the fact that it was divided for the purpose of des- 
 troying it. But the jury found that A. tore the bill in 
 half, witli the intention of cancelling it. Held, that A. 
 was liable on the bill (6). 
 
 A hanker indorsed, for the benefit of a customer, two 
 parts of a bill, both being fully stamped, and with the 
 words "eight days" written sufficiently far apart for the 
 insertion after the indorsement of the letter "y." Held, 
 that such parts did not constitute two bills, and that there 
 was no negligence so as to disentitle the hanker from 
 setting up the alteration as a defence to an action on the 
 bill ; and that he was not estopped from taking advantage 
 of a fraudulent sale by the customer, of the two parts as 
 separate bills (c). 
 
 Defendant, the salaried manager of a bank, was 
 appointed treasurer to guardians of the poor. A 
 treasurer's account between him and the guardians 
 was duly kept, ami moneys were from time to time 
 paid into the bank of which lie was manager, 1o the 
 
 (h) Ingham v. Primt J C. i1 in the t< I an illustra- 
 te s. 85 Tl wab, how tion "l' principle 
 
 ever, dissented from l>y Brett, (c) & >■ <■< ndrali v. .IA/ 1 /. 
 
 I.. ,|. ; in Baxendale v. /:,,>,><//, politan Bank, 2 I W. II. 335. 
 I,, i;. :; Q, B. I». at p. 532; but \ml sec now ■■> )•■ alteration 
 
 it hat nol '"' ii expressly over- The Bills of Exchange Art. 1882 
 
 ruled, and it has for bo long been ( r> a- m Vic. <•. 61, s. HI), post, 
 
 rded a an authority thai we p. 296.
 
 394 ESTOPPEL IN PAIS. 
 
 account of the guardians, and orders signed by the 
 guardians were, in conformity with the orders, cashed like 
 cheques payable to order. Defendant received no salary 
 or remuneration as treasurer, and the guardians received 
 interest on their balance, when it exceeded £3,000. A 
 person in the service of the clerk to the guardians, who 
 was employed to fill up the orders for signature by them, 
 drew a number of orders in such a way that the amounts 
 for which they were drawn could be increased by the 
 insertion of words and figures in the blank spaces, and, 
 after signature of the orders he increased the amounts 
 accordingly. He also forged indorsements to orders so 
 increased in amount, and to others not so increased, and 
 obtained payment of them at the bank. On a case 
 stated by an arbitrator, in an action brought by the 
 guardians against defendant for the amount of the orders 
 so paid, it was found as a fact, that the payment by the 
 treasurer's clerks of the excess was due solely to the fact 
 that they were misled by want of proper caution on the 
 part of plaintiffs and their clerk in signing the orders — 
 fraudulently prepared for their signature. Held, that the 
 negligent drawing of the orders disentitled plaintiffs to 
 complain of the payment of the excess (d). Per Cleasby, 
 ]>. (at pp. 191, 102), delivering the judgment of the 
 court, and speaking of the various reasons which had 
 been given lor the decision in Young v. Groie(e). " But 
 these various reasons for the conclusion only show how 
 incontestable the conclusion itself is — and it is perhaps 
 
 (d) Halifax Union v. Wheel- (<-) I Bing. 253. 
 tvright, I.. I:. L0 Ex. Is:;.
 
 NEGOTIABLE INSTRUMENTS. 295 
 
 only an application of one of those general principles, 
 which do not belong to the municipal law of any parti- 
 cular country, but which we cannot help giving effect to 
 in the administration of justice, viz. : that a man cannot 
 take advantage of his own wrong, a man cannot complain 
 of the consequence of his own default, against a person 
 who was misled by that default, without any default of 
 his own." 
 
 There must, however, be some actual negligence on the 
 part of an innocent person in order to render him liable. 
 Tims, the manager of plaintiff's bank obtained defendant's 
 signature to a cheque, purporting to be drawn upon the 
 bank by defendant, under the pretence that it was a 
 receipt, defendant being unable to read. The manager 
 then paid defendant a private debt of his own, witli the 
 banker's money. The transaction was entered in the 
 books of the bank as a loan from the bank to defendant, 
 upon his cheque. Held, that plaintiff could not recover 
 the money from defendant, (1) on the ground that the 
 cheque had been obtained by the fraud of his agent, (z) 
 <>ii the ground that, defendant being unable to read, there 
 was no culpable negligence on his part in signing a docu- 
 ment represented to be a receipt (/). 
 
 (y.) Cases where then has been " r<ttiji<<ifi<>u of a 
 signature which does i><>i amount to a forgery. 
 
 In order Fot ;i ratification to be possible there must not 
 have l"'«'ii any actual forgery of the signature. Thus, A. 
 forges B.'s signature to a promissory note for £100. 
 
 v. Green, 7 II. & V would have been Bufficietri in face 
 I. Quaere, whether, even if of the agent'B fraud, 
 ligem c had been [>voved, this
 
 296 1 8 rOPPEL IN PAIS. 
 
 Before the note matures, the holder finds out that B/s 
 signature is a forgery, and threatens to prosecute A. In 
 order to prevent this, B. gives the holder a memorandum, 
 which says: l l hold myself responsible for the note for 
 £100 bearing my signature." The ratification is invalid. 
 B. is not liable on the note (//). 
 
 By sec. 54 it is further enacted, that the acceptor ol a 
 bill, by accepting it, is precluded from denying to a 
 holder in due course, the existence of the drawer, and 
 his capacity to draw the bill. 
 
 By sec. 55 of the Act, sub-sec. 1, the drawer of a bill, 
 by drawing it, is precluded from denying to a holder in 
 due course, the existence of the payee and his then 
 capacity to indorse (h). He is not however precluded 
 from denying the genuineness of the payee's indorse- 
 ment (i). 
 
 By sec. 88, sub-sec. 2, the maker of a promissory note, 
 by making it, is precluded from denying to a holder in 
 due course the existence of the payee and his then 
 capacity to indorse. 
 
 By sec. 64, (1) where a bill or acceptance is 
 materially altered without the assent of all parties 
 liable on the bill, the bill is avoided, except as against 
 a party who has himself made, authorised, or assented 
 to the alteration, and subsequent indorsers. Provided 
 that, where a bill has been materially altered, but the 
 
 ( :/) Brook v. Hook, L. R. 6 Ex. Im Thurn, 18 C. E. N. S. 691 ; 
 
 . cited in Chalmers on Dills of L. R. 1 C. P. at p. 471. 
 
 Exchange, at p. 65. (/) Duncan v. Scott, 1 Camp. 
 
 (/,) Accord. Collis v. Emmett, LOO. 
 1 II. Bl. 313; Phillips v.
 
 NEGOTIABLE [NSTRUMENTS. 297 
 
 alteration is not apparent, and the bill is in the hands o( 
 a holder in due course, such holder may avail himself of 
 the bill as if it had not been altered, and may enforce 
 payment of it according to its original tenour ; (2) in 
 particular, the following alterations are material, namely, 
 any alteration of the date, the sum payable, the time of 
 payment, the place of payment, and, where a bill has 
 been accepted generally, the addition of a place of pay- 
 ment without the acceptor's assent. 
 
 ft seems that an alteration of the marginal figures in a 
 bill would not be a material alteration within the above 
 section, as the marginal figures are not an essential part 
 of the bill (/,•). But, with regard to material alterations, 
 the above section appears to alter the law in cases like 
 Young v. Grote (/). 
 
 (k) Garrard v. Lewis, L. R. 10 (I) i Bing. 253 ; ante, p. 292. 
 
 Q. B. D. 30.
 
 CHAPTER X. 
 
 REPRESENTATION. 
 
 The first enunciation in England of the above as a 
 distinct branch of estoppel was made in the well-known 
 case of Pickard v. Sears (a), described by an American 
 writer on estoppel (/;) as a case which bears much the 
 same relation to this part of the subject as the Duchess 
 of Kim/dons case does to estoppel by record. The 
 origin, however, of this branch of estoppel, according to 
 the same author, is to be found in equity, and he cites 
 the authority of Lord Eldon in Evans v. Bicknell (c), 
 who says : " For it is a very old head of equity, that if a 
 representation be made to another person going to deal 
 in a matter of interest upon the faith of that representa- 
 tion, the former shall make that representation good, if 
 he knows it to be false" (<l). The rules of law, however, 
 
 (a) 6 A. & E. 469 ; see also see Burrowes v. Loch, 10 Ves. 
 
 Heane v. Rogers, !) 13. & C. 5SG ; Junr. 470. 
 
 and Graves v. Jut/, 3 B. & Ad. (d) The same principle had, 
 
 318, note (a) ; where the princi- however, been adopted at common 
 
 pies laid down in Pickard v. Sears, law in actions of deceit. Sec 
 
 were foreshadowed, but not dis- Pauley v. Freeman, 3 T. R. 51. 
 
 tinctly enunciated. And see Simm v. Anglo-American 
 
 (6) See Bigelow on the Law of Telegraph Co., L. U. 5 Q. B. I>. 
 
 | jtoppel (2nd ed.), p. 131. 188 (per Brett, L. J., at p. 20G). 
 Jnur. 173, 182 ; and
 
 REPRESENTATION. 299 
 
 applicable to this class of estoppel, have only taken 
 definite shape in modern times. 
 
 The principles upon which estoppels of this kind 
 depend, are well stated in the cases of Pickard v. 
 Sears (<?), Gregg v. Wells (/), and Freeman v. 
 Cooke (//), which may be regarded as leading cases 
 upon this part of the subject, and which, together 
 with some later cases which serve to explain or illus- 
 trate them, will be first dealt with in the present 
 chapter. These principles, and the dicta in support 
 of them, which have, with few exceptions (h), been 
 approved of by the most eminent authorities, have 
 been applied to a great variety of cases, some of 
 which will be given as illustrations in the present 
 chapter. 
 
 The general principle is stated by Lord Denman, C. J., 
 in Pickard v. Sears (/), as follows: "Where one by his 
 words or conduct wilfully causes another to believe the 
 existence of a certain state of things, and induces him to 
 act on that belief, so as to alter his own previous 
 position; the former is concluded from averring against 
 
 (e) 6 A. & I-;. 169. Stephen, J., in Alderson v. Mad- 
 
 (/) 10 A. & E. 'JO. dison, L R. 5 Ex. I). 293, at p 
 
 (:/) 2 Ex. 654. 303. 
 
 (h) In Jordan v. Money, 5 (t) 6 A. & E. 469. [t appears 
 
 II. I- Cas. 185. Lord (ran- that the doctrine laid down in 
 
 worth (at p. '-'Ih says thai he Pickard v. Seara has Q0 applica- 
 
 thinks the rule is stated a little lion to a conveyance of land. See 
 
 too broadly in Greggy. Wells, 10 the judgments in WhiU v. 
 
 V & E. 90. Nol so, Lord Greenish, II ( '. B. X. S. 209 
 
 St. Leonards, who approves of the (per Erie, C. J., at p. 230, per 
 
 rule as then ted; seehisjudg Byles, J., at p. 234, and per 
 
 in. ait at p. 255. Bui ee also per Keating, J., at p. 236.)
 
 ESTOPPEL IN PAIS. 
 
 the latter a differenl state of things as existing at the 
 same time." It is pointed out by Parke, B., in 
 Freeman v. Cooh (k), that the word " wilfully " should 
 be taken as governing both the word "causes" and the 
 word " induces " ; and lie further says : "Whether that 
 rule has been correctly acted upon by the jury in all the 
 reported cases in which it lias been applied, is not now 
 in question ; but the proposition contained in the rule 
 itself, as above laid down in the case of Pickard v. 
 6 ars (/), must be considered as established. By the 
 term ' wilfully,' however, in that rule, we must under- 
 stand, if not that the party represents that to be true 
 which he knows to be untrue, at least, that he means his 
 representation to be acted upon, and that it is acted upon 
 accordingly ; and if, whatever a man's real intention may 
 be, he so conducts himself that a reasonable man would 
 take the representation to be true, and believe that it was 
 meant that he should act upon it, and did act upon it 
 as true, the party making the representation would be 
 equally precluded from contesting its truth ; and conduct 
 by negligence or omission, where there is a duty cast 
 upon a person, by usage of trade or otherwise, to disclose 
 the truth, may often have the same effect. As, for 
 instance, a retiring partner omitting to inform his 
 customers of the fact, in the usual mode, that the 
 continuing partners were no longer authorized to act as 
 his agents, is bound by all contracts made by them 
 with third persons, on the faith of their being so 
 
 (/.-, 2 Ex. 654 ; sec also L. R. 6 App. Cas. 82. 
 McKenzie v. British Linen Co., (I) 6 A. & E. 469.
 
 REPRESENTATION. 301 
 
 authorised " (///). Again, Lord Denman, C. J., says, in 
 Gregg v. Wells {i>)\ " Pickard v. >Sertrs (o) was in my 
 mind at the time of the trial, and the principle of that 
 rase may he stated even more broadly than it is there 
 laid down. A party who negligently or culpably stands 
 by and allows another to contract on the faith and 
 understanding of a fact which he can contradict, cannot 
 afterwards dispute that fact in an action against the 
 person whom he has himself assisted in deceiving." In 
 the case of Howard v. Ilinlsnu (j>), Crompton, J., [aits 
 the same interpretation on the word " wilfully," where 
 he says that the rule, as explained in Freeman v. 
 Cooke (</), " takes in all the important commercial cases, 
 in which a representation is made, not wilfully in any 
 bad sense of the word, not malo ammo, or with the 
 intent to defraud or deceive, but so far wilfully that the 
 party making the representation on which the other arts 
 means it to be aeted upon in that way." And, in the 
 case of Cornish v. Abington (/■), Pollock, 0. B., observes, 
 thai according to the ease of Freeman v. Cooke (s), the 
 word " wilfully," in the rule as laid down in Pickard y. 
 Sears (/), means nothing more than " voluntarily/' Be 
 says: "Lord Wensleydale perceiving that the word 
 ' wilfully ' might be read as opposed not merely to 
 'involuntarily,' bul to 'unintentionally/ showed that it 
 the representation was made voluntarily, though the 
 eifeel <>n the mind "f the hearer was produced uninten- 
 
 i//- judgments in </<i 2 E. & I'.. I. 
 
 I v. Jardine, I.. R. 7 App. (q) 2 Ex. 654. 
 
 345, al pp. 349, 357. I I II. & V 54 
 
 (n) 10 V. & K. :»7. (*) 2 Ex. 654. 
 6 \. a- E. 169. ') 6 A. a- !•;. |.;!».
 
 302 ESTOPPEL IN I'AIS. 
 
 tionally, the same result would follow, [f a party uses 
 language which in the ordinary course of business and 
 the general sense in which words are understood, 
 conveys a certain meaning, lie cannot afterwards say lie 
 is not bound if another, so understanding it, has acted 
 upon it. If any person, by a course of conduct or by 
 actual expressions, so conducts himself that another may 
 reasonably infer the existence of an agreement or licence, 
 whether the party intends that he should do so or not, it 
 has the effect that the party using that language, or who 
 has so conducted himself, cannot afterwards gainsay the 
 reasonable inference to be drawn from his words or 
 conduct" (ti). Again, in the recent case of Polak v. 
 Everett (x), Blackburn, J., observes that the rule as laid 
 down in Piehard v. Scars (y) " was corrected in 
 Freeman v. Cooke (z), where it was said that if a man 
 stands by and allows another to act without objecting, 
 when, from the usage of trade or otherwise, there is a 
 duty to speak, his silence would preclude him as much as 
 if he proposed the act himself." 
 
 In most cases in which the doctrine in Pickard v. 
 Sears (a) has been applied, the representation is such as 
 to amount to the contract or licence of the party making 
 it (1). Thus, in the case of Clarke v. Hart (r), Lord 
 Chelmsford says, " So that I apprehend, where there is a 
 
 [u) See also Thomas v. Brown, (b) See per Parke, B., in Free- 
 
 I,. !!. 1 Q. B. D. 714, per Mellor, man v. Cooke, 2 Ex. 654. 
 
 .1.', at p. 722. (<■) 6 H. L. ('as. 633, at p. 
 
 <x) L Et. 1 Q. B. J). 669 656; and see Lord Cranworth's 
 
 (y) G A. iV K. 469. judgment in Jorden v. Mow//, - r ( 
 
 ( 2 ) -i Ex. 654. H. L. Cas. 185. 
 
 (a) 6 A. & E. 169.
 
 REPRESENTATION. 303 
 
 vested right or interest in any party, the principle of law 
 as now firmly established, is, that he cannot waive or 
 abandon that right, except by acts which are equivalent 
 to an agreement or a licence." But such licence or 
 agreement may be implied from acquiescence of such a 
 nature as to induce a reasonable belief that the act done 
 is licensed or agreed to by the party so acquiescing (d). 
 
 The principles of an estoppel in pais or equitable 
 estoppel, have also been stated by Brett, L. J., in the form 
 of distinct propositions, in the case of Carr v. Loin Ion 
 (C- North Western By. Co. (e), as follows: "One such 
 proposition," says the learned judge, "is, if a man by his 
 words or conduct, wilfully endeavours to cause another 
 to believe in a certain state of things which the first 
 knows to be false ; and if the second believes in such a 
 state of things, and acts upon his belief, he who know- 
 ingly made the false statement, is estopped from averring 
 afterwards that such a state of things did not in lad 
 exist (/). Another recognised proposition seems to be 
 that, if a man, either in express terms or by conduct, 
 makes a representation to another of the existence Of a 
 certain state of facts which he intends to be acted upon 
 in a certain way, and it be acted upon in that way, in the 
 belief of the existence of such a state of facts, to the 
 
 (-/) Cairncrosa v. Loritner, •"• lion of the various authorities is 
 
 Macq. 827. '''is, that, if a man has wilfully 
 
 (e) I.. I:. IOC. I'. 307. made a false assertion calculated 
 
 ' /' ) Conf. judgment of Baron to lead others to act upon it, and 
 
 Wilde in Swan v. North British they have <!<>ne so to their pre- 
 
 Australasian <'■>., 7 II. & N. 603, judice, he is forbidden against 
 
 who Bays, "The rule of decision them to deny thai assertion." 
 which I deduce from an examina-
 
 
 304 ESTOPPEL IN PAIS. 
 
 damage of him who so believes and nets ; the first is 
 estopped from denying the existence of such a state of 
 facts. And another proposition is, that, if a man, what- 
 ever his real meaning may be, so conducts himself that a 
 
 reasonable man would take his conduct to mean a certain 
 representation of facts, and that it was a true representa- 
 tion, and that the latter was intended to act upon it in a 
 particular way, and he with such belief docs act in that 
 way to his damage ; the first is estopped from denying 
 that the facts were as represented. There is yet another 
 proposition as to estoppel. If, in the transaction itself, 
 which is in dispute, one has led another into the belief of 
 a certain state of facts by conduct of culpable negligent :e 
 calculated to have that result, and such culpable negli- 
 gee has been the proximate cause of leading, and has 
 led the other to act by mistake upon such belief, to his 
 prejudice ; the second cannot be heard afterwards, as 
 Against the first, to show that the state of facts referred 
 flo did not exist " (//). 
 
 The result of the estoppel is that the party benefiting 
 by it acquires a " right " or " title" by estoppel against 
 the party by whom the representation was made (//). 
 But, as in the case of estoppels by record and by deed, 
 an estoppel arising from a representation is binding only 
 on parties and privies, i.e., those who are privy, in 
 estate or otherwise, to the person by whom the represen- 
 
 (a) The principles of an as- (h) See per Cotton, L. J. in 
 toppel in pais have also been Simm v. Anglo-American Tele- 
 very concisely stated in Stephen's graph Co., L. R. 5 Q. B. D. 188, 
 Digest of the Law of Evidence at p. 213. 
 ed.), at p. 109.
 
 REPRESENTATION. 305 
 
 tation was made (a); but it does not bind strangers. 
 Thus where M., being the owner of goods, procured H. to 
 assign them by bill of sale to R., to secure an advance of 
 money, and R. took the goods bond fide, and upon M.'s 
 assurance that the goods belonged to H. ; and the goods 
 were afterwards seized, under a fi. fa., as the goods of 
 M. ; and, upon the trial of an interpleader issue between 
 K. and the execution creditor, the jury found that there 
 had been no actual transfer of the goods from M. to H. ; 
 it was held, that R. had not acquired any title by estoppel 
 to the goods, against the execution creditor (k). 
 
 The representation may be by words or conduct, or 
 partly by one and partly by the other. It may also be 
 contained in writing, in which case it takes the form 
 of an admission, and will be conclusive against the party 
 making it, as against any one who may have been 
 induced by it to alter his condition (/). Thus a certificate 
 of sell lenient given by one parish to another, may be 
 conclusive in subsequent proceedings between the 
 parishes(m). Or if a vendor represents himself, on the 
 face of a written agreement, as the principal, ami the pur- 
 chaser acts upon it, the vendor cannot afterwards dis- 
 charge himself from liability by showing that he was agent 
 only(w). Again, in an action on a tailor's bill, it 
 
 (i) Middleton v. Pollock, Ex in Graves v. Key, 2 B. & Ad. 313 ; 
 
 /,-//■/, Wetlierall, L. I!. I Ch. D. per Bayley, J., in Heane v. Rogers, 
 
 m. '.i I',. a- ('. ">77 ; Farrarv. Uutchi ■- 
 
 (/,) Richards v. Johnston, 1 II. son, 9 \. a- I'., nil. 
 & \. 660, following the rule laid (m) A', v. Lubbenham, I 'I'. It. 
 
 down in Heane v. Rogers, 9 B. & 251. 
 
 ( (n) Biggin v. Senior, 8 M. & 
 
 r Lord Tenterden, < . -I., W. B34. 
 
 x
 
 306 
 
 r.sTOlM'KI, IN PAIS. 
 
 appeared that defendant had given a bill of exchange for 
 the amount in payment, which had been dishonoured. 
 Beld, that the giving of the bill was conclusive against 
 defendant of the amounl due at the time when the bill 
 was given (<>). 
 
 Instances of representations of this kind are also fur- 
 nished by receipts, invoices, and bills of lading. It was 
 formerly decided that a receipt was conclusive as to tin- 
 fact that the sum therein specified had been paid, and could 
 not be controverted, even where no money really passed, 
 and the transaction was a fraud upon others, e.g.] 
 creditors (p). But this decision is not in accordance 
 with other old authorities, which laid down that a receipt 
 was nol pleadable in bar as an estoppel, being mere])' a 
 primd facte acknowledgment that the money had been 
 paid (7); and it has since been overruled (r). And the 
 general rule now is, that a receipt is not of itself con- 
 clusive, but may be explained by evidence (s). Thus, 
 !>., a passenger, who was injured by a railway accident, 
 
 (0) Knox v. Whcrtley, 1 Esp. 
 159. 
 
 (jp) Ainer v. George, 1 Camp. 
 392. 
 
 I'l) Skaife v. Jackson, 3 B. & 
 C. 1:22; Straton v. Bastall, 2 
 T. R. 371 ; Graves v. Key, 2 B. 
 & Ad. at p. 318 ; and 1 Wins. 
 Saund. (ed. 1871), p. 577, note (c) 
 and references. Nor was it con- 
 clusive, even when indorsed on a 
 
 d, Lampon v. ( 'orke, 5 B. & 
 Aid. 606; except when sup- 
 ported by a statement in the deed 
 
 itself, Rovmtree v. Jacob, 2 Taunt. 
 141. 
 
 (/•) Bowes v. Foster, 2 H. & N. 
 788 ; and see per Mellish, J., in 
 Lee\. Lancashire c(- Yorkshire Ry. 
 Co., L. R. 6 Ch. App. 527, at p. 
 534. 
 
 (s) See, however, as to plead- 
 ing in bar an acknowledgment 
 of payment by a receipt in writing, 
 by way of an estoppel in pais, 
 Veale v. Warner, 1 Wms. Saund. 
 (ed. 1871), p. 576.
 
 REPRESENTATION. 307 
 
 sent in a claim for £691 compensation. The traffic 
 
 manager of the company called upon him, and after 
 
 some discussion the passenger accepted £400, and gave 
 
 a receipt acknowledging it to be in full discharge of his 
 
 claims. About a year afterwards he commenced an 
 
 action against the company for further compensation, to 
 
 which the company pleaded that plaintiff had accepted 
 
 £400 in full satisfaction and discharge of the causes of 
 
 anion. Plaintiff filed his bill to restrain them from 
 
 relying on the plea, and from setting up the acceptance 
 
 of the £400, or the receipt, as a satisfaction or discharge 
 
 of the damages, except to the extent of £400. The bill did 
 
 not allege fraud, but that plaintiff had signed the receipt 
 
 on the express condition that he should not thereby 
 
 exclude himself from further compensation if his injuries 
 
 turned out more serious than was supposed at the time. 
 
 lb 'Id, that as the statement in the receipt could be 
 
 rebutted by evidence that plaintiff did not receive the 
 
 money in lull satisfaction of all demands, the whole ease 
 
 could 1"' tried al law better than in equity, and that the 
 
 bill should be dismissed (f). Similarly an invoice does not 
 
 of itself create an estoppel againsl the party by whom it 
 
 was made out (u) ; though it may be conclusive against 
 
 him as an admissiorj as to the period of credit given for 
 
 the goods supplied, appearing on the face of it (#), 
 
 A hill of lading is merely a receipl for goods, and is 
 
 1 1 ) /,x v. /,"/<<" kin 'i' York I - '. 706. 
 
 shin Ry. Co., I, El. '1 Ch. A.pp. (u) Holding v. Elliott, 5 li. & 
 
 527 ; Bee also Robert v Eastern V 117. 
 
 Counties Ry. Co., I I'', a- V. t60 ; (x) A'"*"" v. Chemey, I Stark. 
 
 /. 6 W A ' ■ '■' 192.
 
 .".us ESTOPPEL IN PAIS. 
 
 in4, at common law, conclusive as to the amount of 
 the goods shipped, or that in fact any goods were 
 shipped (//). But where a shipowner gave a 1 > 111 of 
 lading, by which it appeared that the freight was 
 paid before the ship's departure, he was held to be 
 estopped, as against the assignee of the bill, from 
 claiming freight on the ship's arrival (2). And now, by 
 statute (a), every bill of lading in the hands of a con- 
 signee or endorsee for valuable consideration, repre- 
 senting goods to have been shipped on board a vessel, 
 is conclusive proof of that shipment as against the 
 master or other person signing the same, notwithstand- 
 ing that such goods or some part thereof may not have 
 been so shipped, unless such holder of the bill of 
 lading had actual notice, at the time of receiving the 
 same, that the goods had not been in fact laden on board ; 
 provided thai the master, or other person, so signing, 
 may exonerate himself in respect of such misrepresenta- 
 tion, by showing that it was caused without any default 
 on his part, and wholly by the fraud of the shipper or of 
 the holder, or some person under whom the holder holds. 
 
 The representation may be made in a variety of ways 
 which may be considered under the following 
 headings : — 
 
 1. The representation may be false or fraudulent to 
 the knowledge of the person making it. And in such a 
 case, the onus of proof that the party setting up the 
 
 (y) Bates v. Todd, 1 Moo. & (z) Howard v. Tucker, 1 B. k 
 
 Rob. 106; Berkley v. Watling, A. 1.712. 
 2 X. & P. 17s. ( a ) 18 & 19 Vic. c. Ill, s. 3.
 
 REPRESENTATION. 309 
 
 estoppel was not induced by it to act to his own damage, 
 lies on the person who made it (b). 
 
 2. The representation may be not necessarily false to 
 the knowledge of the person making it, but he may have 
 intended that it should be acted upon. 
 
 3. The representation may not have been actually 
 intended to be acted upon, but the damage sustained may 
 be such as might be reasonably inferred to result from 
 the representation. In such a case not only the person 
 to whom the representation was made, may set up the 
 estoppel, but so also may any person who has acted upon 
 it, and who might reasonably be supposed to have been 
 intended to act upon it (c). 
 
 4. The representation must be of an existing fact, and 
 not of a mere intention. 
 
 5. Acquiescence or standing by, where there is a duty 
 i. ti tin' part of the person acquiescing, to speak or asserl 
 a right, amounts to a representation by him. But in 
 order for the estoppel to arise, it is essential (a) that 
 such a duty should exist, and (ft) that knowledge of the 
 thing done should be brought home to the acquiescing 
 
 party. 
 
 6. Negligence may, under certain circumstances, amount 
 to a representation ; but, to acl as an estoppel, it must be 
 (a) in the transaction itself, and no1 merely collateral to 
 it, (ft) the proximate cause of the loss or damage sustained, 
 and (y) the neglect of Borne duty which is owing to the 
 
 (6) Tcr Cranworth, L C, in (<•) Sec per Lord Cranworth, 
 
 Smithy. Kay t 1 H. L. Cas. 750, L C, in Jorden v. Money, 5 
 at ,,. 770. H. I- Cas. 1 85, at p. 212.
 
 310 
 
 ESTOPPEL IN PAIS. 
 
 party by whom the loss or damage is .sustained, or to the 
 general public (d). 
 
 7. The representation must have been aeted upon by 
 the party setting up the estoppel, and to his prejudice, 
 and (a) the benefit of the estoppel can only be claimed to 
 the extent of the damage caused by the representation. 
 Moreover, (/S) the damage sustained must involve some 
 substantial alteration in the legal position of the party 
 
 etting up the estoppel (e), and (y) he must show that he 
 aeted in the . transaction complained of, with ordinary 
 caution (/). 
 
 8. A representation does not operate as an estoppel, 
 if the party making it is legally incapacitated from 
 entering into the obligation from which the estoppel might 
 otherwise have arisen. 
 
 The following cases are given as examples under the 
 above headings : — 
 
 1. False or fraudulent representations. 
 
 A., a prisoner in custody for debt at the suit of B., 
 executes a warrant of attorney in B.'s favour, in the 
 presence of a person whom A. introduces to B. as his 
 attorney. Held, that A. cannot afterwards have the 
 
 (d) Freeman v. Cooke, 2 Ex. 
 654 : Swan v. North British Aus- 
 tralasian Co., 7 C. B. X. S. 100; 
 7 IT. & X. 603; •_' II. & C. 175; 
 A i nold v. Cheqyu Bank, L. II. I 
 C. P. I>. 578; Baxendale v. 
 Bennett, L Et. 3 Q. B. D. 525; 
 Siiinii v. Anglo-American Tele- 
 graph Co., L II. 5 Q: B. D. L88. 
 i Si arm v. Anglo - Am* rican 
 
 Telegraph Co., L. R. 5 Q. B. 1). 
 188. Qucerc, per Brett, L. J., 
 whether the loss of a remedy 
 under the rides of the Stock 
 Exchange, in consequence of the 
 representation, would be sufficient 
 to raise an estoppel. 
 
 (/) Tayler v. Great Indian 
 Peninsular Ry. Co., 28 L J. < li. 
 
 285, no.
 
 REPRESENTATION. 3] 1 
 
 warrant of attorney set aside as invalid, on the ground 
 that the supposed attorney was not in reality an attorney 
 at all {g). 
 
 A. allowed a woman to use his name and to pass for 
 his wife, lie was held bound to pay for goods supplied 
 to her, even by a person who knew that the parties were 
 not married (//). 
 
 In a case of prosecution for forgery, tried before Lord 
 Kenyon in 1782, the prisoner defended himself, and 
 frequently in his speech, alluded to a woman who then 
 accompanied him, as his wife. He afterwards offered 
 her in evidence. But his lordship would not permit it, 
 as the prisoner had spoken of the woman and repre- 
 sented her, as his wife (/). 
 
 A person who had written prescriptions, and signed 
 M. D. to his name, was held concluded thereby from 
 denying, in an action brought by him for his fees, that 
 he was a physician (and therefore disentitled to sue) (k). 
 
 In the course of distribution of assets under a will, A., 
 a creditor, misleads the executor, either by laches or 
 express authority, so as thereby to induce the executor 
 to pursue ,-i course in the distribution, which he would 
 not otherwise have pursued. A. is estopped from subse- 
 quently complaining of an insufficiency of assets (/). 
 
 (,,) J eye* v. /!'»>//', I I'-. & P. (k) IApscombv. Holmes, 2 Camp. 
 
 :i7 ; Cox v. Cannon, I Bing. I 12. 
 
 \ C. I"'-"-. (0 Richardsv. Broime, 3 Bing. 
 
 </,, Watson v. Threlkeld,2 Esp. .V C. al p. 199 (per Tindal, C. J.), 
 
 637 ; sec also Robinsonv. Wahon, cited by Blackburn, J., in Jews- 
 
 I Camp. 245. bury v. Mummery, I.. I!. 8 C. P, 
 
 1 1 See a ca e cited in ( 'ampbell 56, at p. 62. 
 
 v. '/'//■< mlow, I Price, at p.
 
 ESTOPPEL IN PAIS. 
 
 In an action o\' trover ii appeared that the plaintifl 
 being the legal owner of goods under a mortgage, they 
 were seized whilst in possession of the mortgagor under 
 an execution against the mortgagor, and sold to the 
 defendant for value. Held that, under a plea traversing 
 plaintiff's possession of the goods, the defendant might 
 show that the plaintiff himself authorised the sale, and 
 that the fact of the plaintiff consulting with the execu- 
 tion creditor as to the disposal of the property, with- 
 out mentioning his own claim, after he knew of the 
 seizure and of the intention to sell, was evidence to go to 
 the jury of authority (///). 
 
 An Act of Parliament required the transfer of shares 
 in a Railway Company to be by deed. A transfer of 
 certain shares in the company was executed by the seller, 
 with a blank for the purchaser's name, and stating the 
 consideration untruly. The deed was therefore void (//). 
 However, the purchaser afterwards signed and trans- 
 mitted to the company, in pursuance of the Act, a proxy 
 paper describing him as the proprietor of the shares. 
 Held, in an action by the company against the purchaser 
 for calls on the shares, that he was precluded from dis- 
 puting the validity of the transfer (o). Per Parke B., (at 
 p. 582), " The defendant held out false colours, to induce 
 the company to register him as a proprietor, and there- 
 fore to bring this action against him. It is a universal 
 
 .„,, Pickard v. Sears, <i A. & X. S. 100; 7 II. &N. 603; 2 H. 
 
 K. 169. & C. 17."). 
 
 i „ , Hibblewhitt v. McMorine, (o) Sheffield & Manchester Ry. 
 
 .; \]. a- W. 200 : Swan v. North Co. v. Woodcock, 7 M. A- W. 574. 
 Briti h Australa dan Co. 7 < '. B.
 
 REPRESENTATION. 313 
 
 rule of law, that where a party makes a representation to 
 another whereby the situation of the latter is altered, he 
 is bound thereby " (p). 
 
 A., who had dealt with an agent, had, by his conduct, 
 led the principal to believe that he looked to the agent 
 alone for payment, and bad thereby induced the principal 
 after the debt had become due, either to pay the agent 
 the amount, or to allow him to retain it out of the princi- 
 pal's money in his hands. Held that A. was estopped 
 from afterwards resorting to the principal (7). 
 
 A lessee underlet certain premises, and made certain 
 representations to his under-lessee, as to his (the lessee's) 
 liability to the lessor under the covenants in the lease. 
 He afterwards surrendered his lease to the lessor, thereby 
 absolving himself from the performance of the said cove- 
 nants. It was held that the underlessee was entitled to 
 an injunction to restrain the lessee from any breach of 
 the said covenants (/•). 
 
 In an action againsl a Railway Company for injury 
 done to certain horses of plaintiff, whilst being conveyed 
 in the Railway Company's trucks, owing to the defective 
 stale of the trucks, defendants paid £25 into Court, At 
 the trial ii appeared that when plaintiff delivered the 
 horses to the defendants, he signed, at their request, a 
 declaration thai the value of the horses did not exceed 
 
 («) Semble, that the company Johns. C. C. 7-'l', at p. 726. 
 
 would nol havi !' (,| 1 (q)McFarlane v. Giantiacopulo, 
 
 from Baying thai the purchaser ."> II. & X. *G0. 
 
 ,,,,! .1 shareholder if H was to (r) Piggottv. Stratton,29 L. J. 
 
 their advantage to say so. Cf. Oh. 9. 
 flan v. /.. -I- .V. II'. Ry. Co.,
 
 814 ESTOPPEL IN PAIS. 
 
 £10 per horse, and that, in consideration of the rate 
 charged for their conveyance, he thereby agreed that the 
 same were to be carried entirely at his (plaintiff's) risk. 
 The horses were worth more than £10 each, and, if taken 
 at their real value, the damage sustained by the plaintiff 
 was £65, but if valued at £10 each, the £25 paid into 
 Court covered plaintiff's claim. Held, that plaintiff 
 having made a wilfully false statement as to the value of 
 the horses, for the purpose of inducing, and havingthereby 
 induced, defendants to enter into the contract, was pre- 
 cluded from showing theirreal value, in order to obtain com- 
 pensation beyond the amount paid into Court (s). Per 
 Bramwell, B. (at p. 400), " If there be one principle of 
 law more clear than another, it is this, that where a person 
 has made a deliberate statement, with the view to induce 
 another to act, and he has acted upon it, the former is 
 not at liberty to deny the truth of the statement so made. 
 I think it would be most mischievous if he could." 
 
 P>., a surveyor, knowingly omitted certain items from 
 aceounts. Upon the faith of this omission, trustees 
 acted. Held, that B. was estopped from afterwards 
 recovering the sums omitted (t). 
 
 A. grants authority to another to conduct a business in 
 his name, in which business, in point of fact, A. has no 
 
 (a) McCance v. L. <[• N. W. /.'//. mistake, docs not necessarily 
 
 Co., 7 II. a- X. 177. create an estoppel. See Sutton v. 
 
 (t) Cave v. Mills, 7 II. & X. Tatham, 10 A. & E. 27; Dailsv. 
 
 913 (Bramwell diss.) ; but it was L/<>./>/, 12. Q. B. 531. See 
 
 beld that this did not apply to further as to an estoppel arising 
 
 an account which the trustees had from accounts, Van Hasselt v. 
 
 not accepted as true. And an Sack, 13 Moo. I'. ( '. ( '. 185, post, 
 
 omission in accounts, made by p. 320.
 
 REPRESENTATION. 1 1 5 
 
 interest. Third persons enter into transactions with the 
 firm, under the belief induced by the misrepresentation, 
 that they are contracting with A. A. will be estopped, 
 as against such third person, from assuming any position 
 inconsistent with that which he so held himself out as 
 occupying (u). 
 
 Two of the directors of a joint-stock company, by 
 letter to the company's bankers, notified that their 
 manager had authority to draw cheques on account of 
 the company. The company's account was at the time 
 overdrawn, and that fact was known to the two 
 directors. The bankers honoured the manager's 
 cheques, on the authority so given them. Held, that 
 the two directors were personally liable to the bank on 
 their representation (/). 
 
 W., having entrusted P., his solicitor, with a sum of 
 £7,700 for investment on mortgage on his behalf, was 
 informed by P.'s clerk, in conversation, that P. proposed 
 to invest the money on mortgage of certain leasehold 
 property at Camden Town at 5 per cent. W. subse- 
 quently received a letter from P., stating ag follows : — 
 "The money is put on 5 per cent, mortgage as arranged 
 by my clerk with you.'' Qn P.'s death it was found 
 that no mortgage existed in favour ol \\., but that l\ 
 had advanced £100,000 to a firm of builders on a mort- 
 
 («) Miles v. Furber, L R. 8 authority to a bank to honour 
 
 (> |; 77 certain cheques was held in the 
 
 Cherry v. Colonial Bank of absence of any misrepresentation 
 
 , I, |:. 3 p. < '. j I; or error, not to make the directors 
 
 and see the comments thereon by who gave it, themselves personally 
 
 irns, I.. «'., in Beattit v. Ebury, liable. 
 I.. It. 7 II. I.. 102, where a m
 
 316 ESTOPPEL IN PAIS. 
 
 gage of their leasehold property at Camden Town. W. 
 brought a creditor's action for the administration of P.'s 
 estate. Held, that P., and those claiming under him, 
 Mere bound by the representation made by him, and 
 were estopped from saying that the £7,700 had not been 
 advanced as directed, and from denying that it formed 
 part of the £100,000 so invested (y). 
 
 Defendants employed one F. to buy barley and to malt it 
 for them only. F., for the purpose of purchasing such 
 barley, was empowered to draw upon a certain fund paid 
 into a bank in the name of defendants. F. bought barley 
 upon credit, and at the same time fraudulently drew out 
 money from the fund so supplied by defendants, repre- 
 senting by his conduct that the money so drawn out was 
 used for the purpose of paying for barley approved of by 
 defendants. F. also bought malt which he represented 
 to have been made from barley bought with defendants' 
 money. Defendants, F. having become bankrupt, seized 
 all the barley and malt upon his premises, the value of 
 which was less than the moneys which he had drawn 
 out. In an action brought by the trustee in F.'s bank- 
 ruptcy, to recover the value of the barley and malt so 
 seized : — Held, that the relation created by the course of 
 business between defendants and F. was that of 
 principal and agent; that the barley and malt which 
 were seized by defendants, were charged on trust with 
 the amount of the price, which was, or ought to have 
 been, and which F. represented by his conduct to have 
 been, paid for them with defendants' money ; and that, 
 
 (y) Middleton v. Pollock, Ex parte Wetherall, L. I!. 4 Ch. D. 49.
 
 REPRESENTATION. '317 
 
 as F. (who had never been reputed owner) was estopped 
 from saying that he was not trustee of the barley and 
 malt for defendants, the trustee in his bankruptcy was 
 also estopped from disputing the equitable right of 
 defendants to the same (z). 
 
 Further illustrations are afforded by cases in which a 
 marriage has taken place on the faith of the representa- 
 tion, as follows : 
 
 A., in order to make it appear that his sister had a 
 fortune of £500, whereas in truth she had only £350, 
 gave her a sum of £150, so as to make up the £500, and 
 she gave him a bond for the amount. After the marriage 
 had taken place upon the faith of the gift, it was held 
 that the bond could not be enforced, and it was ordered 
 to be delivered up to be cancelled (<>). 
 
 Joseph Montefiori, a Jew, being engaged in a marriage 
 treaty, his brother Moses, to assist him and represent him 
 as ;i man of fortune, gave him a note for a large sum of 
 money, as the balance of account between him ami his 
 brother Joseph, which balance he (Moses) acknowledged 
 to have in his hands. In truth no such balance, or any- 
 thing like it, existed. The marriage took place, and then 
 Moses reclaimed the note a- being given on ao considera- 
 tion. The matter was referred to arbitration, ami the 
 arbitrators awarded tin- note to be given up, but Lord 
 Mansfield sel aside the award. He said ''the law is, that 
 where, upon proposals of marriage, third persons represenl 
 anything material in a lighl < 1 i i T« ■ v * - 1 . t from the truth, even 
 
 I hi,,,, v. Truman, Ha v. L J Vera, 
 
 ,. I.. R j r. I>. 264. I",
 
 318 ESTOPPEL IN PAIS. 
 
 though it be by collusion with the husband, they shall be 
 bound to make good the thing in the manner as rcpre- 
 sented to be" (5). 
 
 A marriage took place upon the faith of A.'s statement 
 as to the husband's debts, the statement involving the 
 concealment of a debt which the husband owed to A. 
 himself. Alter the marriage had taken place, A. was 
 restrained from taking proceedings to recover his 
 
 debt (c). 
 
 2. Representations not necessarily false to the Jm'oia- 
 ledge of the person making them., hut intended to be acted 
 U p 0n . m — H., who was in prison under a capias ad satis- 
 faciendum, was permitted, at his own request, to reside 
 ..utside the prison, under the surveillance of an officer : — 
 Held, that be was estopped from saying that the custody 
 in which be then was, was not the custody of the 
 sheriff's officer, as both parties bad intended it to be 
 
 so(d). 
 
 A master who has accredited a servant to a tradesman 
 to order goods in bis name, and has recalled the authority 
 without giving notice to the tradesman, is estopped from 
 denying the servant's authority to bind him (e). 
 
 A person who had given in a schedule on oath of all 
 bis debts to the Insolvent Debtors' Court was held to be 
 
 (6) Montefiori v. Montefiori, 1 536. 
 
 Sir W. Bl. 363. ('0 Haines v. East Italia Co., 
 
 (c) ffevittev. Witidnson, 1 Bro. 11 Moo. P. C. C. 39; see also 
 
 C. C. 543 ; see also the case as T;/frman v. Smith, 25 L. J. Q. B. 
 
 referred to by the L. C. in Vaux- 359 ; and Andrews v. Elliott, 25 
 
 hall Bridge Go. v. Spencer, Jacob's L. J. Q. B. 1. 
 
 Rep. 07; and see Shirley v. (e) Per Erie, C. J., in Swan's 
 
 Ferrers, cited in 11 Yes. junr. Case, 7 C. B. N. S. 400.
 
 REPRESENTATION. 319 
 
 concluded from afterwards claiming a debt not included 
 in the schedule (f). 
 
 Land was taken under powers given by Act of Parlia- 
 ment. A., whose laud was taken, waived the necessity 
 for the statutory notice to treat for compensation, in order 
 that the inquiry might take place earlier. The jury 
 assessed the compensation, and afterwards A. applied for 
 a certiorari to quash the inquisition, on ground of in- 
 sufficient notice : — Held, that he was estopped by his 
 waiver, and the application was refused (</). 
 
 A., upon notice to produce a document in his possession, 
 refuses to produce it, and thereby causes the opposite 
 party to give secondary evidence of its contents. A. is 
 estopped from himself producing the document in 
 evidence (h). 
 
 A. brought an action against B. for £121 odd, the 
 ] a'ice of certain goods supplied to B. A. authorised E. 
 to come to an arrangement with B. in settlement of the 
 action. E. thereupon agreed with B. that he should 
 have the goods for £50 : — Held that A. could not after- 
 wards repudiate E.'s arrangement, on the ground that he 
 had given him secrel instructions not to settle for less 
 than £100(«> 
 
 Agents furnished coals for voyages of a steamer in 
 L856. As agents they recovered the freights payable in 
 
 ( f) Nicholhv. Doume8, I Moo. (*) Trickett v. Tomlinson, 13 
 
 A Rob. I-;. C. B. .V S. 663 ; cf. Mullens v. 
 
 /,'. v. South Holland,^ A. SfUler, L R. 22 Ch. D. I'.'l: 
 
 , g. I-"-'- ;I1 " 1 Mttes v. McHwraith, I. R, 
 
 dn Dot d. Thomsonv. Hodgson^ App. Cas. 120. 
 L2 A. & E. 135.
 
 320 ESTOPPEL IX PAIS. 
 
 London, and paid thereout the steamer's expenses incurred 
 in England, and forwarded a debit and credit account of 
 each voyage to the owners : — Held, that by having appro- 
 priated in the accounts the receipts to specific items, e.g., 
 coals, they were estopped by their accounts, from appro- 
 priating- them to a previous agency account lor the ship, 
 and from suing for the coals as necessaries supplied and 
 unpaid for (k). 
 
 A purchaser deposited a certain sum on a contract for 
 the sale of a leasehold shop. The agreement was signed 
 by the auctioneer as " agent for the vendor," and by the 
 purchaser. Subsequently the purchaser obtained an 
 abstract of the title, which was examined by her solicitors 
 who made certain requisitions as to title " without pre- 
 judice to any question which may arise as to the contract 
 tor the purchase of the premises." Afterwards the pur- 
 chaser declined to complete the purchase, on the ground 
 that the contract was void, as the parties to it were not 
 sufficiently described : — Held, that although the memo- 
 randum might be insufficient under the Statute of Frauds, 
 vet, as the purchaser had paid the deposit and received 
 the abstract of title, well knowing that the vendor's name 
 did not appear in the memorandum, and while the 
 vendor was ready to complete the contract, she was 
 estopped from recovering her deposit (/). 
 
 Defendant took certain shares in plaintiff's company. 
 
 (k) Van Hasselt v. Sack, 13 estoppel arising from accounts, 
 
 Moo. P. C. C. 185 ; sec also The illustration, ante, p. 314, note (t). 
 West Friesland, 1 Sw. Adm. Cas. (1) Thomas v. Brown, L. R. 1 
 
 456. And see further as to an Q. B. D. 714.
 
 REPRESENTATION. 321 
 
 He afterwards wrote to the company, stating- that he 
 held certain shares, and claimed to be registered as a 
 proprietor of them, at the same time enclosing the scrip. 
 The company gave him a receipt, and duly registered 
 him as proprietor of the shares. Defendant, however, 
 never applied for sealed certificates, and there was no 
 transfer of the shares to him by deed, as provided by the 
 Act. Defendant paid some calls on the shares. In an 
 action against him by the company for further calls, 
 held, that he was estopped from denying his ownership 
 of the shares (///). 
 
 T. being the registered holder of live shares in a 
 registered joint stock company (limited), left the share 
 certificates in the hands of her broker. A transfer of 
 the shares to S. and G., purporting to be executed by 
 T., together with the certificates, was left with the 
 secretary for registration. The secretary in the usual 
 course wrote to T., notifying that the transfer had been 
 so left, and, receiving no answer after ten days, 
 registered the transfer, and removed the name of T., 
 and placed the names of S. and (x. on the register as 
 holders of the five shares, giving them certificates 
 certifying that they were the registered holders oi the 
 five specific shares. A. bargained for live shares through 
 brokers in the usual way en the Sleek Exchange, ami 
 paid th<' value of five shares, and the specific shares were 
 transferred to him by S. and (J., and the name of A. was 
 registered as the holder of the shares, and share 
 certificates were given to him. It was afterwards 
 
 Cheltenham, &c. Co. v. Daniel, 2 Q. B. 281.
 
 822 ESTOPPEL IN PAIS. 
 
 discovered that the transfer to S. and G. was a 
 
 Forgery, and the company was ordered to restore TVs 
 name to the register by rule of court under the 
 Companies' Act, 1862 (25 & 20 Vict. c. 89, sec. 35). 
 Held, that the giving- of the certificate by the company 
 to S. and G. amounted to a statement by the company, 
 intended by the company to be acted upon by purchasers 
 of shares in the market, that S. and G. were entitled to 
 the shares, and that, A. having acted upon that state- 
 ment, the company were estopped from denying its 
 truth (n). 
 
 Plaintiff bought and paid for shares in defendants' 
 company, and received duly executed transfers and share 
 certificates, but was not registered as holder of the 
 shares. The seller of the shares, being afterwards 
 compelled to pay a call upon them, demanded repay- 
 ment of plaintiff, who required to have the transfer 
 completed by registration. Plaintiff's name was there- 
 upon entered on the register, and he received from the 
 company a certificate certifying that he was owner of the 
 shares. Subsequently, on the faith of such registration 
 and the delivery of the certificate, he repaid to the 
 seller the amount of the call. Defendants afterwards 
 discovered that, before plaintiff bought the shares, they 
 had been sold by a previous owner, by a duly executed 
 transfer, to F., and they accordingly removed plaintiff's 
 name from the register, and substituted F.'s name. In 
 an action by plaintiff against defendants for the removal 
 
 (n) In re Bahia & San Fran- Commissioners of Heme Bay, L. R. 
 cisco Ry. Co., in re Trittin, L. R. 5 Q. B. G42. 
 3 Q. B. - r )84 ; and see Webb v.
 
 REPRESENTATION. 323 
 
 of plaintiff's name, held that, by the registration of 
 plaintiff, and the delivery to him of the certificate, 
 followed by the payment by him of the call, defendants 
 were estopped from denying his title to the shares, and 
 were liable to him for their value (o). 
 
 C. transferred ten shares in a cost-book mining 
 company to A. for £5. The transfer was registered. 
 The company, having suspicions as to A.'s means, asked 
 for information about him, but got none. They made 
 calls upon him, and, on non-payment, recovered judg- 
 ment for the amount, but obtained nothing. About two 
 years afterwards the company was ordered to be wound 
 up. The liquidator sought to put C. upon the list of 
 contributories on the ground that the transfer was 
 fraudulent within sec. 35 of the Stannaries Act, 1801). 
 Held, that the Court could only act in the winding-up 
 as the company could have acted if there had been no 
 winding-up, and that, as the company would have been 
 estopped by having recognized the transfer with 
 knowledge, the Court could not set it aside (/>). 
 
 An urban authority, under powers given to them by 
 statute (</), give notice to the owners of certain premises 
 requiring them t<> do certain works within a prescribed 
 period, and stating that if such works are not executed 
 the urban authority will execute the same themselves at 
 
 (o) Hartv. Frontino <& Bolivia, (p) Wheal Unity Won,! Mining 
 
 Co., I.. I:. 5 Ex. Ill; Bee Co.,Inre Chynowetk's Ca8e,L.E. 
 
 also Foster v. Mentor Lift Assur- 15 Ch. I). 13. 
 and Co., •". E. & I'.. 48, where (q) Public Health Act, L875 
 
 the court were equally divided in (38 & '■'<'■) Vic. c. 55), s. 150. 
 '■pinion. 
 
 v ■_:
 
 324 ESTOPPEL IN PAIS. 
 
 the owners' expense, and that " the said urban authority 
 will thereupon also proceed to declare all costs, charges, 
 and expenses, paid, expended, or incurred by them in 
 consequence of such neglect or default, to be private 
 
 improvement expenses." Held, that the urban authority 
 were estopped by their declared intention to treat the 
 expenses incurred as private improvement expenses from 
 proceeding against the owners summarily for the 
 recovery of such expenses (y). 
 
 3. Representations in cases where the damage sustained 
 is the result of a reasonable inference from such 
 representations. 
 
 G., the foreman of plaintiff, a lithographic printer, who 
 was employed by him to get orders for printing, being 
 desirous of publishing certain maps and other works on 
 his own account, agreed with defendant, a publisher, to 
 supply maps, &c, to him, to be sold on commission. He 
 then entered an order, as from defendant, in plaintiff's 
 order book, but without defendant's authority. Maps 
 and other goods were supplied to defendant from 
 plaintiff's premises, some of them accompanied by 
 delivery notes, requesting defendant to receive the goods 
 from plaintiff". Receipts to the same effect were signed 
 by defendant. Plaintiff' made out an account, amounting 
 to £100, charging defendant with the amount, and 
 handed it to G., who shewed it to defendant. Defendant 
 accepted bills for a part of the amount of this account, 
 and gave the balance in cash to G., who handed the 
 cash and bills to plaintiff. Other goods being supplied, 
 
 (/•) Gould v. Bacup Local Board, 50 L. J. M. C. 44,
 
 REPRESENTATION. 325 
 
 plaintiff sent the invoice of them to defendant, charging 
 him with the price. Defendant then applied to G. for an 
 explanation, and, on being told by G. that it was a 
 mistake, took no steps to inform plaintiff of the matter. 
 Plaintiff then brought an action against defendant for 
 the price of the goods last supplied to him. The jury at 
 the trial found, (1) That defendant did not authorise G. 
 to use his name in ordering the work to be done ; (2) 
 that the manner in which defendant signed the receipts 
 was such as to induce plaintiff to think that he was buying 
 the goods on his own account. Upon these findings the 
 judge (Martin, B.) directed a verdict to be entered for the 
 plaintiff (s). This verdict was upheld in banc, when 
 Bramwell, B., said (7), " The rule is, that if a man so 
 conducts himself, whether intentionally or not, that a 
 reasonable person would infer that a certain state of things 
 exists, and acts on that inference, he shall be afterwards 
 estopped from denying it." 
 
 W. ]>., the owner of certain goods, in anticipation of a 
 distress, removed them to the house of J. B., and after- 
 wards to tli.' house of B. B. A writ oift.fa. having 
 been issued againsl J. B. and B. P>., the sheriff's oilier, 
 i,, execution of the writ, entered the house of J. B., and 
 found there W. B.'s goods. \V. B., thinking that the 
 writ was oul againsl himself, represented to the sheriff's 
 officer thai the goods in question belonged to -I. B. The 
 sheriff's officer then produced the writ ; whereupon, W. 
 li., perceiving thai the writ was out against J. B. and B. 
 B., told the officer that the goods belonged to another 
 
 ( S , Cornish v. Abington, I II. Brotm,L. I!. 1 Q. B. D. 714, 
 & N. 549; and Bee Thomas v. (') At p. 556.
 
 326 ESTOPPEL IN PAIS. 
 
 brother of his, and finally that they belonged to himself. 
 The sheriff's officer, however, proceeded to seize the goods, 
 and to sell them as those of B. B. W. B. afterwards 
 became bankrupt, and his assignees brought an action of 
 trover and conversion of the goods against the sheriff's 
 officer. Defendant pleaded {inter alia) that W. B. was 
 not possessed of the goods at the time of seizure. The 
 jury found that though the goods in fact belonged to 
 W. B., he represented them to the sheriff's officer as the 
 goods of B. B., so as to induce him, by that false re- 
 presentation, to seize the goods. Upon this finding the 
 judge directed a verdict for the plaintiff, and the direction 
 was upheld in banc (u). Parke, B., after stating the 
 rule above mentioned, said, " If Ave apply this rule, 
 either in the terms in which it was enunciated in 
 Pickard v. Sears (?;), or as it is above expounded, the 
 finding of the jury is insufficient to entitle the defendant 
 to have a verdict entered for him on the plea of not 
 possessed. It is not found that he intended to induce 
 the officer to seize the goods as those of B. B., and, 
 whatever intention he Lad on his first statement, was done 
 away with by an opposite statement before the seizure 
 took place. Nor can it he said that any reasonable man 
 would have seized the goods on the faith of W. B.'s 
 representation." 
 
 Goods having been ordered by E., were invoiced to 
 " E. and Son," and a bill was drawn for the price on " E. 
 and Son.'' The bill was accepted in the handwriting of 
 the son, in the name of " E. and Son." The son was not 
 
 (u) Freeman v. Cooke, 2 Ex. (v) 6 A. & E. 469.
 
 REPRESENTATION. 327 
 
 a partner, and it was alleged that lie accepted the bill 
 only as his father's amanuensis. Per Watson, B. : The 
 proper question to have been put to the jury should have 
 been as follows, viz., whether the conduct or statements 
 of the son led plaintiff to believe that the son and E. were 
 in partnership together, and whether plaintiff acted on 
 that belief. If the jury answered this question in the 
 affirmative, that then the son was liable on the bill (x). 
 
 On the dissolution of a partnership between H., C, 
 and P., notice was given to the creditors that the business 
 would thenceforth be carried on by P. alone, under the 
 firm of P., Son, & Co. After this the business was carried 
 on under that firm, and a banking account was opened in 
 that name. P.'s son constantly signed cheques upon that 
 account in the name of the firm. He also accepted bills 
 in the name of the firm, negotiated loans to the firm, and 
 sometimes ordered goods in the name of the firm. The 
 name P. alone appeared on the outside of the business 
 premises. The business was continued for a year and a 
 half, and then P. and his son were, on the petition of a 
 creditor of the business, jointly adjudicated bankrupts, as 
 having traded as partners. ()n an application to (lie 
 ('dint lor a declaration that the assets of the business 
 were separate estate of the father, both father and son 
 deposed thai no actual partnership hail subsisted between 
 them, hut that it was intended from the first that the son 
 should he a partner if the Imsiness had turned out profit- 
 able. Two creditors (the petitioning creditor and another) 
 
 i') Gurney v. Evans, '■'< If. & <c Co. v. Court of Wards, L R, 1 
 >". 122 : see al i Mollwo March I'. C. at p. 135.
 
 828 ESTOPPEL IN PAIS. 
 
 deposed that the son had been held out to them as a 
 partner. Eight other creditors (the whole number who had 
 proved being eighty-two) deposed that they had always 
 treated the son as being a partner. Held, that the assets 
 must be treated as joint estate of father and son {y). 
 
 The purchaser of hem}) lying* at a wharf, himself 
 directs the hemp to be transferred, in the wharfinger's 
 books, into the name of the broker who had bought it for 
 him. From this an authority to the broker to sell would 
 be implied, though no such authority was in fact given 
 him, and the sale and receipt of the money, by the 
 broker, though fraudulent as to the principal, would 
 nevertheless bind him (,i). 
 
 B. fraudulently obtains goods from F. H. (whose 
 ordinary business is that of a cotton broker, and who is 
 utterly ignorant of B.'s fraud), purchases the goods from 
 13., in the belief and expectation that M., one of his 
 ordinary clients, would aceept the goods. M. does aceept 
 them ; II., at the time of the purehase, had no instructions 
 
 (//) Ex parti Hayman, In n vol. i., pp. 47 et seq. And, as (o 
 
 Ptdsford, L. I!. 8 Cli. D. 11, the personal liability of persons 
 
 following /// r< Rowland and who, though merely trustees for 
 
 GranhsJiaw, L. I!. 1 Ch. App. 121. others of shares in an incorporated 
 
 And for further cases, showing company, have held themselves 
 
 the principle upon which a person out as individually liable, see 
 
 not actually a partner becomes Cree v. Somervail, L. lb 4 App. 
 
 treated as one by holding him- Cas. IS, following Oake-s v. 
 
 self out as such, see per Erie, C. J., Turquand, L. It. '2 II. L. 325; 
 
 in Waugh v. Carver, 2 II. I!l. and Muir v. City ';/' Glasgow 
 
 235 ; Fox v. Clifton, 6 Bing. Bank, L. R. 4 App. Cas. 337. 
 
 776 : per Williams, J., in Martyn (;;) Pickering v. Busk, 1-5 East, 
 
 v. Gray, 11 ( '. B. X. S. 824, at :)<s ; and sec JBoyson v. Coles, G 
 
 p. 841 ; and other references in M. & S. II. 
 Lindley "ii Partnership Mth cd.),
 
 REPRESENTATION. ; ^ (J 
 
 from any principals to make a purchase. Held, that H. 
 by his conduct had made himself liable to be treated as a 
 principal, and, by transferring the goods to M., had com- 
 mitted an act of conversion, which made him liable in 
 trover to F., the real owner of the goods (a). 
 
 A. hands his watch to B. to keep for him. 13. sells or 
 pledges it. A., though in a sense he enabled B. to 
 appear as the owner of the watch, does not lose his pro- 
 perty therein, and is not estopped from recovering the 
 watch from the purchaser or pledgee (b). 
 
 A. deposits with his broker, negotiable instruments 
 transferable by delivery. The broker, in fraud of A. and 
 without his authority or knowledge, deposits them with B. 
 as security for a sum owing from the broker to B. A. 
 is estopped from recovering them from B. (c). 
 
 H., a merchant dealing in tobacco and a broker in that 
 trade, lias fifty hogsheads of that article, lying in bond in 
 his name in the K. dock, the warrants for which have 
 been issued to him. Plaintiff buys the tobacco from H., 
 and pays for it, bnt lie leaves the dock warrants in the 
 possession of II., and takes no stops to have any change 
 made in the hooks of the slock company, as to the owner- 
 ship of the tobacco. II., being the ostensible owner of the 
 tobacco, fraudulently obtains advances, on the pledge of 
 a portion of the tobacco, from defendants, and hands to 
 
 ,,,, Uoll n '■■ Fowler, I.. R, 7 at p. 281. 
 
 n, B. 616 j I- !>'• 7 II- I- 757 j (c) Rumball v. Metropolitan 
 
 , Stephens v. Elwall, I \l. Bank, L I!. 2 < L >. B. D. 194 ; and 
 
 ,v S. 259 ; Hardman v. A'*.,,///, I post, p. -'Wis, following Goodwin v. 
 
 II. lV c. 803. Robarts, I, II. 10 Ex. •".■".7 ; I,. Et. 
 
 (&) Per Bramwell, I'-., in Go- 1 App. (-'as. I7fi. 
 barrow v. Kn eft, I .. '!■ LO C. I '■
 
 330 ESTOPPEL IN PAIS. 
 
 them the dock warrants. Defendants act in good faith, 
 and take fresh dock warrants from the dock company. 
 Plaintiff brings an action against defendants for the 
 tobacco. Plaintiff is not estopped from recovering it from 
 them (d). 
 
 A., the owner of goods, allows a factor B. to have pos- 
 session of the goods, or of the documents of title to the 
 goods, thereby enabling B. to hold himself out to the 
 world as having, not only the possession, but the property 
 in the goods. B. sells the goods without giving A. notice. 
 A. is bound by the sale, and is estopped from recovering 
 the goods from the vendee (e). 
 
 A contract was entered into for the sale by B. and D. 
 to a company, of certain property, and for the issue and 
 delivery to B. and D., immediately upon the formation of 
 the company, of debentures to the amount of £150,000 
 
 (J) Johnson v. Credit Lyonnais c. 39, and 40 & 41 Vic. c. 39), 
 
 Co., L. R. 2 C. P. D. 224; L. R. which, in such cases, create a 
 
 :'> ('. P. D. 32. But see now the statutory estoppel against the 
 
 Factors' Acts Amendment Act owner of the goods, preventing 
 
 (40 & 41 Vic. c. 39, s. 3). him making any subsequent claim 
 
 (e) Dyer v. Pearson, 3 B. & C. to the goods so dealt with. No 
 
 38 ; and per Cockburn, C. J., in protection, however, is afforded to 
 
 Johnson v. Credit Lyonnais Co., them at common law, against 
 
 P. p. :') ( '. P. ]). 32, at p. 39, claims by the owner, except in 
 
 commenting on and qualifying cases of estoppel like those given 
 
 the doctrine laid down in Chitty in the illustration ; see Paterson 
 
 on Contracts (10th ed.), p. 355. v. Tash, 2 Str. 1178; Daubigny 
 
 Purchasers, pledgees, and others, v. Duval, 5 T. R. GO I ; Martini v. 
 
 dealing with factors, agents, and Coles, 1 M. & S. 1 40 ; and, cx- 
 
 others, who are in possesion of cept as to certain rights of set 
 
 goods, are in many cases pro- off ; see George v. Clagett, Smith's 
 
 tected by the Factors' Acts ( I (4. L. C. (8th ed.), vol. ii., p. lis. 
 4, c. 83, 6 G. 1, c. !->!, 5 & 6 Vic.
 
 REPRESENTATION. 331 
 
 which were to be payable to bearer, the capital to be 
 repayable to bearer at the end of three years from the 
 date of the agreement. The contract was embodied in 
 the Articles of Association, and the company was formed 
 to give effect to it. Held, upon a claim being made by 
 holders of the debentures to prove for the amount speci- 
 fied in them, that the company was estopped from setting 
 up any equity, or right of set-off or counter-claim, whieli 
 it might have acquired against B. and D. to whom the 
 debentures were originally issued (/). 
 
 P., residing at Ilonfleur, consigned batter to plaintiff 
 by the defendants but wrote to plaintiff that he would 
 send no more until he heard further. Defendants' agent 
 at Ilonfleur wrote to plaintiff, stating that 17 barrels of 
 butter were consigned to him, whereas they had been 
 delivered to the defendants by P. without address. Plaintiff 
 paid the carriage charged by defendants, and accepted a 
 bill drawn by 1\ for the value of the butter. Defendants 
 
 i /' i /,/ ,- Blahely Ordnana of an undertaking by the company 
 
 Co., Ex parU New Zealand Bank- to pay a certain sum to "('., or 
 
 ing Corporation, L. R. 3 Ch. App. to his executors, administrators, 
 
 L54. The estoppel in this case or transferees, or to the holder 
 
 arose ou1 of the contract by the for the time being of the debeu- 
 
 ipanytoissuedebentures"pay- ture bond.'' Sec In r< Natal 
 
 able to bearer." This implied a Investment Co., L I!. .'! Ch. App. 
 
 representation thai the holder 355, explained in Ex parti Oity 
 
 Bhould bi frei from prior equities, Bank, L R. •"> ch. App. 758; 
 
 No ucb i toppel would and see In n Romford Canal Co., 
 
 arise on a contrad by a company I.. II. 2 I Ch. D. 85, at p. 92. 
 
 to issue debentures bearing in In such a case the ordinaryrule 
 
 'Hit doI Baying anything as to the liabilities of assignees 
 
 about the form of the debentures, of choses in action would apply 
 
 even though tin' debentures see jwst, p. 346, note (k). 
 
 actually issued were in the form
 
 oo2 ESTOrrEL IN PAIS. 
 
 afterwards, at P.'s request, delivered the butter to another 
 person. Plaint iff then sued defendants for the amount 
 of his acceptance and for the amount lie had paid for 
 carriage, which latter amount defendants paid into courl : 
 
 held, that the inaccurate statement made by defen- 
 dants was not made with the intention that plaintiff 
 should act upon it, and that plaintiff's act, i.e., pre- 
 sumably, the acceptance of the bill, was not the reasonable 
 consequence of the statement, and that therefore the fact 
 did not amount to an estoppel which rendered defendants 
 liable for the value of the butter (</). 
 
 Plaintiffs delivered to defendants, for carriage on board 
 defendant's ship, a closed case containing silk goods. 
 The bill of lading, as tendered by plaintiffs for signature, 
 described the contents of the case as linen goods, but 
 before signing, the captain impressed upon it with a 
 stamp the words "weight, value, and contents unknown." 
 The freight charged for silk was higher than that for 
 linen goods, and the freight paid for the goods was that 
 for linen goods ; but plaintiffs represented the goods to 
 be linen inadvertently and without fraudulent intention. 
 On the ship's arrival at her destination it was found, that 
 two pieces of silk had been abstraeted from the ease. In 
 an action by plaintiffs against defendants as common 
 carriers, for non-delivery of the silk goods so lost : held, 
 that the result ot the addition of the words " weight, 
 value, and contents unknown," to the bill of lading was 
 completely to do away with the effect of the description 
 of the goods as linen, and that consequently defendants' 
 
 (g) Scales v. L. & S. II'. Ry. Co., 53 L T. (0. S.) U.
 
 REPRESENTATION. 333 
 
 contract was to carry the case and its contents, whatever 
 they might be, and that plaintiffs were entitled to maintain 
 the action (A). 
 
 Plaintiff bought goods which were to be consigned to 
 him at Liverpool from St. Helen's by defendants' rail- 
 way. On the 7th of July 187o, plaintiff received an advice 
 note from defendants informing him that two parcels of 
 goods had been received by them for his account, and 
 that they held them subject to his order and to the 
 payment of rent and charges. One of those parcels, 
 through a mistake of the consignors and a consequent 
 mistake of defendant company, was wrongly described in 
 the advice note. The consignors and defendant company 
 having discovered their mistake, it was corrected by 
 means of a " corrected " advice note, sent as before, on 
 the 9th of July, which correctly described the parcel which 
 before had been wrongly described, but which was not on 
 paper of the colour ordinarily used for corrected advice 
 notes. .Plaintiff appears to have thought that the 
 "corrected' advice nolo referred to a third parcel of 
 gdods, and immediately instructed his broker to sell the 
 whole three parcels. Early in Augusl the plainlil'l 
 received invoices of the three parcels from the consignors 
 and paid for the whole by an acceptance which was duly 
 honoured. The goods were sold on the _lsi of Augusl, 
 and the nil! and charges on the three parcels were paid 
 
 (h) Lebea/u v. General Steam out fraud, could have had (he 
 
 Navigation Co., L R. 8 C. P. 88. effect of avoiding the contract, 
 
 Quare, whether even without the for carriage of the goods by 
 
 additional words, the mbrepre- defendants us common carriers. 
 Bentation, having been made with-
 
 I 
 
 884 ESTOPPEL IN PAIS. 
 
 to defendants by the broker, but it turned out that two 
 parcels only had been delivered to defendants (the third 
 still remaining on the premises of the consignors), and 
 plaintiff was obliged to pay his purchasers the difference 
 between the price at which they had bought the third 
 parcel, and what they had to pay for other goods. The 
 mistake was not made known to all parties until after the 
 sale of the three parcels, and delivery of two of them, 
 and a demand made by the purchaser fori the delivery of 
 the third. Plaintiff then brought an action against defen- 
 dant company for non-delivery of the tbrird parcel. The 
 jury found at the trial. " that defendan/s knew of the mis- 
 take on the 9th of duly, and that there was no sufficient 
 intimation by the defendants to the/plaintiff of the mis- 
 take." They did not, however, find Any negligence on the 
 part of the defendants. Held, thai defendants were not 
 estopped from shewing that the giods had never reached 
 their hands ; and consequently could neither be liable in 
 trover, nor for breach of contract in not delivering the 
 goods (/). lirett J. in his judgment, after stating the 
 propositions applicable to estoppels in pais, above men- 
 
 tioned (/•), said, " It cannot, as it seems to us, lie truly 
 affirmed, that the defendants intended any representation.^ 
 of theirs to be acted upon by the plaintiff in the way of 
 reselling the goods . . . the only intention on the 
 part of the defendants which can be properly inferred 
 from the sending of an advice note is, that the consignee 
 should send for the goods . . . the plaintiff did not, 
 
 (/) Carr v. L. & N. W. By. (1-) See ante, p. 303. 
 
 Co., L. R. 10 C. P. 307.
 
 REPRESENTATION. 335 
 
 in re-selling, act upon any representation of tlie defen- 
 dants, for lie resold before they made any communication 
 to him. In re-selling, he neither acted upon nor was 
 damaged by reason of any representation of theirs. And. 
 if the second intention be inferred, the plaintiff did not 
 act upon it by sending for the goods ; he never did send 
 for them" (/). 
 
 C. was proprietor of certain stock in the London and 
 South Western Railway Company. P., the confidential 
 clerk of C, feloniously got possession of a certificate 
 for £1,000 of the stock, and sold that amount. Subse- 
 quently he forged C.'s name to the transfer, and 
 forwarded it, together with the certificate, to the brokers 
 of W. the purchaser, who had purchased the stock from 
 T. a member of the Stock Exchange. The brokers 
 forwarded the transfer and certificate to the company for 
 registration. The company thereupon wrote to C. at his 
 usual address, inquiring if the transfer was correct. The 
 letter was intercepted by 1'., who replied in a way which 
 appeared not quite satisfactory. The company forwarded 
 a second letter, which was also intercepted by P., who 
 gave lb'' company an explanation with which they were 
 satisfied, and they immediately soul a now certificate to 
 W'.'s brokers. The fraud was subsequently discovered, 
 and W. 30ugh1 to recover from the company on the 
 ground [inter <ili<i) that he was entitled to rely upon 
 the certificate <>l registration, which the company weir 
 
 i Cf. Coventry v. Q. I'. Ry. the part of the company, post, 
 I.. I:. 1 I Q. B. I>. 77i;, in v . 370. 
 which there waa negligence on
 
 886 ESTOPPEL IN PAIS. 
 
 estopped from questioning, as if had prejudicially altered 
 his position. Held, that the company having issued the 
 certificate to W., without any want of care, and in a 
 bondfidi manner, were nut estopped from contesting its 
 validity (in). 
 
 •1. The representation must be of an existing fact, and 
 not of a mere intention. — W. M. gave a bond and 
 warrant of attorney to secure the repayment of a sum of 
 money. An action was brought thereon, and judgment 
 entered up, but not executed. The bond and warrant of 
 attorney subsequently came into the possession of L., as 
 personal representative of the original obligee. L. was 
 on terms of affectionate friendship with W. M., and often 
 said that he had been unfairly treated, in being made to 
 enter into these securities. L. had, in early life, received 
 from W. M.'s father, a conveyance of some property in 
 India. The deed of conveyance was expressed to be for 
 a money consideration of 10,000 rupees. In truth the 
 consideration was, if any, a debt of 1,200 rupees, and the 
 rest was a purely voluntary gift, and no money whatever 
 passed, when the conveyance was executed. W. M. was 
 about to marry, and when his marriage was in contempla- 
 tion, discussions arose about the bond and warrant of 
 attorney. W. M.'s father told L. that he was advised, if 
 she did not abandon the claim on the bond and warrant 
 of attorney against his son, to execute a deed which 
 would put an end to the conveyance of his Indian 
 property as a voluntary conveyance. L. therefore 
 promised not to enforce the bond and warrant of 
 
 (m) Waterhouse v. /.. <k S. W. By. Co., 41 L. T. 553.
 
 REPRESENTATION. 337 
 
 attorney, if lie would abstain from interfering with the 
 
 conveyance. Other evidence was given of declarations 
 by her, that she " had abandoned' the claim, and of a 
 promise often repeated, that she would never trouble 
 W. M. about it. W. M.'s marriage took place, and 
 property of the lady to whom he was engaged was 
 settled on him for his life, upon the faith of the represen- 
 tations made by L. that she would never call for the 
 bond. After the marriage, W. M. instituted a suit in 
 Chancery, praying that he might be released from the 
 bond, thai the warrant of attorney might be delivered up 
 to be cancelled, and that satisfaction might be entered 
 up on the judgment obtained against him. Hold, in the 
 House of Lords, that plaintiff's bill must be dismissed, 
 but without costs (y/). Per Lord Cranworth, L. C, after 
 citing the cases of Montefiore v. Montefiore (<>), Neville v. 
 Wilkinson (p), and Baron Parke's judgment in Freeman 
 x. Cooke (q):- "The question is, whether the evidence 
 
 Jordenv. Money, 5 H. I.. Ch. App. 659 ; and Maddison v. 
 
 185. The judgments were Alderson, I.. R. 8 \\>\>. Cas. !''>7, 
 
 thosi Lord Cranworth (L. C.) at p. 17:!. The only authority 
 
 .,,,,1 Lord Brougham, dissentiente against it has been Loffus v. Maw, 
 
 l,,,,.,l st Leonards. The latter 3 Giff. 592, followed by Malins, 
 
 was of opinion thai ;i representa- V.*'., in Coles v. PUkington, L. 1!. 
 
 tion of intention was sufficient to 19 Eq. 17 1. Hut this has been 
 
 toppel. The judgment disapproved of in Maddison v. 
 
 ,,f the majority, ho . has Alderson, L. R. 8 App. Cas. 167, 
 
 oved "f in -'••■ ral moi I pp. 17:'>, 183. 
 
 m the House of >) 1 Sir \\ . Kl. :;•;."», ani , 
 
 er Lord Selborne j,. :'»17. 
 
 \ n t Bank oj Louisiana-*. Q>) 1 Bro. C. ( '• 543, ante, 
 
 ■ ■ Bank of Orleans, p. 318. 
 
 I.. R. 6 H. I- 352, at p. :: ( 7 ) 2 Ex. 654. 
 r l\ I., i;. 
 
 L
 
 338 ESTOPPEL IN PAIS. 
 
 here shows that anything took place which brings the 
 rase within those authorities. I am clearly of opinion, 
 as clearly as I can be, knowing that 1 am counter in 
 this respect, certainly to an authority for which I feel 
 very great deference, namely, the Master of the Rolls, 
 probably to the Lords Justices, and I have some reason 
 to suppose, also to some at least of your lordships, that 
 it does not. I am bound to state my view of the case ; 
 I think that that doctrine does not apply to a case where 
 the representation is not a representation of a fact, but a 
 statement of something which the party intends or does 
 not intend to do. In the former case it is a contract, in 
 the latter it is not." 
 
 Defendants sold B. and Co., 100 tons of zinc (unap- 
 propriated) upon certain terms of payment, giving them 
 at the time of the contract, four several documents to the 
 following effect : " We hereby undertake to deliver to 
 your order indorsed hereon, twenty-live tons of merchant- 
 able sheet zinc oil your contract of this date." Upon 
 the faith of these documents, plaintiffs bought of B. and 
 Co., and paid for, fifty tons of the zinc mentioned in the 
 contract. B. and Co. having failed, and the contract 
 price being unpaid, defendants refused to deliver the 
 zinc. Held, that the giving of these delivery orders, or 
 " undertakings " did not estop defendants from setting up 
 as against the vendees of B. and Co., their right, as un- 
 paid vendors, to withhold delivery (r). Per Brett, L. J., 
 (referring to the delivery order), "looking at it, it 
 obviously contains no representation of any fact, and the 
 
 (r) Farmeloe v. Bain, J.. It. 1 C. J*. D. 445.
 
 REPRESENTATION. 389 
 
 plaintiffs had no right to rely upon it as such a represen- 
 tation, and consequently they do not bring themselves 
 within either of the propositions as to estoppel which I 
 ventured to lay down in Carr v. London and North 
 
 Western Ey. < '<>. (s) and to which I still adhere. It was 
 a mere undertaking or contract between the plaintiffs 
 and their immediate vendees." 
 
 The following classification of the different kinds of 
 representation has been made by Stephen, J., in a recent 
 case(/). "It seems to me," says the learned judge, 
 
 'that every representation false when made or falsified 
 by the event, must operate in one of three ways if it is 
 to produce any legal consequences. First, it may be a 
 term in a contract, in which case its falsity will, accord- 
 ing to circumstances, either render the contract voidable, 
 or render the person making the representation, liable, 
 either to damages, or to a decree that he or his repre- 
 sentatives shall give effect to the representation. 
 Secondly, ii may operate as an estoppel, preventing the 
 person making the representation from denying its truth, 
 ;is against persons whose conduct has been influenced by 
 it. Thirdly, it may amount to a criminal offence. The 
 common ease of a warranty is an instance <>l a represen- 
 tation forming pari ofacontract. Pickard v. Sears(u), 
 and many other well-known cases, are instances of 
 representations amounting to an estoppel. A false pre- 
 tence by which money is obtained, is an instance of a 
 representation amounting to a crime. Besides these, 
 
 L. I:. 10 C. I'. 307, ante, 5 Ex. I». 293, at p. 296. 
 p. 3i (v) 6 A. & K. 169. 
 
 (/) Ald( / on v. Maddison, I.. It. 
 
 z -2
 
 340 ESTOPPEL IN PAIS. 
 
 there is a class of false representations which have no 
 legal effect. These are cases in which a person excites 
 expectations which he docs not fulfil, as, for instance, 
 where a person leads another to believe that he intends 
 to make him his heir, and then leaves his property away 
 from him. Though such conduct may inflict greater loss 
 on the sufferer than almost any breach of contract, and 
 may involve greater moral guilt than many common 
 frauds, it involves no legal consequences, unless the 
 person making the representation not only excites an 
 expectation that it will be fulfilled, but legally binds him- 
 self to fulfil it, in which case he must, as it seems to me, 
 contract to fulfil it. It will, I think, be found, that all 
 the difficulties of the subject may be solved by keeping 
 in mind this classification of the different classes of false 
 representations." 
 
 It does not therefore necessarily follow, that because a 
 representation is of a mere intention and therefore has no 
 effect by way of estoppel, the party who has acted upon it 
 to his prejudice has no legal remedy which he can avail 
 himself of, although in certain cases it may be so. Thus 
 where the representation is verbal and is made with 
 respect to some matter that comes within the Statute of 
 Frauds, for instance, in consideration of marriage or of 
 the sale of lands, and there has been no part performance 
 of it so as to take the case out of the Statute, it cannot 
 be enforced, and the party who has acted on it has no 
 remedy. But it appears from the judgments given in 
 Maddison v. Alderson (v), that where representations of 
 
 (n 1.. II. 8 A ].] .. Cas. t67, at p. 47-'i.
 
 REPRESENTATION. 
 
 34 L 
 
 mere intention have been enforced, and of this there arc 
 several examples (x) — they must be held to have been 
 enforced as contracts, but that in all other cases repre- 
 sentations o\' mere intention would not now be enforced 
 either at law or in equity (y). 
 
 5. Acquiescence or standing by, where there is a d / 
 to speak or asst rt a right. — As already pointed out (z), in 
 order to show that vested rights are abandoned, the 
 representation must amount to a licence or agreement. 
 Thus mere permission to use a right of way under a 
 special agreement does not operate as an estoppel, as be- 
 tween the party permitting such user and strangers, after 
 the termination of the agreement (a). 
 
 The following cases are examples of acquiescence : — 
 A bankrupt acquiesced in his commission of bankruptcy 
 
 ' Ices v. Mascall, 2 
 Vera. 200 : Wanhford v. Fother- 
 ley, l' Vern. 321 ; Hodgson v. 
 Hutchenson, Yin. Ai>., vol. v.. p. 
 ! ; Luders v. Anstey, I Ves. 
 501 ; Uammersley v. l)< Bid, 12 
 ( !1. & Kin. r> ; Caton v. Caton, 
 :,\ L. .1. Ch. ."'<'>l ; Prolev. Soady, 
 2 Giff. 1 ; Yeomans v. Williams, 
 I,. |;. I Eq. L84 ; and Ungley v. 
 Ungley, L. R. 5 Ch. D. 887. 
 The case of Hammersley v. />' Biel 
 :m<l other ■ of ante-nuptial 
 
 contracl are fully di 1 in 
 
 Dav 
 
 ancing, vol. iii., part [., appendix, 
 p. (;:;.">. See also Stephen, J.'i , 
 review of the authorities in 1 
 ,1, rson v. Maddison, L R. 5 I 
 I ». 293. The principles uj 
 
 which representations of intention 
 are enforced in equity, are ex- 
 plained in Evans v. Bicknell, 6 
 Ves. 17-J ; Burrotves v. Lock, 10 
 Ves. 475 : Slim v. ( 'voucher, I 
 DeG. F. & J. 518; at p. 525 ; 
 and per Bacon, V. < '., in Coverdale 
 v. E ■', L. R. 15 Eq. 121, 
 
 al p. 131. 
 
 I-) See II r arden v. Jones, 23 
 Beav. 1:87 ; Maunsell \. Hedges, 
 I II. I.. Cas. 1039 : Dashwood v. 
 Jermyn, L R. 12 Ch. I ). 776 ; 
 and .!/</' raw v. Maddison, L. 1!. 
 i << B. I), in : and L I: 
 A.pp 16 1 ag Stephen, 
 
 J., in L. R. 5 Ex. D. 293. 
 
 (-.) Ante, p. 303. 
 
 (a) ///>// v. C7ow*er, l. r„ 5 
 1 . P. D. 37G.
 
 342 ESTOPPEL TN PAIS. 
 
 for three years, and solicited the votes of creditors in the 
 choice of assignees, lie was held precluded, in an action 
 for money had and received, brought by him against 
 the assignees, from disputing the validity of the com- 
 mission (A). 
 
 A. is sued by a wrong name, and suffers judgment to 
 go against him without attempting to rectify the mistake. 
 He cannot afterwards, in an action brought by him 
 against the sheriff for false imprisonment, complain of an 
 execution issued against him by that name (c). 
 
 G., the owner of certain fittings to a public house, 
 demised them to D. D. thereupon became tenant of the 
 public house to the landlord E., under an agreement 
 which gave E. a lien on the fittings. G. was present at 
 the execution of this agreement. Subsequently W., on 
 being told by E. that D. was his tenant, bought the 
 fittings from D. bond fide for value, in ignorance of G.'s 
 title to them and without G.'s knowledge or assent. W. 
 was then accepted by E. as tenant in the place of D. G. 
 then brought an action of trover for the fittings against 
 W. At the trial, Lord Denman, C.J., directed the jury, 
 that if they were satisfied that the plaintiff had so allowed 
 D. to deal with the fittings, as to hold him out to the 
 world as the owner of them, and that the defendant had 
 been thereby induced to purchase them bond fide, in the 
 belief that they belonged to D., then the defendant was 
 entitled to a verdict (d). 
 
 (b) Like v. Howe & Rogers, 6 nell, 13 Q. B. 903. 
 
 Esp. 20. (d) Gregg v. Wells, 10 A. & E. 
 
 (c) Fisher v. Magnay, 5 M. & 90. This direction was upheld in 
 <;. 778 : and cf. Walley v. McCon- banc.
 
 REPRESENTATION. 348 
 
 A., who is entitled to a legacy under a will, lias a claim 
 against the testator, which he conceals from the executor, 
 until after he has received the legacy. A. afterwards 
 sues the executor for the amount of the claim. A. is 
 precluded from objecting that the amount of the legacy 
 was nor paid in a due course of administration (e). 
 
 W. H. died intestate in 1798, seised of a house and 
 land, leaving a widow, and an only son by her, J. H., 
 fifteen years old. The widow continued to reside on the 
 property, and, about a year after the death of W. H., 
 married defendant, and resided with him on the premises, 
 J. H. also living with them until 1805, when he went 
 away, occasionally returning for about a fortnight at a 
 time until 1 842. About that time defendant applied to 
 plaintiff's lessor for a loan of £100 on mortgage of the 
 property, and on that occasion, the title deeds being 
 produced, the solicitor stated that it was necessary that 
 .]. H. being heir-at-law to W. II., should execute the 
 conveyance. Defendant accordingly brought d. II., who 
 cuted the mortgage and signed the receipt for £100, 
 which sum was received by defendant. Held, that 
 defendanl by his conduct hail waived his right to set up 
 the Statute of Limitations, so as to dd'oat the right of 
 entry of. I. II. and those claiming under him (/'). 
 
 Stroud v. Stroud, 7 M. & private, e.g., rights <>r presenta- 
 
 <-. 117. tion of ;i vicar of a parish, which 
 
 (f) Do( d. Groves v. Groves, are accompanied by spiritual and 
 
 I r < I.. .1. Q. I'.. l".'7 : sec also other duties in which ihc par 
 
 Sugden's Vendors and Purchasers ishioners are interested, cannot 
 
 (10th ed.), p. 248, cited vaSandyt be waived by the acquiescence of 
 
 v. Hodgson, I" A. & E. I7<i. the individual possessing those 
 
 But rights which are not merely righl . See MacAllisterw Jiishop
 
 •>l I ESTOPPEL IN PAIS. 
 
 A railway company permitted a eanier to hold himseH 
 out as their agent for the receipt of goods to be carried 
 by them, and to represent his office as the receiving 
 office of the company. The carrier omitted to require 
 certain senders of goods to sign the usual conditions 
 required by the company's regulations. Held, that this 
 was an undue preference on the part of the company, and 
 that they were liable to an injunction under the Railway 
 and Canal Traffic Act (//). 
 
 A congregation of seceders, by a formal vote, united 
 themselves to the Free Church of Scotland; and, in 
 pursuance of that vote, a Free Church minister was 
 solemnly inducted, without any objection or dissent on 
 the part of a small minority of four persons, who had 
 complete knowledge of all the proceedings. In an action 
 brought by these four persons to have certain property, 
 which had passed by the amalgamation, restored to them, 
 held, that they were estopped by their own conduct from 
 maintaining the action (A). Per Lord Campbell, (L.C.), 
 at p. 829, " The doctrine will apply which is to be 
 found, I believe, in the laws of all civilized nations, that 
 if a man, either by words or by conduct, has intimated 
 that he consents to an act which has been done, and that 
 he will offer no opposition to it, although it could not 
 have been lawfully done without his consent, and he 
 
 of Rochester, L. I!. 5 C. P. D. 194. v. Metropolitan Ry. Co., L. R. 2 
 
 See further as to the waiver of a App. ('as. 439. 
 
 right of forfeiture under a six (g) 17 & 18 Vic. c. 31. See 
 
 months' notice to repair, by en- In rt Baxendale, 11 C. B. N. S. 
 
 tertaining proposals "I' the lessee 7S7. 
 
 for sale of the property, after the (h) Cairncross v. Lorimer, 3 
 
 notice had begun to run, Hugh i Macq. 827.
 
 REPRESENTATION. 345 
 
 thereby induces others to do that from which they 
 otherwise might have abstained, he cannot question the 
 legality of the act he had so sanctioned, to the prejudice 
 of those who have so given faith to his words, or to the 
 fair inference to be drawn from his conduct." And again, 
 at p. 830, " I agree with the Lord Justice Clerk and 
 other judges, who thought that it is not necessary to 
 prove concurrence, on the part of the Pursuers, in the 
 proceedings now challenged, and that proof of positive 
 assent or concurrence is not necessary. [ am of opinion 
 that, generally speaking, if a party ha ving an interest to 
 prevent an act being done, has full notice of its having 
 been done, and acquiesces in it, so as to induce a reason- 
 able belief that he consents to it, and the position of 
 others is altered by their giving credit to his sincerity, lie 
 has no more right to challenge the act, to their prejudice, 
 than he would have had if it had been done by his 
 previous licence." 
 
 An insurance company having power to issue bonds 
 and other securities, issued to S. a bond, conditioned to 
 bo void on payment to him, his executors, administrators, 
 and assigns on ;i future day. of £250. The bond was 
 ed for value to B., and notice of the assignment 
 given at the office of the company and accepted, but the 
 assignment was never registered. No enquiry was made 
 as to the validity of the instrument, before B. took tlie 
 assignment. Before the fond fell duo. the company 
 wont into liquidation. Held^ on an application by B.'s 
 executors to prove againsl the company, that the 
 company had, by accepting notice of the assignment, 
 precluded themselves from setting up against the
 
 346 BSTOPPEL IN PAIS. 
 
 assignee, equities between tliem and the original obligor 
 attaching \o the instrument itself (/••). 
 
 A so-called joint stock company was established in 
 1 825, to work a mine, in which plaintiffs were partners. 
 Certain calls were made on plaintiffs in respect of their 
 shares, as to which there was a question whether they 
 were validly made or not. Plaintiffs refused to pay the 
 calls, whereupon distinct notice was given to them thai 
 their shares were forfeited. Plaintiffs took no steps to 
 assert their interest for a period of nine years or upwards. 
 Held, that they were precluded from setting up a claim 
 to be partners (/). 
 
 Appellants and respondent entered into a written 
 agreement to work certain mines, and to form a 
 company for that purpose. The company was formed, 
 and respondent took certain shares therein. Subse- 
 quently, respondent wrote to one of the appellants a 
 letter containing the following passage: "If I cannot pay 
 
 (/■) In re Hercules Insurance company, even though the assign- 
 
 ('<>., Hi- a a toil's Claim, L. R. 19 ment was made by officers of the 
 Eq. 302 ; see also per Kay, J., in company, and the fraud was con- 
 fa re Romford Canal Co., L. R. fined to them, and the assignee 
 24 Ch. D. 85, at p. 92, who says, was an innocent purchaser for 
 " Such an equity cannot be set np value. In such a case the or- 
 against an equitable transferee, dinary rule would apply, namely, 
 whether the security was trans- that an assignee of a chose in 
 ferable at law or not, if, by the action takes subject to the 
 original conduct of the company equities which affect the assignor. 
 in issuing the security, or, by See Athenaeum Life Assurance 
 their subsequent dealings with Society v. Pooley, 3 De G. & J. 
 the transferee, he has a superior 294. 
 
 equity." It would have been (I) Prendergast v. Turton, 1 Y. 
 
 otherwise, however, if the assign- A: < '. Chauc. ('as. 98; see also 
 
 ment had been in fraud of the Norway v. Rowe, 19 Yes. 144.
 
 REPRESENTATION. 347 
 
 my calls, my shares will be adverted to in our next 
 meeting, and, when notice has been given of the 
 intention of the company, they will be forfeited unless 
 the money be paid; this is the usual mode of proceed- 
 ing, which I shall endeavour to avoid."' Respondent 
 afterwards, in other correspondence with appellants, 
 repeatedly denied appellants' right to declare his shares 
 forfeited. He however neglected to pay his calls, and 
 subsequently appellants declared respondent's shares to 
 be forfeited. Held, that respondent's shares were nut 
 forfeited, or his rights under the agreement affected, by 
 his statements or conduct, and that he was not estopped 
 from filing a bill in ehancery for dissolution of the 
 partnership, and lor an account (m). Per Lord 
 Wensleydale (at p. G70), after referring to Norway \. 
 Eowe (n), and Prendergast v. Turton(o): " Now looking 
 at the conduct of the respondent in this case, it appears 
 to me perfectly clear, that it cannot be considered as 
 amounting to an acquiescence of that sort. From the 
 very first be disputed the right of the appellants to 
 declare the forfeiture of the shares; he has been 
 complaining of them from that day to this; and it is 
 impossible to regard his conduct as amounting to an 
 implied agreement, or an implied representation, that 
 
 (,„] Clarke v. Hart, »', II. I.. Mining Co. v. McLister, I,. R. 1 
 
 633, di I and explained App. < 'as. 39. But it might 
 
 in /'///<■ v. Jewell, L I.'. I s Ch. I ». have thai effect in the case of a 
 
 Ami mere laches does Dot voidable allotment of shares. See 
 
 disentitle the holder of Bhares to Inn Scottish Petroleum Co., L I'. 
 
 equitable relief against an invalid 23 Ch. I>. Il.'i. 
 declaration of forfeiture. See (w) L9 Ves. III. 
 
 Garden Gully United Quart (») I Y. & C. Ch. Cas. 9
 
 ,'US ESTOPPEL IN PAIS. 
 
 they might go on \vitli tlie concern i'or their own benefit, 
 and thai he would not claim any share of the profits." 
 
 At a meeting of the partners in a cost-book mine, held 
 in 1874, it was slated that the mine was £2,003 in debt, 
 and a call of £25 was made upon each of the six shares 
 in the mine. Two of the partners did not pay this 
 call, and were in arrears for other calls. At subsequent 
 meetings in June, 1874, the shares of these partners 
 were declared to be forfeited. These two partners took 
 no steps as to the mine until July, 1879, when they made 
 a claim, and in September, 1880, they brought an action, 
 alleging that the shares had not been regularly forfeited, 
 and claiming to be still partners. Held, that even 
 assuming the shares not to have been regularly forfeited, 
 the plaintiffs, under the circumstances, could not, after 
 lying by for more than six years, successfully assert their 
 claim to be partners (p). Per Kay, J. (at p. GG5), citing 
 from Lord Wensleydale's judgment in Clarke v. 
 Hart (7), " Now it appears to me that the principle to be 
 ■■ luced from the cases of Prendergast v. Turton (/•), and 
 Norway v. Rowe (s) is, that, if a party lies by, and by 
 his conduct intimates to the other partners in the concern 
 that he has abandoned his share, they may then deal 
 with it as they please ; if his conduct amounts to a 
 representation of that sort he is estopped by it, and 
 cannot afterwards complain." 
 
 A., before the registration of a company, applied for 
 shares on the faith of a prospectus, and allowed more 
 
 (p) Rule v. Jewell, L. I!. 18 (r) 1 Y. & C. Ch. Cas. 98- 
 
 Ch. D. 660. (s) 19 Ves. 111. 
 
 6 Jl. L Cas. at p. 670.
 
 REPEESENTATION. 349 
 
 than a year to elapse, from the time when his shares 
 were allotted to him, before raising the objection that 
 the memorandum of association was not in accordance 
 with the prospectus. Held, that his application to have 
 his name taken off the list of contributories came too 
 late (t). 
 
 a. The duty to speak <>r assert a right, must exist. — 
 A., having a right to an estate, by his conduct induces 
 B. to purchase it from another. A. will be precluded 
 from afterwards setting up his right against B. (t(). 
 
 Defendant was surety for the performance of an 
 agreement between plaintiffs and N. Subsequently the 
 agreement was varied by a release being executed, 
 defendant not being a party, and in such a manner as to 
 discharge the surety. The terms of the agreement not 
 having been carried out, plaintiffs sued defendant on his 
 guarantee, and it was sought to make him liable on the 
 
 mud that, by his conduct in standing by, plaintiffs 
 were led to believe that he assented to the alteration 
 in the agreement, and therefore that defendant was 
 estopped from setting up the alteration of the agreemenl 
 by way of defence (x). Blackburn, J., however said (at 
 
 (/) In re Barned's Banking Co., 621 ; In re Hull C 
 
 Peel' I , I.. R. -' Ch. A.pp. Bank, Burgess's Case, I.. I;. 15 
 
 674 ; Bee also Evans v. Small- Ch. I». ">07, at pp. 512, 513. 
 
 combe, L. R. •"> M. I.. 249. A (u) See the rule laid down in 
 
 fortiori, this would be the case if Sugden's Vendors and Purcha 
 
 application were made after (10th ed.), \>. 428, as stated in 
 
 the winding up of tl iany. - v v. Hodgson, L0 A. & E. 
 
 v. Turquand, L. II. 2 17'i. 
 
 II. 1 . 325 : Tennent v. City of i ' v. Ev , I.. K. 1 
 
 ■ Bank, I.. I;. I App. Cas. Q. I'.. I>. 6<
 
 350 ISSTOPPEL l\ PAIS. 
 
 p. 673), " We must take it to be the fact, that, though 
 defendanl was well aware of this release being executed, 
 he was not an assenting party to it. Then it is argued 
 that knowledge on the part of the surety that there is 
 going to be a release, of a part of the security is enough, 
 without assent. 1 cannot see any authority for that. . . . 
 To say that a person who, being a surety, becomes aware 
 that the creditor is going to give time or do something- 
 else, which, if done without his assent, may discharge 
 him, is bound to warn the creditor against doing it, is a 
 thing for which no authority whatever has been cited/' 
 
 A.'s signature to a bill is forged. If A. is aware that 
 a bank is relying upon his forged signature, he cannot 
 lie by and not divulge the fact, until he sees that the 
 position of the bank is altered for the worse. But his 
 mere silence for a period subsequently to the time when 
 he first knew of the forgery, during which period the 
 position of the bank is in no way altered or prejudiced, 
 will not be held to be an admission or adoption of 
 liability, so as to estop A. from denying his liability on 
 the bill (y). 
 
 ft. Knowledge of the thing done must be brought home 
 to the acquiescing party (z). — A. having a charge or 
 incumbrance upon certain property, stands by and allows 
 B. to advance money on it on the supposition that it is 
 unincumbered. A. knows that B. is going to advance 
 
 (//) McKenzie v. British Limn grounds only. 
 
 C"., L li. 6 App. ('as. 82 ; see (:) Eamsden v. Dyson, L. R. 1 
 
 also Davis v. I'«inl; of England, '1 II. L. ['!'.); Johnson v. Credit 
 
 Bing. 393. Judgment was re- Lijouvais Co., L. R. 3 C. P. D. 32, 
 
 versed in error, but on technical at p. 40.
 
 REPRESENTATION. 351 
 
 the money, and suppresses the fact of his own interest. 
 A. is estopped, as against B., from subsequently 
 enforcing his charge (a). 
 
 A., an owner of land, stands bv and allows B. to lay 
 out money in building on his (A.'s) land, A. being all the 
 time aware of his right to the land, and B. having no 
 notice of it. A. is estopped from subsequently asserting 
 his right, and will be compelled to permit B. to have 
 quiet and peaceable enjoyment of the land so built on (/;). 
 
 In an action for the recovery of land, defendant pleaded 
 that he, several years ago, " by and with the knowledge, 
 approbation, and consent of Plaintiff," built a wall for the 
 purpose of making a boundary wall between plaintiff's land 
 and his own, and that the portion claimed was included 
 within the said boundary wall on his side. Held, on 
 demurrer, that the plea should be construed as impliedly 
 alleging that the plaintiff had represented to the defendant 
 that the site of the wall was the boundary ; and thai such 
 representation having been made with the intent of being 
 acted upon, and the defendant having acted upon it by 
 building tin; wall, the plea was a good defence by way of 
 estoppel (c). 
 
 E. in 1870 was adjudicated a bankrupt, and wa 
 allowed by the trustee to carry on his business for the 
 
 (u) Per Jessel, M. K., in E& Troughton v. Gitley, Ami). 630. 
 
 parte Ford, In reCaughey, L R. See also Via Ah. Tit. Contract 
 
 I Ch. I». 521, al p. 528. and Agreement, p. 523, pi. tO 
 
 (6) Per L ( '. in East India (Mich. 5 G. Cane.), cited in Jor- 
 
 Co. v. Vincent, 2 Atk. 82; and den v. Money, 5 H. L. Cas. 85 ; and 
 
 per Jessel, M. I!., in Ex park Cowell v. Watts, 19 L.J.Ch. 155. 
 Ford, I n i' Canghey, L. I!. I (c) Sheridanv. Barrett, I I.. J!. 
 
 Ch. I). 521, al p. 528, citing lr. 223.
 
 352 ESTOPPEL L\ PAIS. 
 
 benefit of his creditors. In 187"> a creditor, whose debt 
 had been contracted whilst, and who was ignorant of the 
 circumstances under which, E. was so trading, obtained a 
 judgment against him, under which the sheriff seized in 
 execution furniture which E. had acquired by means of 
 the profits of such trading. Upon an interpleader issue, 
 it was held that the goods belonged in equity, and there- 
 fore at law, not to the trustee, but to the execution 
 creditor (</). 
 
 The creditors of a trader who had filed a liquidation 
 petition, resolved that he should have his discharge when 
 they had received a sum amounting to two shillings in 
 the pound on their debts. The estate realised only half 
 that sum. The debtor went into business again, without 
 obtaining his discharge, and contracted new debts, and 
 afterwards filed a second liquidation petition. Held, that 
 in the absence of positive evidence that the trustee or the 
 creditors under the first petition were aware of the sub- 
 sequent trading, they were entitled, in priority to the new 
 creditors, to the assets acquired by the debtor in the 
 course of his trading, to the extent necessary to make up 
 the two shillings in the pound : for that it could not be 
 assumed that the old creditors intended, when they passed 
 their resolution, that the debtor should trade again in 
 order to be able to pay the two shillings in the pound (e). 
 
 A bankrupt, who had never obtained his order of dis- 
 
 i'/> Engelbackv. Nixon, L. 1!. (e) Ex parte Ford, In re 
 
 IOC. P. 645, following Troughton Cauglwy, J.. 1!. 1 Ch. D. 521; 
 
 v. Gitley, Amli. G29 ; see also see also Meggy v. Imperial Dis- 
 
 E parte Bolland, In re Dysart, count Co., L. R. 3 Q. 13. D. 711. 
 L. R. 9 Ch. D. 312.
 
 REPRESENTATION. 
 
 charge or passed his final examination, procured employ- 
 ment as editor of a weekly newspaper without the 
 permission or knowledge of his trustee, and six years 
 after the bankruptcy he was awarded, by the decree of a 
 competent court, £104 as six months' salary in lieu of 
 notice of dismissal. Held, that the bankrupt's trustee 
 could claim this money before it was paid to him, as 
 against any creditors subsequent to and without notice of 
 the bankruptcy, and that the trustee had not been guilty 
 of any breach of dutv towards such creditors, so as to 
 estop him from setting up his claim (/). 
 
 6. Estoppel by Negligence. — The rule as to estoppel by 
 negligence is stated by Brett, L.J., in Can- v. Lom]<>,> 
 a ml North. Western Ry. Co. (//)as follows: "It in the 
 transaction itself which is in dispute, one has led another 
 into the belief of a certain state of facts by conduct of 
 culpable negligence calculated to have that result, and 
 such culpable negligence has been the proximate cause >•!' 
 leading, and has led, the other to act by mistake upon 
 such belief, t<> his prejudice, the second cannot be heard 
 afterwards, as against the first, to show that the state o\' 
 facts referred to did not exist. 1 ' Of this rule the follow- 
 ing cases may be cited as illustrations : — 
 
 The trustees of a charity in Dublin, incorporated by 
 Aii of Parliament, and having a common seal, possessed 
 -look in the public funds, which stork was registered in 
 
 (/) Wadling\.Oliphant t \j. R. Co., I.. II. II Q. I'.. D. 7 7*., at p. 
 I Q. B. I». I 15. 780 : Gregg v. Wells, In A. & K. 
 
 i t) I. I: lo c. I'. 307 j Bee '.'7: and Freeman v. Cooke, i' Ex. 
 also tl learned udg< 
 
 irks in <
 
 854 ESTOPPEL IX PAIS. 
 
 their names in the Bank of Ireland. G., the secretary of 
 
 the incorporated trustees, was allowed to have their seal 
 in his possession. Five several powers of attorney to 
 receive the stock, purporting to have heen prepared in 
 different years, and to have been sealed with the seal of 
 the incorporated trustees, were presented to the bank by 
 A. and the stock was transferred to him. The due affix- 
 ing of the seal was attested by witnesses, without any 
 fraudulent intention on their part. The seal had, how- 
 ever, in reality been affixed by G. alone, without any 
 authority from the trustees. The facts were afterwards 
 discovered, and G. was tried and convicted of forgery. 
 By a power of attorney duly executed, the trustees then 
 authorised C. to take a transfer of the stock, but the bank 
 refused to make the transfer. In an action brought by 
 the trustees against the bank for so refusing, the judge 
 directed the jury that if, under the circumstances, the 
 trustees had so negligently conducted themselves as to 
 contribute to the loss, the verdict must be given for the 
 defendants : but, on exceptions to this direction, it was 
 held to be wrong (//). Per Parke, B. (at p. 411), " It is 
 clear, we think, that the negligence in the present case, 
 if there be any, is much too remote to affect the transfer 
 itself, and to cause the trustees to be parties to mislead- 
 ing the bank in making the transfer on the forged power 
 of attorney." And again (at pp. 409, 410), "We concur 
 with Mr. Justice Jackson and Justices Ball, Crompton, 
 and Torrens, and the Chief Justice Lefroy, in thinking 
 that the negligence which would deprive the plaintiffs of 
 
 I h ) Bank of Ireland v. Trustees of Evans's Charities, 5 -H. L. (,'as. 
 389,413.
 
 R E P R E S B XT ATI ON. 3 ■"» 5 
 
 their right to insist that the transfer was invalid, must be 
 negligence in, or immediately connected with, the transfer 
 itself ".(*). 
 
 T. was the holder of certain shares in a company upon 
 which £20 each had been paid, which may be called the 
 £20 shares. T. was also entitled to certain other shares 
 in the same company, upon which £2 each had been 
 paid up, which may be called the £2 shares. T. 
 instructed his broker to sell the £2 shares. The broker 
 then brought to T., for execution by him, deeds of transfer 
 in which blanks were left for the name of the transferee, 
 for the number of shares sold, and for the distinctive 
 numbers of the shares. The deeds bore stamps high 
 enough to cover the £20 shares, and were executed in 
 blank by T. The deeds were delivered in this condition 
 by the broker to hand fide purchasers for value, together 
 with the share certificates for the £20 shares, which had 
 been fraudulently obtained by the broker for the purpose. 
 The purchasers afterwards tilled up the blanks in the 
 deeds of transfer, in accordance with the certificates for 
 the £20 Bhares. Before the registration of the purchasers 
 as holders of the shares was complete, T. filed a bill 
 againsl the company and the purchasers, claiming to have 
 the shares given up to him, and his name restored to the 
 register. Beld, by the Lords Justices, affirming the 
 decision of V.-< !. Wood, thai the plaintiff was entitled to 
 
 {l) 'ii, was doubted in North British Australasian Co., 2 
 
 r .,i, , /;.,„/ j ,land, 10 A. H. & C. 175, and in Baxendale v. 
 
 & E. l-'w, which latter i Bennett, L R. 3 Q. B. D. 525, at 
 
 jarded in Swan v. p. 534.
 
 3T0PPEL IX PAIS. 
 
 the relief he asked for (/>•). The Court however con- 
 sidered that plaintiff's negligence had been so great that 
 they refused to give him his costs of the appeal. The 
 decree of V.-C. Wood in the Court below (I) was, " It 
 must be declared that the several deeds of transfer are 
 void, and that the plaintiff is entitled to the shares ex- 
 pressed to be transferred thereby, and to have his name 
 restored to the register. He trusted the broker to the 
 extent of the sixty £2 shares, and he must give up the 
 money received in respect of them : and, upon his sub- 
 mitting to that, he will have his costs of the suit." 
 
 Plaintiff was the registered owner of 1000 shares in a 
 joint stock company, registered under the Companies Act, 
 1856, in which the shares could only be transferred by 
 deed, executed by both transferor and transferee, and 
 which maybe called the A. shares. Plaintiff was also the 
 owner of some shares in another company, which were 
 also transferable by deed only, and which may be called 
 the B. shares. Plaintiff employed a broker to sell the B. 
 shares for him. The broker represented to plaintiff that 
 it was necessary for him to execute ten blank forms of 
 transfer. Plaintiff accordingly signed, sealed, and de- 
 livered to the broker ten blank forms of transfer, for the 
 transfer of the B. shares. The broker only used eight of 
 the blank forms for that purpose, and, having stolen the 
 certificates for the A. shares from a box deposited at a 
 bank for safe custody, he feloniously filled up the two re- 
 maining forms as transfers of 500 each of the A. shares; 
 
 (I.-, Tayler v. Great Indian 285; 28 L. J. Ch. 710. 
 Peninsular Uy. Co., 28 I.. .1. Ch. (1) 28 I.. J. Ch. 285.
 
 REPRESENTATION. 357 
 
 and then, having forged the attestations, he delivered the 
 transfers, together with the certificates for the A. shares, 
 to bondjidc purchasers for value. The company, on the 
 purchasers presenting to them these transfers and certifi- 
 cates, removed plaintiffs name from the register of share- 
 holders, and placed thereon the names of the purchasers. 
 The fraud was afterwards discovered, and the broker was 
 tried and convicted of theft and forgery. Plaintiff then 
 made an application by motion, to the Court of Common 
 Pleas (///), to have his name replaced on the register of 
 shareholders as the owner of the A. shares, and that the 
 register might be rectified accordingly. The judges 
 being equally divided in opinion, Williams and Willes, J. J., 
 in favour of plaintiff, and Erie, C. J., and Keating, J., 
 against him, the application fell through (n). Plaintiff 
 then commenced an action against the company in the 
 Court of Exchequer, claiming (1) damages for the non- 
 performance by defendants of their duty to replace 
 plaintiff's name on the register of shareholders, and (2) a 
 mandamus to compel defendants to replace his name on 
 the register. This court was also equally divided in 
 opinion, Martin and ( 'hannel, B. B., in favour of plaintiff, 
 on the ground that the transfers of the shares were 
 void (o) ah initio^ and that plaintiff was not estopped, by 
 his n< ■_ from insisting that the property in the 
 
 (m) [Jnder 19 <fc 20 Vic. o. 17, Ex parte "Robert Swan, 7 ('. B. 
 
 J5, and 20 & 21 Vic. c. I I, ss. N. S. 100. 
 
 (o) Transfers of shares in blank, 
 
 (n) In the matter of the however, though void at law, 
 
 North British Australasian Co. give in equity h right to call 
 
 (/.////.;, and The Joint Stock for :i legal transfer. Sec Morris 
 
 Companies Acts, 1856 and 1857. v. Cannon, I De G. !•'. & J, 581,
 
 358 ESTOPPEL IN TAIS. 
 
 shares did not pass under the transfers, and Pollock, C. B., 
 and Wilde, B., in favour of defendants (ft). The case 
 then came before the Exchequer Chamber in error, when 
 there was a large majority of judges in favour of plaintiff 
 "ii the ground above stated, namely, Cockburn, C. J., 
 Crompton, Willes, Byles, and Blackburn, J. J., '//<- 
 tienie Keating, J. } who adhered to his previous 
 "pinion (</). It was held however (1) per totam cwriam\ 
 both in the Court of Exchequer and in the Exchequer 
 Chamber, that negligence, to operate as an estoppel, must 
 be the proximate cause of loss, and (2) by the majority of 
 the judges, that the doctrine of estoppel by executing 
 instruments in blank, is confined to negotiable instru- 
 ments and does not apply to deeds. The following ex- 
 tracts are given from the judgment in this case. Per 
 Williams, J., in the Court of Common Pleas (r) : " It is 
 one thing to say thai a man shall be answerable for such 
 immediate consequences of his acts as a reasonable man 
 might well foresee and dread, and would therefore shun. 
 But it is another and very different proposition to main- 
 tain, that a man shall forfeit his property, because he has 
 done an act which will not be perilous unless others are 
 also guilty of misconduct which that act does not cause. 
 In my opinion such an act ought not to disentitle the 
 applicant, even supposing the doctrine established, that he 
 would l'f disentitled, if the filling up of the blank transfer 
 
 Ami see as to transfers of shares N. 603. 
 
 under the Companies Acts, Buck- (7) Swan v. North British 
 
 ley on the Companies Acts (4th Australasian Co. (Lim.), 2 H. & 
 
 ed.), p. 108 et seq. C, [75. 
 
 i r , Swan \. Forth British (r) 7 C. B. N. S. 400. 
 
 Australasian Co. (Lim.), 7 H. &
 
 REPRESENTATION. 350 
 
 had per se enabled the broker to commit the fraud. I 
 think that the title to the shares has all along remained 
 in the applicant." Per Martin, B., in the Court of Ex- 
 chequer (s), " In the present case the alleged negligence 
 of the plaintiff was separated from tbe execution of the 
 alleged transfer by three felonious aets of the broker, viz.; 
 first, his their of the certificates : secondly, his fraudulently 
 filling in the numbers into the blanks : thirdly, his fraudu- 
 lently transferring the shares to purchasers ; all of them in 
 fraud of the plaintiff.' 5 Per Mellor, J., in the Exchequer 
 < lhamber (t), "The false representation is the representa- 
 tion of the broker, not of the plaintiff, and the proximate 
 cause which induced the company to alter their position to 
 their prejudice was the fraudulent and felonious conduct 
 of the broker, and not the negligence of the plaintiff." 
 Per Blackburn, J. (/'A/'/.), "Now I agree that a party 
 maybe precluded from denying against another the exist- 
 ence of a particular state of things, but then I think it 
 must he by conduct on the part of that party such as to 
 come within the limits so carefully laid down by 
 Parke, P., in delivering the judgment of the Court of 
 Exchequer in Freeman v. Cooke (u). It is pointed out 
 by Parke, P., in the course of the argument in that case. 
 that, in the majority of eases in which an estoppel exists, 
 'the party musl have induced the other so to alter his 
 position that the former would be responsible to him in an 
 action for it,' and lie had before pointed out that negli- 
 gence, to have th<' effeel of estopping the party, must he 
 ' neglect of some duty east upon the person who is guilty 
 
 («) 7 II. & V 603. (t) 2 li. <V C. 17:.. (u) 2 Ex. 654.
 
 360 I STOPPEL l.\ PAIS. 
 
 of it." And this, 1 apprehend, is a true and sound 
 principle. A person, who does not lock up his goods, 
 which are consequently stolen, may be said to be negligent 
 as regards himself, but, inasmuch as he neglects no duty 
 which the law casts upon him, lie is not in consequence 
 estopped from denying the title of those who may have, 
 however innocently, purchased those goods from the thief, 
 unless it be in market overt." . . " What I consider 
 the fallacy of my brother Wilde's judgment is this : lie 
 lays down the rule in general terms, 'that if one has led 
 others into the belief of a certain state of facts, by conduct 
 of culpable neglect calculated to have that result, and 
 they have acted on that belief to their prejudice, he shall 
 not be heard afterwards, as against such persons, to show 
 that state of facts did not exist.' This is very nearly 
 right, but in my opinion not quite, as he omits to qualify 
 it by saying that the neglect must be in the transaction 
 itself, and be the proximate cause of the leading the party 
 into that mistake : and also, as I think, that it must be 
 the neglect of some duty that is owing to the person led 
 into that belief, or, what comes to the same thing, to the 
 general public of whom the person is one, and not merely 
 neglect of what would be prudent in respect to the party 
 himself, or even of some duty owing to third persons with 
 whom those seeking to set up the estoppel are not privy : 
 and these distinctions make in the present case all the 
 difference ... A party signing in blank a cheque or 
 bill, or other negotiable instrument, does intend that it 
 shall be filled up and delivered to a series of holders, and 
 therefore he stands to all those holders in the position 
 indicated in the firsl branch of the judgment of Freeman
 
 REPRESENTATION. 361 
 
 v. ( 1 ooke. He means the holder to be induced to take 
 the instrument, as it' it had been rilled up from the first. 
 And that makes a marked distinction between that case 
 and the present, in which the plaintiff never did mean 
 that anyone should take tin's transfer of the shares as 
 genuine " (x). 
 
 The opinions of the minority of the judges in the 
 above case are ably represented by the judgment of 
 Keating, J., in the Exchequer Chamber (//), as follows— 
 " I am of opinion that the judgment should be reversed, 
 upon the ground thai the plaintiff has, by his culpably 
 negligent act, enabled his agent to commit a fraud to the 
 prejudice of third persons by fabricating a transfer to 
 them of the shares in question, and has so estopped him- 
 self from asserting, as against such third persons, that the 
 transfer did not operate. Here the plaintiff delivered to 
 his agent blank transfers, signed and sealed, to be filled 
 up by him with the names of the shares and transferees, 
 and even with the names of attesting witnesses, with the 
 intent that he should thereby obtain money from third 
 sons, for shares which he must be taken to have 
 known his agenl could not thus legally transfer, but 
 Id only make a fraudulent semblance of doing so, and 
 when the agenl has, by means of such transfers, obtained 
 money from innocent third parties, the question is 
 whether he (the plaintiff) can be heard to n;iv, as against 
 
 (•) Sec also tlif judgment of forgery by means of which 
 
 Cockburn, C. •'■ (ibid.), who aid another party had been damni- 
 
 tliat he was <>t' opinion that Bed, was not of itself a ground 
 
 negligence alone, although it of estoppel, 
 mighl have afforded an opportu (y) 'J II. a- < '. 175. 
 
 nity foi i hi £ »♦ -i ^ •• tratiou "i i
 
 S62 ESTOPPEL IN PAIS. 
 
 such third parties, thai his agent filled up the names of 
 
 the shares as Australasian, whereas he had directed liini 
 to till them up as Australian shares. I think not, upon 
 any principle that would not equally apply to a blank 
 acceptance fraudulently filled up, but in the hands of 
 a bond fide holder. It was argued in the Court below, 
 that forgery and robbery were not the necessary or 
 ordinary result of the act of delivering the blank 
 transfers, but neither is it in the case of blank acceptances 
 fraudulently tilled up, nor was it in the case of Young V. 
 Grote (.:). I am aware that it has been said, that the 
 principles which are in such cases applicable to negoti- 
 able instruments do not apply in other cases, but I have 
 been unable to find any case decided upon any such dis- 
 tinction. Had such existed, it would have furnished a 
 short answer in the case of The Bank of Ireland v. 
 Evans's Trustees (a) ; but it does not seem to have been 
 given to that case, nor to have been adverted to when 
 the case of Young v. Grote (b) was cited in argument, 
 and commented upon in the judgments. It is true that 
 the plaintiff could not have anticipated the stealing of the 
 certificates, but the title to the shares is conveyed by the 
 deed of transfer, the certificates being merely, I appre- 
 hend, a machinery, established for the convenience of the 
 company in conducting their business, and I do not 
 think the responsibility of the plaintiff, in respect of the 
 transfer made by his agent, is affected or done away with, 
 because the transfer was completed by the felony of the 
 broker. No doubt the plaintiff", as far as it appears, 
 
 i Bing. 253. (b) 4 Bmg. 253. 
 
 (a) 5 II. L. Cas. 3S ( J, 413.
 
 UEPRESENTATIOX. 363 
 
 supposed the broker to be an honest man, and was mis- 
 taken, a circumstance which must always occur in every 
 case where a question like the present is or can be raised. 
 But the acts which, in Young v. Grote, and in Tayler v. 
 Great Indian Peninsular Railway (c), were said to be 
 acts of culpable negligence, appear to me less in degree 
 than the acts of negligence attributed to the plaintiff in 
 the present case, and which directly and proximately en- 
 abled the broker to effect the transfers, which he made 
 complete by his felony in stealing the certificates. 1 
 think therefore that the rule in the well-known case of 
 Idckbarrow v. Mason (V) applies." 
 
 Plaintiff, the owner of railway shares in two companies, 
 took certificates from the companies, for which he gave 
 receipts. In so doing he gave his address, in one instance 
 at the office of a banking company, in the other at a club. 
 He deposited the certificates with the manager of the 
 bank for safe custody. The manager fraudulently sold 
 the shares, and forged plaintiff's name to transfer deeds 
 of the shares. The companies wrote to plaintiff, inform^ 
 in-- him of the transfers, and receiving, in one instance 
 no answer, and in tin' other an answer purporting to 
 come from plaintiff but in reality forged by the manager. 
 
 (c) 28 L. J. Ch. 285 ; 28 L; J. Bank Co., I Ami.. 603. Ami. 
 r\ x . 7 |n. for an instance of a case of a 
 
 (d) •_' 'I'. I!. 63 For an in- similar transfer, by means of a 
 
 stance of a f a transfer of forged letter of attorney, in which 
 
 shares in fraud of the holder, in there was no negligence on the 
 
 which the company was guilty of pari of the company, ami the 
 
 nee, and, therefore, liable purchaser was held liable, • i 
 
 to the real bolder of the shares, Uildyard v. Soutli Sea Co. & 
 
 A8hby \. Blackwell & Million Keate, 2 P. Wms. 75.
 
 STOPPEL IN PAII 
 
 registered the transfers. Decreed, on bill by plaintiff 
 against one of the companies and the purchaser, that the 
 purchaser must deliver up the certificates to plaintiff, 
 that the company must cancel the alleged transfer, and 
 the entry of it in their books, and must deliver to plaintiff 
 a stock certificate, and pay to him the dividend then 
 due, and all future dividends, but that the negligence 
 or mistaken conduct on plaintiff's part disentitled him to 
 costs against either defendant (e). 
 
 A person in the service of the clerk to the guardians 
 of the poor, who was employed to fill up the orders for 
 signature by them, drew a number of orders in such a 
 way that the amounts for which they were drawn could 
 be increased by the insertion of words and figures in the 
 blank spaces ; and, after signature of the orders, he 
 increased the amounts accordingly. Plaintiffs, the guar- 
 dians, sued defendant, the salaried manager of a bank, 
 who was appointed treasurer to the guardians, for the 
 amount of the orders so paid. On a case stated by an 
 arbitrator, it was found as a fact, that the payment of the 
 excess was due solely to the fact that the treasurer's 
 clerks were misled by want of proper caution on the part 
 of the plaintiffs and their clerk, in signing the orders 
 fraudulently prepared for their signature. Held, that the 
 negligent drawing of the orders disentitled plaintiffs to 
 complain of the payment of the excess (f). 
 
 <<■) Johnston v. Benton, John- 41 L. T. 553, where there was 
 
 ston v. Parcel/, L. R. 9 Eq. no negligence on part of plaintiff'. 
 181; following Cottam v. Eastern (/) Halifax Union v. Wheel- 
 
 C&unties Ry. Co., 1 J. & H. 243. might, L. R. 10 Ex. 183. 
 <f. Coates v. L. <(■ S. W. Ry. Co.,
 
 REPRESENTATION. 365 
 
 To an action for the loss of pictures delivered by 
 plaintiff to be carried by defendants, a railway company, 
 defendants pleaded the Carriers Act (1 Wm. 1, c. 68), 
 and plaintiff replied that the loss arose from the felonious 
 acts of defendants' servants. The pictures were loaded 
 in a van in defendants' yard, ready to be sent to their 
 destination, when a man represented himself to be C, a 
 driver in the employ of M., who carried for defendants, 
 and defendants' delivery clerk gave the man a pass 
 which enabled him to drive the van out of the yard, and 
 so to steal the pictures. There was a man named C. in 
 M.'s employ, but he was not the guilty person. Held. 
 that defendants were not estopped from denying that the 
 thief was their servant (g). Per Blackburn, J., (at p. 
 695), " There may have been negligence, perhaps gross 
 negligence, but that is all." 
 
 Plaintiffs, merchants at New York, desiring to trans- 
 mit £1,000 to W. & Co., of Bradford, purchased of 
 S. & I !o., in New York, a draft for that amount, payable 
 to the order of plaintiffs on demand. Plaintiffs indorsed 
 the draft specially to W. & Co. or order, and inclosed it 
 in a letter addressed to them, which was placed in a 
 letter-box in their office, to be posted in the usual way. 
 The letter was stolen by one II.. a clerk in the employ 
 of plaintiffs, who forged an indorsement of W. <& Co., 
 and procured defendants, bankers in London, to presenl 
 the draft and obtain the money, which was placed by 
 them to the accounl of a person acting in concert with 
 H., upon whose i i" [U 'St imme- 
 
 W) Way v. <;. /■:. /•?>. Co., I., i:. I Q. w. D. 692.
 
 866 ESTOPPEL IN PATS. 
 
 diately drawn out. In an action for money Lad and 
 received against defendants, they, in order to show that 
 the negligence Of plaintiffs in the custody and transmis- 
 sion of the draft, afforded facilities for the fraud, and so 
 estopped them from suing for the money, tendered 
 evidence that it was an usual and almost invariable 
 practice amongst merchants sending large remittances 
 from abroad, to send, besides the letter containing the 
 remittance, a letter of advice by the same or the next 
 mail. This evidence was rejected, on the ground that 
 the alleged negligence was collateral only to the trans- 
 action giving rise to the action. Held, that plaintiffs' 
 right to the draft, and to sue for the proceeds thereof in 
 the hands of defendants as money received to their use, 
 was not affected by the felonious act of H., and that the 
 evidence tendered was properly rejected, as it was 
 evidence of matters which were entirely collateral to the 
 transmission of the draft, and that it was no part of the 
 duty of plaintiffs, either to W. & Go. or to the general 
 public, to have sent the letter of advice (h). Per Lord 
 Coleridge, C. J. (at pp. 589, 500), " If it were the duty 
 of the plaintiffs to guard against larceny and forgery in 
 that way, it is impossible to say where, as observed by 
 Parke, P., in Bank of Ireland v. Evans's Charities (/), on 
 that principle, it is to stop. The post-office is a recognized 
 means of transmitting letters with their contents (not 
 being actual money), in the regularity of which full 
 confidence may be placed. Put, if there be such a duty 
 
 (h) Am<, hi v. Clieque Bank, Renter's Tel. Co., L. R. 3 C. P. D 
 Same v. City Bunk, L. R. 1 1. 
 ( !. P. D. 578. Cf. Dickson v. (i) 5 H. L. Cas. 389.
 
 REPRESENTATION. 367 
 
 in this case, the breach of which would amount to a 
 neglect of proper precaution, and disentitle the plaintiff 
 to sue, it would equally be negligent on the part of every 
 sender of a cheque for a large amount, not to send a 
 separate letter of advice with it, which would entail upon 
 the senders of cheques new and unheard of responsi- 
 bilities. Besides, this duty would be collateral to the 
 indorsing and forwarding of the draft, and the omission of 
 it could in no sense be considered as the proximate cause 
 of the larceny and forgery which have occurred : and no 
 authority Las been cited to us to the effect that any such 
 failure of a precaution merely collateral, could in any 
 way affect the title of a plaintiff to sue.'"' 
 
 Scrip certificates, by which it was certified that, after 
 payment of certain instalments, the bearer thereof would 
 be entitled to lie registered as the holder of shares in a 
 banking company, were issued to plaintiff, and by him 
 deposited with a stock-broker for the purpose of paying 
 the instalments remaining due, and dealing with such 
 . ertificates us plaintiff should direct. The broker in fraud 
 of plaintiff, and withe-ut his authority, deposited the scrip 
 with defendants as security tor an amount due from him, 
 the broker, to defendants. Defendants were not aware 
 of the fraud. h was proved that the usage among 
 hankers, discounters, money dealers, and on the Stock 
 Exchange, had been for many years to treal such scrip 
 certificates a- negotiable instrument- transferable by 
 mere delivery. Beld, that defendants were entitled to 
 the scrip certificates as againsl plaintiff, first, <>n the 
 ound thai by reason of the usage the certificates bad 
 become aegotiable instruments transferable by mere
 
 308 ESTOPPEL l\ PAIS. 
 
 delivery, and secondly, on the around that plaintiff, bj 
 depositing with his broker instruments purporting to be 
 transferable by delivery to a bond fide holder for value, 
 was estopped from denying that they were so transferable, 
 and from recovering them from defendants (/.•). 
 
 Defendant gave H. his blank acceptance on a stamped 
 paper, and authorised H. to fill in his name as drawer. 
 J 1. returned the blank acceptance to defendant in the same 
 state in which he received it. Defendant put it into a 
 drawer of his writing table at his chambers, which was 
 unlocked, and it was lost or stolen. C. afterwards filled 
 in his own name without defendant's authority, and an 
 action was brought on it by plaintiff as indorsee for value. 
 Held, that defendant was not liable on bill (/) ; per 
 Bramwell, L. J., on the ground that there was no 
 estoppel between the parties, which prevented defendant 
 from setting up the true facts, as, if defendant had been 
 guilty of negligence, it was not the proximate or effective 
 cause of the fraud. 
 
 A son, heir-at-law to his lather, who was one of the 
 executors and trustees of his father's will, though he had 
 not proved it. and whose Christian names and description 
 were identical with those of his father, executed mort- 
 gages of freehold and leasehold property of the father, 
 and applied the mortgage money to his own purposes. 
 He handed over the title deeds to the mortgagees. The 
 transaction took place without the knowledge of his 
 
 (k) Runiball v. Metropolitan < 'us. 476. 
 Bank, L. R. 2 Q. T5. D. 194, (I) Baxendale v. Bennett, L. R. 
 
 following • v. Robarts, 3 Q. B. D. 525. 
 
 I.. K. 10 Ex. 337 : L. R. I A]>]>.
 
 REPRESENTATION. 369 
 
 mother and sister, who were co-trustees and co-execu- 
 trixes with him, and who had proved the will. The will 
 had not been registered in the Middlesex registry, though 
 the property was situated in that county. The mortgage 
 deeds were registered. They purported to be executed 
 by the absolute owner of the property, and the solicitor, 
 who acted for both parties, believed the son to be the 
 absolute owner. The solicitor searched the Middlesex 
 registry, but the son told him nothing about his father's 
 will. The son took a beneficial interest under the will. 
 After the son's death the fraud was discovered, and the 
 mother and sister, as trustees of the father's will, brought 
 an action against the mortgagees, claiming a declaration 
 that the mortgages were void against them, and delivery 
 up of the title deeds. Held, by Kay, J., and the Court 
 of Appeal, that the son in executing the deeds was 
 personating his father: that the deeds were forgeries, 
 and passed nothing to the mortgagees, except the son's 
 beneficial interest under his father's will, and that the 
 mortgagees must deliver up the title deeds to plaintiffs (>//). 
 Per Lindley, L. J. (at p. 684), " It is said, and with some 
 truth, that the plaintiffs were guilty of negligence in not 
 registering the will, and no doubt in one sense it is the 
 non-registration of the will which has led to this unfortu- 
 nate fraud. Bui are they in point of law responsible for 
 thai ? It appears to me that they arc not, and this 
 conclusion Lsamply covered by authority. The fraud, and 
 the loss to the mortgagees, is not sufficiently the proxi- 
 mate resull of the plaintiffs' negligence to make them in 
 
 (ni) I < . Cooper v. Vesey, I.. I!. 20 Ch. I >. 'ill. 
 
 I: r.
 
 870 ESTOPPEL IN PAIS. 
 
 law responsible for it. A crime intervened, the forgery; 
 and, although they were negligent in not registering the 
 will, that negligence was not the proximate cause of the 
 forgery, and still less the proximate cause of the fraud 
 which was the result of the forgerv." 
 
 Defendants received a consignment of wheat, and 
 issued a delivery order for it, which came into the hands 
 of B. Upon this delivery order B. obtained advances 
 from plaintiffs. Shortly afterwards defendants issued a 
 second delivery order in respect of the same consignment 
 of wheat. The two delivery orders were different, and 
 such as might be reasonably supposed to relate to distinct 
 consignments of wheat. Upon this second delivery order 
 B. obtained further advances from plaintiffs, who were 
 under the belief that the delivery orders related to 
 distinct consignments of wheat. B., having afterwards 
 become insolvent, held, that defendants were estopped 
 by their negligence from showing that the two delivery 
 orders related only, to one consignment of wheat, and 
 that they were liable to compensate plaintiffs for the loss 
 sustained by them through the advances to B. (n). 
 
 7. The representation must have heen acted upon by the 
 party setting up the estoppel, and to his prejudice. — 
 A. brings an action of trover for the recovery of property, 
 against B. and C, and recovers judgment against B. C, 
 in consequence of the judgment, authorises the property 
 to l)e delivered up to A., but at the same time gives 
 notice to A. of his intention to reclaim the property from 
 
 (n) Coventry v. C. E. By. Co., v. /,. & N. W. By. Co., L. R. 10 
 L. R. 11 Q. P<- I). 770. Cf. Carr C. P. 307, ante, pp. 333—335.
 
 REPRESENTATION. 37 1 
 
 him. C. then brings an action against A. to recover the 
 property. Held, that C. is not precluded from bringing 
 the action by having authorized the property to be 
 delivered up to A. (o). 
 
 A. having applied to defendant for the causes of his 
 detention, he received a written statement that " annexed 
 to the sheriffs return is a warrant of the judge of the 
 County Court of Yorkshire, of which the following is a 
 copy." As a fact, a copy only of the warrant was 
 attached to the return. The jury found that defendant 
 never had the original warrant, but that he had acted 
 as if he had it, and had led A. to believe that he had 
 it. Held, that as there was no wilful intent on the part 
 of defendant that A. should act on the representa- 
 tion, and as A. was not in any way prejudiced by it, 
 defendant was not estopped from giving the truth in 
 evidence (p). 
 
 A. sheriff's officer produces to A. a warrant for the 
 arresl of B. A. then represents herself to be 11, ami the 
 officer, in consequence, arrests her. A. then denies her 
 first statement, and says that she is not B., but the officer 
 nevertheless detains her in custody. A. is not estopped 
 by her conducl from bringing an action against him for 
 detaining her in custody after he had notice that she was 
 not the real party, though she might be estopped from 
 denying thai she had been properly arrested in the first 
 instance (q). 
 
 A. makes ;i representation to IV. which is partly acted 
 
 (o) Sandys v. Hodgson, LO A. B. 1. 
 
 a E. I7i'. ( 7 ) Dunston v. Paterson, _' C. 
 
 ( r) Howard v. Hudson, 2 I-:. & B. N. S. 195. 
 
 n b 2
 
 or.: Estoppel in pais. 
 
 upon by B., and partly not. There is nothing to prevent 
 
 A. From afterwards saying to B., " 1 was mistaken in the 
 representation I made to you, and, so far as you have 
 nut yet aeted on the faith of it, I retract it, and require 
 you to act as if the representation had never been 
 made (r)." 
 
 A. and B. are parties to a fraudulent transaction which 
 is only partly carried out. B. and C. act upon it and 
 derive benefit therefrom (i.e., by obtaining, B. the posses- 
 sion of, and C. the property in, certain goods of A)., 
 C. having notice of the fraud. In an action by A. against 
 
 B. and C. to recover the goods, A. is not estopped from 
 repudiating the transaction (s). 
 
 An execution creditor was, at the time when his debt 
 was contracted, aware that his debtor had given a bill of 
 sale of chattels. Held, that he is not estopped, as against 
 the bill of sale holder, from subsequently availing himself 
 of the objection that the bill of sale had not been regis- 
 tered (t). 
 
 C. owned stock in a company incorporated under the 
 Companies Act, 18G2. His clerk, P., contracted to sell 
 stock in the company to S., who was the nominee of B. 
 In order to carry out the contract, P. forged a transfer from 
 ( '. to S., which was left by S. at the office of the company 
 for registration. The company sent a letter to C. in- 
 
 (/■) See per Williams, J., in (s) Tut/lor \*. Bowers, L. 11. 1 
 
 White v. Greenish, 11 C. B. N. S. Q. B. I). 291, and ante, p. 202. 
 
 at p. 232. The same rule is following Bowes v. Foster, 27 L. J. 
 
 applicable t" admissions. See Ex. 262. 
 
 Heane v. Rogers, <> ]'». & ('. 586; (/) Edwards v. Edwards, L. K. 
 
 and Newton v. Liddiard, 1 2 Q. I J. 2 Ch. J). 291. 
 9 2 7.
 
 REPRESENTATION. 373 
 
 quiring whether the transfer was valid and, receiving- no 
 answer from him, they registered the transfer. B. 
 borrowed money from a bank, and, as security for the 
 loan, the stock was transferred by S., at the request of B., 
 to I. as trustee for the bank, and the company registered 
 I. as owmr, and issued a certificate accordingly. The 
 money borrowed by B. was afterwards repaid by him to 
 the bank, and the stock was held by I. as bare trustee for 
 B. The forgery was discovered, and the company then 
 refused to acknowledge I. as the holder of the stock. In 
 an action brought by B. and I. to compel the company to 
 recognize their title, it was held by the Court of Appeal, 
 reversing the judgment of Lindley, J., that although I., as 
 trustee for the bank, might have acquired (u) a good title 
 by estoppel against the company, yet that title ceased 
 when the loan by the bank' was paid off, and that no es- 
 toppel existed in favour of B. against the company, on the 
 following ground (inter alia), namely, that no representa- 
 tion sufficient to raise an estoppel was made by the com- 
 pany to B. .<•). Per Brett, L. d. (at pp. 209, 210), "The 
 lie of the certificate would have amounted to such a 
 representation, if it had been acted upon by (he parly 1" 
 whom it was made. But at the time B. bought the stock 
 on the Stock Exchange, lie did net rely upon anything 
 said or done by the company; he trusted wholly to the 
 broker through whom lie purchased and relied wholly upon 
 him ; he paid the price to him upon the faith of a trans- 
 
 om And in facl did acquire. Sim/m v. Anglo-Ameri 
 
 See per Brett, L J., in I.. I!. 5 Telegraph Co., L. II. 5 <>. B, I' 
 Q. I', D. :it p. 206. 188.
 
 87 1 ESTOPPEL IN PAIS. 
 
 fer which was alleged to have been obtained from C, and 
 not upon the faith of anything done by the company." 
 
 In January, 1878, B. was a customer of and a share- 
 holder in the defendant bank, and was also secretary oi a 
 elub having an account there. B. fraudulently altered a 
 cheque for £G00, drawn by the club in favour of S. or 
 i Tiler, by striking out the word "order" and adding the 
 word " bearer," and then induced the bank to place the 
 £600 to the credit of his own account. In November, 
 1878, plaintiff lent B. £1000 upon the security of the 
 deposit of a share certificate for fifty shares in the bank. 
 The certificate gave the holder thereof notice that the 
 bank had a paramount lien on the shares of any share- 
 holder for whatever might be due from him to the bank. 
 On the 17th of March, 1880, plaintiff gave notice to the 
 bank of the deposit of the certificate, and was told by the 
 bank manager, in answer to his enquiry, that the bank 
 had no claim on the shares. In May, 1880, the bank re- 
 ceived notice of B.'s fraud. They then settled with the 
 club, debited B.'s account with the £600, which they hail 
 paid to him on the irregular cheque, and gave plaintiff 
 notice that they claimed a lien on the shares for that 
 amount. In an action by plaintiff, claiming a declaration 
 that the shares were subject to his equitable mortgage, 
 held, that as plaintiff was in no way prejudiced by the 
 statement made by the bank manager on the 17th of March, 
 1880, the bank were not estopped from setting up their 
 lien on the shares, and that the action must be dismissed (?/). 
 
 (y) Horsfall v. Halifax <<■ Huddersfield Union Banking Co., 52 
 L. J. Ch. 599.
 
 REPRESENTATION. 875 
 
 a. Tht benefit of the estoppel can only be claimed to the 
 extent of the damage caused by the representation. — 
 Plaintiff buys goods, which are to be consigned to 
 him by a railway company. Plaintiff receives from 
 the company an advice note, informing him that two 
 parcels of goods had been received by them for his 
 account, and that they hold them subject to the pay- 
 ment of rent and charges. One of the parcels, through 
 a mistake of the company, being wrongly described 
 in the advice note, a "corrected" advice note is sent 
 to plaintiff, rectifying the mistake. Plaintiff thinks 
 that the " corrected ' ; advice note refers to a third 
 parcel of goods, and instructs his broker to sell 
 three parcels. Plaintiff receives invoices of three 
 parcels from the consignors, and pays for the whole. 
 The three parcels are sold, and plaintiff pays the rent 
 and charges on them all. It turns out (the mistake 
 not being made known to all [tarties until after the 
 ■ ile of the three parcels), that only I wo parcels hail 
 been delivered to the company, and plaintiff lias to 
 pay the purchasers the difference between the price 
 ;it which they had bought the third parcel, and whal 
 they had to pay for other goods. Plaintiff then brings 
 an action against the company lor not delivering 
 the third parcel. Held, that neither the payment h\ 
 plaintiff of the warehouse renl and charges, nor of the 
 invoice price, could !»'• relied upon by him as damage re- 
 sulting from the conduct of defendants, in order to estop 
 defendants from denying the possession of the goods; for 
 thai either damage could he rectified without the inter- 
 vention of Buch an e toppel, both payments having been
 
 376 ESTOPPEL IN PAIS. 
 
 made under a mistake of fact ; and that any damage 
 which he suffered was by reason of the resale (z). 
 
 Where a partnership debt lias been incurred by means 
 of a fraud on the part of the partners, the defrauded 
 creditor has a right to prove, at his election, against 
 either the joint estate of the firm or the separate estates 
 of the partners, even though no judgment has been 
 recovered by him against the partners. Held, that when 
 a creditor has such a right of election, he does not lose it 
 merely because he has proved and received dividend ; 
 but that he may change his election on refunding the 
 dividend which he has received, with interest at 4 per 
 rent., though he cannot disturb any dividend already 
 paid (a). Per James, L. J. (at p. 817), " Nobody 
 ought to be estopped from averring the truth or asserting 
 a just demand, unless by his acts or words or neglect, 
 his now averring the truth or asserting the demand 
 would work some wrong to some other person who has 
 been induced to do something, or to abstain from doing 
 something, by reason of what he had said or done, or 
 omitted to say or do " (a a). 
 
 B. & Co. were creditors of a partnership for £2,400, 
 for which they held a security comprising joint property 
 of the firm, and also separate property of one of the 
 partners. The firm being in difficulties, the joint creditors 
 agreed to accept a composition, and B. & Co. valued 
 
 (■) Can- v. L. <{■ N. W. Ry. Co., Collie, L. R. 8 Ch. D. 807. Cf. 
 
 I.. R. 10 C. P. 307 ; cf. Coventry Latter v. White,!,. R. 5 H. L. 578 
 
 v. <!. E. Ry. Co., T,. I!. 11 (per Lord Cairns). 
 < ». B. D. 77G. (an) See also Goddard v. Smith, 
 
 (a) Ex parte Adamson, In re L. R. 3 P. & D. 7.
 
 REPRESENTATION. 377 
 
 their security at £800, and proved and received the 
 composition upon the balance. Subsequently they 
 received from their security more than £800 and interest 
 from the date of valuation. Four years after the close of 
 the composition the debtors brought an action to redeem 
 their security. B. & Co. claimed to retain the security 
 on the separate property until they had received payment 
 in full of their claim, on the ground that they need not 
 have deducted the separate property. Held, affirming 
 Jessel, M. R., that inasmuch as the composition had 
 been fixed, and the whole proceeding in the composition 
 had been taken and completed upon the footing of the 
 valuation of the compound security at £800, leave to 
 amend the proof could not now be given, whatever might 
 have been the case had a proper application for thai 
 purpose been made during the pendency of the com- 
 position proceedings (//). 
 
 A firm of two partners dissolved, one retired and the 
 other carried on the business with a new partner under 
 the same style. A customer of the old firm sold and 
 delivered goods to the new firm, after the change of 
 partners, but without notice of it. After receiving 
 notice, he sued the new linn for the price of goods, and 
 upon their bankruptcy proved against their estate (c), 
 and afterwards brought an acion against the late partner. 
 
 (b) Cotdderyy. Bartrum, L I.'. A.pp. Cas. al \>. oonsidera 
 
 I '.i r|i. | ». 394, that it might have been entirely 
 
 ( r) || ( . also carried on corre consistent with his reserving his 
 
 spondenoe with them, and received right to eleot, and, as to the 
 
 :i cheque from them ; but, as t" latter, he observes that taking ii 
 
 the former "I' these, Lord Sel would not have been a conclu ivi 
 
 borne, in hi judgment ' L It. 7 election.
 
 S78 ESTOPPEL IN PAIS. 
 
 Held, reversing the decision of the Court of Appeal, that, 
 the liability of the late partner was a liability l>y estoppel 
 only, and not jointly with the members of the new firm; 
 thai the customer might, at his option, have sued the 
 late partner, or the members of the new firm, but could 
 not sue all three together; and that, having eleeted to 
 sue the new firm, he eould not afterwards sue the late 
 partner (</). 
 
 8. A representation does not operate as an estoppel, if 
 the party making it is legally incapacitated from entering 
 into the obligation from which the estoppel might other- 
 wise hare arisen. 
 
 Infants dud Married Women. — With certain statutory 
 exceptions, a representation does not bind the party 
 making it, by way of estoppel, if such party was, at the 
 lime of making the representation, an infant or a married 
 woman. 
 
 A married woman made a representation, by signing 
 ;i note "J. B. widow," that she was discovert, which 
 was acted upon. Held, that she was not estopped by it. 
 Per Parke, B., "The law throws protection round 
 infants and married women, and you cannot make them 
 liable to contract, by their own representation (e)." 
 
 (d) Scarf v. Jardine, L. R. 7 dorsement of a married woman 
 A 1 1]). Cas. 345. As to what was held not to transfer the 
 amounts to an election, see Fell property in a bill payable to her 
 v. Parkin, 47 L. T. N. S. 350; order; Coward v. Hughes, 1 K. 
 and see also Ex parte Harper, & J. 443 ; Liverpool Adelphi 
 In re Bremner, L I!. LOCh. App. Loan Association v. Fairhurst and 
 379. Wife, 9 Ex. 422; White v. 
 
 (e) Cannam v. Farmer, 3 Ex. Greenish, 11 C. I!. N. S. 209; 
 698 ; see also Smith v. Marsack, Wrights. Leonard, 11 ('. B. N. S. 
 18 L J. C T. 65, where- the in- 258.
 
 REPRESENTATION. 379 
 
 Declaration for goods sold. Plea, infancy. Replication, 
 on equitable grounds, that defendant, at the time of accruing 
 of the causes of action, with knowledge of his true age, 
 falsely and fraudulently represented to plaintiff that lie 
 (defendant) was of full age, whereby plaintiff was 
 induced to enter into the contract to supply the goods. 
 Replication held bad on demurrer (/). Per Crompton, J., 
 "It is clear, on the authorities, both as to coverture and 
 infancy, which stand on the same footing, that, when- 
 ever a tort is connected with a contract made with a 
 married woman or an infant, it does not prevent them 
 from pleading their incapacity to contract," 
 
 If, however, an infant borrows money upon a fraudu- 
 lent misrepresentation thai he is of full age, and 
 subsequently becomes bankrupt, the debt is provable in 
 his bankruptcy ( //). 
 
 And a fraudulent misrepresentation made by a married 
 woman on the faith of which another has acted, has been 
 held in equity to bind her property. Thus where a 
 married woman, two months after her marriage, wrote 
 and signed in her maiden name a paper dated before the 
 marriage, and purporting to give to her husband, in 
 consideration of the marriage, her reversionary interest 
 in a trusl fund, tor the purpose "I' enabling her husband 
 to borrow money thereon; and her busband then sold 
 the reversionary interest, and shortly before completion 
 she gave to the purchaser's solicitor a letter, addressed 
 
 P) Bartlettv. Wells, 31 I.. J. (//) Per Lindley, J., iu Miller 
 
 m b. 57; see also Johnson \. v. Blankley, 38 I.. T. N". S. 527, 
 
 /■/,, i Keb. 913; Miller v. at p. 530, citing Ex parU Unity 
 
 Blankley, 38 I. T. V S. 527. Bank, /A King, 27 I.. .1. Bank. :::;.
 
 3S0 ESTOPPEL IN PAIS. 
 
 to one of the (rust cos of the fund, stating that she had, 
 before her marriage, assigned her interest in the trust 
 fund to her husband ; on the determination of the life 
 interest, it was held on appeal (reversing the M.R.), that 
 she had been guilty of a fraud which precluded her from 
 claiming her equity to a settlement against the pur- 
 chaser (It). 
 
 Hut where property is settled on a married woman to 
 her separate use, with a restraint on anticipation, she 
 cannot defeat the clause in restraint of anticipation by 
 making a mortgage of the property, and concealing the 
 restraint on anticipation from the mortgagee ; and the 
 mortgagee in such a case cannot obtain a charging order 
 on her next accruing dividend (i). 
 
 Incorporated bodies. — The principles of estoppel in 
 pais are applicable to corporations just as much as to 
 individuals (k). But a statutory incapacity, on the part 
 of incorporated bodies, to contract, may be said to exist 
 in cases where the contract appears to be necessarily 
 unconnected with the purposes of the incorporation (I) ; 
 and the acts and conduct of such bodies, or of those who 
 represent them, are limited and controlled by the charter 
 or Act of Parliament which incorporates them, and if 
 ultra vires, the powers given to them, are altogether 
 void. • 
 
 Hi) hi re Lush's Trusts, L. R. Eastern Counties Ry. Co. v. 
 
 4 Ch. App. 591 ; see also Sharpe Haivkes, 5 H. L. Cas. at p. 376. 
 v. /''///. ibid. 35. (0 Mayor of ' Norwich v. Norfolk 
 
 (i) Stanley v. Stanley, L. It, 7 Ry. Co., 4 E. &B. 413 ; Attorney- 
 
 Ch. D. 589. General v. G. N. Ry. Co. 1 I). & 
 
 (/.•) Per Lord St. Leonards in S. 154.
 
 REPE ESENTATION. obi 
 
 Thus an incorporated company having gain for its 
 object, is liable in respect of contracts not under seal, pro- 
 vided they are necessary for, and incidental to, the pur- 
 poses for which the company was created (m). But 
 where there were obligatory sections in the Public Health 
 Aets 00, that every contract made by a local board, or 
 by an urban authority, whereof the value or amount 
 exceeded £50, should lie in writing, and sealed with the 
 common seal of such authority, a verbal contract made 
 by defendants (a local board), even for works which were 
 necessary for the purposes of defendants, was held not 
 to bind them, the works never having been actually 
 executed, though plans had been submitted to and 
 approved of by them ; ami it was held that even the cost 
 of the plans (£94), could not be recovered (o). 
 
 Similarly in the case of companies incorporated under 
 the Companies Acts, the company is not bound by the 
 acts of its directors for objects which the company has no 
 power to entertain, i.e., which arc outside the scope of 
 tin' memorandum of association of the company. Such 
 arts are ipso facto void, and no amount of assent or 
 acquiescence on the part of the shareholders of the 
 company can ratify them ( />). 
 
 youth of Ireland Colliery Board, I,. I;. :; ( '. I". D. 208; 
 
 Co. v. Waddle,h. R. 3 C. I'. 163 : L R. 1 < '. P. D. is. 
 L. U. I ('. I'. 617. (p) Ashbury Railway Carri 
 
 (n - of the Public & Iron Co. v. Riche, L. R 7 II. L. 
 
 Health Act, L848 Ml a- 12 Vic. 653, and arte, p. 209, where the 
 
 13), and Bee. 171 of the Public distinction is pointed oul between 
 
 Health Act, 1-7-". (38 a- :v.\ Vic. the effeel of acts ultra vires the 
 
 tnorandum, and acts ultr.i 
 
 limit v. Wimbledon Local the Articles of Association.
 
 882 ESTOPPEL IX PAIS. 
 
 And a similar rule holds good with respect to the 
 powers of directors of other incorporated companies. 
 Thus it has been laid down that directors cannot 
 act in opposition to the purpose for which their company 
 was incorporated, but that, short of that, they may 
 bind the body just as corporations in general may do (q). 
 
 But in some cases, although the company itself would 
 not be liable, directors who have made false representa- 
 tions, on the faith of which others have acted, may them- 
 selves be personally liable to the parties who have acted 
 on the faith of those representations, and may be 
 estopped, as against such parties, from denying that the 
 representations were true(r). 
 
 On the other hand, acts of the directors of companies 
 incorporated under the Companies Acts, which, though 
 ultra vires the powers given to them by the Articles of 
 Association, are within the scope of the memorandum, 
 may in certain cases be ratified by the assent or acqui- 
 escence of the general body of shareholders (s), and it 
 
 (<i) Per Lord St. Leonards in Australasia,^. R. 3 P. C. 24, and 
 
 Eastern Counties Ry. Co. v. ante, p. 315 ; Richardson v. Wil- 
 
 Hawkes, 5 H. L. Cas. 347, at pp. liamson,L. R. 6 Q. B. 276 ; Weeks 
 
 373, 381; see also as to the v. Propert, L. R. 8 C. P. 427; 
 
 powers of directors, Bargate v. Collen v. Wright, 26 L. J. Q. B. 
 
 Shortridge, 5 H. L. Cas. 297 147 j 27 L. J. Q. B. 215 ; Chapleo 
 
 (questioned in Read's Case, L. T. v. Brunswick Building Society, 
 
 Eur. Arb. 10, 13); National L. R. 5 C. P. D. 331 ; L. R. 6 
 
 Exchange Co. of Glasgow v. Dreiv, Q. B. D. 696. 
 2 Macq. 103 ; Ernest v. Nicholls, (s) e.g., an invalid forfeiture of 
 
 6 !1. L. Cas. 401; and Chambers shares. See Buckley on the 
 
 v. Manchester & Mil ford Ry. Co., Companies Acts (4th ed.), pp. 
 
 5 B. & S. ."»88. 419, 42f>, and cases there cited. 
 
 (r) Cherry v. Colonial Bank of
 
 REPRESENTATION. 383 
 
 appears that the company are absolutely bound by such 
 acts if done with strangers acting bond fide with the 
 company, and that if the acts are done with the share- 
 holders of the company they are voidable only by the 
 other shareholders taking active steps to have them set 
 aside (/). And a similar rule applies to the acts of 
 directors of incorporated companies generally. Thus it 
 has been held, that the mere circumstance of a covenant 
 by directors in the name of the company being ultra mr< 
 as between them and the shareholders, though it may be 
 a question between them and the shareholders, docs nol 
 disentitle the covenantee to sue on it (u). 
 
 The mere fact that the act of a company is illegal 
 does not prevent the company being estopped, as against 
 a stranger who has acted on it bond Jide, and without 
 notice of the illegality, from setting it up as a defence (/•). 
 This is illustrated by the following case : — Shares in a 
 limited company were issued as fully paid up shares, by 
 virtue of a contract not registered as required by the 
 Companies Act, 18G7, s. 25. The company issued 
 
 (i) Buckley on the Companies v. Cooke, 2 Ex. 654, and In n 
 
 Acts Mtti ed.), p. 443, citing Bahia & San Francisco A'//. Co., 
 
 ichman v. Evam, L. R 3 H. L. I, It. ■> < v >. I'.. 583. A more 
 
 171. i'lt. irregularity in the issue of securi- 
 
 i") Per Lord St. Leonards in ties cannot lie set up l>y the 
 
 Eastern Countiet Ry. Co. \. company, even against the origi 
 
 Hawk , •"> II. I.. Cas. -"'17, pp. rial holder of the securities, if he 
 
 -372, citing Mayor of Nor- has a right to presume omnia riU 
 
 wich v. Norfolk Ry. Co., 1 E. a- ess* acta. See per Kay, .1., in In 
 
 B. .;'.i7. r< Romford Canal ۥ>., L. It. 2 I 
 
 (v) Per Blackburn, J., in Webb Ch. D. 85, al p. 92, citing Foun- 
 
 v. ('■.mm, Hem* Bay, tain< v. Carmarthen Ry. Co., I I.' 
 
 L R. 5 Q. B. 642,citing Freeman 5 Eq. 316.
 
 384 ESTOPPEL IN PAIS. 
 
 certificates of these shares as fully paid-up shares. Some 
 of them were afterwards transferred for value to a person 
 who had no notice of any irregularity in their issue, and 
 took them as fully paid-up on the faith of the certificates. 
 The company having been ordered to be wound up, the 
 official liquidator sought to make the transferee liable as 
 the holder of shares on which nothing had been paid. 
 Held, that as against a transferee who took the shares 
 without notice that they had not been paid up in cash, 
 the company was estopped by the certificates from 
 saying that they had not been so paid up, and that the 
 official liquidator was in the same position (x). Per Lord 
 Blackburn, " Now in the present case the company has 
 issued under the seal of the company a certificate in the 
 form which is set out in the case, in which the company 
 has asserted that these shares have been fully paid 
 up. These certificates are issued under the directions of 
 tlio Act of Parliament, and are made primd facie 
 evidence of all that they state ; only primd facie 
 evidence. The certificates are given and issued for the 
 very purpose of enabling the person who holds them to 
 go to others for the purpose, amongst others, of selling 
 the shares, and to sav : — 'Here is the certificate; you 
 see I am a shareholder, as the company has so certified 
 
 (./■) BurHnshaw v. Nicolls, L. R. have notice or not, and whether 
 
 3 A])p. Cas. L 004, reported in the they are officers of the company 
 
 Court below (L. R. 7 Ch. D. 533), or not ; but it does not apply in 
 
 British Farmers* Pure favour of the original transferees 
 
 Linseed Co. The estoppel applies if they have notice. See Burkin- 
 
 in favour of all purchasers from shaw v. Nicolls (ibid.), and In re 
 
 nsferees for value without Stapleford Colliery Co., Barrow's 
 
 notice, whether such purchasers Case, L. R. 14 Ch. D. 432.
 
 REPRESENTATION. : > s ~> 
 
 it. Act upon that, and bargain with me upon tin- 
 supposition that I am.' That is the very object with 
 which they are issued under the company's seal. Now 
 when the company has so issued the certiiicate under 
 the company's seal to enable a person to induce others 
 to buy the shares, and more especially when the com- 
 pany has registered the transfer solely in consequence ot 
 that, it would be in the highest degree an injustice to say 
 that the company shall, as against that person, be per- 
 mitted to say : — 'There was a mistake or inaccuracy in 
 the representations that the shares have been fully paid 
 up.' You would be entitled to say, as against everybody 
 else who had acted upon it, that it worked an estoppel. 
 I think the liquidator would be exactly in the same 
 position." His lordship afterwards observes that the 
 trustee, whose cestui que trust had, by faith of this repre- 
 sentation, become a shareholder, was entitled to an 
 ■ ppel as much as if the cestui que trust had had the 
 ires transferred into his name (y). 
 And there may be an equity on the part of a trans- 
 fere.- for value of securities, to restrain the company from 
 pleading the invalidity of their issue, even where the in- 
 validity would be a defence at law to an action by the 
 transferor againsl the company; e.g., it' the original 
 
 (y) Cf. In n European Society was do1 Bubmitted to a general 
 
 Arbitration Acts, Ex parU TAqui- meeting of the shareholders, or 
 
 dators qi Briti h Natioi /■>/< made known to the shareholders 
 
 urana Association, L. R. * generally, and did nol influence 
 
 Ch. I>. '''7'.'. where a contrad by the conducl of any of the Bhare- 
 
 jtablished under a holders, was held not to bind the 
 
 deed of settlement, which wa ■ company. 
 ulti i •':. ! I ed of settlement, 

 
 386 ESTOPPEL IN PAIS. 
 
 conduct of the company, in issuing the securities, was 
 such that the public were justified in treating it as a 
 representation that they were legally transferable (z). 
 
 A similar rule has been laid down with respect to the 
 illegal acts of other incorporated companies. Thus 
 where a railway company issued Lloyd's bonds contrary 
 to statute, and therefore illegally, but on the face of the 
 bonds appeared representations which, if true, made the 
 transaction legitimate, it was held, on a claim being 
 made by holders of the bonds against the company's 
 assets, that the claim was good for those sums of money in 
 respect of which the bonds were given, and of which the 
 company had had the benefit for its legitimate purposes (a). 
 
 Moreover a company may be estopped from setting up 
 the illegality of its acts in defence to an action by a 
 person who has been damaged by such acts, even though 
 the person so damaged would not be estopped from 
 setting up the illegality against the company if it would 
 assist his case. Thus where a railway company was 
 guilty of an illegality by working steamboats, not being 
 
 (.) Per Kay, J., in In re Lindley on Partnership (4th ed.), 
 Romford Canal Co., L. R. 24 vol. i. p. 135, which also contains 
 Ch. D. 85, at p. 29, citing Higgs a useful discussion on estoppel, so 
 v. Northern Assam Tea, Co., 1>. R. far as it affects company cases. 
 1 Ex. 387. As to the effect of (a) In re Cork <k Toughal Ry. 
 ignorance on the part of the Co., L. P. 4 Ch. App. at p. 748. 
 company of material facts, on an And where a company sets up 
 improper transfer of shares by the illegality of its acts as a 
 them, where the transferee has defence, the onus of proving the 
 not acted upon any representa- illegality rests on the company ; 
 tion made by the company, see see per Parke, J., in Silly. Man- 
 Hare v. I. I- A\ W. Ry. (J,,., chester <(• Salford Waterworks Co., 
 John.-. <". C. at p. 72G, cited in 2 P. <fe Ad. 544, atp. 553.
 
 REPRESENTATION. 387 
 
 authorized by law to work them, it was held thai the 
 company could not set up the illegality in answer to a 
 claim for damages arising out of the working of the 
 steamboats (/»). 
 
 Xot only may the company itself be estopped from 
 disputing the legality of its acts, as against persons who 
 have acted upon them, but so also may the persons them- 
 selves who have so acted. For instance, a shareholder 
 to whom shares have been illegally issued, may be 
 estopped, in an action for payment of calls brought 
 against him by the company, from disputing the legality 
 of the issue, by having allowed himself to be registered 
 as the owner of the shares, and by having received 
 dividends thereon (c), or he may be estopped by having 
 subsequently paid calls on the shares (d). And where 
 the shareholders in an old company were registered as 
 having transferred their shares to a new company, and 
 share certificates in the new company were sent to each 
 shareholder in the old company, and it was doubtful 
 whether the agreement for the transfer was binding on 
 the shareholders, it was held, that a shareholder who had 
 acknowledged the receipt of the certificates and had 
 retained them, was a shareholder in the new company, 
 but that a shareholder who had taken no notice of the 
 communication, and had done nothing in relation to the 
 
 (I,) Doolan v. Midland /•'> ( Zealand Banking Co., Sewel/'s 
 L I:. 2 Ap] Cas. I I:. 3 Ch. A.pp. 131. 
 
 nwall /.'//. Co. v. (<h Irish Peat Co. v. Phill 
 
 3fowatt,l5Q. B. 521 ; Evil Flax I B. & S. 598; Tn r< Barm 
 
 < v. Wellesley, 6 II. & V 38 : Banking Co., Peel't Case, I. H 
 
 and per Lord Cairns in Tn r< New Ch. App. 674.
 
 388 ESTOPPEL IN PAIS. 
 
 agreement, was no1 a shareholder in the new company (e). 
 
 So also where shares were irregularly (/) allotted to a 
 director upon his application, and he afterwards attended 
 a directors' meeting, confirmed the allotment to himself, 
 and joined in passing a resolution that the shares allotted 
 to him should be paid up in full forthwith, it was held 
 that he was estopped from disputing the validity of the 
 allotment (g). And individual shareholders who have 
 ratified by acquiescence acts which are ultra vires the 
 directors may be estopped by them (h). But, as has 
 been pointed out (e), this does not apply to acts which 
 are ultra vires the company, and therefore void (k). 
 This is illustrated by the following case : — 
 
 (e) In re Empire Assuranct (i) See ante, p. 381. 
 
 Corporation, Chattis's Case, Somer- (k) But it seems that even 
 
 ville's Case, L. R. 6 Ch. App. 266. acts done in contravention of the 
 
 (/) For the difference between memorandum of association may 
 the effect of an irregular and be rendered valid for some pur- 
 invalid allotment of shares, see poses; e.g., where shares have 
 Murray v. Bush, In re Agrieul- been subdivided into shares of 
 turist Cattle Insurance Co., L. R. smaller amount, the subdivision 
 6 H. L. 37, and York Tramways being outside the powers given 
 Co. v. Willows, infra. by the memorandum of associa- 
 
 (a) York Tramways Co. v. tion, and therefore void, if the 
 Willows, L. I!. * Q. B. I». i')t<^, original shares can be "ear- 
 following Hallows v. Fernie, L. R. marked'' in the hands of a trans- 
 3 Ch. App. 467, Earward's Case, feree, the transfer will be held 
 L. R. 13 Eq. 30, and Fowler's effectual, and the transferee liable 
 Case, L. R. 14 Eq. 316; and to be placed on the list of con- 
 distinguishing Howbeach Coal Co. tributories. See In re Financial 
 v. Teague, 29 L. J. Ex. 137. Corporation, Feiling & Riming- 
 
 (A) Phosphate of Lime Co. v. ton's Case, L. R. 2 Ch. App. 714, 
 
 Green, L Et. 7 C. P. 43. And as and In re New Zealand Banking 
 
 to acquiescence in such acts on Corporation, Sewell's Case, L. R. 
 
 the part of the general body of 3 Ch. App. 131. 
 shareholders, sec ante, p. 382.
 
 REPRESENTATION. 3S9 
 
 Two incorporated banking companies, the Bank of 
 Hindustan and the Imperial Bank of China, (under the 
 powers contained in their respective articles of associa- 
 tion) agreed to amalgamate, the business of the latter 
 company being transferred to the former, and the share- 
 holders of the Imperial Bank of China having the option 
 of taking newly-created shares in the Bank of Hindustan 
 at a premium, part of which was to be paid out of the 
 funds of the Imperial Bank. The Bank of Hindustan 
 issued circulars, informing the shareholders in the 
 Imperial Bank of the arrangement which had been made 
 and intimating to them that they had an option to take 
 such new shares on the terms specified. Defendant, 
 a shareholder in the Imperial Bank, in consequence, in 
 1861, applied for and obtained an allotment of twenty- 
 five shares, paid a portion of the deposit and premium 
 thereon, and by his letter of application engaged to pa} 
 the residue on a given day. Several calls were after- 
 wards made, of which defendant had notice; but lie 
 never repudiated Ins liability until an action was brought 
 against Inm in 1*07 for non-payment of these calls. 
 In L868, the supposed amalgamation of the two banks 
 was, by a decree of a vice-chancellor in a sun by dis- 
 Q tien1 shareholders in the Imperial Bank, declared to 
 be void. Held, that the directors of the Bank of 
 Hindustan had DO power to issue the new shares, and 
 thai defendanl was ool by any acquiescence or conduct 
 on his part estopped fn lenying thai he was a share- 
 holder in the Bank of I lindustan (I). 
 
 (I) Bank of Hindustan, <bc. v. see also ffi London & Nortlisrn 
 Alison, L. R. 6 C. P. 64 and 222 j Insurant Co., Stact <& Worth's
 
 390 ESTOPPEL IN PAIS. 
 
 And even a member of the company who has himself 
 participated in committing an aet which is ultra vires 
 the company, would not be estopped from setting up 
 its illegality against the company. Thus, in the case 
 of a railway company, where a committee was authorized 
 by Act of Parliament to make calls in a certain manner, 
 and they made calls in a manner that was ultra vires 
 the powers given them by the Act ; in an action by the 
 company against defendant, who was a member of the 
 committee, for money due on some of the calls, others 
 of which he had handed over, it was held, that defendant 
 was not estopped by having joined in making the calls, 
 or by his payment of part of them, from disputing their 
 validity (///). 
 
 Case, L. It. 4 Ch. App. 682. It L. R. 6 Ch. App. 266 j and In 
 
 would have beeu otherwise, how- re Bank of Hindustan, China, <t 
 
 ever, if the shares had beeu Japan, Campbell! s Case & llippis- 
 
 origiually well created, even ley's Case, L. R. 9 Ch. App. pp. 1 
 
 though the amalgamation itself and 15. 
 
 was void. See Hare's Case, L. R. (m) Stratford <k Moreton Ry_. 
 
 4 Ch. App. 503 ; In re Empire As- Co. v. Stratton, 2 B. & Ad. 518. 
 stint an- Cor/n, ration, Cha/h's's Case,
 
 CHAPTER XL 
 
 PLEADING THE ESTOPPEL. 
 
 Formerly matters of estoppel were usually raised on 
 the pleadings. It is however somewhal doubtful, accord- 
 hig to the older authorities, whether it was necessary 
 that an estoppel by record should appear on the plead- 
 ings, and whether if it did not, it was conclusive if 
 offered in evidence. On the other hand the balance of 
 authority seems to be in favour of the proposition that 
 formerly an estoppel by deed ought to have been raised 
 "ii the pleadings, and that an estoppel in pais need not. 
 
 An estoppel might he raised on the pleadings, either 
 by means of a special plea, or by special (a) or 
 general (b) demurrer. There are numerous instances of 
 ;m estoppel being raised by demurrer (c). But now by 
 tli<' new rules (d) demurrers are abolished, and any party 
 shall be entitled to raise by Ins pleading any point of 
 law ('). And tli«' defendant or plaintiff (as the <'asc may 
 
 (a) Beckett v. Bradley, It L.J. A. Jc E. 792; Hills \. Laming, 9 
 if Excheq. 256 ; Armani v. ( 
 
 (b) Kemp v. < ;.„„!,, i, | Salk. trique, 13 M. a- W. al p. I.") I 
 •_'77 ; H"iih\. Vermeden f 31avwz. (per Pollock, < '. I'». ). 
 
 lie. Palmerv. Ekins, 2 Str. 817. (d) R.S.C.1883; OrderXXV., 
 
 I Bowman v. Taylor, '_' A. <Jz Pule I. 
 P. 278 : /• v. Tremere, I Order XXV., Rule 2,
 
 302 PLEADING THE ESTOPPEL. 
 
 be) must raise by his pleading all matters which show the 
 action or counterclaim not to be maintainable, or that 
 the transaction is either void or voidable in point of law, 
 and all such grounds of defence or reply, as the ease 
 may be, as if not raised would be likely to take the 
 opposite party by surprise, or would raise issues of faet 
 not arising out of the preceding pleadings, as for 
 instance, fraud, statute of limitations, release, payment, 
 performance, facts showing illegality either by statute or 
 common law, or statute of frauds (/). The above rules 
 therefore seem to make it necessary, or at any rate 
 advisable, in all cases to raise any matters that are relied 
 upon by way of estoppel, on the pleadings. No form of 
 a plea of estoppel is given in the forms in the Appendix 
 to the new rules, but presumably such pleas must be as 
 brief and concise as possible, and as nearly as possible in 
 accordance with the forms of pleadings there given. 
 Certain forms of pleas of estoppel are however given in 
 the last chapter of Bigelow's work on estoppel (g) which 
 may be found useful in some cases, if abridged in 
 accordance with the spirit of the new rules. 
 
 As the question may occasionally arise, how far an 
 estoppel is conclusive even if it does not appear on the 
 pleadings, it may be useful to enter into some discussion 
 of the authorities on the subject of pleading the estoppel. 
 
 (/) Order XIX., Rule 15. under the old system of pleading, 
 
 (g) Bigelow on Estoppel (2nd see Dot v. Wdsman, 2 Ex. 368 ; 
 
 ed.), pp. 543— 558. See also the WilMnsonv. Kirby, 15 C. B. 430 ; 
 
 forms given in Allen's forms of Central Steam Navigation Co. v. 
 
 Pleadings (ed. L883), pp. 197, Guillou, 11 M. & W. 877 ; Co. 
 
 224, 225. And, as to the mode Litt. 303 b(e); and Litchfield v. 
 
 of fiaming the plea of estoppel Ready, 5 Ex. at p. 945.
 
 PLEADING THE ESTOPPEL. 
 
 303 
 
 The general rule formerly was that an estoppel ought to 
 be pleaded if there was an opportunity, and that it' a 
 party did not rely upon the estoppel in his pleading, but 
 the matter was put in issue and went to the jury, they 
 wore not bound by the estoppel, but might find the truth 
 notwithstanding (It). And in such a case the matter 
 which, if pleaded, would have been conclusive, became 
 merely evidence, which, like other evidence, is open to 
 contradiction (/). For, says an old authority, the jurors 
 ought not, on pain of attaint, to take notice of matters of 
 i -toppel which were given in evidence between the 
 parties, as they are strangers to the conclusion between 
 the parties, and are no more estopped than the judges 
 
 arc (k). 
 
 Thus a recital was not conclusive evidence at the trial, 
 if the party seeking to rely upon it had not pleaded it by 
 way of estoppel, but had joined issue (/). And a judg- 
 ment for plaintiff in an action of ejectment was not 
 
 (/, , Goddard's Case, »'<>. Rep. 
 vol. i. ]>. 132, and remarks 
 thereon in Smith's L. < '. (8th ed.), 
 voL ii. pp. 821, 822 ; Palmer v. 
 Ekins, 2 Str. 817; James v. 
 I,,i „<!•,„, 1 i p.. Eiiz. ■"■''< : Speah 
 \. Richards, Hob. 207 I ■ ■■ ■ I""" 
 v. Emerson, I 1 Ex. 385 . Young 
 v. Raincock, 7 < '. I'., at p. 33* 
 Dot v. Evddart, 2 C. M. & R 
 316 ; Cox v. Cannon, t Bing. 
 X. c. |.".:; ; Ashpitel v. Bryan, :'> 
 I',. k S. al p. 189 : Gregg v. 
 Wells, 10 A. & E. 90 : and I 
 Wi„-.. Saund. (6th ed.), 325 a, 
 note i ri 
 
 i/i Outram \. Morewood,Z East, 
 •">|t'> : Kinnersley v. Orpe, 2 Dougl. 
 5 1 7 ; Wilson v. Butli < . t Bing. 
 N. C. 7 l>. 
 
 (/■) Pleadall v. Pleadall, Moore, 
 
 '.Mi ; /,///////, it V. ( '•lull ■ i '< /, ( 'mill'. 
 
 1 16 ; 11'"'/' v. /.mi-, r, Pollexfen, 
 * "• 7* . Bui Bee contra, Goddai'd's 
 Cast . ( '". Rep., vol. i. \k l •"'•:' ; 
 Dot v. Huddart, 2 C. M. a 
 .". I •', ; ,X,,,ii, r x . Bishop "/ W\ 
 chester, Hob. 227 (Attorney 
 Genera] arguendo); Feversham v. 
 Emerson, I I Ex. 385. 
 
 ( /i Bowman v. Rostron, 2 A. & 
 \. 295.
 
 891 PLEADING THE ESTOPPEL. 
 
 (before the Common Law Procedure Acts) conclusive 
 evidence of plaintiff's title in a subsequent action for 
 mesne profits or ejectment, unless it was pleaded as an 
 estoppel (m). So also a verdict and judgment in a 
 former action, which if pleaded would have operated as a 
 bar, if given in evidence under the general issue, was not 
 conclusive, but only evidence to go to the jury (n). 
 Again, if a sentence of court-martial was not pleaded 
 by way of estoppel in a subsequent civil action, it was 
 only evidence, and not conclusive evidence, of the truth 
 of the matter adjudicated upon in the sentence (o). 
 Further, matter relied upon by the petitioner in divorce, 
 as an estoppel to respondent's answer, must be pleaded 
 in the replication ( p ). 
 
 A case, however, might arise in which a record in a 
 former action could not be pleaded as an estoppel, on 
 account of its not being strictly a legal estoppel, and 
 it might nevertheless be conclusive evidence to go to the 
 jury. Thus in an action for diverting water from 
 
 m) ]><>• v. Euddart, 2 C. M 
 & R. 316 ; Doe d. Strode v 
 Seaton, 2 C. M. & R. 728 ; Mat- 
 thew v. Osborn, 13 C. B. 919 
 Doe v. Wright, 10 A. & E. 7G3 
 Litchfield v. Ready, 5 Ex. at p 
 
 see contra, in the case of estoppels 
 by record, Needier v. Bishop of 
 Winchester, Hob. 227, and opinions 
 of judges in Duchess of Kingston's 
 Case, Appendix B., p. 421. How- 
 ever, at any rate an estoppel of 
 
 945 ; see, however, Aslin v. Par- quasi record ought to be pleaded ; 
 
 kin, 2 Burr. 665; i.e., unless see R. v. Cambrian Ry. Co., L. R. 
 
 there was no opportunity of 4 Q. B. 320. 
 
 pleading it, Armstrong v. Norton, (o) Ilannaford v. Hunn, 2 C. 
 
 _' fr. C. L. It. 96. & P. 148; Warden v. Bailey, 4 
 
 (//) Rawlins's Case, Co. Rep., Taunt. 67. 
 
 vol. ii. p. 122, note (<■) ; Vooght (p) Robiiisony. Robinson, L. R. 
 
 v. Winch, -1 B. & Aid. 662 ; but 2 P. D. 75.
 
 PLEADING THE ESTOPPEL. 30.") 
 
 plaintiffs mill, the record of a former trial for a similar 
 injury, between the same plaintiff and the same defendant 
 and another person (not party to the present action) was 
 produced in evidence as to the right to the water ; and 
 Lord Ellenborough said, that though the record of the 
 judgment in the former action could not be deemed a 
 legal estoppel (the parties being different), so as to 
 conclude the rights of the parties, yet it was binding so 
 far that lie should think himself bound to tell the jury to 
 consider it as conclusive as to the rights of the 
 parties (y). 
 
 The rule that an estoppel should be pleaded, only 
 applied where the party who omitted to plead the 
 estoppel had an opportunity of pleading it (/•). Thus, 
 where the defendant in a judgment was tenant in tail 
 and died, and, upon a scire /arias against the heir and 
 terre-tenants, the issue in tail was returned heir and 
 terre-tenant and warned, and judgment was given against 
 him by default, and the entailed lands were extended in 
 elegit; and, upon an ejectment brought by the tenant by 
 elegit, the deed of entail was given in evidence, and all 
 this matter specially found ; it was resolved, thai because 
 the defendanl had an opportunity to have pleaded this 
 once to the scire facias, and had not pleaded it, he was 
 
 estopped to say it now: and so, a judgment that did not 
 hind the issue in tail ;it first, was, by his negleel of 
 pleading his title to the scire facias, made an unavoidable 
 
 i 7 ; Strult v. Bovington, 8 Esp. oiting Trevivian v. Lawrence, 
 
 59. Smith's I.. C. (8th ed.), vol ii. 
 
 (r) Per Parke, B., in Freeman pp. 799 801, and Magrath \. 
 
 v. Cooke, 2 Excheq. a1 p. 662, Hardy, I Bing. N < '. 782.
 
 396 PLEADING THE ESTOPPEL. 
 
 charge upon him (s). And, .again, where plaintiff 
 declared upon a demise by indenture, and defendant 
 pleaded nil habuit in tenement!* ; if plaintiff did not 
 plead the indenture by way of estoppel, but took issue 
 on the plea, the jury, notwithstanding the indenture, 
 might find that plaintiff (the lessor) had nothing in the 
 tenements tempore dimissionis, and give a verdict for 
 defendant ; but if, instead of nil habuit in tenementis, 
 defendant had pleaded nil debet, and issue thereon, and 
 then defendant gave in evidence that plaintiff nil habuit 
 in tenementisj plaintiff might in such case take advantage 
 in evidence of the indenture by way of estoppel, because 
 he had not had that advantage of it in pleading, as he 
 had in the other case (t). 
 
 A good example of the rule that if the party had no 
 opportunity of pleading the estoppel, the jury would be 
 bound by the estoppel, or rather the Court would give 
 effect to it in construing the verdict (w), is furnished by 
 
 (s) Gilburne v. Racl; 2 Sid. 12 ; at p. 945 ; and see further as to 
 
 cited as Tilborne v. Rag by Holt, pleading estoppels, Trials per 
 
 C. J., in Trevivian v. Lawrence, 2 Pais, vol. i. pp. 236, 237, and 
 
 Lord Raymond, 1051 ; see also pp. 283—285. 
 Il'innor v. Mase, Hob. 283 ; Vin. (u) Mutton's Cane, 1 Cro. Eliz. 
 
 Ab. Estop, p. 486, citing Bro. 140 ; Trevivian v. Lawrence, 
 
 Estop, pi. 112. And in such a Smith's L. C. (8th ed.), vol. ii. 
 
 case the advantage of the estoppel pp. 799 — 801 ; Magrath v. 
 
 was lost for ever, and it could Hardy, 4 Bing. N. C. 782 ; judg- 
 
 not be pleaded in any subsequent ment of De Grey, C. J., in Duchess 
 
 proceedings. See ibid, of Kingston's Case, Appendix B., 
 
 it, Trevivian v. Lawrence, 3 p. 421 ; per Lord Campbell, C. J., 
 
 Salk. 151. See also as to the in Li. v. Lilakemore, 2 Den. 
 
 rule laid down in Trevivian v. C. C. K. at p. 426; Armstrong v. 
 
 Latorence, the remarks of Parke, Norton, 2 Ir. ('. L. R. 96. 
 
 Ii., in LitcMeld v. Ready, 5 Ex.
 
 PLEADING THE ESTOPPEL. 
 
 397 
 
 the old action of ejectment, in which there were no 
 pleadings, except the general plea of not guilty. Thus 
 where, in an action of ejectment on a lease for years 
 made by defendant to plaintiff, defendant pleaded not 
 guilty, and there was a special verdict to the effect that 
 defendant had nothing in the lands when he made the 
 lease to plaintiff, quaere whether this was a verdict for 
 plaintiff or defendant: for if there was a lease, defendant 
 would be estopped from saying that he had nothing 
 in the land. And it appears that the Court were equally 
 divided in opinion; but it is stated in the marginal note 
 that plaintiff shall have judgment, for that the jury might 
 find the estoppel on the general issue (x). 
 
 The jury were bound by the estoppel, if it appeared on 
 the face of the same record in which issue was joined 
 between the parties : for the jury could not find anything 
 contrary to that which the parties themselves affirmed 
 and admitted of record, although it was contrary to the 
 truth (//). 
 
 button's Case t 1 Cro. Eliz. 
 140 ; and us to pleading mat 
 of defence that arise pending 
 the action, Bee now It. S. < '. L883, 
 Order XXIV.. Rules I. 2. In In 
 i . Deft " -, Nordon v. I.> vy, 18 
 I.. 'I'. 703, defendant was allowed 
 the trial t" make use of a 
 judgment by way of estoppel, 
 whicl nol given oil after 
 
 t< menl of defence had I 
 filed, bul see now R. S. C. 1883, 
 Ordei WIV., Rule 2. 
 
 (//; Goddard' Case, Co Rep , 
 
 vol. i. p. 132 ; D<x v. Huddart, 
 1* C M. & U. 316; Weedier v. 
 Bishop of Winchester, Hob. 227 
 < Attorney - I leneral arguendo) ; 
 /•'< vt wham v. Enu rson, 1 I Ex. 
 385. See contra, Lambert \. 
 ('■i,n, ,, /, < !omb. I hi, where, in 
 proceedings on a writ of error, 
 evidenceof plaintiff s death before 
 ion was allowed t" go to the 
 jury, though it was admitted I > 
 ndant's plea in the action 
 thai plaintiff was alive at tunc of 
 action brought .
 
 ■ 93 PLEADING THE ESTOPPEL. 
 
 An exception to the rule thai the jury ought noi to 
 take notice of matters of estoppel unless tliey were 
 pleaded, is made by some of the old authorities in the 
 case of estoppels which bound the interest of the land. 
 Thus it is laid down by Lord Coke, that in the case of 
 estoppels which bound the interest of the land, as the 
 taking of a lease of a man's own land by deed indented, 
 and the like, if the jury found the estoppel by special 
 verdict, the Court ought to give judgment in accordance 
 with their finding (z). And in a case where the estoppel 
 was not pleaded and was of the above nature, and 
 defendant's counsel objected that an estate by estoppel 
 should not be favoured in equity, and that the jury were 
 not bound to find it, and that if it were found, the Court 
 should judge the lease void, it was answered by the 
 judges as follows : " The law, as it seemeth, is so in cases 
 of obligations, covenants, or personal contracts, which can- 
 not be turned into an estate ; but in other cases, where the 
 estate is bound by the conclusion and converted into an 
 interest, although the jury find the matter at large, yet 
 the Court shall adjudge according to the law, that the 
 estate is good by reason of the estoppel " (a). On the 
 other hand it was decided in another case, that if one 
 made a lease for years by indenture, and had nothing in 
 the land, and afterwards purchased the land and aliened 
 it, although it was a good lease for years by estoppel 
 against him and his alienee by way of pleading, and 
 bound them, yet that it did not bind the jury, for that 
 they might find the truth, and that if the jury did find 
 
 i Co. Litt. 227 a. (a) Weale v. Lower, Pollexfen, 67.
 
 PLEADING THE ESTOPPEL. 399 
 
 the truth, the Court should judge it to be a void 
 lease (b). 
 
 A further exception to the above ride, that an estoppel 
 must he pleaded, was made in the case of actions 
 of assumpsit. The general rule in these actions was 
 that whatever defeated the promise might be given in 
 evidence on non assumpsit. Thus in a case in the Lord 
 Mayor's Court, in which plaintiff, a mariner, sued in 
 assumpsit for his wages, to which there was a plea of 
 non assumpsit : and it appeared that plaintiff had pre- 
 viously sued in the Admiralty Court for his wages, and 
 judgment had been given against him, the Recorder 
 (afterwards Lord Chancellor) allowed the judgment in 
 the Admiralty Court to be given in evidence against 
 plaintiff (c). 
 
 There were also other exceptions to the above rule, in 
 the case of certain estoppels by record. Thus it appears 
 that a verdict of guilty upon an indictment for non-repair 
 of a road was conclusive evidence, on a subsequenl 
 indictment againsl the same parish for non-repair ol the 
 same road, of its liability to repair, even though it was 
 not pleaded by way of estoppel d)\ and, speaking 
 generally, a judgment in rem was conclusive evidence 
 to go to the jury, even though not pleaded as an 
 estoppel (< . 
 
 (b) heham v. Morrice, Cro. V I'. C. 219. 
 Car. 111'. («) A'- v. St. Pancrcu, ibid. ; 
 
 ee the case cited in Bur- "Cammellv. Sewell, '■'• II. & V at 
 
 rowt v. JeminOf 2 Sir. 733, p. HIT. Ind as to pleading eccl< 
 
 Appendix I'.., p. H5; sec also siasticaJ sentences, see i.pp< 
 
 Stafford v. Chirk, 2 Bing. 377. A., p. t09 
 /.'. v. St. Pancra , Peal
 
 tOO PLEADING THE ESTOPPEL. 
 
 Foreign judgments stand upon a footing of their own. 
 They are, as has been pointed out (/), not strictly 
 speaking records, and therefore it appears, that to an 
 action in England on a colonial judgment, the plea of 
 nul tiel rrcofi/ is not a good plea (y), and a foreign 
 sentence of nullity of marriage cannot be pleaded in 
 bar to a suit in England for restitution of conjugal 
 rights (h) ; moreover, a foreign judgment in admiralty 
 cannot be pleaded as an estoppel on collateral matters (/). 
 But judgments of foreign courts are treated as conclu- 
 sive in England as judgments of courts of competent 
 jurisdiction (/.•). And, it seems, that in an action in 
 England on a foreign judgment, the judgment should, if 
 there is an opportunity, be pleaded by way of estoppel (/). 
 Moreover, it is advisable now, for the reasons given 
 above (m\ to plead foreign judgments in all cases where 
 they are relied upon as conclusive. And the plea should 
 show that the foreign court had jurisdiction, and that the 
 foreign judgment was final and conclusive when ren- 
 dered^). Moreover, if the defence rests on want of 
 personal service, or on want of notice to defendant, in 
 the foreign proceedings, the plea to that effect must be 
 
 ) Ante, p. IS. v. Bampfield, 1 Cases in C'hanc. 
 
 (g) Chapman v. Sherrie, 5 Ir. 237, Appendix B., p. 421. 
 
 R. C. L. 36. (I) Doe v. Huddart, 2 C. M. A 
 
 (h) Per Sir E. Simpson in \\. 316 ; Vooght v. Winch, 2 B. & 
 
 5 rimshire v. Scrimshire, 2 Hagg. Aid. 662. 
 
 Consist. 395, ante, p. 167. (m) Ante, p. 302. 
 
 ('<) Hobbs v. Henning, 17 C. B." (n) Douglas v. Forrest, 4 Bing. 
 
 \. S. 791. 686; Frayes v. Worms, 10 C. B. 
 
 (k) Ante, pp. 152, 153 ; see N. S. 149 ; Plummer v. Wood- 
 also Burrows v. Jemino, 2 Str. burne, 4 B. & C. 625. 
 733, Appendix B., p. 415 ; Bluet
 
 PLEADING THE ESTOPPEL 101 
 
 lull and explicit (o). And, speaking generally, if ^judg- 
 ment, whether domestic or foreign, is relied upon as an 
 i oppel, the plea of res judicata must be specific ; and it 
 must appear that the matter lias been controverted as 
 well as adjudicated upon ( /)). 
 
 Precedents of pleas to actions on foreign judgments, 
 setting forth, (1) That defendant was not resident within 
 the jurisdiction of the foreign court, nor subject to the 
 foreign laws, (2) That he was not a native of the foreign 
 country, (3) That he was not duly served with process 
 in the foreign court, (4) That he did not appear in the 
 foreign action, and (5) That he had no notice or means 
 of defending himself in the foreign action, are given in 
 Vallee v. Dumergue (q), and Meeus v. Thellusson (r). 
 These pleas are of course subject to the propositions 
 
 ted in the chapter on foreign judgments (s). And in 
 Duflos v. Burlingham (t), which was an action in 
 England on a French judgment, and in which defendant 
 pleaded,, first, that he was not duly served with process, 
 that he had no notice of the alleged action, nor had he 
 the opportunity, according to the rules and regulations of 
 the French court, of defending himself; and secondly, 
 that the action in which the judgmenl was obtained, 
 was upon a contract entered into in England, that, before 
 the judffmenl was obtained, he was never resident or 
 
 Maubourquet v. Wt/se, I lr. pp. 270, 271. 
 I.. 17 1 ; fi • ton, (q) I Ex. 2 
 
 V„!ir, v. Dv (r) 8 Ex. 6 
 
 3i i ■ iu, pp. 123 151. 
 ; ■ w Hi 3, J., iu Lari- \4 I T. 6 
 
 v. M 3 C. B. N. S 255, at 
 
 D li
 
 In:? PLEADING THE ESTOPPEL. 
 
 domiciled within the jurisdiction of the French court, 
 nor was he a native of, nor did he ever owe allegiance 
 to France, nor was he, at the time of contracting 
 the alleged obligation, in France or within the jurisdic- 
 tion of the French court; it was held, on demurrer, 
 that the first of these pleas was bad, and the secon<l 
 good. 
 
 Another exception to the above rule, that an estoppel 
 should be pleaded, existed in the case of estoppels in 
 pais. These in certain cases need not formerly have 
 I k -en pleaded (it). The law on this point is thus stated 
 by an eminent authority : "With respect to estoppels in 
 pais, in certain cases there is no doubt they need not be 
 pleaded, in order to make them obligatory. For instance, 
 where a man represents another as his agent, in order to 
 procure a person to contract with him as such, and lie 
 does contract, the contract binds in the same manner as 
 if he made it himself, and is his contract in point of law, 
 and no form of pleading could leave such a matter at 
 large, and enable the jury to treat it as no contract. 
 The same rule appears to apply to all similar estoppels 
 in pais (x)." It appears, however, from an old authority, 
 that the jury were not bound to find an estoppel in pais 
 or by matter in writing when given in evidence, but that 
 they might find it, and that, if they did, the court was 
 found to give judgment accordingly (//). And an 
 
 (u) Per Wightman, J., in Ash- (Gth ed.), '.V2h a, note (d). 
 pitel v. Bryan, 3 B. & S. at p. (x) Per Parke, B., in Freeman 
 
 • : Sanderson v. Collman, I v. Cooke, 2 Ex. at p. 662. 
 Scott's N. P. 638; Lyon v. Reed, (//) Needier v. Bishop of Win- 
 
 13 M. & W. 285; 1 Wins. Saund. Chester, Hob. 227.
 
 PLEADING THE ESTOPPEL. 40o 
 
 estoppel in pais might be pleaded as an estoppel (s). 
 And, since the new rules, it would be advisable to plead 
 it as such. 
 
 <-) Sanderson v. Collman, 4 Ex. at p. 453; and notes to Veali 
 
 Scott's .V i;. 638 ; Darlington v. v. Warner, I Wins. Saund. (ed. 
 
 Pritchard, \ M. <& G. 783; per 1871), at p. 576. 
 Parke, B., in Hallifax \ Lyle, 3 
 
 i) n •_'
 
 APPENDIX. 
 
 APPENDIX A. 
 
 PREFATORY NOTE TO THE DUCHESS OF KINGSTON'S (ASF. 
 
 The question that arose in the Duchess of Kingston's' case, was 
 whether a sentence in the spiritual court, in a suit of jactitation of 
 marriage brought by A. (a woman), against I!., declaring tha< A. was 
 a spinster and free from all matrimonial contract with B., was con- 
 
 - ve i Tidence of that fact, so as to estop the crown, in a subse- 
 quent criminal prosecution against A. for bigamy, from proving that 
 A. us married to B. at the time of her marriage with ( '. 
 
 S ime light may he thrown upon the question by noticing some of 
 the cases relating in the jurisdiction of the ecclesiastical courts, 
 which were d cided prior to the Duchess of Kingston's case. 
 
 The ecclesiastical courts, or courts Christian (curice Christidnitatis), 
 were one of the Bpecies of courts in which the civil and canon laws 
 wi re permitted, under different restrictions, to he used. 
 
 The courts of common law had the superintendency over thi 
 
 courts; to keep them within their jurisdiction, to determine wherein 
 
 :•■'! it, and (<■ restrain and prohibit (a) any excess : and, 
 
 in ease of. contumacy, t<> punish the officer who executed, and in 
 
 some the judge who enforced, the sentence so declared to be 
 
 . ;al. Thecommoi] law also reserved to itself a paramounl authority 
 in the exposition of all such acts of parliament as concerned either the 
 nt of these courts or the matters depending before them, Ami 
 therefore, if tie-'' courts either refused i" allow these acts of parlia- 
 ment, or expounded them in any other Bense than whal the commou 
 
 The Qui en' - B< i did pi in the ] 
 
 not, aa a rule, i Bee R. y 1 / . I R I I j I 
 
 as to prohibition 011 the application of at p. 1 1 '■. 
 ;< j >'i.-~..i] whi to the
 
 406 APPENDIX A. 
 
 law put upon them, the superior courts at Westminster would grant 
 prohibitions to restrain ami control them. An appeal lay from these 
 '•ourts to the sovereign, in the last resort, which proves that the 
 jurisdiction exercised in them is not derived from any intrinsic 
 authority of their own (b). 
 
 Probate of Wills a/ Personalty. — The ecclesiastical courts had 
 exclusive jurisdiction over the probate of wills of personal estate. 
 Before 20 & 21 Vic. c. 77, proof of the will was given by the executor 
 before the ordinary, i.e., as a general rule, the bishop of the diocese. 
 
 Administration. -They had, before 20 A- 21 Vic. c. 77, transferring 
 the jurisdiction to the Probate Court, exclusive jurisdiction over the 
 administration of the estates of intestates, which were granted by the 
 ordinary or the metropolitan (c i. 
 
 Distribution. — They had a concurrent jurisdiction with the Courtof 
 Chancery with respect to distribution (d). 
 
 Marriage. — They had, before 20 & 2\ Vic. c. <S5, by which a new 
 court, called the Court of Divorce and Matrimonial Causes, was 
 i stablished, exclusive jurisdiction in divorce and alimony, in suits for 
 jactitation of marriage, in suits for restitution of conjugal rights, 
 and in suits lo compel the celebration of marriages in pursuance of 
 marriage contracts (e). 
 
 Ecclesiastical Jurisdiction. — The ecclesiastical jurisdiction of the 
 ecclesiastieal courts remains, in many respects, the same as it was 
 Formerly. 1 1 is exercised by, first, the Archdeacon's Court ; secondly, 
 Consistory Courtof the Bishop; thirdly, the Court of Arches 
 i including the Court of Peculiars) ; and fourthly, the Judicial Com- 
 mittee of the Privy Council, sitting as a final Court of Appeal (/'). 
 
 The judgments of the ecclesiastical courts were formerly as much 
 subject to the equity of the Court of Chancery, as were the judg- 
 ments of the common law courts (a). 
 
 ft has, however, been laid down that the temporal courts could 
 not examine the decisions of the ecclesiastieal judges in matters 
 
 (l,) See Stephen's Commentaries (ed. pp. 238, _•'-!'.». This last jurisdiction 
 
 7 , vol. i., pp. 67, 68. was abolished by 26 Geo. 2, c. 33, and 
 
 Stephen's Commentaries (ed. 1 , 4 Geo. -i, c. 76, s. 27. 
 
 vol. ii., p. 193. (/) Stephen's Commentaries (ed. 7), 
 
 /,/) Bouchier v. Taylor, I Brown's vol. iii., pp. 305 etseq. 
 
 I in Parliament, 708, and Ear- [g) Vanbrmigh v. Cock, 1 Chanc. 
 
 . p. 17:'.. C;i>cs. 200. 
 
 . Step] nimentaiies, vol. ii.,
 
 APPENDIX A. 
 
 407 
 
 purely spiritual (A). But they had a right to control the spiritual 
 court in cases in which it proceeded in opposition to the common 
 
 . <>n points in which the common law predominated over the 
 ecclesiastical («). 
 
 The temporal courts had also a right to restrain the spiritual coi 
 from contradicting what had been already finally decided upon by 
 ipofal judges, under authority expressly given to them by Act of 
 Parliament (/). 
 
 But the Court of Chancery refused to interfere in cases where the 
 ecclesiastical courts had an exclusive jurisdiction (Z). Thus, it refused 
 to try questions concerning wills of personalty, either before or after 
 probate, but referred the parties to the ecclesiastical court (m). It 
 would, however, interfere under certain circumstances (//). 
 
 Again, the probate if pleaded (o), was conclusive evidence of a will 
 
 of personalty (p), except in the ease of the probate itself having been 
 
 ■>(l. or having been obtained by surprise (q) ; in winch case I he 
 
 probate might be annulled by sentence of the ecclesiastical court (r). 
 
 Tims <veii fraud in obtaining probate of a will of personalty, was 
 iiet examinable in chancery, after the will had been proved in the 
 i cclesiastical court, so long as the probate remained in force (s). 
 
 Nor was it examinable in the courts of common law. Thus pay- 
 ment of money to tin executor, who had obtained probate of a forged 
 
 (/;) Bird v. Smith, Moore, 781 ; 
 
 Caicdrey's Case, Co. Rep., vol. iii., 
 
 |i. 15 : Phillips v. Crawly, 1 Frei man, 
 
 . /;. v. .Y. /'■ ( 'ollegi . 2 Le\ in/, l t. 
 
 //• /' i \. // - ris, < !ai thew, .71 ; 
 
 Hargrave l i, p. 178. 
 
 Webb v. Cook, Cro. Jac, 
 and Appendix B., p. 117;/ 
 \ . /■' Mod. . 164, Appendix B., 
 
 p. 117. 
 (I) /:. v. Blotch, 5 Vea. junr., I L3. 
 i Attorn '■' v. Ryder, ~i 
 
 < !h. Cas. 178 ' V. i n . 
 
 ., v. 01 ! Vern., 
 
 / I I'. Win 
 
 irtlhu r, J, P. Win ., 
 
 . I I'. W 
 
 ' \ in. .\li,. 
 
 t ol. viii., p. :. 18, vol. xi., pp. 59, 
 i;.„,ni v. Fade, 2 Atk., 324 ; Hai 
 
 Iii'' . pp. !• 
 
 Sheffield v. Duchess oj Buckimj- 
 ton, 1 Atk., 630. 
 
 («) Phillips v. Chichester, sir T. 
 Raymond, 10 I. and Hargrave'a Ten I . 
 p. 16 dso ;i case 'it''l by ( !oke 
 
 in ffensloe's Case, < !o. Rep., vol. v., 
 p, 64, where a liistory is given of the 
 jurisdiction of t be ecclesiastical courts 
 in probate and administrate in. 
 
 Noel v. Wells, 1 Levinz, 235, 
 Appendix B., p. ill. 
 
 Phillips v. Chichester, Sir T. 
 
 Raj in I. 10 I. and Hargrave'a Ti 
 
 p. 160 
 
 Anon. Cast . < lomj ns' Rep., 150, 
 
 Irchei v. Mossi . 2 Vern., 8 ; 
 Allen v. McPherson, I II I.. Cas., 191. 
 Thi was uot so, however, in a case of a 
 will of realty ; sec Bai > ily \ . Powt I, 
 1 V>s., 287.
 
 K)8 
 
 APPENDIX A. 
 
 will, was held to be a discharge-to the party paying it, and a bar to its 
 being recovered again by another party ro whom letters of administra 
 tion were afterwards granted when the probate was repealed (/). 
 
 Fraud, however, in obtaining probate of a will did not estop 
 criminal proceedings for forging the will of which probate had been 
 obtained (//). 
 
 Again, as the spiritual court had an exclusive jurisdiction in 
 administration, the Court of Chancery, in exercising its concurrent 
 jurisdiction as to distribution, was concluded by sentences of the 
 spiritual court in administration (v), so long as they remained 
 unrevoked (./ •). 
 
 In eases where the Court of Chancery had a jurisdiction concurrent 
 with that of the spiritual court, if proceedings were first taken in 
 the spiritual court, the Court of Chancery would not, as a rule, stay 
 them by injunction (//) ; except in the case of legacies to infants (z). 
 But a bill might be brought in chancery against an executor for 
 discovery of the personal estate, before the will was proved, or during 
 the litigation thereof, in the ecclesiastical court [a). And remedies 
 might be pursued against an executor, concurrently in the ecclesias- 
 tical court and in the Court of Chancery (b). 
 
 Questions of Marriage. — The temporal courts could try the fact of 
 marriage. But the lawfulness of marriage could only be determined 
 by the ecclesiastical court, unless it came in question in the temporal 
 courts incidentally with other issues (c). And even a fraudulent 
 sentence of the spiritual court, in a suit for jactitation of marriage, 
 was conclusive in subsequent (civil) proceedings in the temporal 
 
 It) Allen v. Dwndas, 3 T. R. 125 ; 
 Allen v. McPherson, 1 II. L. (.'as. 191. 
 in) /,'. v. Buttery and Macnamara, 
 R. & 1! , C. C. R., 324, .ind other cases 
 in Appendix B., p. 416, note (c). 
 (v) Bouchier v. Taylor, 4 Brown's 
 3 in Parliament, 70S ; Thomas v. 
 A", tit riche, 1 Ves., seni ., 3 S3, and Ear- 
 grave's Tracts, pp. 172 17*; ; see, 
 however, Parker v. Dee, Finch, 123, 
 where an administral ion was repealed in 
 < hancery, in proceedings on a T »i 1 1 for 
 overy of the intestate's estate, and 
 new letters of administration granted 
 mol her, to v. honi the first admini ■ 
 onnt< I in ili i '. i iti 
 
 Court. 
 
 [x) Buller's N. P., 247. 
 
 (y) Nicholas v. Nicholas, Prec. in 
 Ch., 546 ; Basset v. Basset, 3 Atk., 
 207 ; Beynish v. Martin, 3 Atk., 333. 
 
 (z) I'll/In .rha in v. Fanshaw, 3 Atk., 627. 
 
 (a) Dulvrieh College v. Johnson, 2 
 Vern., 48. 
 
 (A) TDigby v. Cornwallis, -j Rep. in 
 Ch., W. 
 
 (c) Emertoii v. Hide, Comb., 72 ; 
 1'iiili v. Earl of Bath, 3 Levin/, 410 ; 
 Uiliard v. Phaleij, 8 .Med., 180, and 
 Hargrave's Tracts, p. 478; Bouchierv. 
 Taylor, 4 Brown's Cases in Parliament,
 
 APPENDIX A. 409 
 
 courts. Thus iu Meadows v. Duchess of Kingston (d), which was a 
 bill iu chancery to sei side the will of the Duke of Kingston, be- 
 queathing certain property to the Duchess, on the ground that it was 
 founded in fraud, the Duchess having imposed herself upon the Duke 
 
 single woman, and in which the defendant pleaded the ss 
 sentence of the ecclesiastical court as was submitted in evidence in 
 the Duchess of Kingston's case, the sentence was held to he conelusive. 
 Lord Chancellor Apsley said, >; I lay it down as a general rule, thai 
 wherever a matter comes to be tried in a collateral way, the decrei . 
 sentence, or judgment, of any other court having competent juris- 
 diction, shall be received as conclusive evidence of the matter so 
 determined (e). The general rule, however, respecting sentences of 
 the spiritual court in dissolution of or against marriage, appears to 
 have been, ' Sententia contra matrimonium nunquam transit in i 
 judicatam ' (/). Hence, though such sentences were usually coi 
 elusive as evidence in the temporal courts (g), they were not pleaded 
 as estoppels and did not operate, strictly speaking, as such. They 
 were, however, similar to estoppels in their binding effect o] 
 parties and privies(fi . And they might even hind strangers 
 Such sentences, however, though binding on the temporal court-. 
 were not so in the spiritual court itself, hut were liable to be reversed 
 there (j). The effect by way of estoppel of judgments of the Divorce 
 Court (now the Probate, Divorce, &c, Division of the High Couri of 
 .Justice) has already been discussed in a previous chapter (A). 
 
 . '. Bui I ' endix B., p. 411; Ch wi 
 
 2 Str. 960, and Appendix B . p. H3 ; 
 
 in ai criminal proceedings. Da Costa v. Villa Eeal,'2 Str. 960, and 
 
 the Duchtss oj Ki Appendix B., p. 414; Mendezx. Villa 
 
 , :i ,jj, : b. /•'• ' temp. Hard. 
 
 ( C ) For a further di i of the / v. Lr-pungvocll, Co. Rep., 
 
 • of fraud upon ecclesiastical sen- vol. ii., 355, and Appendix I'.., p. U2 ; 
 
 ee chap. Hi., ante, pp. 70 71. Hatfield v. Hatfield, 5 Brown' I 
 
 not appear, In in Parliament, 100, and Appendix I'... 
 
 b rule now in i p. 413. See, however, the opinions of tin 
 
 / ///■/■ v. Ferryman, I. I.'. - judges in the JJu h oj A' igsti 
 
 App. <'.i-. al p. ."•-'! (not i Appendix I'.., p. 121. giving a In 
 
 / | o I.' 1 i' v.. I. i\ ., of 1 1n' jurisdiction of the - 
 p, i.;.;. and Appendix B pout, p. 412 ; 
 
 Meadows v. Dm ' ■ •■ - K , Co Rep., vol, 
 
 Ambler, 756. 1'. 136, and Appendix I'... p. I 
 
 /,, .. • -. < '.iitli. 225, md ■ ehnp, iv., "<//•■, pp.
 
 APPENDIX B. 
 
 THE DUCHESS OF KINGSTON'S CASE. 
 
 This was the trial of the Duchess of Kingston for bigamy (a). 
 The trial took place before the House of Peers in AVestminster Hall, 
 in the year 1776. The facts of the case, as stated in the report of the 
 trial in Leach's Crown Cases, were as follows : — Elizabeth Chudleigh 
 married the Honourable Augustus John Hervey in 1744. In L768 she 
 instituted a suit for jactitation (b) of marriage against Mr. Hervey 
 in the Consistory Court of the Bishop of London. The defendant 
 admitted the jactitation. In February, 1769, sentence in the 
 jactitation suil was pronounced to the following effect, namely, 
 •• That the said E. Chudleigh was, and now is a spinster, and free 
 from all matrimonial contracts and espousals with the said 
 A. J. Hervey" (c). In March, 1769, Miss Chudleigh married the 
 
 [a 20 St. Trials, pp. 355—651 ; 
 I Leach C. C. 146 ; Smith's L. C. (8th 
 . vol. ii., pp. 784 et seq. The case, 
 as laid before Hargrave, who was con- 
 sulted as junior counsel by the prosecu- 
 . was as follows: — A.., claiming to 
 be a single woman, libels II., in the 
 Consistorial Court of the Bishop of 
 1. on. Ion, for jactitation of marriage. 
 B. defends himself by alleging a mar- 
 . and to this alL gal loe A. puts in 
 an answer. Afterwards witnesses are 
 examined, and the i is heard before 
 
 bishop's official, who pronounces 
 by which he dei Lares A a 
 spinster, and free from all matrimonial 
 contracts or espousals, as far to us as 
 vet appears, and concludes with an 
 award of costs against !»., in word 
 
 describing the sentence to be a defini- 
 tive sentence or final decree. Relying 
 on this sentence, A. marries C, after 
 whose deatli A. is indicted, under 1 
 Jac. 1, c. xi., for felony in marrying C, 
 her former husband 1! being then alive. 
 Upon the above facts, Hargrave was of 
 opinion thai the sentence of the Eccle- 
 siastical Court, if obtained bond fide, 
 was binding on the Crown in the pro- 
 secution for bigamy, bu1 that it might 
 be avoided on the ground of fraud. 
 (See his opinion in Hargrave's Tracts, 
 pp. 450 -486J 
 
 •i As to the nature of a suit for 
 jactitation, see the opinions of the 
 judges, post ]i. I -J 7. 
 
 (c) See also post ]>. 129, where the 
 above sentence is set out verbatim.
 
 duchess of Kingston's case. in 
 
 Duke of Kingston. On January 9th, 177';, an indictment was 
 ud againsl In r for bigamy (d). The counsel for the prosecution 
 were the Attorney-General, the Solicitor-General (afterwards Lord 
 Chancellor Wedderbum), Mr. Dunning, and Dr. Harris. The 
 counsel for the prisoner were Mr. Wallace, Mr. Mansfield (afterwi 
 Lord Chief Justice), Dr. Calvert, and Dr. Wynne. It was submitted 
 by the prisoner's counsel, thai the above sentence of the consistory 
 court was conclusive, and that no other evidence ought to be received 
 or stated against the prisoner, respecting the said marriage. The 
 prisoner was however found guilty, subject to the opinions of the 
 judges, Sir W. I>e Grey (L. C. J. of Common Pleas, afterwards Lord 
 Walsingham), Sir Sydney Stafford Smythe (L. C. B. of the Ex- 
 chequer), and other judges, upon the following questions, which 
 weiv propounded to them, viz.: — 1. Whether a sentence of the 
 spiritual court against a marriage, in a suit lor jactitation of 
 marriage, is conclusive evidence, so as to stop the counsel for the 
 Crown from proving the said marriage, in an indictment for 
 polygamy ? 2. Whether, admitting such sentence to be conclusive 
 upon such indictment, the counsel for the Crown maybe admitted to 
 avoid the effect of such sentence, by proving the same to have been 
 obtained by fraud and collusion ? In answer to the above questions, 
 the judges were unanimously of opinion : First : -That a sentence 
 of the spiritual court against a marriage, in a suit for jactitation of 
 marriage, is not conclusive evidence, so as to stop the counsel for 
 the Crown from proving the said marriage, in an indictment for 
 polygamy. 5 ndly : That, admitting the sentence to ],v 
 conclusive upon such indictment, bhe counsel for the Crown may lie 
 admitted i" avoid the effecl of such sentence, by proving the same to 
 havi obtained by fraud and collusion. 
 
 reported at length in vol. 20 of the State Trials, from 
 which the following extracts are taken : — 
 
 Wallace, lor the prisoner, cited I I.) Jones v. Bow (e). This was 
 an action of ejectment, brought by the issue of a marriage I" tv 
 
 ' ; Mm '•! 1 1 1 1- i • i i -in i any pei sons « In re the 
 . . which con- in i iii.ii nt( oce in the 
 ' I hi A< i hould ■ I ical court, I" en declared to 
 :■■ any | thai be void and of no effect, and (c) t.> any 
 tin date ol tl ud pel ons who, at the date of the first mar- 
 marriage, divorced from the first mar- riage, were under the age of consent. 
 
 ■ >i ill' 'i';il I i'Ii. 225.
 
 412 APPENDIX I:. 
 
 Robert Carr and Isabella Junes. The question was whether 
 sir Robert Can- was actually married to Miss Jones. 'The defendant 
 pul in evidence a sentence of the Court of Arches, upon a suit for 
 nation of marriage brought against .Miss Jones by Sir Robert 
 Carr. by which it was decreed that there was no marriage between 
 them. Subsequently to the decree both parties had married again. 
 The court was of opinion that the sentence was conclusive, and that 
 the temporal courts were bound by it, it being a matter of mere 
 spiritual cognizance. (2.) Bunting v. Lepingwell (/). In this case B. 
 contracted with A. to marry her, and afterwards A. married T. and 
 cohabited with him. B. sued A. in the Court of Audience, and 
 proved the contract. Sentence was pronounced that A. should 
 marry B. and cohabit with him, which she did, and they had issue 
 ('. Held: — That this sentence bound T., who was de facto A.'s 
 husband at the time it was pronounced, though he was no party to 
 the suit (//). (3.) Kenn's ruse (Id. In this case A. married B., and 
 had issue C. A divorce was decreed in the Court of Audience in a suit 
 in which A. was plaintiff, and B. defendant, upon the ground that the 
 parties were under the age of consent at the date of the marriage 
 contract (/>., the man under fourteen, and the woman under twelve). 
 A. then married 1). D. died, and A. married E., and had issue F. 
 A. died. G. and his wife were appointed guardians of F. C, (who 
 meanwhile had married, and had had issue K., who had married L. 
 and died;, then exhibited a bill in the Court of Wards against G. 
 and E., alleging that A. and B. were of full age at the date of the 
 marriage contract, that their marriage was lawful, and that they had 
 i ohabited for <S or 9 years before the supposed divorce and that C. 
 was their lawful issue. Held : — That the sentence of divorce, so 
 
 y as it remained in force, was binding, and that K. and L. were 
 concluded by it (/). (4.) BlaeMam's case (k). This was an action 
 
 trover, to recover damages for the unlawful detention of certain 
 
 / i Co. Rep., vol. ii. ; 355. (/) hi this case there was no doubt, 
 
 - ilso Corbet's case, Co. Rep., had the matter been gone into, thai 
 
 ■ p i 10, as to the effei I of the marriage was effectual, for, even if 
 
 teuces ii] matters inci- the parties had been under age, the 
 
 dentally coming in question. As to subsequent cohabitation would have 
 
 ol the spiritual courts in cured this defect. (See Wallace's re- 
 
 ■'. marriage contract, see also marks on the case. ) 
 
 Jesson v. Collins, 2 Salk. 439. {7c) 1 Salk, 290. 
 I o. Rep., vol. i\\, p. 136.
 
 duchess of Kingston's case. 4..13 
 
 goods which were in plaintiff's possession. Plaintiff proved the 
 
 possession of the goods, and that defendant took them away. 
 
 Defendant showed that they were Jane Blackham's goods in her 
 
 lifetime, and that he took out letters of administration to her. The 
 
 plaintiff, on the other hand, proved that before her death she ' 
 
 married to him. Tn answer to this, the defendant relied on the grant 
 
 of letters of administration to him, as conclusive that there was no 
 
 marriage between Jane Blackham and the plaintiff. Held : — By 
 
 Holt, C. J., that the sentence of the spiritual court was not conclusive, 
 
 a a collateral matter. (5.) Hatfield v. Hatfield {I). The 
 
 facts of this case were as follows : - L. Hatfield married Jane Porter, 
 
 and by will made provision for her out of a property in Ireland. 
 
 Jane subsequently filed a bill in the Court of Exchequer in Ireland, 
 
 again>t L. Hatfield (a son by a former wife' and a trustee, to 
 
 recover the provision. Defendants, having discovered that she had, 
 
 previously to her marriage with Hatfield, married Porter, who was 
 
 then living, procured a release of part of the provision from Porter, 
 
 and filed a cross bill in the same court for a discovery of the 
 
 marriage, and to stay proceedings on the original bill. Pending the 
 
 cause, Jane Porter, acting in collusion (m) with Porter, instituted a 
 
 suit in the ecclesiastical court for jactitation of her marriage with 
 
 porter, and obtained sentence in her favour by default. The Cour 
 
 of Exchequer held that they were bound by the sentence, and their 
 
 ruling was upheld in the House of Lords (n). (6.) Clews \. 
 
 Bathwrst (< This was an action for maliciously procuring the 
 
 plaintiff's wife to exhibit articles of the peace against him, and for 
 
 living in adultery with her. Plaintiff proved the marriage and the 
 
 consummation. Defendanl produced in evidence a sentence of the 
 
 Consistory Court of London in a cause of jactitation of marriage, 
 
 brought byplaintiff's wifeagainsl the plaintiff, pronouncing the woman 
 
 free. The sentence was uot pronounced till after issue had 1 u 
 
 ;, Brown's I rliament, Abridgment, vol. \v., p. 262, is, That 
 
 100; cited in Da Costa v. Villa Real, the legality of :i marriage shall i 
 
 igitated in equity, especially 
 I; • ■/. aether th< I enl oce in tin- piritual com i in 
 
 of jactitation <■!' marriage, al- 
 : on the in <1" spii 
 
 of 20 St. Trials See, hov court were only feint and collusive, 
 
 head-note to the - Str. and Casi t< mp. 
 
 (/<) Vii II'.
 
 ■I I I- APPENDIX B. 
 
 joined in the action. Nevertheless, Lord Hardwicke ruled that the 
 sentence was conclusive, and plaintiff was non-suited ( p ). (7.) 
 I>n Costa v. Villa Real (q). This was an action upon a contract of 
 marriage. Defendant put in evidence a sentence of the spiritual 
 c uirt in a cause of contract {i.e., lor specific performance of the 
 contract of marriage), declaring Mrs. Villa Real free from all 
 contract. This was held conclusive, as it was a cause within the 
 jurisdiction of the spiritual court. (8.) An action was brought by a 
 tradesman against the Honourable T. Hervey, for necessaries supplied 
 to his wife. The marriage was proved, and verdict was given for the 
 plaintiff. Hervey then instituted, in the Consistory Court of London, 
 a suit for jactitation of marriage, and obtained sentence in his favour. 
 Pending an a])] teal from the sentence, another creditor brought an 
 action against Hervey under circumstances similar to those in the 
 former action. Hervey, however, relied on the sentence in the 
 Consistory Court, and it was held to be conclusive (r). (!).) Noel v. 
 Wells (*). This was an action of debt, brought by plaintiff as 
 executrix of her husband's will. Plaintiff produced probate of the 
 will. Defendant contended that the will was forged. Held : — That 
 no evidence could be given directly against the sea] of the ordinary, 
 in a matter within his jurisdiction, though it was open to proof that 
 the seal of the ordinary was itself forged, or had been repealed. 
 (Hi.) Bransby v. Kerridge (I). In this case 11. Bransby, the 
 complainant's son, being entitled to a reversion in certain freeholds 
 :uid copyholds expectant on the death of the complainant, made n 
 111 devising all his real and personal estate to the defendant, and 
 made him his executor. The will was proved by the defendant in 
 ecclesiastical court. Subsequently there was a suit in the 
 ecclesiastical court, in which sentence was pronounced in favour of 
 the will. Bransby the father then tiled a bill in chancery, to sel 
 
 In tin- report '>i the above case in (q) 2 Str. 960 ; see also Mendez \. 
 
 • mp. Hardw., the law is stated Villa Real, Cases temp. Hardw. 18; 
 
 a- follows, " Where it was incidentally Jes?onv. Oollms, 2 Salk. 437. 
 
 judged thai the parties were not (r) The sentence in the Consistory 
 
 married, and upon that administration Court was afterwards reversed on 
 
 ii. the court declared their appeal. 
 
 opinion that it could not be given in (s) 1 Levinz, 235, cited approvingly 
 
 evidence in the courts of common law ■ in B. v. Ecumes^ 1 Ld Raymd. 262. 
 
 but wine- sentence is given in a prin- (t) 1 P. Wms. 548. 
 cipal cause, it i-. otherwise."
 
 duchess of Kingston's case. ii"> 
 
 aside the will for fraud and imposition, and, upon proof of several 
 acta of fraud, the Lord Chancellor made a decree that defendant 
 should be trustee for the next of kin. But the House of L<v 
 reversed this decree, upon the ground that it was not competent to a 
 court of equity to examine into fraud and imposition in a will 
 touching personal estate, as the court of ecclesiastical jurisdiction 
 had already divided the point. (11.) Hughes v. Cornelius (u). Th 
 facts in this case were as follows :— In the war between the Dutch 
 and the French in Charles II. 's reign, a ship was seized by the 
 French as a Dutch ship, and condemned for prize in the admiral; . 
 court in France, and was sold under order of the court. Theship 
 in fact an English ship at the time of the seizure. Plaint ill' 
 bought the ship and brought her to England, where the eight owner 
 seized her. In an action of trover by plaintiff against the right 
 owner, it was held that defendant was precluded, by the sentence in 
 the French court, from proving the ship to he his property. (12.) 
 Burrows v. Jemino (x). The facts of this case were as follows : — A 
 hill of exchange was drawn upon the plaintiff at Leghorn, and 
 accepted by him. By the law there, if a hill be accepted, and the 
 drawer fails, and the acceptor had not, at the time, of acceptance, 
 sufficient effects of die drawer to meet the hill, the acceptance 
 
 bec( •> void. This being the case, plaintiff, in order to discharge 
 
 himself from his acceptance, instituted a suit at Leghorn, and his 
 ptance was vacated by a sentence in that court. Ee afterwards 
 returned to England, and was sued al law upon his bill, ami he 
 reupon exhibited a hill in the Court of chancery for his relief. 
 Lord chancellor King decided thai plaintiff's lull having beer 
 I and declared void by a courl of competenl jurisdiction, the 
 tence v,.i conclusive and bound the Courl of Chancery: and a 
 petual injunction i rnted, to enjoin defendant from suing on 
 
 bill. (13.) PhiUpi v. Bury (y . In this case Justices S. I'.. 
 i .. , tid Gn gory were of opinion that a sentence of deprivation 
 
 ■ he bishop as visitor of Exeter < oil. ge, Oxibrd, of the rector of the 
 aminable in a court of error. Bolt, C. J., was of a con- 
 trary opinion, and his judgment was upheld in the Eouse of Lords 
 
 2 Shower, 282 . I i /.'. \ . (//> 2 T. 1.'. 
 
 i Ld. Raymd 262 ; Odd\ Justice 
 
 orate judgin that 
 
 ourt,
 
 Mi; 
 
 APPENDIX H. 
 
 (14.) Biddidph v. Alher (a), in which it was agreed by the judges, 
 that a sentence in the ecclesiastical court, in a matter whereof it 
 has the sole cognizance, is conclusive evidence, and that parol 
 evidence should not be received against it. (15.) R. v. Vincent (b). 
 This was a prosecution, on indictment, for forging a will of 
 persona] estate. On the trial at the Old Bailey, a forgery was 
 proved, but probate of the will was produced in evidence on behalf 
 of the prisoner, and this was held conclusive in support of the 
 will {<-). (16.) R. v. Grundon (d). In this case defendant was indicted 
 for an assault, in turning the prosecutor, who was a fellow-commoner 
 of Queen's College, Cambridge, out of the college. Defendant 
 produced in evidence an order of expulsion of the prosecutor made 
 by the college, and also gave evidence to show that he was acting as 
 officer of the college in enforcing the order. Prosecutor, in 
 answer, offered to prove the invalidity of the order, by reference to 
 the constitution of the college, but the judge at nisi prius rejected 
 the evidence, and ruled that the order of expulsion was conclusive ; 
 and his ruling was upheld in the court of King's Bench. 
 
 Mansfield (on the same side) cited (17.; Morris v. Webber {e). In 
 this case, which was an action in the temporal courts, A. and B. had 
 been married for several years, and had no offspring. Proceedings 
 were then taken in the ecclesiastical court, and sentence of divorce 
 pronounced, "propter vitium perpetuum et impotentiam genera- 
 t ionis," in A. the husband. Subsequently A. and B. had both married 
 again, and had both had children by their second marriages. One 
 of the issues in the case was, whether A.'s issue by the second 
 marriage was legitimate or not. The sentence of divorce, though 
 founded in falsehood, was held to be binding and conclusive, and the 
 issue of. the second marriage was held to be legitimate. 
 
 upon matters over which they 
 had exclusive jurisdiction, were not 
 binding on the temporal courts, if such 
 matters subsequently came incidentally 
 in question, upon the trial of a title to 
 
 ■ 31 
 
 r, >ugh 
 
 cited with approval by L. C. Apsley in 
 
 lews v. Duchess of Kingston, 2 
 
 Anil)], ut p, 763, been "'■ i . i ul< -1 on 
 
 several occasions ; sen especially J', v. 
 Buttery «t- Macnamara, R. & R. C. 
 ('. R. 342, and J', v. Gibson, there 
 cited ; /,'. v. Goodrich, cited in Allen 
 v. Dundas, 3 T. R. at p. 126. And, 
 as to the conclusive effect of the pro- 
 bate of a will or grant of letters of 
 administration, see 2 Ambl. 762 (note). 
 1 Cowp. 315, referred to as R. v. 
 Gardell in Collett v. Lord Keith, 2 
 . 268. 
 Moore, 225.
 
 duchess of Kingston's case. 417 
 
 Dr. Calvert((m the same side) cited (18.) Corbefs case(f), in 
 which it was decided inter alia, that the spiritual court only had 
 jurisdiction, when the whole cause was spiritual ; that when tin- 
 whole cause was originally spiritual, yet if afterwards the spiritual 
 court attempted to try temporal issues, a prohibition should issue ; 
 and that a divorce, pronounced after the death of any of the parties, 
 or a sentence declaratory that the marriage was void, pronounced 
 after the death of any of the parties, was not binding. (19.) Millisent 
 v. Millisent {g). In this case a woman pretended to be Millisent's 
 wife, whereupon he sued her for jactitation of marriage, and it was 
 adjudged to be no marriage. The woman afterwards in the Court 
 of Delegates pretended to be Millisent's widow, and offered to prove 
 her marriage, but the common law judges were of opinion, that she 
 could not be admitted to prove it, since there remained in force a 
 sentence in bar against her. (20.) />'. v. Rhodes (A). In this case 
 defendant had exhibited a will in Doctor's Commons as executor, 
 and demanded probate : the will was contested and upheld. Tend- 
 ing an appeal from the decision, defendant was indicted for forging 
 the will. But the chief justice said, that, there being a sentence 
 subsisting in favour of the will, and the validity of that sentence 
 Iniug under review, he did not think it fitting to determine the 
 matter by an indictment, which would come on more properly after 
 the sentence was reversed (i). 
 
 Dr. Wynru (od the same side) cited (21.) Boylt v.Boyle(k). It 
 
 - decided in this case that if a man took proceedings againsi a 
 woman in the spiritual court pro jactitalipm maritagii, after he had 
 been convicted of bigamy in marrying the woman against whom he 
 k such proceedings, a prohibition should be granted. For thai a 
 conviction in a court of criminal jurisdiction was conclusive evidi nee 
 of the fact , 
 
 < >ne of the counsel for the defence also cited (22. | Webb v. ( 'oolt 
 [n this case, a suit for defamation was begun in the ecclesiastical 
 
 ted in A i Rep., It. v. Gibson, there cited. The sen- 
 
 \.,|. iv., .it u, I I". t( nee in question w is nfterw inls con- 
 
 I lited by Dr. Lei in ' 'U ws v. firmed on appeal. 
 Bath • p Hnrdwicki . p. I Mod. 164. 
 
 11. (I) Cro. Jac. 585, 625 ; i 
 
 , : 12 0. 1). Thornton v. Picl Keble, 
 
 See, however, /•'. v. Butter} v. William . Hobart, 
 
 Macn ■■■ "i", '>'. •■■- !•' C. I ' . Sir W, Join >, 320.
 
 1 Is APPENDIX 13. 
 
 eourl at Norwich Cor saying that plaintiff had a bustard child. 
 Defendant, in justification, pul in evidence an order of two justices 
 of the peace adjudging the plaintiff to be the reputed father of the 
 bastard, and this evidence being refused, a prohibition was 
 granted (m). (23.) Fursman v. Fursman. This was a suit by the 
 wife, in the Consistory Court of Exeter, for restitution of conjugal 
 rights. A prohibition was afterwards obtained to stay further pro- 
 ceedings, on the ground that plaintiff had indicted defendant for 
 bigamy in marrying another wife in her lifetime, and had failed in 
 proof of her own marriage; whereupon defendant had been 
 acquitted of bigamy. 
 
 The Attorney- General (for the prosecution) cited (1.) Eobins v. 
 i 'rtilclt li'H {n). In this case Sir W. Wolseley had exhibited a bill in 
 the spiritual court against Eobins as being his wife, charging her 
 with adultery with John Robins, and praying a divorce. She 
 ] tleaded that she was the lawful wife of John Robins, and not of 
 Wolseley. The issue was decided in the Court of Arches in favour of 
 Robins. John Robins then died, and his widow brought an action 
 of dower against defendant, who pleaded ne ungues decouple. It was 
 decided that the above sentence of the spiritual court could not be 
 pleaded by the defendant by way of estoppel, though it might be 
 evidence to go to the jury. For that, though the certificate of the 
 bishop might be pleaded by way of estoppel, a sentence in the 
 spiritual court was not a record, nor was it final even in that court : 
 and therefore that the court would not be bound by a sentence by 
 which the spiritual court itself w r as not bound. (2.) Roach v. 
 Garvan (o), where Lord Hardwicke stated that in cases where a 
 marriage had in fact taken place, or in the case of a contract in 
 praesenti, or in a suit for restitution of conjugal rights, a sentence in 
 the ecclesiastical court (unless there was collusion, which would 
 overturn the whole) would be conclusive and bind all : but not 
 if given in a collateral suit, as for a criminal action : for it would 
 only bind the rights of the marriage in the three cases above (p). 
 
 : m) See also 11. v. Rislip, 1 Lord 320. . 
 Raymond, 394 ; Thornton v. Pickering, (v) 2 "Wils. 11$. 
 
 3 Keble, 200; Serb v. Williams, (o) 1 Ves. senr. 157. 
 
 Hobart, at p. 294. And, as to pro- (p) See also Brovmsword v. Edwards, 
 
 hibitions in ecclesiastical courts, see 2 Ves. senr. 245. 
 Biggon v. Coppinger, Sir W. Jones,
 
 duchess of Kingston's case. 4-19 
 
 el.) Lloidv. Maddox(q). In this case an executor, being sued in the 
 court christian for a legacy, pleaded a recovery in debl which had 
 exhausted theassets. Plaintiff (the legatee) replied that the recovery 
 
 was covinous. The allegation was admitted, and the King's Bench 
 refused to grant a prohibition. 
 
 The Solicitor-General (on the same side) cited (4.) Prudtom 
 v. Phillips (r). This was an an action of assumpsit. Defendant 
 gave in evidence her marriage with M. Plaintiff produced a 
 sentence of the ecclesiastical court annulling it. Defendant, in 
 answer to this, sought to avoid the sentence on the ground of fraud. 
 AVilles, C. J., distinguished between the case of a strange?', who 
 cannot come in and reverse the judgment, and therefore should he 
 allowed to raise fraud, and aparty. The proper course for a party 
 to take, is to apply to the court to vacate the sentence, and therefore 
 defendant (being a party) was not allowed to avoid the sentence on 
 the ground of fraud. (5.) Sinclair v. Fraser (s). in this case 
 judgment had heen obtained against defendant in Jamaica. 
 Plaintiff sued upon the judgment in Scotland. The Court of 
 Session refused to give effect to it, and held that plaintiff was bound 
 to prove the ground, the nature, and the extent of his demand. The 
 judgment of the Court of Session was, however, reversed in the House 
 of Lords, where it was held that the judgment of the court of 
 Jamaica should be received as prima facie evidence of the debt, 
 and that the onus rested on defendant of showing that it had 
 heen irregularly and unduly obtained. (6.) R. v. Sterling, and 
 /,'. v. Richardson (t). (7.) A case in which a man committed an 
 act of bankruptcy by collusion with a creditor. A commission of 
 bankruptcy was then taken out against him. lie concealed pari of 
 his effects, and was prosecuted \'<<v it. Though not a bankrupt to 
 an y r i\ii effect (on account of the fraud), he was not allowed to take 
 that point by way of defence to the prosecution, but was convicted. 
 
 /,,. Harris (on the B ame side) cited (8.) Farr's case (u). In this 
 Richard ban- and Eleanor Chadwicke were indicted at the Old 
 
 Moore, 917. 176 I ' ' '' c - c - 
 
 ._, Al ,,!,],.,■ i; 99, and East's P. C, vol, Li., 949. These 
 
 I ted in Walker v. Witter, 1 were both cases of forgery of will 
 
 Dougl. i note and th< pi s who were living al the time of 
 
 jtherein n ferred to in 20 31 Tri ilfl, the forgery, 
 
 p. i- " 1 Sid. 254. 
 
 (/ i (hi Rail 9 Papers, 1764 
 
 K 1 2
 
 420 APPENDIX 11. 
 
 Bailey for breaking and entering the house of Robert Stanger, and 
 
 stealing his goods. The facts were as follows: Mrs. Stanger 
 lived in the house apart from her husband. Farr went to an 
 attorney and told him that Mrs. Stanger was his tenant and was in 
 arrear for rent. He then brought an action of ejectment against 
 her. By means of false affidavits, judgment in the action of eject- 
 ment was obtained, and there was a writ to the sheriff to deliver 
 possession. Mrs. Stanger was then turned out of the house, and 
 arrested by Farr for debt. Meanwhile Farr and Chadwioke pro- 
 ceeded to rifle the house of its contents. Held : That the judgment 
 in the action of ejectment could not be set up by the prisoners as a 
 War to the prosecution. 
 
 Wallace (in reply) cited, (1.) Twyne's case (x), (2.) Lady Mayo's 
 case(y). 
 
 The opinion of the judges. — -The following is the opinion of the 
 judges in extenso, in answer to the questions (2) submitted to them. 
 The Lord Chief Justice of the Common Pleas (Sir William De Grey, 
 afterwards Lord Walsingham), having conferred with the rest of the 
 judges present, delivered their unanimous opinion upon the said 
 questions, with their reasons, as follows, viz. : — 
 
 " My lords, my lord chief baron (Sir Sidney Stafford Smythe), and 
 the rest of my brethren, have desired me to deliver their answer to 
 the questions your lordships have been pleased to propound to us. 
 
 "That our opinion maybe the better understood it is necessary 
 to make some observations on what has passed in argument upon the 
 subject. 
 
 " What has been said at the bar is certainly true, as a general 
 principle, that a transaction between two parties, in judicial pro- 
 
 mith I,. C. (8th ed.), vol. i., market overt by covin, does not bar a 
 
 p. 1. This case was cited in support right or title which is more ancient, 
 
 11 ;i iiment that, by the common but only a righ1 or title which is more 
 
 law, persons who were permitted to puisine (i.e., more recent), 
 rescind a transaction upon the ground (y) See ante, p. 72. This ease was 
 
 of fraud, .musl haveaninten ted also cited by Dr. Calvert (at p. 425), 
 
 at the time. It was agreed in the case by Dr. Wj nne (at p. 431), and by Dr. 
 
 f r ],. C. Harris (at p. 501). But see the remarks 
 
 il. i., ]>. '.', that, by the of the Attorney-General thereon (at p. 
 
 common law, an by fraud 402). 
 
 should be avoided only by him v I The questions, and the substance 
 
 had a former right, title, interest, debt, of the answers thereto, are given, ante, 
 
 or demand ; a-, by 33 H. , in p. HI.
 
 DUCHESS OF KINGSTON'S CASE. 421 
 
 ceedings, ought not to be binding upon a third; for it would be 
 unjust to bind any person who could not be admitted to make a 
 defence, or t<> examine witnesses, or to appeal from a judgment he 
 might think erroneous ; and, therefore, the depositions of witnesses 
 in another cause in proof of a fact, the verdict of a jury finding the 
 fact, and the judgment of the court upon facts found, although 
 1 \idence against the parties, and all claiming under them, are not, in 
 gi neral, to he used to the prejudice of strangers. There are some 
 < xceptions to this general rule founded upon particular reasons ; but, 
 not being applicable to the present subject, it is unnecessary to 
 state them. 
 
 "From the variety 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 evidence, 
 conclusive, between the same parties, upon the same matter, directly 
 in question in another court (a) ; 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 (b) in question in another court, for a different 
 pur]'"-' ' - i. But neither the judgment of a concurrent or exclusive 
 jurisdiction, is evidence of any matter which came collaterally in 
 question, though within their jurisdiction, nor of any matter inci- 
 dentally (d) cognizable, nor of any matter to be inferred(e) by argu- 
 
 (a See also Burrows v. Jemino, 2 which they professedly or incidentally 
 
 Str. 7->->, ante, p. 415; Meadows v. decide ; and he cites, in suppoi 
 
 Duchess of K ingston, 2 Ambl. 756, ante, statement, Bltietv. Bampfield, 1 l 
 
 p. 409; H. ■ \Jc, Cro. Jac. 626, in Chanc. 237, cited as Bladv. I 
 
 . p, 117: per Lord Denman, C. J,, field in 3 Swanst. 604, In thai i 
 
 in /,'. v. Wick St. Lawrence, 5 B, <V Ad. defendants (English subjects) having 
 
 .■it p, . led in Iceland, in contravention ol 
 
 (b - ■ Tarletonv. Tarleton, l certain privileges granted to plaintiff 
 
 .M. & s. 21. and oth< rs, plaintiff's estate in Iceland 
 
 3ee also Blackltam's case, 1 Salk. had been seized and condemned iu the 
 
 ante, p. 412 ; Bouchierv. Taylor, Danish courts. Defendants then 
 
 ) Brown I in Parliament, 708 ; ! ictions of tii pa and tro 
 
 Barrsv. Jacl on, L Y. & < I ' 585. in England for seizing the said pro- 
 
 [| tated, however, by Story in perty. Bu1 Lord Nottingham I 
 
 Ins Conflict of Laws 7tli ed.), al p. the sentence of condemnation to be 
 
 740, that in England judgments in rem conclusive, and granted a perpetual 
 
 at* held conclusive, not only in rem, injunction restraining the said actions, 
 
 but also as to all the points and fa Sec also Day v. Spi ad, I J
 
 \:1-.: APPENDIX B. 
 
 incut from the judgment (/). Upon the subject of marriage, the 
 : piritual court has the sole and exclusive cognizance of questioning 
 and deciding, directly, the legality of marriage ; and of enforcing, 
 specifically, the rights and obligations respecting persons depending 
 upon it : but the temporal courts have the sole cognizance of examin- 
 ing and deciding upon all temporal rights of property : and, so far 
 as such rights arc concerned, they have the inherent power of decid- 
 ing incidentally, either upon the fact, or the legality, of marriage, 
 where they lie in the way to the decision of the proper objects of their 
 jurisdiction : they do not want or require the aid of the spiritual 
 courts : nor has the law provided any legal means of sending to them 
 for their opinion : except where, in the case of marriage, an issue is 
 joined upon the record in certain real writs, upon the legality of a 
 marriage, or its immediate consequence, 'general bastardy ;' or, in 
 like manner, in some other particular instances, lying peculiarly in 
 I he knowledge of their courts, as profession, deprivation, and some 
 others ; in these cases, upon the issue so formed, the mode of trying 
 the question is by reference to the ordinary, and his certificate, when 
 returned, received, and entered upon the record in the temporal 
 courts, is a perpetual and conclusive evidence against all the world 
 upon that point : which exceptionable extent, on whatever reasons 
 founded, was the occasion of the Statute of the Oth of Henry VI., 
 requiring certain public proclamations to be made for persons inter- 
 ested to come in, and be parties to the proceeding. But, even in 
 these cases, if the ordinary should return no certificate, or an insuf- 
 ficient one, or, if the issue is accompanied with any special circum- 
 stances, as if a second issue, triable by a jury, is formed upon the 
 same record; or, if the effect of the same issue is put into another 
 form, a jury is to decide, and not the ordinary to certify, the truth ; 
 and r<i this purpose Sir William Staunford mentions a remarkable 
 instance. Bigamy was triable by the bishop's certificate ; but if 
 the prisoner, to avoid the charge, pleads that the second espousals 
 
 & Bourke, 163 ; and for the application 245. Seen//, tra, Fursmanv. Fv/rsman, 
 
 "i tlii- t<> :m arbitrator's award, see «///<■, p. 418. It appears that the 
 
 Newall v. Kill', i, 1 H. ,\; C. V-u. admissibility of the sentences of prize 
 
 / | Blaekham's case, 1 Saik. 290, courts upon matters of fact is not 
 
 »,''<, p. 412 ; Bobms v. Crutchley, -l restricted within the above limits. Sic 
 
 Wils. 118, ante, \>. 118; Roach v. judgment of Erie, C. J., in Hobbs v. 
 
 Garvan, 1 V'--. senr. 157, »/<'<. p. lis ; Henning, 17 •'. IS. X. S. at p. 827. 
 TirowiVRU'ord v. Edwards, 2 Yen. senr.
 
 duchess of Kingston's case. 423 
 
 were null and void, because lie had a former wile living, this 
 I" ciaJ bigamy was not to be tried by the bishop's certificate. 
 
 "So thai the trial of marriage, either as to legality or fad, was 
 nol absolutely, and from its nature, an object alien! fori. There was 
 a time, when the spiritual courts wished that their determinations 
 might in all cases lie received as authentic in the temporal courts ; 
 and in that solemn assembly of the king, the peers, the bishops, and 
 judges, convened, for the purpose of settling the demands of the 
 church, by Edward the Second, one of the claims was expressed in 
 these words, "Si aliqua causa, vel aegotium, cujus cognitio spectat 
 ad forum ecclesiasticum, et coram ecclesiastico judice fuerit 
 sententialiter terminatum, et transierit in rem judicalam, nee per 
 appellationem fuerit suspensum : et postmodum, coram judice secu- 
 lari, super eadem re inter easdem personas questio moveatur, et 
 provetur per testes vel instrumenta, talis exceptio in foro seculari 
 non admittatur. ' The answer to which demand was expressed in 
 this manner : 
 
 " Quando eadem causa, diversis rationibus coram judicibus 
 ecclesiasticis, et secularibus, ventilatur, dicunt rpiod (non obstante 
 ecclesiastico judicio) curia regis ipsum tractet ncgotium, ut sibi 
 expedire videtur." 
 
 " For which Lord Coke gives this reason, second Institute, c. 22. 
 •■ ■ For the spiritual judges' proceedings are for the correction of 
 spiritual inner man, and "pro salute animse," to enjoin his pen- 
 ance: and the judges of thecommonlaw proceed to give damages 
 and recompense for the wrong and injury done;' and then adds. 
 ■ and so this article was deservedly rejected. 1 
 
 •• And the .-;nii" demand was made, ami received the same answer, 
 in the third year of King .lames the First. 
 "It is to be observed, that this demand related only to civil suits 
 
 between the Bame parties ; and thai the sentence si Id he received 
 
 i plea in bar. Hut this attempi ami miscarriage did aoi prevenl 
 the temporal courts from shewing the same reaped to their proce< 
 ings, as they did to those in other courtB. And therefore where, in 
 civil causes, they found i he quesl ion of marriage direcl ly determined 
 by the ecclesiastical courts, they received the sentence, though nol as 
 a plea, yet as proof of the Facl ; ii being an authority accredited in a 
 judicial proceeding by a court of competent jurisdiction; bill still 
 they received il upon the same principles, and Rubjecl to the same 
 . by which i lie} ad mil t ho actf of ol her courU
 
 ! J \. APPENDIX 1?. 
 
 •• Hence a sentence of nullity, and a sentence in affirmance of a 
 marriage, have been received as conclusive evidence on a question of 
 legitimacy arising incidentally upon a claim to a real estate (ij). 
 
 •• A sentence in a cause of jactitation has been received upon a title 
 in ejectment, as e\ idence against a marriage (//), and, in like manner, 
 in personal actions immediately founded on a supposed marriage. 
 
 " So a direct sentence, in a suit upon a promise of marriage, against 
 the contract, has been admitted as evidence against such contract, 
 in an action brought upon the same promise for damages, it being a 
 direct sentence of a competent court, disproving the ground of the 
 action (/). 
 
 "So a sentence of nullity is equally evidence in a personal action 
 against a defence founded upon a supposed coverture (/). 
 
 "But in all these cases, the parties to the suits, or at least the 
 parties against whom the evidence was received, were parties to the 
 sentence, and had acquiesced under it : or claimed under those who 
 were parties, and had acquiesced (k). 
 
 "But although the law stands thus with regard to civil suits, 
 proceedings in matters of crime, and especially of felony, fall under 
 a different consideration : first, because the parties are not the same: 
 for the king, in whom the trust of prosecuting public offences is 
 vested, and which is executed by his immediate orders, or in his 
 name by some prosecutor, is no party to such proceedings in the 
 ecclesiastical court, and cannot be admitted to defend, examine 
 witnesses, in any manner intervene, or appeal : secondly, such 
 doctrines would tend to give the spiritual courts, which are not per- 
 m it ted to exercise any judicial cognizance in matters of crime, an 
 immediate influence in trials for offences, and to draw the decision 
 from the course of the common law, to which it solely and peculiarly 
 belongs. 
 
 "The ground of the judicial powers given to ecclesiastical courts 
 is, merely, of a spiritual consideration ' pro correctione morum, et 
 pro salute animae.' They are therefore addressed to the conscience 
 of the party. But one great object of temporal jurisdiction is the 
 
 i Buntingv, Leping well, Co. Ilep., 960. 
 
 .•.]. ii , p. 355 ; Kenn's case, Co. Rep., (J) See a rase against Honble. T. 
 
 vol. \v., p. 136 ; Morris v. Webber, Hefvey, ante, p. 414. 
 
 Moore, 225. (/.■) See, however, Hatfield v. HaU 
 
 1 n* v. Bow, Carth. 225. fit A/, ante, p. 413, and ease against 
 
 Da Co '■' v. V lla 11><>I, _' Str. Honble. T. Hervey, ante, p. 414.
 
 duchess of Kingston's case. 425 
 
 public peace : and crimes against the public peace are wholly, and 
 in all their parts, of temporal cognizance alone. A felony by 
 common law was also so. A felony by statute becomes so at the 
 moment of its institution. The temporal courts alone can expound 
 i he law, and judge of the crime, and its proofs : in doing so, they 
 must see with their own eves, and try by their own rules, that is. by 
 the common law of the land : it is the trust and sworn duty of their 
 office. 
 
 " When the acts of Henry VIII. first declared what marriages 
 should be lawful, and what incestuous, the temporal courts, though 
 they had before no jurisdiction, and though the acts did not by 
 express words give them any upon the point, decided incidentally 
 upon the construction, declared what marriages came within the 
 Levitical degrees, and prohibited the spiritual courts from giving or 
 proceeding upon any other construction. 
 
 "Whilst an ancient statute subsisted (2 H. IV. 15), by which 
 personal punishment was incurred on holding heretical doctrines, 
 the temporal courts took notice, incidentally, whether the tenet was 
 heretical or not ; 'for the king's courts will examine all things 
 ordained by statute.' When the statute of W. III. made certain 
 blasphemous doctrines a temporal crime, the temporal courts alone 
 could determine, whether the doctrine complained of was blas- 
 phemous so as to constitute the crime. 
 
 "If a man should he indicted for taking a woman bv force 
 and marrying her; or for marrying a child without her father's 
 consenl ; or for a rape, where the defence is, that 'the woman is his 
 wife:' in all these cases, the temporal courts are bound to try the 
 
 prisoner by the nili'- ami e 'se of the common law, and incidentally 
 
 to determine, what is heretical, and what is blasphemous: and 
 whether it was a marriage within the statute, a marriage withoul 
 consent: and whether, in the lasl case, the woman was his wife: 
 hut if they should happen to find thai sentences, in the respective 
 a, had been given in the spiritual courl upon the heresy, the 
 blasphemous doctrines, the marriage by force, the marriage without 
 consent, and the marriage on the rape, and the courl must receive 
 aneh sentences ae conclusive evidence, in the firs! instance, without 
 looking into the en^e, it would vest the substantial and effective 
 decision, though not the cognizance of the crimes, in the spiritual 
 court, and leave to the jury, and the temporal courts, nothing but 
 a nominal form of proceeding, upon what would amouni to a pre-
 
 Uli APPENDIX B. 
 
 determined conviction or acquittal: which must have the effect of a 
 real prohibition, Bince it would be in. vain to prefer an indictment, 
 
 where an act of a foreign court shall at once seal up the lips of the 
 witnesses, the jury, and the court, and put an entire stop to the 
 proceeding. 
 
 "And yet it is true, that the spiritual courts have no jurisdiction, 
 directly or indirectly, in any matter not altogether spiritual : and if 
 is equally true, that the temporal courts have the sole and entire 
 cognizance of crimes, which are wholly and altogether temporal in 
 i heir nature. 
 
 "And if the rule of evidence must be, as it is often declared to be, 
 reciprocal : and that in all cases in which sentences favourable to 
 the prisoner are to be admitted as conclusive evidence for him, the 
 sentences, if unfavourable to the prisoner, are in like manner con- 
 clusive evidence against him, in what situation must the prisoners 
 be, whose life, or liberty, or property or fame rests on the judgments 
 of courts, which have no jurisdiction over them in the predicament 
 in which they stand ? and in what situation are the judges of the 
 common law who must condemn on the word of an ecclesiastical 
 judge, without exercising any judgment of their own ? The 
 spiritual court alone can deprive a clergyman. Felony is a good 
 cause of deprivation, yet in Lord Hobart's Reports it is held, that 
 they cannot proceed to deprive for felony, before the felony has been 
 tried at law : and although, after conviction, they may act upon 
 that, and make the conviction a ground of deprivation, neither side 
 can prove or disprove anything against the verdict ; because, as 
 that very learned judge declares, it would be to determine, though 
 no! capitally, upon a capital crime, and thereby judge of the nature 
 of the crime and the validity of the proofs : neither of which belongs 
 to them to do." 
 
 " If therefore such a sentence, even upon a matter within their 
 jurisdiction, and before a felony committed, should be conclusive 
 < vidence on a trial for a felony committed after, the opinion of a 
 judge, incompetent to the purpose, resulting (for aught appears) 
 from incompetent proofs (as suppose the suppletory oath) will direct 
 or rule a jury and a court of competent jurisdiction, without 
 confronting any witnesses, or hearing any proofs : for the question 
 supposes, and the truth is, that the temporal court does not and 
 cannot examine, whether the sentence is a just conclusion from the 
 case, either in law or fact, and the difficulty will nol be removed by
 
 duchess of Kingston's cask. i.!7 
 
 presuming thai every courl determines rightly, because if must be 
 presumed too, that the parties did right in bringing the full and 
 true case before the courl : and if they did, still the court will have 
 determined rightly by ecclesiastical laws and rules, and not l>y those 
 laws and rules by which criminals are to stand or fall in this 
 country. 
 
 " If the reason for receiving such sentence is, because it is the 
 judgment of a court competent to the enquiry then before them: 
 from the same reason, the determination of two justices of the 
 peace upon the fact or validity of a marriage, in adjudging a place 
 of settlement, may hereafter be offered as evidence, and give the law 
 10 the higliesl court of criminal jurisdiction. But if a direct 
 sentence upon the identical question, in a matrimonial cause, should 
 be admit led as evidence (though such sentence against the marriage 
 has not the force of a final decision, that there was none), yet a 
 cause of jactitation is of a different nature : it is ranked as a cause of 
 defamation only, and not as a matrimonial cause, unless where the 
 defendant pleads a marriage : and whether it continues a matrimonial 
 cause* throughout, as some say, or ceases to be so on failure of proving 
 a marriage, as others have said, si ill the sentence has only a negative 
 ami qualified effect, viz., thai the party has failed in his proof, and 
 that the libellanl is free from all matrimonial contract, as far as yet 
 appears : leaving ii open to new pi-oofs of the same marriage in the 
 same cause, or to any proofs of that or an\ other marriage in another 
 cause ; and if such sentence is no plea to a new suit there, and docs 
 not conclude the court which pronounces, it cannot conclude a 
 courl which receives the sentence, from going into new proofs to 
 make out thai or any other marriage. So that admitting the 
 sentence in it.- full extent ami import, it only proves, that it did 
 not yet appear that they wmv married, ami not thai they were not 
 married al all : and, by the rule [aid down by Lord Chief Justice 
 Holt, such sentence can i»- no proof of anything to he inferred by 
 argument from it : and therefore il is not to be inferred thai there 
 do marriage al anytime or place, because the conn had not 
 then sufficient evidence to prove :i marriage al a particular time and 
 place. Thai entence, and this judgmenl may stand well together, 
 I both propositions be equally true: it, may he true, that the 
 
 spiritual i rl had not then sufficienl proof of the marriage specified, 
 
 and that your lordships may now. unfortunately, find sufficient 
 proof of some marriage. Bui if it was a direct aud dei entence
 
 4:28 APPENDIX B. 
 
 upon the point, and, as it si amis, to be admitted as conclusive 
 evidence upon the court, and not to be impeached from within : yet, 
 like all oilier ads of the highesf judicial authority, it is impeachable 
 from without ; although it is not permitted to show that the court 
 was mistaken (I), it may be shown that they were misled. Fraud 
 i^ .in extrinsic collateral act ; which vitiates the most solemn pro- 
 ceedings of courts of justice. Lord Coke says, it avoids all judicial 
 acts, ecclesiastical or temporal. In civil suits all strangers may 
 falsity, for covin, either fines, or real or feigned recoveries : and even 
 a recovery by a just title, if collusion was practised to prevent a fair 
 defence : and this, whether the covin is apparent upon the record, 
 as not essoining, or not demanding the view, or by suffering 
 judgment by confession or default ; or extrinsic, as not pleading 
 a release, collateral warranty, or other advantageous pleas. 
 
 " In criminal proceedings if an offender is convicted of felony on 
 confession, or is outlawed, not only the time of the felony, but the 
 felony itself, may be traversed by a purchaser, whose conveyance 
 would be affected as it stands : and, even after a conviction by verdict, 
 he may traverse the time. 
 
 " In the proceedings of the 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 another 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 more modern cases the question seems to have been 
 whether the parties should be admitted to prove collusion : and not 
 ning to doubt but that strangers might (m). 
 
 " Ro that collusion, being a matter extrinsic of the cause, may be 
 imputed by a stranger, and tried by a jury, and determined by the 
 courts of temporal jurisdiction. And, if fraud will vitiate the 
 judicial acts of the temporal courts, there seems as much reason to 
 prevent the mischiefs arising from collusion in the ecclesiastical 
 courts, which, from the nature of their proceedings, are at least as 
 much exposed, and which we find have been, in fact, as much exposed, 
 
 (1) Morrif- v. Wehbcr, Moore, 225, m] Prudham v. Pliillips, 2 Ainl.l. 
 
 and ante, p. 410. 702, and ante, p. tin.
 
 di i bess OF Kingston's case. 429 
 
 to be practised upon for sinister purposes, as the courts in Westminster 
 Hall. 
 
 " We are, therefore, unanimously of opinion : First, that a sentence 
 in the spiritual court against a marriage, in a suit of jactitation of 
 marriage, is not conclusive evidence so as to stop the counsel for the 
 crown from proving the marriage in an indictment for polygamy. 
 
 " But secondly, admitting such sentence to be conclusive upon such 
 indictment, the counsel for the crown may be admitted to avoid the 
 effect of such sentence, by proving the same to have been obtained by 
 fraud or collusion " (n). 
 
 The following was the sentence in the jactitation suit of 
 udMgh v. Hervey (p) : — 
 
 " Chndlcigh against Hervey. Sentence read and promulged the 
 10th of February, 1769. In the name of God, amen. We John 
 Bettesworth, doctor of laws, vicar-general of the right reverend 
 father in God, Richard, by divine permission, lord bishop of London, 
 and official principal of the consistorial and episcopal court of 
 London, having seen, heard, and understood, and fully and maturely 
 discussed the merits and circumstances of a certain cause of jactita- 
 tion of marriage which was lately controverted, and as yet remains 
 undetermined before us in judgment, between the honourable 
 Elizabeth Chudleigh, of the parish of St. Margaret, Westminster, in 
 county of .Middlesex, spinster, the party, agent, and complainant, 
 of the one part, and the right honourable Augustus John Hervey, of 
 the parish of St. James, Westminster, in the county of Middlesex 
 and diocese of London, bachelor, falsely calling himself the husband 
 of the said honourable Elizabeth Chudleigh, the party accused and 
 complained of, on theotherparl : and we rightlyand duly proceeding 
 therein, and the parties aforesaid lawfully appealing before us by 
 their proctors respectively, and the proctor of the said honourable 
 Elizabeth Chudleigh praying sentence to be given and justice to be 
 done to his party, and the proctor of the said righl honourable 
 .Augustus John Hervey also earnestly praying sentence and justice 
 to be done to his said party : and we having carefully looked into 
 and duly considered of the whole proceedings had and done before 
 ", and observed by law what oughl to be observed 
 
 Law of ] lence, Pleas of the Crown, bk. I. c. 42, s, 11. 
 c. 2, LI ; East's P See 20 St. Trials, pp 889, 890. 
 
 of the • Jrown, ■ 12, .5; and Hawkin's
 
 4S0 APPENDIX I'.. 
 
 in this behalf, have thought fit and do thus think fit to proceed to 
 i he giving and promulging our definitive sentence or final decree in 
 this same cause, in manner and form following (to wit) : Forasmuch 
 as by the acts enacted, alleged, exhibited, propounded, proved, and 
 confessed in this cause, wc have found and clearly discovered, that 
 the proctor of the said honourable Elizabeth Chudleigh hath fully 
 and sufficiently founded and proved his intention deduced in a 
 certain libel and allegation and other pleadings and exhibits given 
 in, exhibited, and admitted on her behalf in this same cause, and 
 now remaining in the registry of this court (which libel and allega- 
 tion and other pleadings and exhibits, we take and will have taken as 
 if herein repeated and inserted for us to pronounce as hereinafter we 
 shall pronounce) ; and that nothing, at least effectual in law, hath 
 ou the part and behalf of the said right honourable Augustus John 
 Hervey been excepted, deduced, exhibited, propounded, proved, or 
 confessed in this same cause, which may or ought in anywise to 
 defeat, prejudice, or weaken the intention of the said honourable 
 Klizabeth Chudleigh deduced as aforesaid : and particularly that the 
 said right honourable Augustus John Hervey hath totally failed in 
 the proof of his allegation given in and admitted in this cause, 
 whereby he pleaded and propounded a pretended marriage to have 
 been solemnized between him and the said honourable Elizabeth 
 Chudleigh, spinster; and therefore Ave John Bettesworth, doctor 
 of laws, the judge aforesaid, first calling upon God and setting him 
 alone before our eyes, and having heard counsel in this cause, do 
 pronounce, decree, and declare, that the said honourable Elizabeth 
 Chudleigh, at and during all the time mentioned in the said libel 
 given in and admitted in this cause, and now remaining in the 
 registry of this court, was and now is a spinster, and free from all 
 matrimonial contracts or espousals (as far as to us as yet appears) 
 more especially with the said right honourable Augustus John 
 Hervey : and that the said right honourable Augustus John Hervey, 
 notwithstanding the premises, did in the years and months libellate, 
 wickedly and maliciously boast and publicly assert (though falsely) 
 that be was contracted in marriage to the said honourable Elizabeth 
 Chudleigh, or that they were joined or contracted together in 
 matrimony : wherefore Ave do pronounce, decree, and declare, that 
 perpetual silence must and ought to be imposed and enjoined upon 
 the said right honourable Augustus John Hervey as to the premises 
 libellate, which we do impose and enjoin him by these presents : and
 
 duchess of Kingston's cask. 131 
 
 we do decree the said right honourable Augustus John Hervey to be 
 admonished to desist from his boasting and asserting that he was 
 contracted to or joined with the said honourable Elizabeth Chudleigh 
 in matrimony as aforesaid : and we do also pronounce, decree, and 
 declare, that the said right honourable Augustus John Hervey ought 
 by law to be condemned in lawful expenses made or to be made in 
 tin's cause on the part and behalf of the said honourable Elizabeth 
 Chudleigh, to be paid to the said Elizabeth Chudleigh or her 
 proctor: and accordingly we do condemn him in such expenses, 
 which we tax at and moderate to the sum of £100 of lawful money 
 of Creat Britain, besides the expense of a monition for payment on 
 this behalf by this our definitive sentence or final decree, which we 
 read and promulge by these' presents. 
 
 "J. Bettkswohth. 
 
 " Arth. Collier. 
 " Pet. Calvert. 
 " W.m. Wynne."
 
 INDEX. 
 
 Acceptance 
 
 of an estate, estoppel by, 4 
 
 possession, estoppel by, 241, note (.</) 
 rent, estoppel by, 4 
 
 by landlord, estoppel arising from, 261 
 
 person having no title, raises no estoppel, 259 
 
 Acceptor of Bill, 
 
 liability of, under Bills of Exchange Act, 1882, 284, 285, 296 
 
 Acceptor Supra Protest, 
 liability of, 284, note (</) 
 
 Accounts. 
 
 estoppel by appropriation in, 319, 320 
 omission in, 314 
 
 \< E 
 
 by bankrupt in commission of bankruptcy, effect of, 341, 342 
 concealment of claim from executor, effect of, 343 
 insurance company, by accepting notice of assignment of bonds, 
 
 effecl of, 345, 346 
 non-paymenl of calls by shareholder, effect of, :Jit; 348 
 partners in forfeiture of shares, effecl of, 346, 'II s 
 suffering judgment, effecl of, -'W'J 
 surety I. ■'> 19, 350 
 
 tee in trading of bankrupt, i [feci of, 351 
 waiver of righl • effect of, 343 
 efl 'i estoppel by r< pr< o, '■>"'■' 
 
 p] tojijx-l liy, :; 1 1 
 
 in forgery of signature, effecl of, 350 
 in m i toppel may ai ise, there must be, 
 
 qI or liceni e, if rights are to be abandoned, 34 1 
 ity to or a ert a right, 3 1!». 350 
 
 be thing acquiesced in, 350 
 principle of estopp< 1 by, 344, 345 
 
 lie limits i . d by, '■> 13, note (/) 
 
 F F
 
 i :dex. 
 
 ill I A!. 
 
 qoI be pleaded as an estoppel in a subsequent action, 113 
 i onclusive effect of, in spiritual court, 418 
 
 eign, effect of, in England, 161 
 is not, as a rule, evidence in civil cases, 112, 113 
 on indictment for non-repair of road, effect of, 92 
 
 A> riOH 
 
 against magistrate, conclnsive effect of Conviction in, 22 
 lirought in wrong character, effect of, 52 
 estoppel b5 r authorising settlement of, 319 
 
 for maliciously conspiring to obtain foreign judgment in rem, 
 conclusiveness of foreign judgment in, 22, note («) 
 signing judgment, conclusiveness of judgment in, 22 
 in foreign court, effect of pendency of, see Lis i>vu<li'itx. 
 in 'personam, meaning of, 75, 159, 160 
 in rem, meaning of, 75, 159, 160 
 of ejectment, nature of, 23 
 
 trespass formerly no bar to action in detinue or account, .".1 
 See also Judgment and Record. 
 
 Act of Parliament. 
 
 conclusiveness of certificate of commissioners under, 99 
 effect of rehearsal or preamble in, 39, note (x) 
 
 recital in, 39 
 
 statement in schedule in, 39 
 if Private, does not bind strangers so as to prejudice their interests, 
 
 39 
 is a record, 39 
 
 no estoppel in face of, 40, 200, note (i) 
 persons may not defeat object of, 198 — 200 
 persons may waive provisions of, if intended for their benefit, 199 
 
 Acrs of Directors, 
 
 ratification of. by shareholders, 210. See Directors. 
 
 Administra i [ON, 
 
 grant of, effect of, 76, 85 — 87 
 
 exclusive jurisdiction of ecclesiastical courts in, 406 
 foreign letters of, conclusive effect of, in England, 85, note (<j) 
 sentence of, not conclusive, in subsequent action, on collateral 
 matters, 4 1 :; 
 
 Administrator, 
 
 action by A. suing as, no bar in subsequent action by A. suing as 
 
 executor, 52 
 i topped by verdict against his intestate, ■>:>
 
 INDEX. 
 
 Administkatkix, 
 
 action by A. suing as, no bar to subsequent action by A. suing as 
 administratrix under Lord Campbell's Act, 52 
 
 Atvmtrat.tv, 
 
 adjudications in, 76, 82, 83 
 
 conclusive eft'ect of sentences in. 422, note (./') 
 
 condemnations of vessels in, tbeir operation as judgments in 
 
 82, 83 
 courts of, subject to prohibition in case of excess of jurisdiction, 102 
 judgments in actions on bottomry bunds in, effeci of, 83, 159 
 of collision in, eft'ect of, 83 
 maritime Hen in, effect of, 83 
 on claims of salvage in, effeci of, 83, 159 
 judgment in personam in, no bar to subsequent action in rem, 59, S3 
 in rem in, no bar to subsequent action in -personam, 83 
 
 Admiralty, Foreign Sentences or, 
 are judgments in rem, 159, 183 
 
 i annot be pleaded as an estoppel on collateral mutters, 186, 400 
 conclusive effect of, I L5 
 
 in England, in actions on policies of insurance, as to the 
 
 neutrality of the vessel condemned, 18:;, 1 8 1 
 
 if pronounced in dominions of a co-belligerent, 
 
 188 
 notwithstanding the premises that led to the adjudication. 
 if decided (in -round of vessel being enemies' property, 
 lsT 
 
 ■ I on principles of comity, 183, note (/). 
 ion must be (dearly Btated on face of sentence 
 without ambiguity, l 
 not conclusive as to the premises thai Led to the adjudication, 186 
 
 ■ evidence on matters of inference, l v> 
 not recognised in England, if pronounced in dominions of neutral 
 
 power, l ss 
 on what collateral mattere they ai*e < \ idem e, L85, 186 
 presumed to have been pronounced on ground of >■ 
 
 enemies 1 property, 186, l s T 
 reason for conclusiveni - of, on collateral matters, L84, 185 
 
 iminable, if any ambiguity is apparent on face o1 
 ten e, L87, l ss 
 
 when ; 1 S V 
 
 ADMI88IBELJ IV 
 
 of depo itio ' ions, rule a \ to, 55 uot< 
 
 A I'M' 
 
 by conduct explained, 3 
 
 [el el, 2 
 
 i K
 
 i »6 INDEX. 
 
 Admissioh —continued. 
 effect o(. 805 
 
 bill of lading as, 307, 308 
 invoice as, 307 
 receipt as, 306 307 
 in pleadings, effect of, 31, 32 
 is different from an estoppel, 2, 3, note (/) 
 
 evidence against persons making it, and those claiming under 
 
 them, 3 
 not conclusive evidence, except in certain cases, 3 
 may be made use of by persons not parties to the action, 2 
 may be retracted, 372, note (r) 
 nature of, explained, 3 
 on what principle used, 2, 3 
 receipt is an, 3 
 similarity of, to an estoppel in pais, 3 
 
 Admittance, 
 
 estoppel by, 4 
 
 Agent. 
 
 .■fleet of fraud by, 310, 317 
 
 estopped from denying title of principal, 268 et seq. 
 
 Agent and Principal, 
 
 illustrations of estoppel between, 271 — 270 
 
 Alienation, 
 
 licence or charter of, not a record, 38 
 
 Allegans contkaeia nom est audiendus, 
 maxim in favour of estoppels, 4 
 
 Allegations 
 
 of fraud must be specific, 74 
 
 Alteration 
 
 in negotiable instrument, effect of negligence on, 292, 293 
 record not allowed, 19 
 
 Ameeica, 
 
 estoppels not abolished in, 10, note (r) 
 
 Appearani e, 
 
 no estoppel after, in case of omission to plead, 37 
 
 Appearance and Pleading, 
 ppel by, 33 
 
 in case of omission to set up defence, 36 
 
 [tbator'8 Awards. See Award .
 
 INDEX. 137 
 
 Akmy Discipline and Regulation Act, 1879. 
 
 regulation of military courts-martial by, 101, note (b) 
 
 Articles of Association, 
 
 ' effect of acts of directors, ultra vires the, 382, 383 
 usual provisions embodied in, 208 — 210 
 
 Assault, 
 
 aggravated, certificate of conviction or dismissal by magistrate, a bar 
 
 to civil action, 49 
 consequential damages give no fresh right of action for, 61 
 
 Assignees 
 
 of choses in action, liabilities of, 331, note (/), 346, note (/.•) 
 
 Association, 
 
 articles of, usual provisions embodied in, 20S — 210 
 difference between memorandum and articles of, 209, 210, 381, 382 
 memorandum of, regulation of a company's rights and liabilities by, 
 208—210 
 
 Attachment of Debts in Foreign Countries 
 by British creditors, 191, 192 
 
 foreign creditors, 192 
 effect in England of, 191, 192 
 
 A I rORNMENT 
 
 by bailee, effect of, 270 
 estoppel by, 243, 258, 259 
 
 AUCI [ONEER, 
 
 • ct of election by, 275, 276 
 esto]>|"'l on, 27 I 276 
 
 Averments 
 
 wbi'h stand with the record are allowed, 23 
 
 Award, 
 
 ae to Legality of let t . i patent, not conclusive in subsequent action for 
 
 Lnfringemenl of patent, 12 
 conclusive between the parties, 41 
 
 on party as to s in difference al the time, and within 
 
 the -'• refen ace, 43 
 
 do( ao1 cr< ite a mi i er of oi iginal cam e of action, 41 
 effed of, M 13 
 
 i- not, aa a rule, concln to title or property, 1 1, 12 
 
 of a money claim, conclusive as to the amounl awarded, 42 
 '.n ;ill matters of difference, aol conclusive as to matter nol laid 
 
 before arbitrator, aor included in the mattei ref< rred, 13 
 propi i ' doc tiol p i by mere force of, i !
 
 INDEX. 
 
 Bailee, 
 
 circumstances necessary to entitle him to eel \xpjua tertii against his 
 
 bailor, 269, 270, 275 
 effecl of attornment by, 270 
 
 fraud, in case of an adverse claim on, 270 
 
 notice of adverse claim to, 270 
 
 representation by, 270 
 estopped from denying title of his bailor, 268 ct seq. 
 may interplead, if bona fide claim is made by third party, 271 
 position of. analogous to thai of a tenant, 2(59 
 
 Bailob 
 
 and bailee, illustrations of the estoppel arising between, 27 1 — 276 
 of chattel, effect of representation by, 329 
 
 Bankers, Liability op, 
 
 in the case of alterations in negotiable instruments, 293 
 
 forged indorsements on negotiable instruments. 286 
 
 —288 
 fraud on the part of their servants, 295 
 
 Bankri 
 
 effect of trading by, 351 — 353 
 
 estoppel arising from acquiescence by, 341, 342 
 
 BANKRUPT! V. 
 
 adjudications in, 76, 87. 88 
 
 effect of discharge in, 190, note (/) 
 
 file of proceedings in, not a record, 87 
 
 Bankruptcy Act, 1883 
 
 discharge under, no exemption from criminal prosecution, 88 
 of certificate of Board of Trade under, 87, 100, note (t) 
 orders under; 87 
 revocation of orders fraudulently obtained under, 88 
 
 1 \\Ki;rrT< v, Foreicx. 
 
 Lgnments of a debtor's property under, effect of in England, 190, 
 191 
 personal property under, conclusive if debtor domi- 
 ciled in foreign country. 190, 191 
 real property under, do not affect real estate of debtor 
 situated in England, 191, 
 •■ chments of debi under, when conclusive in England, 191, 192
 
 INDEX. t39 
 
 Bankrupt* v. Foreign — continued. 
 
 discharges under, are conclusive in England, only if the debts dis- 
 charged arose in the foreign country in which the discharge was 
 obtained, 189, 190 
 
 distinction between cases where the discharge extinguishes the debt, 
 and where it merely interferes with the remedies or course of proce- 
 dure, to enforce it, 1S9 
 
 effect of. in England, 189—192 
 
 Barrs v. Ja< kson, 
 
 judgment in. (iT 
 
 Babe Trusted . 
 
 no estoppel on. 373 
 
 Bastardy, 
 
 order in, admissibility of, in subsequent civil proceedings, 80 
 
 a bar to an application for an extension of the order, 90 
 conclusive effect of, -417, 118 
 
 if made on the merits, 90 
 order of Quarter Sessions in, final bar if on merits. 9] 
 
 final bar if made on ground of insuffi- 
 ciency of corroborative evidence, 91 
 proceedings in, are quasi-criminal, 89, 90 
 record of, strangers affected by, s 
 
 summons in, if dismissed for want of corroborative evidence, no bat 
 to fresh application, !»<> 
 
 Bigelow on Estoppel, reference to, 14, note (o), 392 
 
 Bill, 
 
 if, formerly a bar to an action at law, 18, nolo (>i) 
 effect of, in subsequent suit in equity, 58 
 
 allegations in, 58, 59 
 
 Bill op Exchange, 
 
 estoppel arising from payment by, 306 
 also Segotiabli Tnet 
 
 Bills oi Ext a w.i; Act, i )82, 
 
 estoppel or statutory preclusioi d by, 280 29*7 
 
 liabilities of acceptor of bill under, 284, 285, 296 
 drawer under, '_'!»'; 
 indorse:- under, 285, 28G 
 maker of note under, 282, note i , 296 
 
 ' . iJolillhU 1 1, I rn. ■ ■<
 
 110 INDEX. 
 
 nit i or Lading, 
 
 conclusive effecl of, 307, 308 
 statutory effect of. 308 
 
 Bj axk Deed, 
 
 no estoppel arises from executing, 358 
 
 Board ok Tb mm . 
 
 effect of certificates by, under Bankruptcy Act, 1883, 100, note (t) 
 
 Bom i, 
 
 conclusive effect of condition in, 194 
 effect of illegality of consideration in, 1!»7, 198 
 estoppel arising from recital in condition of, 218, 219, 222 
 particular condition in, raises an estoppel, 223 
 See also Deed and Recital. 
 
 Bottomry Bond, 
 
 judgment in action on, is a judgment in rem, 83, 159 
 
 Uroker, 
 
 effect of forgery and larceny by, on estoppel by negligence, 356— 
 363 
 fraud by, in the case of negotiable instruments, 367, 368 
 on estoppel by negligence, 355, 356 
 
 i 'wse of Action 
 
 must be the same, in order that a judgment in one action may 
 
 operate as a bar in another, 57, 60 
 rule for determining whether it is the same or not, 61, 62 
 
 < 'ektificate 
 
 of Board of Trade under Bankruptcy Act, 1883, effect of, 87, 100, 
 note (0 
 commissioners under Act of Parliament, conclusive effect of, 99 
 Judge under Parliamentary Elections Act, 1868, conclusive even 
 
 in case of fraud, 100, 101 
 settlement, conclusive effect of, 305 
 shares, effect of issue of, see Company. 
 
 Cestui Que Trust, 
 
 estoppel in favour of, 385 
 
 Chancery, 
 
 case of estoppel in, 13, note (7) 
 
 in the old court of, where proceedings of quasi record, 17 
 depo itions in, were admissible in subsequent common law actions, 2 
 old court of, was not, on its equity side, a court of record, IS 
 proceedings in, created no estoppel at common law, 12, note (e) 
 iti( ii ol doctrine of e stoppel in, 12, 13
 
 [NDEX. -HI 
 
 Charter of Alienation 
 
 not a record, 38 
 
 Cheqttj 
 
 estoppel in case of, see Negotiable Instruments. 
 
 i ivtl Remedy, 
 
 election to take one, a bar to taking another, 31 
 
 Coke, Lord, 
 
 derivation of estoppel given by, 1 
 rules of estoppel laid down by, 3 et seq. 
 
 Collateral. 
 
 negligence must not be, 3»><i. 3t>7 
 
 Collateral Actions, 
 
 effect of deed on. 223—225 
 
 ( 'OLLATERAL MATTERS, 
 
 foreign sentences in admiralty, not pleadable by way of estoppel on, 
 
 186 
 judgments not conclusive as to, 67, 86 
 sentence of administration not conclusive on, 413 
 when foreign sentences in admiralty are evidence on, 185, 186 
 
 t loU-EGE VlSITOESj 
 
 9i ntenccs of deprivation and expulsion by, 
 are judgments in rem, .88, 89 
 are proceedings of quasi record, 17, 18 
 ectof, 76, 88, 89 
 • cable -entences of the ecclesiastical court, 88 
 
 < OLLI8ION, 
 
 judgmenl in admiralty in case of, effect of, 83 
 
 Coixttsive Pine, 
 void, 71 
 
 0U8ION, 
 
 effect • ' Frmiil. 
 
 Coiiom kl .in m.m i.n i a, 
 
 by default, effed of, 1 19, note (.7) 
 lulee applicable to, 1 1 7 
 
 : : / " "/" Judgment. 
 
 COMITS 01 NATlbl 
 
 application of principle of, to foreign judgments, 122 
 
 entence oi divorce, 1 
 . ird of, "ii forei p\ judgments, 151 155
 
 142 INDEX. 
 
 Comity of Nations— continued. 
 
 extent and limits of maxim of JIubcr respecting, 152 
 
 foreign sentences in Admiralty enforced in England on ground of, 
 
 183, note (/) 
 judgment of foreign court disregarded if coutrary to, 151, 153 — loo 
 principle of, how far applicable to foreign judgments, 151 — 153 
 
 i OMMISSIONERS 
 
 of Courts of Request, exemption from liability to be sued, 50 
 
 excise, conclusiveness of convictions by, in actions against the 
 commissioners or their officers, 82 
 &c, judgments of condemnation of property by, 76 — 80 
 jurisdiction of, SI, note (r) 
 
 Common Kecovekif.s 
 were records, 38 
 
 I 'ii.Ml'AXV 
 
 cannot set up a mere irregularity in the issue of securities, as a 
 
 defence against the holder, 383 
 distinction between acts ultra vires the directors, and ultra vires the 
 
 company, 388— 3!>0 
 imperative and directory prohibitions in Act of 
 incorporation, 212, 213, 
 effect of acts of the directors which are ultra, vires the Memorandum 
 of Association of, 381 
 bond fi<l<' issue of share certificate by, 335, 336, 373 
 contracts which are ultra vires the deed of settlement of, 385, 
 
 note (y) 
 fraudulent sale of shares in, 863, 364 
 illegal act by, 386 
 illegal issue of bonds by, 386 
 irregular allotment of shares in, 388 
 irregular issue of shares by, 384 et seq. 
 negligent transfer of shares by, 363, note (d) 
 estoppel on, by issue of share certificate, 321, 322 
 
 and receipt of call, 323 
 registering transfer of shares, 323 
 accepting notice of assignment of bonds, 345, 346 
 estoppel on directors of, 315 
 
 See also Directors. 
 estoppel on shareholder of, 312, 313, 387 
 
 See also Shareholder, 
 is estopped by its deed, unless it is ultra vires, 206, 207 
 liability of, on contracts which are ultra fires the Act of incorpora- 
 tion, 210, 'Jl 1 
 negotiable instruments, 281
 
 INDEX. J Jo 
 
 < 'OMPAMY — continued. 
 
 maybe estopped from Betting up illegality of its arts in certain cases, 
 
 :;s:; < f seq. 
 onus of showing the illegality lies on defendant company, 211, 212, 
 original mode of forming, 208 
 
 i "mi'axy. Railway, 
 estoppel on, 344 
 liability of, on negotiable instruments, 281 
 
 < 'o.MPROMlM. 
 
 of counsel, judgmi ut obtained by, 27, note ,/') 
 parties, judgment obtained by, 27 
 
 i lOMPHLSION OF Law. 
 
 money paid under, nol recoverable back. 22 
 
 1 ONCLUSION 
 
 arising from an admission, a definition of estoppel, '-' 
 
 I ONCLTXSIVENE8S 03 JUDGMENT 
 
 as to grounds of decision, 09, note (a < 
 in County Court, 47 
 
 I 02STI U11RE.N I J I i;is|i[( J'lox, 
 
 Court of, may examine into fraud, 73 
 effect of judgment of Court of, see Judgment. 
 
 i 'ONOEALMENT 01 < !LAIM, 
 
 estoppel by, 343 
 
 i 'uxitn -in\s ix Boxds, 
 
 tclusive effecl of, l!» I 
 also Bond. 
 
 WV( i . 
 
 ■ . ; i onable inference from, 304 
 
 v, 
 difference between, and verdict of guilty, 112, note (o) 
 • toppel by, I. 1 12, note 
 
 judgmenl againsl executor by, an admission <>i assets, 28 
 of defem • • boppel by, 28 
 
 ( .ivm;vi. 
 
 judgment by, befor< declaration filed, no estoppel in subsequent 
 
 action. 27 
 
 order by, effocl of, 28
 
 I I I INDEX. 
 
 ffS] QTJ] MI \i DaJJ v 
 give no fresh light of notion for assault, 61 
 
 I a iiM'Axn:. 
 
 estoppel by taking of, 4 
 
 Continuing Cause of Action, 
 effect of, 61 
 
 CONTEACT (IF MARRIAGE, 
 
 importance of the, 163 
 
 ( lONVICTION 
 
 by commissioners of excise, effect of, 82 
 
 magistrate, conclusive in action against him, 22 
 conclusive effect of, 417 
 
 conclusive in civil case, as to fact of conviction, 111 
 effect of, 77, 107—114 
 
 in subsequent criminal cases, 113, 114 
 for assault, not evidence at common law, in civil action, 109 
 
 bigamy, formerly a bar to proceedings pro jactitation e maritagii, 
 
 110, 111 
 non-repair of highway, effect of, 94 
 
 stopping up a road, not evidence in subsequent action, 109 
 treason, or for felony, which created an attainder, formerly 
 operated as a judgment in rem, 112 
 foreign, effect of, in England, 160, 161 
 
 formerly operated to a certain extent as a judgment in rem, 111, 112 
 may be evidence of custom in a civil case, 110 
 not a judgment in rem, 107, 108 
 
 not, as a rule, evidence in a civil case, 90, 108, 109 — 111 
 not evidence formerly in ecclesiastical court, in matters over which 
 
 they had exclusive jurisdiction, 111 
 on indictment for non-repair of road, conclusive evidence on subse- 
 quent indictment for same offence, 113, 114 
 
 Copyholder, 
 
 estoppel on, 228, 243 
 
 no estoppel arises from the surrender of, 237, 238 
 
 Coram non Judice, 
 
 decisions which are, 25, note (s) 
 
 records which are, raise no estoppel, 24, 25 
 
 i lORONER, 
 
 caption of, from liability to be sued, 50 
 inquisition before, not taken super visum corporis, is n record coram 
 non 25
 
 INDEX. 445 
 
 Coroner's Inquisition. See Inquisition. 
 
 Corporations, 
 
 application of principle of ultra vires to, 380, 385, note (//) 
 are estopped by their deeds, unless they are ultra vires, 200, 207 
 effect of contracts by, 200, 207, 210, note (m), 211, note (n), 380, 381 
 principles of estoppel in pais are applicable to, 380 
 
 Corrupt and Illegal Practices Prevention Act, 1883, 101, note (z). 
 
 Counter-claim, 
 
 effect of omission to plead, 64, note (A) 
 
 omission to plead, defendant not estopped from bringing a subsequent 
 action, 37 
 
 County Court, 
 
 action might formerly be brought on judgment of, 46, 47 
 effect of judgments in, 46, 47 
 judgment of, not formerly conclusive, 4t> 
 
 upon matters within its jurisdiction, conclusive, 47 
 modern, is a court of record, 47 
 not formerly a court of record, 47 
 order made in, for delivery up of possession of premises, effect of, 47 
 
 r i Martial 
 
 can only adjudicate on matters within its jurisdiction, 102 
 
 notion by, on matters outside its jurisdiction not conclusive, 103 
 is a court of limited jurisdiction, 101 
 is not a court of record, 101 
 is subject to prohibition, 102 
 judge of. i.T exempted from liability to be sued for acts done in his 
 
 judicial capacity, 50 
 jurisdiction of, lot , note [b] 
 no appeal from sentence of, 102 
 operation of sentences of, 77. lol 10 1 
 
 if, should be pli ppel, 103, 39 1 
 
 ( loURT "i Ai.Mii.wi.i V, 
 
 [judications in, 76, 82, 3 
 o Admiralty. 
 
 ooi ' ■ ' - if, 415 
 
 i ni I 
 effi 
 
 com iction in, 79, 80
 
 INDEX. 
 
 > ■ i R r 01 BXOHEQTJEB continued. 
 
 sentence of condemnation of property in, is a judgment in rem, 
 
 80 -82 
 sentences of condemnation of property in, discussion of, 76 — 80 
 See also Excheqw r. 
 
 Courts of Inferior Jurisdiction, 
 
 effect of judgment of, 43 et seq. 
 
 examples of judgments of, 46 et seq. 
 
 judgments of, on matters outside their jurisdiction, void, 2 I 
 
 may, in certain cases, themselves determine the fact of their jurisdic- 
 tion, and in such cases the finding is, on the question of jurisdic 
 tion, conclusive, 4S 
 
 nothing is presumed to be within the jurisdiction of, except what is 
 expressly so alleged, 4.3 
 
 rule applicable to judgments of, 99, note (r). 
 
 the maxim omnia prozsumuntur rite esse acta, does not apply to give 
 jurisdiction to, 46 
 
 want of jurisdiction in, may be shown by collateral facts, and in 
 collateral proceedings, 4(5 
 
 Court of Quarter Sessions, 
 
 effect of judgment of, 48, note («) 
 
 I oURTS OF EECORD, 
 
 foreign judgments are treated as judgments of, 18 
 instances of, 40, 46, 47, 100 
 
 Courts of Request, 
 
 commissioners of, exemption from liability to be sued, 50 
 
 Courts of Summary Jurisdiction, 
 
 judgments of, under special statutory powers, 77, 93 — 98 
 
 See also Statutory powers. 
 orders of, may operate as an estoppel between the parties, 96 
 See also Summary jurisdiction. 
 
 ( JOVENANTS, 
 
 difference between effect of, in leases by indenture, and in other 
 
 indentures, 203, 204 
 estoppel not created by, 200, note (//), 214, 215 
 for further assurance, effect of, 214 
 in lease, effect of, 214 
 of title, effect of, 214, 215 
 
 covin, 
 
 effect of. see Fraud,
 
 INDEX. 44 7 
 
 ' 'RIME*. 
 
 jurisdiction of, is local, 160 
 
 I 'rows 
 
 may take advantage of estoppels, 9 
 not bound by estoppels, 9 
 
 CURTESEB, 
 
 tenant by, estoppel on, 5 
 
 Damages, 
 
 new consequential, give no fresh right of action for assault, 61 
 
 eased Wipe's Sister, 
 
 effect in England of marriage with, if celebrated abroad, 1 64 
 
 J IKCISIOX 
 
 of competent court, reluctance to interfere with, 04 
 See also Judgment. 
 
 Declarator 
 
 of marriage in Scotland, effect of dismissal of suit for, 62 
 
 Deed, 
 
 effect of fraud on estoppel by, 195—197, 200, 201 
 
 illegality of consideration in, 197 — 2().'i 
 
 in actions collateral thereto, 223— 225 
 enrolled, distinction between, and record, 24, note (7) 
 . toppel by, 1, 193 ei eeq. 
 imperfect, no estoppel arises from. 2(J.'J 2<l.-> 
 in blank, no estoppel arises from executing, 358 
 no estoppel on a matter that stands with, 196, note (s) 
 of settlement, usual provisions embodied in, 208 
 receipt indorsed on, conclusive effect of, L94 
 release b y, conclusive effect of, 194 
 unexecuted, no estoppel arises from, 204 
 unstamped, do estoppel arises from, 204 
 void, no estoppel arises from, 203, 205 
 
 also .E toppel by Deed. 
 
 1 ieed Poll, 
 
 oppel ai i ling from, 19< 
 
 Dei mi. 1 
 
 in pleading, effect of, '•'<■> et 
 
 judgment against executor by, is an admission of assets, '2b 
 by, effect of by way of estoppel, 28
 
 I 18 HNDEX. 
 
 Definition 
 
 of estoppel, 1, 2 
 
 by Bramwell, L. J., 2 
 judgment in rem, 75, 7<> 
 
 criticism of, 107, note (s) 
 
 Delivery Orders, 
 
 effect of negligence in issuing, 370 
 
 Demurrers, 
 
 abolition of, 52, note (/<), 391 
 
 Deodand , 
 
 effect of finding of, before coroner, 115 
 
 Depositions, 
 
 in Chancery, admissible at common law, 2 
 other actions, rule as to admissibility of, 55, note (as) 
 
 Deprivation, 
 
 sentences of, by college visitors, &c, effect of, 76, 88, 89 
 
 Derivation, 
 
 of term estoppel, 1 
 
 Devisee 
 
 estopped from denying title of devisor, 254, 255 
 
 explanation of estoppel on, by Jessel, M. E., 256, 257 
 
 not estopped from setting up a title acquired by him under the 
 
 Statute of Limitations, against other remaindermen under the same 
 
 will, 254—257 
 
 Di hectors, 
 
 acts of, ratification by shareholders, 210, 382, 383 
 distinction between acts of commission and omission by, 210, note (I) 
 effect of acts of, which are ultra vires the Articles of Association, 382, 
 
 383 
 memorandum of Associa- 
 tion, 381 
 irregular allotment of shares to, 388 
 estoppel on, 315 
 
 personal liability of, on false representations, 382 
 powers of, 382 
 
 lbilii v or Legitimation, 
 ords affecting, 8
 
 [NDEX. II'.) 
 
 J >ISCHAJRGE 
 
 under Bankruptcy Act, 1883, no exemption of debtor from criminal 
 prosecution, 88 
 
 Discontinuance, 
 
 no estoppel arise- from, 29 
 
 under itules of Supreme < 'ourt, 1883, effect of, 29 
 
 Dismissal 
 
 by magistrate, of bastardy summons, effect of, 90 
 
 summons for paying expenses under Public Health 
 
 Act, effect of, 95—98 
 summons in quasi-criminal proceeding, similarity 
 of to an acquittal, 98 
 of action for want of prosecution, no bar to subsequent proceedings, 
 35, note (t) 
 bill, effect of, on subsequent proceedings in equity, 58 
 
 formerly a bar to an action at law, 18, note (d) 
 petition for divorce before hearing, no bar to fresh petition, 85 
 
 judicial separation, operation of, in a subsequent action, 
 
 schoolmaster, by trustee of school, conclusive, 89 
 
 suit for declarator of marriage in Scotland, effect of, 62 
 
 wife's petition for divorce, on ground of cruelty, evidence of, as to 
 
 the cause of divorce, in a subsequent suit, 68 
 wife's petition for divorce and for alimony, not evidence, in a 
 subsequent suit, as to wife's right to alimony, 68 
 
 1 IISSEISEE3 
 
 1 by estoppels, 5, note (s) 
 1 llSTRIBUTION, 
 
 urrent jurisdiction of ecclesiastical courts in, 106 
 
 Divoi ■ E, 
 
 ee for, affects the • I the partii b, 83, 8 i 
 
 eel of, 1 12 
 
 o though founded in falsehood, U6 
 in order to operate as an estoppel, musl 1"- absolute, B I 
 ool bind in-, it pronounced after the deaths of the parties, 1 17 
 
 for, will nol b< se1 ound of fraud, after the de 
 
 of the parties, 73 
 jud ' ion, do bar to petil on for, B i 
 
 dismissal of petition for, I" fore hearing, no bar to fresh petition - 
 
 ;-t be pleaded in, •';!'! 
 judj in, are nol evidence ol m itt< re of inference, 68 
 
 effect of, 76, 83 85 
 verdict in, without decr< e, does not op a judgment - i 
 
 gee also Nullity of Marriage, Judicial Separation, Jactitat 
 Ma
 
 50 INDEX. 
 
 Divorce, Foreign. See foreign Matrimonial Sentences. 
 
 1 l0< rOB AND Sri DEK r. 
 
 ]• ference to, !•'., aote (I) 
 
 I 'i» ikim: OF ESTOPPEL, 
 growth of, 14 
 importance of, 15 
 
 Document, 
 
 refusal to produce, estoppel by, 319 
 
 Domicile, 
 
 acquisition of, whether necessary or not to give a foreign court juris- 
 diction to dissolve a marriage, 180 — 183 
 
 effect of change of, on conclusiveness of foreign sentences of divorce, 
 179, 180 
 
 influence of law of, in determining effect of foreign sentences of 
 divorce, 169—171, 182 
 
 law of, not applied to foreign suits of declaration of nullity, or for 
 jactitation of marriage, 182 
 
 marriages invalid if contrary to law of, 101 <f seq. 
 
 may be acquired by wife apart from her husband, but she cannot 
 thereby make him amenable to the lex fori thereof, 170, 177 
 
 Dower, 
 
 estoppel on tenant in. •'> 
 
 Duchess op Kingston's Case, 
 
 judgment in, application of, to orders of removal, 93 
 
 comments on, in Phillipps' Evidence, 69, 70 
 
 respecting fraud, 70, 7 1 
 opinions of judges in, 420 et seq. 
 prefatory note to, 405 — 409 
 report of, 410 et seq. 
 rule, as to effect of records Inter partes, laid down in, 55 
 
 E< I LESIASTICAL < lOURTS, 
 
 authority of common law courts over, 405, 40U 
 I '-uit of Chancery over, 406 — ids 
 concurrent jurisdiction of, 40G 
 ecclesiastical jurisdiction of, 406 
 effect of criminal conviction on proceedings in, 117 
 exclusive jurisdiction of, 406 
 history of jm isd o of, 12'.' et seq.
 
 INDEX. i: > '■ 
 
 Ec< lesiastical Courts — cwdinued. 
 sentences of, 
 
 could not b«- pleaded as estoppels -1 I s 
 
 effect of fraud on, TO, 7:2 
 
 in favour of marriage, bound strangers. 412 
 
 in what cases conclusive, 416, 4 IS 
 
 not conclusive in subsequent criminal proceedings, 424—427 
 
 were proceedings of quasi record, 1 7 
 
 Ejectment, 
 
 effect of judgment in, byway of estoppel, 23, 243—249, 252- 254, 
 
 258 
 judgment in, rule formerly as to pleading, 395, :)9G 
 
 was not conolusi ond time laid in demise, 23 
 
 Election 
 
 by auctioneer, to sell for one of two parties, effect of, 276 
 
 bailee, to take the part of one of two claimants, effect of, 276 
 
 to take one civil remedy, a bar to taking another, 31 
 
 take one of two remedies, effect of, on estoppel by representation, 
 376- 378 
 
 may be changed in certain cases, 376 
 
 what amounts to an, 31, note (.<•), 377, note (c , 378 
 - ie also Parliamentary Klidimm Ad, InG.s. 
 
 Employers' Liability Act, 1880, 
 
 effecl of proceedings in County Courts under, 99, nob 
 
 ii Marriage, 
 meanii sion, 1 74, note 
 
 Enti 
 
 toppel by, i 
 
 Eqi 
 
 principl :; ' ,| 
 
 Equii 
 
 I, ill in, ■"'••us in, 58, 59 
 
 dismissal of bill in, a bar to a mbsequenl action al law, 18, note 
 
 effecl of, on Bubseqnenl suit in equity, • 
 motion in, effecl of refusal of, 58, noti 
 
 Error, 
 
 how far foreign judgments impeachable for 140 1 17 
 
 nit. 
 j n | , be rontradictod by
 
 1'.' INDEX. 
 
 Estate by. Estoppel, 225— 230, 234— 237 
 advantage of, 225, 226 
 
 and estate by interest, difference between, 2.'31 — 234 
 arises by virtue of the indenture, 228 
 
 binds lessor and those claiming under him, 227 
 
 docs not arise, if it is apparent, on face of indenture itself, that lessor 
 
 has nothing in the lands, 228 
 does not arise on a lease by a married woman, 233 
 doubtful whether it benefits lessee's assignees, 227 
 explanation of term, 225 
 is created, when lessor has, at time of demise, only an equitable 
 
 estate, 22ft 
 is not created as between lessor and a stranger, 227 
 lease must be of the land itself, and not of the herbage only, 227 
 may become subsequently an estate by interest, 233, 234 
 only arises in the case of a lease by indenture, and not in the case of 
 
 a lease by parol or by deed poll, 227 
 only continues during the term created bj- the indenture, 228 
 parcels must be precisely described in the indenture, 227 
 runs with the land, 228 
 takes precedence of an estate by interest subsequently acquired, 229, 
 
 230 
 
 I! COPPEL 
 
 affects those who claim through party estopped, 52, 53 
 against estoppel sots the matter at large, 7 
 an excellent and curious kind of learning, 10 
 apparent odiousness of, origin of, 9 — Hi 
 arising from admissions in pleading, 31, 32 
 
 See also Estoppel arising from Pleading'. 
 arising from an action in which issue is joined upon title, 50 
 assessment by a corporation, 107, note (o) 
 a bill of lading, 308 
 judgment against one of two or more wrong- doers, 56 
 judgment in personam, 51 et seq. 
 
 judgment in rem, is not included in the general 
 definition of term, 1 
 negotiable instruments, 277 — 297 
 
 in what respects different from 
 the law of negotiability, 279, 280 
 See also Negotiable Instruments. 
 payment by bill of exchange, 306 
 probate of will, 'M 
 See also Prdbati . 
 betw< en landlord and tenant, see Landlord and Tenai ' 
 B gelow on, reference '■>. II. note («)
 
 INDEX. 1-53 
 
 by acceptance oi ,4 
 
 pos and by indenture of lease, difference 
 
 between. 241, note (g) 
 rent, 4 
 acquiescence, examples of. ;J4l — '.'>')'■■> 
 
 See also Acquit 
 admittance, 4 
 
 appearance and pleading, 33, note (e) 
 See als<> Estoppel arising from Pleading. 
 ttornment, 257, 258 
 
 of tenant, 243 
 conduct, see Representation, 
 confession, 4, 112. note (o) 
 
 of defence under Rules of Supreme Court, 1883, 28 
 
 Trinity Term. 1853. 28 
 deed, 4, 193—2 
 
 See also Estoppel by Deed. 
 deed poll, 4 
 defeasance. 4 
 
 entering into possession, l. 247 
 false representation, 310 — 318 
 See also False Representatio 
 line, 4, 38, 225, note (m) 
 
 doctrine of feeding the estoppel applied to, 23-5, note (p) 
 letters patent, 4, 38 
 liverie, i 
 
 matter in pais, 1 . 239 
 negligence, 353 370 
 also Negligent e. 
 partition, 1, 239, note 
 paymenl of rent, 246, 258—261 
 •very, I 
 
 citation, 298 i 1 seq. 
 
 binds only partiee and prii Ii - . 304, 305 
 equitable nature of, 1"» 
 by ; tatione intended to be acted apon, examples of, 318—324 
 
 of( 335 341 
 
 where damage sustained is the resull of a reason- 
 able Inference therefrom, examples of, 324 336 
 which have been acted apon by the party settu 
 up the estoppel, to bis prejudice, examples of, 
 370 -378 
 
 • ntation. 
 by waivei of rights, 2 13 
 e also Wait ■ 
 •,v;ii rani of attoi n< j I
 
 I.'l [NDEX. 
 
 Estoppel continued. 
 
 crown may take advantage of, 9 
 
 not bound by, 8, 9, 111, note (m) 
 definitions of term, 1, - 
 derivation of term, 1 
 
 devised and allowed in law fur the maintenance of truth, 13 
 dilferonee between application of, to deeds and to negotiable instru- 
 ments, 358 
 doctrine of feeding the, 11 
 
 has no application to an Act of Parliament, 40 
 purely legal, 12 
 dues not arise from a mere covenant, 200, note (/'), 214, 215 
 an invoice, 307 
 
 a mere licence or charter of alienation, 38 
 in lace of an Act of Parliament, 199—201, '200, note (/) 
 where an interest passes, 226, 230 — 234 
 effect of negligence on, 304 
 estate by, 225—230 
 
 See Estate by Estoppel. 
 false verdict may work an, 20 
 fed by accruing interest, 220 
 foreign acquittal not pleadable in England as, 101 
 
 sentence in Admiralty not pleadable in England a3, on 
 collateral matters, 186 
 general rules respecting, I 
 
 how it should be regarded in equity, 13, note (/) 
 importance of doctrine of, 16 
 
 in actions for use and occupation, 243, 214, 240, 248, 251 
 of ejectment, 243, 249, 252—254, 258 
 replevin, 242, 248, 252, 258 
 trespass, 248 
 case of tenancy at will, 247 
 
 by sufferance, 247 
 from year to year, 247 
 chancery, case of, 13, note (I) 
 equity, not created by judgment at law, 13 
 real and personal actions, former distinction between, 55 
 what respect different from an admission, 2, 3, note (/) 
 liability of partner by, 282, note (r) 
 
 matter that is oeither traversable nor material does not create an, 7 
 meaning of, 198 
 
 men- surplusage does not create an, 7 
 must be certain to every intent, 6 
 
 no one may plead, unless he himself may be estopped, 54 
 ed in America, 16, note (r) 
 ited formerly by i hancery proceedings, 12, note (?)
 
 INDKX. I ...i 
 
 on agent, 2 - •</. 
 auctioneer. '11 \ — 276 
 bailee. •-'•In, 'et seq. 
 bailor of chattel, 329 
 broker's principal, 328, 329 
 company, 386, note (2) 
 
 by accepting notice of assignment of bond.-, 345, 346 
 in/. 
 copyholder, 'J 13 
 corpori 
 executor or administrator, by verdict against testator or intestate, 
 
 father, d ol bind the] . 5, note (7) 
 
 heir who claims through am estor, 53 
 husband, binds widow. 5, note (t) 
 
 by verdict againsl wife, 53 
 member of corporation, by judgment of oust* 1 
 owner of land, by allowing another to build on his land, 351 
 person representing himself a- partner, 326, ■ >'l"i, 328, note ( 
 pledgee, 214 . 11 "1 
 
 purchaser who has left indicia of title with vendor, 329, 330 
 trustee allowing bankrupt to trade. 351, 352 
 under-tenant . 244, note (») 
 vendor. 274, 305, 
 warehouseman. 272, ll'.'> 
 older,.; if summary jurisdiction may operate as an, 96 
 
 tal, does not bind heir. ">, note (q) 
 pleading an, 391 — t00 
 precedents of pleas of, 
 principle of, applied in chancery, 13 
 for allowing, 3 
 
 odium thrown on, 15 
 rel • kind of, 6 
 
 eij.t not usually pleadable 
 ital in a Public Acl of Parliami in, 39 
 
 1 Ad of Pai 
 
 facl operates as an, 7 
 righl or title by, 304, 3 
 
 relal doctrine of ultra a the case oi 1 ntracts by 
 
 . 207, 208 et 
 a by, 227, 
 I 
 
 way of, 
 
 Li itual court did not formerly operal . 109, 10 
 
 1], 5, 8
 
 t56 X- 
 
 ['"1 OPP] i ' i mi, ■! . 
 
 should be a precise affirmation, 6 
 pleaded, 392 
 formerly have beeD pleaded, \i there was an opportunity, 
 except in certain rases, 393 — 399, 402 
 strangers not as a ruin affected by, 5, 6 
 those who claim under, may take advantage of, 5, note [p ) 
 three kinds of, mentioned by Lord Coke, 1 
 true aim (if doctrine of, 16 
 under J'. ills of Exchange Act, 1882, 280—297 
 
 See also Negotiable Instruments. 
 which bound the estate, formerly not unfavoured in equity, 12 
 which stands upon recompense, 19, note (A) 
 
 Estoppel Arising from Pleading, 31, 37 
 
 after traverse of plea, from raising the same point in a subsequent 
 
 action, 33 
 by not answering opponent's allegations in pleading, :;i 
 
 objections to title, 35 
 taking objections to opponent's pleading, 35, oV> 
 omission to plead a defence, after appearance and pleading, 36 
 
 defendant is estopped from raising 
 the defence in proceedings founded 
 upon the action in which the 
 omission occurred, 35 
 defendant not estopped if he appears, 
 but fails to plead, and judgment is 
 signed against him by default, 36 
 doe6 not arise from an omission to plead a set-off or counter-claim, '47 
 plea without judgment, 33 
 pleading immaterial matters, 33 
 respecting matters that are not inconsistent with the 
 plea, 33 
 does not necessarily arise from a mere omission to set up a defence 
 in an action, 36 
 
 COPPEL by Deed, 4, 193—238 
 arises from the representation of an existing fact, 213, 214 
 authorities in favour of, 193 — 195 
 binds parties and privies, 195 
 by condition in bond, 194. See Bond. 
 execution of mortgage, 194 
 receipt indorsed on deed, 1!I4. See Receipt. 
 
 tal, 21 5 et eeq. See Recital. 
 release, mi 
 • • : of Brett, L.J., on, 11, note (//), 12 
 
 ot re the truth appears on the face of the deed, 216
 
 INDEX. : 
 
 rorPEL by Deed — continued. 
 effect of illegality on, 198 
 exceptions to, in the case of 
 
 companies and corporations, 195, 206 — 213 
 
 covenants, 200, nob 214, 215 
 
 fraud, 195—197 
 
 illegality. 197—203 
 
 imperfect deeds, 19.3, 203— 205 
 
 infants, 195, 205, 206 
 
 married women, 195, 205, 206 
 
 transactions collateral to the deed. 223 — 225 
 
 unexecuted deeds, 204 
 
 void deeds, 195, 203—205 
 may arise from a voidable deed. 205, note (u) 
 must be mutual, 233 
 
 necessity of considering the general effect of the deed, and the inten- 
 tion of the parties, 213, note (//), 216, 219, 221 
 should be pleaded, 391, 392 
 
 Estoppel uy Deed Poll, 195 
 
 Estoppel bv Record, 1—192 
 
 affects, a- a rule, only parties and privies, 55 
 
 arises only from the record of a court of concurrent or exclusive 
 
 jurisdiction. 51 
 does not arise from a record coram nonjudice, 2-1 
 in case of a mistake iii the record, 2 1 
 
 nonsuit, 29, 30 
 respecting matters on which the court had do authority 
 to adjudicate, 25 
 points which the couri did not decide, and 
 which neither party were bound to rai>e, ;;i 
 unl of action is the same, '"'7 
 
 matters in question have not only hen contro- 
 verted, but actually decided, 33 
 v. h been discontinued, 29 
 
 dismissed, for want of prosecu 
 tion, under R. S C i 
 Order XXVIL, rub I, 
 • ' i 
 
 ample of, '-> s 
 how fai i ir< affect* 'I by, 5 1. notes t and {» 
 
 importance of, l I 
 in - ,i given by Lord • !oke, i 
 
 M , pule, be plead* d, 391 392 394, 395, 399 
 n any othei kind of - topp I. 19
 
 F58 INDEX. 
 
 I'OPPEL BY VerDK 1 . 26 et seq. 
 does not arise, unless judgmenl is given, 26 
 
 the matters on which it is sought to estop must have been actually 
 in issue. 2<>. note (b) 
 See also Verdict. 
 
 I .- ropPBL in pais, I. 14—16, 239 
 
 acts whi.li are binding by way of, 239 
 
 instances of, given by Lord Coke. I 
 
 is equitable in its nature, 15 
 
 need not formerly be pleaded, 402 
 
 principles of, 299—304 
 
 should now be pleaded, 391, 392, 403 
 
 similarity of, to an admission, 3 
 
 Si e also Estoppel I"/ Representation, Landlord and Tenant, and Negu 
 tiabh Instruments. 
 
 ]>. [cj i<>\- by Title Paramount, 
 effect of, 252 et seq., 271 
 
 in case of bailment, 269 et seq. 
 
 K\< BEQUER, 
 
 conviction in. not evidence in civil proceedings, 70. 80 
 effect of acquittal of property in, 80 
 
 Ex< bequeb Judgments of Condemnation oe Property in, 
 effect of, 76—80 
 history of, 78 
 notoriety of, 77 — 79 
 
 occasioned a forfeiture of property condemned, 77, 78 
 operated as judgments in rem, 77, 79 — 81 
 
 Excise, 
 
 judgments of commissioners of. 
 See Commissioners of Excise. 
 
 Exclusive Jurisdiction, 
 
 effect of judgment of court of. 
 
 See J ' inhjiiu iii . 
 
 Excommencement, 
 
 effect of record of, 8 
 
 Kxecutor, 
 
 de son tort, estoppel on, 260, 261 
 estopped by verdict against his testator, 53 
 estoppel by concealment of claim from, 343 
 not estopped from denying his executorship, 6 
 
 EXPEDIT REIPTTBLIOa U1 -IT FINIS LITTUM, 
 
 application of maxim to judgments in personam, 62
 
 INDEX. I i ' 
 
 Extradition Act, 1870, 
 
 effect of orders under, 98, note (7) 
 
 Eyre, C. J., 
 
 judgment of, in Philips v. Hunter, 150, 151 
 
 Facts, 
 
 noviter peractu et ad notitiam perventa, may be introduced in subsequent 
 action, bl 
 
 Factors' .\> 
 
 effect of, 330, note [< ) 
 
 Fa( tor's I'imm HAL, 
 stoppel on, •'!•';<! 
 
 1' \L>E l'l;l. I E fCE, 
 
 effect of, as a representation, 339 
 
 False Represeh dations, 
 by agent, 316, 317 
 
 authorizing a sale, 312 
 directors of a company, ol<3 
 misleading an executor as to assets, :>1 1 
 omission in accounts, :;i 1 
 
 person representing himself as principal. .'II I, 315 
 ling a d< >n. .'513, 151 I 
 
 proxy paper a- shareholder, 312, 313 
 statement in court, :;i 1 
 writing prescriptions and signing M.D. to name, 311 
 
 I of, byway of estoppel, :)<•;;, 308, 339 
 Maples of, 310—318 
 in marriage cases, 317, 318 
 
 Felo ! 
 
 uding "t. before coroner, 11"), 1 16 
 
 0NY, A I I.UNUI.I: "i 
 
 , affected by, 8 
 
 Feme < !ovi roppEi 
 
 • Married Woman. 
 
 Fl.nl I I 
 
 ppel "ii, .". 
 
 l'ii: i : » i Case, 
 
 dution in, i to judgments in jh rsonam, 62
 
 ! ;0 i n \'. 
 
 Fine, 
 
 contingenl 01 executory inter< sts or possibilities might be passed by- 
 way of estoppel by, 38 
 estoppel by, I. 22J, note(«). 
 
 doctrine of feeding the estoppel applied to, 235, nolo (p) 
 was a record, 37, 38 
 
 Foreign Acquittal, 
 
 effect of, in England, 161 
 
 Foreign Bankruptcy Proceedings, 
 See Bankruptcy. 
 
 Foreign < Ionviction, 
 
 effect of, in England, 160, 161 
 
 Foreign Court, 
 
 circumstances necessary to give jurisdiction to, 127, 128 
 effect of appearance of defendant in, 126 
 
 laws dispensing with personal service in proceedings in, 129 
 irregularity in proceedings of, 128, 129 
 non-residence within jurisdiction of, 128 
 voluntary submission by defendant to, 126, 127 
 want of jurisdiction in, 124 — 129 
 
 notice to defendant in, 128, 129, 176, note (/) 
 pendency of action in, effect of, 
 
 See Lis pendens. 
 presumption as to proceedings in, omnia esse rite acta, 129, note (r) 
 want of jurisdiction in, may be shown by extrinsic evidence, 12o, 
 
 note (y) 
 when proceedings in, are contrary to natural justice, 129 et seq. 
 See also Foreign Judgment. 
 
 Foreign Decree, 
 
 appointing guardian to infant or prodigal, effect of, 160, note (k) 
 
 Foreign Judgment, 
 
 action may be brought in England on, 120 
 amounts only to an agreement on which an action will lie, 117 
 by default, effect of, 1 25 
 
 cannot be impeached on ground that it is wrong in law, 140 — 147 
 conclusive on defendant, if he has real estate within the jurisdiction 
 
 of the foreign court, and the cause of 
 action arose with respect to it, 127, 
 L28 
 has selected the foreign court as his 
 
 forum, 127 
 is a subjectofthe foreign country where 
 the judgment i- obtained, 127
 
 INDEX. t61 
 
 Foheigx Judgment — continued. 
 
 conclusive on defendant, if he is resident in the foreign country where 
 
 the foreign action is begun, 127 
 submits to the jurisdiction of the foreign 
 
 court, 126, 127 
 voluntarily appears in the foreign court, 
 127 
 creates no merger in England of the original debt, 1 1 8 
 differs from a domestic judgment, 118 
 
 distinction between cases where an action is brought in England on a 
 
 foreign judgment, and where it is pleaded 
 in bar to an action in England, 120 — 
 12: i 
 effect of incorrect view of English and foreign law 
 on, 141 
 mistake in the law of the particular 
 foreign country in which judgment 
 was obtained, and in law of any other 
 country, 142 et seq. 
 does not entitle plaintiff to immediate execution in England, 118, 119 
 effect of fraud on, 74, 121 
 
 if obtained in defendant's absence, 130, note (t), 131 
 perverse disregard of English law on, 154, 155 
 how far conclusive on defendant in England, 121 
 if in favour of plaintiff, is primdfm it evidence for him in a subsequent 
 
 ion in England on the original can 
 action, 119 
 not a bar to a suit in England for the 
 original cause of complaint, 118, 119 
 if obtained by the fraud of a party to the foreign action, cannot be 
 
 enforced by him in England, 130 — 139 
 impeachment of, tor manifest error, 130, 1 10— 1 12 
 
 jonclusive on merits, except in certain - 3, L39, l 10 
 
 ,,,, : ter in pais, 118, 121 
 
 not :, record, Is, 117. 100 
 judgment of Eyre C. J. , in Philips v. Huntei 
 
 120, l 
 may be sel up aa a defence to a Bubsequenl action in England foi the 
 action, 120 
 , ; under, erable back, 22 
 
 • n, order to be conclusive in England, 
 be a decision on mei its, 123, 1 2 I 
 
 anal and conclusive, when pronounced, 123, 121 
 ,,l,- r procedure, 124, 12s. 1 29 
 
 p,. courl of competenl jurisdiction, 1 - 1 1 
 
 pi bl lined, 124, L2
 
 Wv2 LNDEX. 
 
 Fori k,\ Judgment continued. 
 
 must not be contrary to comity of nations, 132, 153 — 155 
 See also < 'amity of Nations. 
 
 not be contrary to natural justice, 124, 129 — 133 
 
 Sec also Natural Justice. 
 not bo fraudulent, 133 — 139 
 
 See also Fraud. 
 if obtained by a British subject, not be in express contraven- 
 tion of, English statutory law, 147 — 151 
 pleas in actions on, 400, 401 
 
 •prima facie evidence in England as to jurisdiction of foreign court*, 
 
 121 
 of a debt, 419 
 principle upon which it is enforced in England, 47, 122, 123, 151 — 
 
 153 
 may be pleaded as res judicata in England, 
 122, 123 
 remarks in Story's Conflict of Laws as to conclusiveness of, 121 
 should be pleaded as an estoppel, 119, 400 
 
 statement on face of, primd facie evidence that proper formalities 
 have been observed, 129 
 See also Foreign ' 'ourt. 
 
 Foreign Judgment in rem, 
 
 distinction between, and foreign judgment in personam., 15(5 — 160 
 effect of fraud on, 133 — 136 
 
 how far impeachable for manifest error, 142, note (/<■), et sea. 
 impeachable in England on ground of fraud, or as being contrary to 
 
 natural justice, 130 
 whether impeachable if contrary to comity of nations, 154, 155 
 
 Foreign Letters of Administration, 
 
 conclusive effect of, in England, 85, note (</) 
 
 Foreign Matrimonial Sentences, 
 are judgments in rem, 161, 162 
 distinction between foreign sentence of divorce and foreign sentence 
 
 of nullity, 162, 163, 166, 167, 182 
 importance of domicile in considering effect of, 102, 1S-J 
 
 See also Foreign Sentences of Divorce, and Foreign Sentences of 
 Nullity of Marriage, 
 
 Foreign Penal Laws 
 
 are local in their nature, 160 
 effect of, in England) 160, 161
 
 INDEX. KS3 
 
 Foreign Sentences i.\ Admiralty. 
 Admiralty. 
 
 Foreign Sentences in Affirmation of Marriai e 
 admissibility in England of, 109, note (/) 
 
 Foreign Sentences oe Divorce, 
 
 conclusive in England, even if the marriage was celebrated in England 
 
 and was dissolved for a cause for which it would not be sufficient 
 
 to obtain a divorce in England, 177 — 17!' 
 
 conclusive in England, if the matrimonial domicile is throughout in 
 
 the foreign country in which the sentence is pronounced, 177, 17s 
 
 effed of bondfidi residence of the parties in the foreign country, on 
 
 conclusiveness of, 180 — 183 
 
 change of domicile on conclusiveness of, 179, ISO 
 in subsequent prosecution in England for bigamy, 173, 174 
 in subsequent suit in England for nullity of marriage, 17.s, 
 
 179 
 on legitimacy in England of issue of subsequent marriage, 
 170, 177 
 influence of lex domii ilii in determining effect of, 10!)— 171 
 invalid in England, if contrary to natural justice, 109, 170, note (/) 
 not conclusive in England, in the case of English marriages betwi en 
 English subjects, unless parties are, at the time when sentence is 
 pronounced, hvnafidi domiciled in foreign country, 171 — 177 
 
 Foreign Sentences oi Jactitation oe Marriage, 
 law of domicile not applicable to, I s - 
 
 Foreigk Sentences oi Nullity, oj Marriai 
 
 anot be pleaded in bar to suil for restitution of conjugal rig] 
 400 
 effect of, 163 L69 
 
 effect of, in England where the marriage is prohibited by English law, 
 164 L69 
 subsequent suil in England for divorce, 166, 107 
 
 restitution of conj 
 rights, 107. 109 
 /< .. /.,. i ..,,,/, ,/- ins on, I'M 
 
 if obtained in a foreign country other than the country of celebration 
 not nece arilj conclusive in England, Hi.") — 107 
 
 the foreign country in which, the marriage was celebrated, 
 not in < • ■ > 1 1 1 > conclusive in England, if the pai 
 are Englu b subjects, L67 l<i!» 
 law of domicile not applicable to, 182 
 
 ,1 1. /',,,/, Matrimonial Swttenrpg and l/-
 
 IHI INDEX. 
 
 Foreigners 
 
 may sue in England, notwithstanding personal incapacity in their 
 own country, 1">1 
 
 FOR] i:i CURE, 
 
 judgments involving, effect of, 112, note (</) 
 of shares, effect of acquiescence by partner in, 34(5, 348 
 non-payment of calls after, 34(5 — 348 
 though invalid, may be r'atified by shareholders, 382, 
 note (•>) 
 
 Forgery 
 
 and larceny by bi - okei\ effect of, on estoppel by negligence, 356 — 363, 
 
 367, 368 
 by third party, effect of, on estoppel by negligence, 353, 354, 363— 
 
 ":5(i5, 367 
 estoppel from setting up, in case of negotiable instruments, owing to 
 
 negligence, 288 — 295 
 liability of bankers in case of, 286 — 288 
 
 of transfer of shares, effect of, on estoppel by representation, 372, 373, 
 negotiable instrument, effect of, 282 et seq. 
 probate, effect of, 407, 408 
 signature, effect of acquiescence in, 350 
 
 to negotiable instrument, cannot be ratified, 282, et 
 295, 20i ; 
 
 Fraud, 
 
 a defence to an action on a deed, 195 — 197 
 
 allegations of, which entirely change the aspect of the case, may be 
 
 set up as a defence after judgment obtained, 66 
 an exception to the conclusiveness of judgments, 70 
 and covin, common law abhors, 71 
 application should be made to the Probate Division, to set aside will 
 
 on ground of, 86, 87 
 as a defence, should be specially pleaded, 74, note (»/) 
 
 to a contract, must be fraud dans locum contractui, 190 
 to an action on a foreign judgment, must have been on 
 
 part of one of actual parties to foreign action, 133 
 to an action on a foreign judgment, must have been 
 committed before foreign court itself at trial, 133 
 by liroker, effect of, on estoppel by negligence, 355, 356 
 ■ be set up as a defence, by a party to the fraud, 73 
 
 to action on deed, unless it makes the 
 deed void, 200, 201 
 certificate of judge under Parliamentary Elections Act, 1868, eon- 
 clusive notwithstanding, 100, 101 
 irt may examine into, notwithstanding lapse of time, 73
 
 INDEX. 1 65 
 
 FuAVit — continued. 
 
 decree of divorce will not be set aside on ground of, after the deaths 
 
 of all the parties, 73 
 defence of, same principles apply to domestic and foreign judgments, 74 
 devisee may impeach a deed on ground of devisor's, 196, 107 
 distinction between its effect on strangers and on parties to the suit, 
 
 72, 419 
 effect of, on bill of lading, 308 
 
 estoppel between bailor and bailee, 270 
 inchoate negotiable instruments, 36S 
 orders under Bankruptcy Act, 1883, 88 
 sentences of the ecclesiastical court, 72, note (o), 41S 
 subsequent criminal proceedings, 419, 420 
 ] t in certain cases, renders the proceedings in one court void in 
 another court, 71, 72 
 foreign judgment may be impeached in England on ground of, 146 
 heir may impeach deed on ground of ancestor's, 196 
 
 set up as a defence to a judgment, allegations must be specific, 74 
 
 it must havo been on the part of 
 one of the parties to the action 
 in which the judgment was ob- 
 tained, 74 
 the proceedings must havo been 
 concocted and conducted in 
 fraud, 74 
 in obtaining probate, effect of, 407, 408 
 invalidate-, a judgment, II!'. 120 
 in what cases transactions may be rescinded on ground of, 420, 
 
 note 
 
 in one court, only examinable in another court, if it is of concurrent 
 
 jurisdiction, 7:; 
 must be set up as a defence before judgment is obtained, if it i< 
 
 within the knowledge of the partj seeking to set it up, <;.">, <;•; 
 
 ■ examinable in a civil case, after it lias been inquired into and 
 
 adjudicated upon by a. court of exclusive jurisdiction, 1 13— 116 
 of pai .m action in England on a foreign judgment, 
 
 ev< n though the question of fraud was inquired into in the for* i 
 ■■ !;;;, 136, 137 L39 
 
 ibsequent, effeel of, on judgment, 71, note 0/) 
 vitiated proceedings in the ecclesiastical courts, 70 
 vitiates pro< of a i our! of justice, 70, 128 
 
 when it maybe sel up, by a particepa cinminis, a-, a defence to an 
 ■ n on the deed, 197 
 
 .1 Agent, 
 estopp 116, 317
 
 166 [NDEX 
 
 Pr utdulent Judgment, 
 
 money recovered under, effect of, 72, 73 
 
 Fraudulent Mortgage, 
 
 effect of, on estoppel by nogligonce, 368 — 370 
 
 Fraudulent Sentence oe -Jactitation of Marriage, 
 effecl of, on subsequent civil proceedings, 408, 409 
 not conclusive in subsequent criminal proceedings, 410 et necj. 
 
 Freeman u. Cooke, 
 
 principle laid down in, 299 — 301 
 
 Fug am Fecit, 
 
 effect of finding of, before coroner, 115, 116 
 
 i rRANT, 
 
 no estoppol arises from use of word, 215 
 
 I l-UARDIAN, 
 
 effect of foreign decree appointing, 160, note (/.•) 
 
 II KIR 
 
 estopped by verdict against his ancestor, 53 
 
 in tail, estoppel on father does not bind, 5, note (</) 
 
 is bound by will of his ancestor, 195 
 
 may impeach deed on ground of ancestor's fraud, 19G 
 
 personal estoppel does not bind, 5, note (7) 
 
 Highway, 
 
 effect of acquittal on indictment for non-repair of, 92 
 conviction for non-repair of, 94 
 order for repair of, 93, 94 
 
 Holder, 
 
 in due course, of negotiable instrument, rights of, 283, 289, 291 
 
 HU8BAM) 
 
 estopped by verdict against his wife, 53 
 
 Illegality, 
 
 difference between effect of, on executory and executed contracts, 
 
 203 
 effect of, on transactions generally, ^01 — 203 
 may be set u\> as a defence to an action on a deed, 197 — 203
 
 INDEX. 107 
 
 Imparlance, 
 
 estoppel by, 4 
 
 Impehfect Deeds, 
 
 no estoppel arises from, 203 — 205, .358 
 
 Importance of Doctrine of Estoppel, 10 
 
 Inchoate Negotiable Instruments, 
 effect of fraud on, 3GS 
 
 estoppel in cases of, 283, 358, 360, 361, 364, 368 
 may be filled up by person in possession, within a reasonable time. 
 291, note («) 
 
 ■ ' Iso Negotiable Instrc m e \ts. 
 
 Incidental Matters, 
 
 judgments not evidence as to, 07, 69, 421 
 
 orders of courts of summary jurisdiction not conclusive as to, 97 
 
 Incorporated Companies 
 
 are estopped by their deeds, unless they are itltra vires, 206, 207 
 
 Incumbent 
 
 of a benefice, estoppel on, 5 
 
 [ndictment 
 
 for non-repair of road, effect of acquittal on, 92 
 
 In i 
 
 are nol bound by their representations, except in certain cases, 379, 
 
 380 
 are not estopped by their deeds, 205, 200 
 capacity of, to contract, 2>si, note (/<) 
 effed of contracl by, 206 
 
 joint covenants by, 206 
 Ltal in deed by, 222 
 liability of, on negotiable instruments, 281, 282 
 
 l\i 1:1.1. :• 
 
 in atence in admiralty nol evidence on, 188 
 
 judgments nol evidence on, 67, 69, 121 
 
 I.M ERIOB COU3 
 
 effect "i judgment of, 13 ei 
 
 interlocutory order of, no action can be broughl on, 26, 124, note («) 
 
 rule applicable to j 99, note (r) 
 
 II H
 
 1 (IS LNDEX. 
 
 Information 
 
 in nature of quo warranto, see Quo Warranto. 
 
 In Personam, 
 
 judgment, binds parties and privies, 51, 75 
 See also t Iction and Judgmt nt. 
 
 Inquisition 
 
 l>y sheriff's jury under Lands Clauses Consolidation Act, 1845, effect 
 
 of, 114, note (a) 
 coroner's, definition of, 111 
 
 effect of finding of deodaud under, 115 
 felo de se under, 1 1 6 
 fuyam fecit under, 115, 11(5 
 not taken super vis on corporis, is a record cm-am nonjudice, 
 
 25 
 super visum corporis, effect of, 115, 116 
 when it created a forfeiture, 115 
 effect of finding under, 77, 114 — 116 
 in lunacy, effect of finding under, 114, 115 
 
 on subsequent civil proceedings, 115, note (c) 
 presumption arising from an, 115, note (c) 
 under Lands Clauses Consolidation Act, 1845, operation of, 25 
 
 In Rem, 
 
 effect of proceedings, 160, note (A) 
 See also Action and Judgment. 
 
 Insurance Company, 
 
 l>pel on, by accepting notice of assignment of bonds, 315, 346 
 
 i\l EREST, 
 
 when it accrues feeds an estoppel, 220 
 
 Interlocutory Order 
 
 ol inferior court, no action can be brought on, 26, 124, note (u) 
 
 Interplead 
 
 by bailee, in case of bond fide claim by third party, 271 
 
 Invoice 
 
 does not create an estoppel, 307 
 effect of, as an admission, 307 
 
 Issi 
 
 raised in one suit, no estoppel from raising other issues in a subse- 
 quent suit, though the same evidence is required to support them, 
 
 QOtl '
 
 INDEX. ' '9 
 
 TTTATinx of MARRIAGE, 
 
 decree for, no bar formerly to subsequent petition for divorce, 85 
 
 effect of sentences in suits for, 84, 85 
 
 explanation of nature of proceedings in, 127 
 
 foreign sentence of, law of domicile not applicable to, 182 
 
 fraudulent sentence of, effect of, on subsequent civil proceedings, 
 
 40S, 409 
 sentence of. conclusive effect of, in subsequent action of ejectment, 412 
 
 civil proceedings, 41 3, 
 114, 417 
 not conclusive in subsequent criminal proceedings, 
 410, et 
 
 Joint Defendant 
 
 effect of judgment against, 57 
 
 Judgment 
 
 against a few selected parties, may bind those whom they represent, 
 
 07 
 at law, formerly no estoppel in equity, 12, 13 
 colonial, see Colonial Judgments. 
 conclusive as to grounds of decision, (39, note ( 
 effect of fraud on, see Fraud. 
 
 on subsequent action, 57 et seq. 
 subsequent covinous act on, 71, note (</) 
 erroneous, may work an estopp'l. 20 
 evidence may be offered to explain a, 24 
 of fraud on, 71 
 not examinable on merits, except under special circum- 
 
 uces, 18 
 not strictly speaki i record, 18 
 .,1-., Fori ign Judgiru /<'. 
 ;„ ... ms, a bar to a subsequent action against a 
 
 tbird person wbo wae really interi 3ted in firs! action. 56 
 ••<» or more joint debtors, effect of, .">7 
 wrong-doers, effei I of, 56 
 in i ■ 67 
 
 in Ducb< - "t K -71, 420, 
 
 hillippson Evid< 
 
 7o 
 j n , m recov< ring in a second aotion, 
 
 v.liat be mi jhl 1 " d in the first, 60, 61 
 
 i ., bar to <• it' cause "I aotion is ili<> 
 
 me, oo 
 migbl formerly have been a bar to another aotion j 
 notwith ' thai the forms "I aotion wen 
 
 the same, 59 
 in proc ling of quo warra Warranto,
 
 •170 INDEX. 
 
 Judgment — continm d. 
 
 in replevin, effect of, 57 
 involving forfeiture, effect of, 112,, note (7) 
 
 not conclusive, except as to the immediate subject of the decision, 67 
 not evidence of any matters incidentally cognizable by the court, 67, 
 
 (l!), To, 421 ' 
 to bo inferred by argument from the 
 
 judgment, 69, 70, 421 
 which came collaterally in question 
 before the court, 67, (59, 70, 86, 421 
 not void by reason of interest in the judge, but only voidable, 21 
 obtained by compromise of counsel, effect of, 27, note (/) 
 
 parties, 27 
 of competent court, reluctance to interfere with, 64 
 of condemnation of property forfeited, 76 — 80 
 
 See also Exchequer and Commissioners. 
 of court of competent jurisdiction, is conclusive between the same 
 parties, on the same matter, coming directly in question 
 in another court, 69, 70, 421 
 concurrent and exclusive jurisdiction, distinction between 
 
 effect of, 09 
 exclusive jurisdiction, is conclusive between the same 
 parties, upon the same matter, coming incidentally 
 in question in another court, 69, 70, 421 
 record, reason why it operates as a bar, 63 
 Quarter Sessions, effect of, 48, note (s) 
 of ecclesiastical court, is a proceeding of quasi record, 17 
 of ouster, conclusive effect of, 53 
 
 See also Quo Warranto. 
 of outlawry, 76, 89 
 
 on a reference, effect of, 21, note (r), 59, note (u) 
 reversed, does not raise an estoppel, 21, note (q) 
 to operate as a bar, 
 
 must be acted upon deliberately, 64 
 
 delivered after all parties have had an oppor- 
 tunity of stating their cases, 64 
 of a competent court, 64 
 valid and final, 64 
 must have decided distinct issues, 64 
 purposes for which it may be used in proof, 23 
 that runs to the disability or legitimation of tho person, effect of, 89, 
 
 112, note (7) 
 unsatisfied, effect of, 56, note (e) 
 
 under special statutory powers, by court of summary jurisdiction, 77, 
 93—9* 
 See also Statutory Power
 
 INDEX. 171 
 
 Judgment — continued. 
 
 under special statutory powers gonerally, 77, 08 — 101 
 See also Foreign Judgment, Judgments in personam, and Judgments 
 
 in , ■ 
 
 Judgment in Ejectment, 
 
 iu one action, formerly not conclusive in another, 23 
 necessity for pleading formerly, 393, 394 
 was not conclusive as to length of period of occupation, 23 
 
 value of the land, 23 
 beyond time laid in demise. L'.'i 
 
 Judgments in Personam 
 
 bind pai'l ies and privies, 5 I 
 
 in admiralty, ai to subsequent action in rem, 59 
 
 rule for determining whether cause of action is the same or not, 61, 
 62 
 
 as an estoppel, cause of action must be substantially the 
 me, 5 1 
 See also Foreign Judgment, and Judgment. 
 
 Judgments ix Rem 
 
 binding on strangers, 2, note I 
 
 classification of, 76, 77 
 
 criticism of definition of, 107. note (s) 
 
 definition of, ','>, 76 
 
 distinction between, and judgments in 'personam, 1">7 — 159 
 
 meaning of, in Roman law, 75 
 
 need not be pleaded as an estoppel, 399 
 
 necessarily be an actual adjudication upon the status of the 
 thing adjudicated upon, 158, 159 
 operation of judgments of ouster, as, I < » T 
 
 sentences of court-martial, as, 103 
 See also Foreign Judgment, and Judgment. 
 
 Judgment 3 of Inh:i:k>i: « !oi r i 
 
 are not final, if they involve a i of jurisdiction, 45 
 
 effeel of 13, ei 
 
 it an action is bn on them in a superior court, it must be 
 
 specially averred thai tl aal cause of action arose within 
 
 their jui i diction, 16 
 light in which they are regarded, 1 1 
 
 must show, upon their fa se, thai the courl had jurisdiction, 44 
 on matters outside their jurisdiction, are void, 24 
 
 JUDK ' I i RE Al 
 
 t of dot inder, 29, 30 
 
 jui i'li' • re-hear an order under, 64, note (k).
 
 IM tNDEX. 
 
 Judici vi. A< rs 
 
 dour without fraud, protection as to, 50 
 
 Judicial Capacity, 
 
 words spoken in, exemption from liability to be sued, 50 
 
 Judicial Offices 
 
 cannot be sued for an adjudication, according to the best of his judg- 
 ment, upon a matter within his jurisdiction, 50 
 
 Judicial Separation, 
 
 petition for, its operation in a subsequent action, 84 
 
 .1 tJEISDICTION, 
 
 courts of inferior, effect of judgments of, 43 et seq. 
 
 See also Courts of inferior jurisdiction. 
 courts of general, may exceed their jurisdiction, 45, note (c). 
 effect of want of, in foreign court, 124— 129 
 of foreign court, circumstances necessary for, 127, 128 
 
 effect of voluntary submission by defendant to, 
 126, 127 
 See also Foreign Judgment. 
 of foreign court in divorce, effect of residence of the parties in the 
 foreign country, 180 — 183 
 
 See also Foreign Sentences in Divorce, and Divorce. 
 of justices, must appear on the face of their orders, 48 
 want of, distinction between eases where it is inherent, and where it 
 arises from the particular circumstances of the case, 50, note (//) 
 may be shown by extrinsic evidence, 125, note (y) 
 
 Jus TEETH, 
 
 circumstances necessary to entitle bailee to set up, as against his bailor, 
 269, 270, 275 
 
 J USTICES, 
 
 certificate of conviction or dismissal by, in certain cases of aggravated 
 
 assault, a statutory bar to a subsequent civil action, 49 
 conviction by, a protection in actions brought against them, 49 
 
 in order that it may be a protection, justices must be 
 
 unaware of any defect of jurisdiction if any, and must have been 
 
 acting in a judicial capacity, 49 
 conviction by, in order that it may be a protection, no defect must 
 
 appear on the face of it, 49 
 decisions of, may bind a civil court, 48 
 finding of, on a matter of jurisdiction,- conclusive, 48 
 orders by, under special powers, jurisdiction must appear on face of 
 
 them,48, 99
 
 INDEX. t73 
 
 Justices — rot, tin ued. 
 
 recitals in orders by, conclusive, as to facts recited, in actions against 
 
 the justices. 49 
 refusal by, to make an order for delivery up of property, no bar to 
 an action in trover, -IS, lit 
 
 KlNG 
 
 may take advantage of estoppels, 9 
 not bound by estoppels, 9 
 
 Kingston's i ^se, Duchess of, 
 
 general rule as to effect of records inter partes laid down in, 55 
 
 BTES, 
 
 effect of, on estoppel by representation, 302, 303, 341, 377 
 on part of shareholder, effect of, 347, note (m), 348, 349 
 
 Landlobu 
 
 may be estopped from disputing tenant's title, 261 
 
 Landlord and Tenant, 
 estoppel between, 
 
 does not apply to actions for breach of covenant to deliver 
 
 up fixtures, 248 
 does not apply to actions for recovery of chattels, 248 
 effect of expiration of landlord's title as to part only of the 
 
 premises, 250, note (a) 
 enjoyment by permission is foundation of, 24Q, 211 
 examples of rule of , 21 l' et >"/■ 
 explanation of rule of (by Jessel, M.R.), 255, 256 
 in actions fur use and occupation, 243, 244, 246,248 
 of ejectment, 2 13 247 
 replevin, - _'r_', 2 I s 
 trespass, 2 18 
 in case of attornment by tenant, 243, 257, ■ 
 
 • ry by tenant into poss< Bsion, 2 17 
 
 payment "I rent liy tenant, 246, 258 26] 
 
 tenant at will, 2 17 
 
 by iifferance, '-' 17 
 from year to yeai . 
 really an estoppel by contract, 256 
 
 limit b and i '•■• • ] tione to, ■_' 12 
 on copyholder, 2 13 
 ..i igin ami chai acter of, 2 1" 
 I i inciple applicable to, 241, '-'12
 
 17 1 INDEX. 
 
 Landlord and Tenant — continued, 
 
 truant estopped from disputing his landlord's title, 241 
 
 if lit' wishes to dispute his landlord's titlo, should first givo 
 
 up possession, 248, note (s) 
 in order to show that his landlord's title has expired, must 
 ronounco his title, and commence a fresh holding under 
 some one else, 250, 251 
 is only estopped from disputing his landlord's titlo, to extent 
 
 of interest granted, 253 
 may be estopped from disputing his own title, 2G0, 261 
 jnay dispute his landlord's title, 
 
 after eviction by titlo paramount, 252 et seq. 
 
 after he has restored possession of the premises to his 
 
 landlord, 25.') 
 after notice to quit, 253 
 after termination of lease, 25.'J 
 if he can show a better title in himself, 252 et sc</. 
 if, under threat of eviction, he has attorned tenant to 
 some one else, 252 et seq. 
 must actually have received possession from the landlord, in 
 
 order to be estopped from disputing his title, 248 — 250 
 not estopped from showing, 
 
 that landlord has been treated as a trespasser subse- 
 quently to the date when tenant received posses- 
 sion, 50 
 that landlord sold or mortgaged his interest in the 
 premises subsequently to the date when tonant 
 received possession, 250 
 that landlord's title exjnred subsequently to date when 
 tenant, received possession, 250 
 
 Lands Clauses Consolidation Act, 1815, 
 effect of inquisition under, 25, 114, note («) 
 
 Larceny by Brokek, 
 
 effect of, on estoppel by negligence, 1350 — 363 
 
 Law Merchant, 
 
 applicability of, to negotiable instruments, 277 — 279 
 
 Law of Negotiability, 
 
 in what respect different from estoppel, 279, 280 
 
 J3E by EsTOPrEL, 
 
 and lease by interest, difference between, 231 — 234 
 may become subsequently a lease by interest, 2.33, 234 
 See also l^Uit<- by Estoppel.
 
 INDEX. I?f) 
 
 Lease by Interest 
 
 may become subsequently a lease by estoppel; 233, 234 
 
 Legal Proceedings 
 
 in foreign country, money paid under, can be recovered back, 22 
 
 Legal Process, 
 
 money recovered by, cannot be recovered back, 21 
 
 Legitimacy, 
 
 declarations of, are judgments in rent. 76, R9 
 
 Legitimation of Person, 
 
 judgments that run to, are judgments in rem, 89 ; 112, note (7) 
 
 Les Termes de la Ley, 
 
 definition of estoppel given in, 1 
 
 Letters Patent 
 
 are records, 37, 38 
 estoppel by, 4 
 
 Lex Domicilii 
 
 determines effect of assignments of personalty, 190 
 influence of, in determining effect of foreign sentences of divorce, 
 169—171 
 
 I. x Loci OoNTBACTfrs, 
 
 influence of, in determining validity of marriage contract, 164, 166, 
 170 
 
 l.i;.\ LOO] im:i 8] ! 
 
 determines the effect of assignments of roal property, 191 
 
 Lll KliM.-iioW ,-. MasoN, 
 
 rale in, 291, :;';:; 
 
 Li< i 
 
 effect of, on estoppel by repn entation, 302, 303, :;n 
 
 Lioen< e 01 A i.n.vA 1 ton 
 not a record. ■';■- 
 
 Ln 
 
 pped from denying title oi licensor, '-'.<:;, 268 et acq. 
 of patent, estoppel on, 253, 254
 
 476 INDIA'. 
 
 •Ll< ENSEE AND LICENSOR, 
 
 illustrations of estoppe] between, 271 - 276 
 
 PENDENS, 
 
 pendency of action in foreign court, no bar to action in England, loo, 
 
 156 
 inferior court, no bar to action in England, 155, 
 note (/)) 
 
 LlVERIE, 
 
 estoppel by, 4 
 
 Local Government Board, 
 
 effect of orders, in settlement cases, made by, 93, note (d), 100 
 
 Lolley's Case, 
 
 effect of decision in, 172 — 171 
 
 Lord by Escheat, 
 estoppel on, 5 
 
 Lunacy, Inquisitions in. 
 See Inquisition. 
 
 Magistrate, 
 
 conviction by, conclusive in action against, 22 
 effect of decisions of, 48 et seq. 
 See also Justices. 
 
 Maker of Note, 
 
 liability of, under Bills of Exchange Act, 1882, 282, note (t), 284, 296 
 
 Maliciously Conspiring 
 
 to obtain foreign judgment in rem, action for, conclusiveness of 
 foreign judgment, 22, note (a) 
 
 Maliciously Signing Judgment, 
 
 action for, conclusiveness of judgment, 22 
 
 Maritime Lien, 
 
 judgments in cases of, 83 
 
 Marriage, 
 
 admissibility in England of foreign sentence in affirmation of, 169, 
 
 note(i') 
 contract, importance of, 163 
 
 ct in England of foreign sentence of nullity of, see Foreign Sen- 
 tences of Nullity.
 
 INDEX, b? 7 
 
 MARRIAGE — rout i i, i 
 
 estoppel in cases of, 317, 318 
 
 exclusive jurisdiction, formerly, of ecclesiastical courts in questions 
 
 of, 406, 40S 
 history of jurisdiction in questions of, 422, 423 
 polygamous, effect of, in England, 104, note (.<) 
 prohibiti d by l( t doiuici/'ii. and celebrated abroad, effect of, in England, 
 
 164—169 
 sentence on contract of, conclusive effect, formerly, in subsequent 
 
 civil proceedings, 414 
 validity of ceremony of, depends on h tractus, 104, 100, 170 
 
 S e also Divorce. 
 
 M lrried Woman, 
 
 capacity of, to contract, 205, 281, note (><) 
 effect in equity of fraudulent misrepresentation of, 379 
 of indorsement of bill by, 378, note (c) 
 recital in deed by, 222 
 
 restraint on anticipation, on fraudulent statement by, 380 
 i- not bound bj- ber representations, except in certain cases, 378—380 
 i> n<«t estopped by a deed which she has not acknowledged, 20,3, 206 
 may be estopped by a record, during coverture. 205 
 stoppel arises on lease by, 229 
 
 Master, 
 
 tppel on, by giving servant authority to order goods, 318 
 
 Ma i BRIAL Ail ERATIONS 
 
 in negotiable instruments, effect of, 296, 297 
 
 M \i BRIAL PARTK ri.ARS 
 
 in ible instruments, authority t<> fill up, 2-- • 
 
 M \ I BR] \i. M VI EMEN l - 
 
 in pleading, bind tin' party making them, 32, 31 
 
 M VI RIMONIAL Se» I FOR] I IN. 
 
 See Foreign Matrimonial Sentei 
 
 Al. Si I 
 
 ] ' ' ~> 
 
 Ha 
 
 app m, Id, i ' 
 
 >urt of inferior jurisd 1 3
 
 1-78 INDEX. 
 
 Memorandum of Association, 
 
 effect of ads of directors ultra vires the, 381 
 regulation of a company's rights and liabilities by, 208 — 210 
 validity, in certain cases, of acts ultra vires the, 388, note (A) 
 
 Merger 
 
 occasioned by judgment of court of record, 03 
 
 of cause of action, none occasioned by an award, 43 
 
 Military Courts Martial 
 
 subject to prohibition in case of excess of jurisdiction, 102 
 
 Misdescription, 
 effect of, 332 
 
 Misstatement, 
 
 effect of, 331—334 
 
 Mistake, 
 
 difference between mistake in record and mistake of the parties, 24 
 in deed, may be rectified in equity, 221, 222 
 in record, does not create an estoppol, 24 
 
 of fact, payment made under, not sufficient damage to raise an 
 estoppel, 375, 376 
 
 Mortgagor, 
 
 effect of lease by, 229 
 
 estopped from denying the title of his mortgagee, 194, 254 
 
 Mtjuerty, 
 
 record of, strangers formerly affected by, 8 
 
 Mutuality, 
 
 unnecessary in certain cases of estoppel, 5, note (o) 
 
 Natural Justice, 
 
 foreign judgment may be impeached if contrary to, 124 et seq., 146, 
 147 
 sentences of divorce invalid in England if contrary to, 176, 
 note (T) 
 meaning of term, 129 — 133 
 specially applicable to the form of procedure, rather than to the 
 
 merits of the case, 132 
 want of, really arises from want of jurisdiction, 129, 130 
 
 Naval Cottrts Martial 
 
 subject to prohibition in case of excess of jurisdiction, 102
 
 INDEX. 179 
 
 Navy Discipline Act, 1S06, 
 
 regulation of naval courts-martial by, 101, note (6) 
 
 Negligence 
 
 by company, in transfer of shares, effect of, 363, note (</) 
 
 shareholder, effect of, 364 
 effect of forgery by third party on estoppel by, 353, 3.34, 363— 367 
 fraud by broker on estoppel by, 355 — 363 
 in case of alterations in negotiable instruments, 292 — 294 
 
 forged signatures to negotiable instruments, 290, 
 
 291 
 
 on estoppel by representation, 300—302, 304, 309, 310, 334, 
 335, note (/) 
 examples of estoppel by, 353 — 37(> 
 in drawing orders, effect of, 364 
 
 issuing delivery orders, effect of, 370 
 not registering a will, effect of, 368 — 370 
 must bo the neglect of some duty, 359, 360 
 
 proximate cause of the act, 353, 358, 360, 365—367, 369, 
 370 
 must not be collateral to the transaction which gives rise to the 
 
 action, 366, 367 
 rules as to, 290, 291, 295, 353 
 
 Negotiable Instrument - 
 
 capacity to incur liability on, 280 
 effect of alteration of marginal figures in. 297 
 fraudulent alteration of, 371 
 
 dealing with, 367, :;<^ 
 material alterations in, 282, 2s;; 296, 297 
 ratification of unauthorised signatures in, 295, 296 
 estoppel arising from, 277 297 
 explanation "t nature of, 277, 278 
 
 if inchoate, may be filled up by person in possession, within reason- 
 able time, 283, 291, uote («) 
 Liability by estoppel on, 
 
 arising from forged or unauthorised signatures (■>, 282, 
 
 283d 588 291 
 
 arising from signature "I linn to, 281 
 by acknowledgmenl of signature as genuine, 289 
 !89, 290 
 ligence, 290, 291, 292—294 
 gotiation, with knowledge of forgery, 290 
 
 cepl I, 284, 
 
 bankei 
 
 Z80, 281
 
 t80 INDEX. 
 
 Negoti lble Instruments continued. 
 
 liability by estoppel on, 
 
 of indorscr of, 285, 286 
 joint stock company, 281 
 infants, &c, 280, 281 
 maker of note, 282, note (t) 
 person signing- blank instrument, 278, 279 
 
 who is not a partner, but whose signature appears 
 on, 282 
 railway company, 281 
 retiring partner, 281, 282 
 provisions of Bills of Exchange Act, 1882, respecting forged or un- 
 authorised signatures to, 283 — 288 
 rights of holders of, in due course, 283, 289, 291 
 
 Nemo debet bis vexaei, 
 
 application of maxim to judgments in personam, 62 
 
 Non- repair of Highway, 
 effect of conviction for, 94 
 
 verdict of guilty on indictment for, on subsequent indict- 
 ment for same offence, 113, 114 
 
 Nonsuit, 
 
 estoppel in case of, 7, 29 
 
 in County Court, effect of, 30 
 
 no provision respecting, in Rules of Supreme Court, 1883, 30 
 
 raises no estoppel, generally speaking, at common law, 29 
 
 under Judicature Act, 1875, effect of, 29, 30 
 
 Noi 
 
 to bailee, of adverse claim, effect of, 270 
 
 to defendant, effect of want of, see Foreign Judgment. 
 
 to quit, effect of, on estoppel between landlord and tenant, 253 
 
 Nuisance, 
 
 effect of continuing, 61 
 
 Nullity of Marriage, 
 
 conclusive effect of sentence of, 424 
 decree of, is a judgment in rem, 84 
 
 foreign sentence of, law of domicile not applicable to, 182 
 - ■ Foreign Sentences of Nullity of Marriage. 
 
 Officer, 
 
 judicial, exemption from liability to be sued, 50
 
 INDEX. 
 
 481 
 
 Omission. 
 
 iii pleading, effect of, 35 et seq. 
 
 to plead, judgment by default, no estoppel in subsequent action. 3 • 
 counter-claim, effect of, 64, note (h) 
 
 set-off or counter-claim, defendant not estopped from bring- 
 ing subsequent action, 37 
 to raise a defence, estoppel after appearance and pleading, 36 
 
 estoppel in proceedings founded upon the action 
 
 in which the omission occurred, 35 
 plaintiff recovers a sum of money, defendant 
 estopped from recovering it back, 37 
 to set up a defence at proper time, defendant estopped from setting it 
 up subsequently in same action, 37 
 
 I IBDEBS, 
 
 by consent, effect of, - 
 
 by justices, fact of jurisdiction must appear on face of, 4-; 
 un matters outside their jurisdiction void, 48 
 by Local Government Board in settlement disputes, effect of, 93 
 
 note ('/) 
 effect of negligence in drawing, .'564 
 for repair of highways, effect of, 93 
 of courts of summary jurisdiction, may operate as an estoppel between 
 
 the parties, 96 
 
 not conclusive on matters inci- 
 dentally cognizable, 07 
 
 unless the court had jurisdic- 
 tion, 96, 97 
 
 of dismissal of summonses by justices, in quasi criminal proc lings, 
 
 similarity of, to acquittal-. 98 
 of dismissal of summonses for paving ex] mder Public Health 
 
 A.ct, effeol of, 95 98 
 of removal of pauper, not conclusive except as to points directly 
 
 ' 12, 93 
 
 also /■'•' 'i of Pauper and Qu irter S 
 
 summary, no bar in subsequenl proceeding fresh causes of 
 
 complaint, ( '>i . note 
 undei Extradition Act, 1870, effect of, 98, note 
 
 i >rjfi ' 
 
 judgme ■ Warranto 
 
 On i.awi.'Y. 
 
 judgn ' !,N '" '""• "''• v ' 
 
 ifj ■ lb;
 
 W2 ENDKX. 
 
 I »\\ NEK 
 
 of land, allowing another to build on his Land, estoppel on, 351 
 
 Pahs, 
 
 estoppel by matter in, 1 
 
 Pais, 
 
 estoppels in, are equitable in their nature, 14, 1 J 
 are not to be considered odious, 11, 15 
 
 Parliament, Act of, 
 
 effect of rehearsal or preamble in, 39, note (.<;) 
 
 is a record, 39 
 
 no estoppel in face of, 200, note (i) 
 
 party may not defeat object of, 40, 198 — 200 
 
 recital in Local and Personal, not conclusive, 39 
 
 Public, acts as an estoppel, 39 
 statements contained in private, do not bind strangers, so as to 
 prejudice their interests, 39 
 of facts in schedule to, are not conclusive evidence ol 
 those facts, 39 
 
 Parliamentary Elections Act, 1868, 
 
 certiticate of judge under, conclusive even in rase of fraud, 100 
 report of judge under, not conclusive, 10] 
 
 Particeps CULM IMS, 
 
 when allowed to set up fraud as a defence to an action on a deed, 197 
 
 CIES 
 
 bound by judgments in personam, 51 
 effect of fraud on, 71, 72. See Fraud. 
 
 judgmenl obtained by compromise between, 27 
 estoppel arising from pleading affects, 32, note (c) 
 in order to be bound by a judgment, must be substantially the same 
 
 52 
 in order to be bon ml by a judgment, must have taken some part in 
 
 the proceedings in which judgment was given, 52 
 to fraud, cannot sel np the fraud as a defence, 73 
 verdicl estops, 26 
 
 vidence for and against, 27 
 
 Partition, 
 
 ppel by, I, 239, note (/)
 
 INDEX, I""' 1 ) 
 
 Partner, 
 
 cl oi acquiescence by, in forfeiture of shares, 346, 348 
 estoppel on person representing himself as, after dissolution of firm, 
 
 326—328 
 liability of, on negotiable instruments, 281, 2S2. 289, 290 
 
 See Negotiable Instruments. 
 liability of, by estoppel, 282, note (r), 300, 301 
 retiring, estoppel on, 377. 378 
 
 Partnership, 
 
 effect of election by creditor to take one of two remedies, 376 — 378 
 
 Payment 
 
 under mistake of fact, not sufficient to raise an estoppel, 375, o7<i 
 
 Peculiar Legislation, 
 
 effect of, on foreign judgments, 154 
 
 Personal Estoppel 
 
 does not bind the heir, 5, note (y) 
 
 Perverse disregard op English Law, 
 effect of, on foreign judgments, 154, 155 
 
 Philips ». Hunter, 
 
 comments on decision in, 1 17 -151 
 
 I'ii KARD v. Sears, 
 
 doctrine laid down in, does not apply to conveyance of land, 299, 
 
 Qote(i) 
 meaning of word " wilfully " in rule laid down in 300 301 
 principle laid down in, 299, 300, 302 
 
 I'l.AINTII I 
 
 -uin_ in wrong character nol estopped, 52 
 
 I'M 
 
 of fraud musl be specific, 7 1. note 
 of rt judicata, application of, 63 
 
 i ourl in usl I- li gaily • tted, 25 
 
 element arj to e tablish, n I 
 
 aciple applicable to, ."»l . 62 
 in , ;,-, of foreign judgments, 122 
 judgment mn t be final, 26 
 musl be pecifio, h»i 
 
 prevails even in case of fraud, if the fraud was wit] 
 the knowledge of the partj .it the time when the 
 nn'iit was obtained, and wo noj fchi i up 
 }>\- him ae a defence, 65 
 
 i ;
 
 1:84 INDEX. 
 
 l'l EADING, 
 
 admissions in, effecl of, by way of estoppel, 31, 32 
 
 should nut be treated as confessions, 32 
 effect "L alter non-suit, 7 
 default in, 35 37 
 failing to plead, 35 
 omissions in, 36, 37 
 toppel arising from, 31- 37 
 
 affects only parties and privies, 32, note (c) 
 by not answering allegations in, 34 
 
 objections to title in, 35 
 by not taking objection to opponent's, 35, note (»■) 
 no estoppel arises from immaterial matters in, 33 
 
 unnecessary matters in, 33 
 no estoppel through nintf tied ire of a thing which there is no oppor- 
 tunity of traversing, 35, note (s) 
 party bound by material statements in, 32 
 
 omissions in, preclusion from raising defence in proceedings founded 
 on the action in which the omission occurred, 35, 36 
 
 Pleading an Kstoppel, 391 — 400 
 
 Pleading Counter-claim, 64, note(&) 
 
 Pleading Matters that Arise Pending an Action, 
 effect of, 397, note (a;) 
 
 Pleading Title en an Action, 
 effect of, 31 
 
 Pleas 
 
 in actions on foreign judgments, 400, 401 
 
 in one action, work do estoppel in other actions, on points not com- 
 prised therein, 33 
 
 respecting matters 
 which are not in- 
 consistent with 
 them, 33 
 inconsistent with pleas in a former action, not allowed, 34 
 
 Pledgee, 
 
 estoppel on, 274, 275 
 
 Polygamous Marriages, 
 
 effect of, in England, 164, note («) 
 
 Possession, 
 
 ippel by entering into, 247
 
 INI»K\. |s;, 
 
 Principal, 
 
 • stoppel on, 328 
 
 person repn sentiug himseli as, 305, 31 t. 315 
 
 I'ium ir.vi. ami Agent, 
 
 estoppel between, 268 et seq. 
 
 illustrations of estoppel between, 271 — 276 
 
 Prim i i 
 
 applicable to admissions and estoppels in pais, 3 
 
 Privies 
 
 are bound by, and may take advantage of estoppels, 5, 51 
 different kinds of, 52, 53 
 
 • st ippel arising from pleading affects, 32, note 
 verdict estops, 26 
 
 verdict is evidence for and against, 27 
 
 Probate, 
 
 conclusive effect of, in subsequent civil proceedings, 414 
 effect of, 76, 85—87 
 
 forgery of, 407 
 
 in subsequent criminal proceedings, U6, '17 
 exclusive jurisdiction of ecclesiastical courts in, 406 
 grant of, is a judgment in rem, 85 
 is conclusive till repealed, 86 
 
 not conclusive on subsequent indictment for forging the will, 86 
 will be set aside in Probate Division on ground of fraud, 86, 87 
 
 E*E0( BED] 
 
 in action, formerly musl have bet a tiled. 31 
 
 Praemunire, 
 
 ].■. ord of, -' rangei - affected by, 8 
 
 Profession, 
 
 id of, strange] 
 
 incn ED M LBJUAG] 
 
 Bnglan elebrated in foreign country, 184 169 
 
 Prohtb] i [ON 
 
 of court -martial in case ofexi i jurisdiction, 102 
 
 PBOHIB] '■' I [ONfl IN A' I 01 I'UM.I WIKNT. 
 
 eff, 181 
 
 PROMISSORY NO! I 
 
 ■ toppol i in, see Negotitibh In U utth ni .
 
 1-86 INDEX. 
 
 PUBLIl II i:\i.i ii .V I . I. ST."), 
 
 effect of disinis: al of summons for paving expenses under, 95— 98 
 
 PUR< H \>Ki:, 
 
 estoppel on, by payment of deposit and receipt of abstract of title, 320 
 leaving indicia of title with vendor, oiled of, 329, 330 
 
 Quarteb Sessions, Judgment of Court of, 
 
 confirming order of removal is a judgment in rem, 91 
 i onfirming order of removal, is conclusive as to fact that pauper, at 
 the time when order was made, was settled in the parish to which 
 * he was sent, 91 
 effect of, 48, note (s) 
 
 in bastardy, is final, if on ground of insufficiency of corroborative 
 
 evidence, 91 
 is final, if on merits, 90 
 
 is not final, if order quashed on ground that it is bad in 
 form, i'l 
 ■plashing order of removal, is conclusive only between the contending 
 parishes, 91 , 92 
 
 Quasi Record, 
 
 proceedings of, 17, L8 
 
 Quo Warranto, 
 
 difference between judgment on writ of, and information in nature 
 
 of, 105 
 effect of judgments of ouster on informations in nature of, 106, 107 
 history of writ of, 104 
 
 judgment in, conclusive as to facts actually decided, 106, 107 
 judgment in, not conclusive in case of fraud, 106 
 judgment in, operation of, as judgment in rem, 107 
 judgment on information in nature of, not conclusive against the 
 
 i Irown, L05 
 judgment on writ of, conclusive even against the Crown, 104, 105 
 nature of old writ of, 104 
 
 proceeding by way of, 105 
 prescriptive title may be pleaded to information of, 105, note (/) 
 su] i of writ of, by information in nature of, 104, 105 
 
 Railway Company, 
 
 effeel of issue of Lloyd's bonds by, 386 
 
 estoppel on, 34 I 
 
 liability of, on negotiable instruments, 28]
 
 INDEX. 
 
 Real ami Personal Actions, 
 
 distinction between of records in 
 
 Rebutter, 
 
 a kind of estoppel, 6 
 
 venant used by May of, 10 
 definition and derivation of term, 6, note 
 
 Receipt, 
 
 an adm • mly, 3 
 
 discussion as to effecl of, 306, 307 
 
 Mind in body of deed, conclusive, 1 M 
 indorsed on deed, not conclusive, 213 
 i- not conclusive in case of fraud, 306 
 may be explained by evidence, 306, 307 
 usually pleadable a- an estoppel, 306 
 
 .1.. 
 
 Mould 1)6. 5 
 
 RE( iiai.. 
 
 as to what amounts To. 221, note (/) 
 depends on construction of deed, 194, 219, 220 
 
 and intention of parties, 220, 221 
 ( ffect of, on receipt contained in body of deed, 220 
 equitable nature of estoppel by, 15 
 
 oppel by, 216 222 
 exampli toppel by, 218, 219 
 
 ceptione I nclusive effecl of, in case of infanl . married won 
 
 &c, 222 
 if mistaken, maj be rectified in equity, 222 
 must b ial, 221 
 
 ilar fad . 7, note (l>) 
 not be ambiguous, 217, 218 
 
 ppi 1. 221 , '_"-'•_' 
 should be pleaded toppel, 393 
 
 to construe f i ictly, 219 
 
 I.'i < om] 
 
 iRD 
 
 adi n, 19, 20 
 
 admits of iverments to contrary, I s . 20 
 
 'and with, are allov 
 
 • iaj not 
 
 ol
 
 Is-- INI'KX. 
 
 Kii ORD continued. 
 
 conclusive effect of, 1!» 
 
 estoppel by, stronger than any other kind of estoppel, 4, 14, 19 
 
 examples oi matters of, 38 — 10 
 
 in action against one of two of more wrong-doors, a bar to an action 
 against the others, 50 
 between A. and B., no estoppel in action between A. and C, 
 
 except in certain cases, 50 
 a bar to an action against a person 
 having privity with B., 57 
 brought in a wrong character, or under a mistake, effect of, 
 
 30, note (v) 
 by A. against B. and C. jointly, effect of, in subsequent 
 
 action between A. and B., 57 
 wrongly brought, no bar to an action rightly brought, 30 
 inter partes, rules of estoppel respecting, 54, 57 — 59 
 
 See Judgrrn nt. 
 in order to create an estoppel, must be that of a court of concurrent 
 
 or exclusive jurisdiction, 51 
 is conclusive evidence of facts therein contained, 21 
 mistakes in, effect of, 24 
 
 which runs to the disability or legitimation of the person, strangers 
 may benefit by, 8 
 
 Kecord, Court of, 
 
 Court of Chancery was not formerly, on its equity side, 18, 46 
 
 definition of term, 17 
 
 foreign court not considered in England to be, 18 
 
 modern county court is, 47 
 
 Recovery, 
 
 estoppel by, 4 
 
 Reference, 
 
 effect of finding on, 41, note (n), 43, note (x), 59, note (u) 
 
 I : eh earing Orders under Judicature Act, 1873, 64, note (k) 
 
 Release, 
 
 conclusive effect of, 194 
 
 effect of recital on, 220, 223—22.3 
 
 Rem, Judgment in, 
 
 binding on stranger-, 2, note (</ 
 
 Remainderman, 
 
 I foi oik is evidence for another, ").'!
 
 index. t89 
 
 Removal of Pauper, Order for, 
 
 does nut affect a subsequent settlement, 91 
 
 effect of, if quashed at Quarter Sessions, 91, 92 
 
 if confirmed at Quarter Sessions, is conclusive as to fact that pauper, 
 
 at time when order was made, was settled iu the parish to which 
 
 he was sent, 91 
 is a judgment in rem, 91 
 not conclusive except a- to points directly decided, 92, 93 
 
 Rent, Acceptan< e ch . 
 
 by landlord, estoppel arising from. 261 
 
 by person having no title, raises no estoppel. 259 
 
 estoppel by, i 
 
 Rent, Payment of, 
 
 ■ stoppel arising from. 246, 258 — 261 
 
 if induced by misrepresentation, creates no estoppel, 259 
 
 made under a mistake, creates no estoppel, 250, 257, 259 
 presumption arising from, may be rebutted, 258, 259 
 
 Repair of Eighway, 
 
 effect of order for, 93 
 
 Kj.ri,h\ i.\, 
 
 effect of judgment in, 57, 58 
 
 estoppel in, 242, 248, •-'•".2. 258, 259, note {>■) 
 
 l,'l PRE8EB i \ i [OH 
 
 ted upon by the party setting up the estoppel, to his prejud 
 t, .;7<i — 378 
 amounting to licence or agreement, i Seel "t. :;i i 
 benefit o I estoppel can only be claimed to extent of damage sus- 
 
 t.i. 
 by acquie cent • 
 Acqiu 
 appropi iation in a 120 
 
 authorising Che ettlemenl of an action, 319 
 lilee, effect of, 270 
 dlor of chattel, 329 
 broker's pi incipal, 328, 329 
 
 aduct, : i" 11 
 factor's ]■! incipal, 330 
 
 giving i t authority to order goods, 318 
 
 ho 1 elf out as partner, :'>2<i — 328 
 
 • •! debonturoF payable I" bearer, 330, •>•"'!
 
 kOO INDEX. 
 
 Reprksen i a i tOH continued. 
 
 by issue by company of share certificates, 321—323 
 glecl of a duty, 300, 302 
 payment of calls by shareholders, 321 
 
 deposit by purchaser, 320 
 receipt of calls by company, 323 
 refusal to produce a document, 31 !> 
 registration of shareholder by company, 323 
 
 transfer of shares by company, 3'2X 
 statemenl on oath, 318, ;>1!) 
 statutory notice, by urban authority, to execute improvements. 
 
 ■ >!■>, .>J4 
 waiver of right, 302, 303, 319 
 effect of hona fide issue of share certificate by company, 335, 336 
 election to take one of two remedies, 376 -378 
 falsehood in, 303, 308—318 
 
 See False Representations. 
 forgery of transfer of shares on estoppel by, 373 
 laches, -'ST 7 
 
 misdescription in, '.Y.Vl 
 misstatement in, 331 — '6'.'A 
 negligence on estoppel by, 304, 353 — :>7<» 
 
 See Negligence. 
 purchaser leaving indicia of title with vendor, 329, 330 
 reasonable inference from, 304 — 309 
 undertaking, 338, 339 
 warranty as, .'>.'39 
 oppel by, 29S et seq, 
 
 need not necessarily be mutual, 5, note (o), 386 
 binds only parties and pri vies, 304, 305 
 examples of, 305 et seq, 
 
 if made by corporation or company, effect of, 380 — 390 
 See Corporations and Company. 
 infant, is not binding, 378, 379 
 married woman, is not binding, 378, 379 
 
 except in certain cases, 379, 380 
 parties legally incapacitated from contracting, does not 
 raise an estoppel, 378 
 intended to be acted upon, effect of, by way of estoppel, 304 — 309 
 
 examples of, 318 — 324 
 may be by words or conduct, .'505 
 
 corrected by subsequent statement, 371 
 retracted, by subsequent statement, 371, 372 
 meaning of word ''wilfully," in rule laid down in Pickardy. Scars, 
 
 300, 301 
 musl be of existing fact, 213, 309
 
 [NDEX. 191 
 
 Representation — continued. 
 
 must have been acted upon to the prejudice of the party setting up 
 
 the estoppel, 310, 371, 372—874 
 must create a substantial alteration in legal position of party acting 
 
 on it, 310 
 listing fact, examples of, 336 341 
 of intention, effect of, 338, 340, 341 
 origin of estoppel by, 298 
 party acting upon it, must have acted, in the transaction complained 
 
 of, with ordinary caution, 310 
 party acting upon it, must have been innocent of fraud, 372 
 party making it. must nol be legally incapacitated from enti ring into 
 
 obligations. 310 
 payment made under mistake of fact, not sufficient to support 
 
 estoppel by, 375, 37G 
 principles of estoppel by, 299 et ■■•■;.. 303, 'M>\ 
 
 propositions laid down by Brett, L. J., respecting estoppi 1 by, 303, 30 1 
 qutere, whether loss of remedy on Stork Exchange, sufficient damage 
 
 to raise an estoppel, 310, note (e) 
 
 Res ixiek alio- acta alteri nocere non potest. 
 application of, to records inter partes, bo 
 
 Res Judicata, 
 
 object of rule of, 63 
 )>ro veritate accipitur, 17 
 
 Res Judk \ la, Ple \ "i , 
 application of, <i.'; 
 
 court must be !• gaily constituted, 25 
 elemenl iry to establish, 64 
 
 judgment must be final, 26 
 in case of foreign judgments, 122 
 mii-t be specific, i"l 
 
 prevails even in ca tud, if the fraud was within the knowli 
 
 party al the time when judgment was obtained ag 
 him, and was not then Bet up by him as ;i defence, 65, '><> 
 principle upon which it depends, 61, 62 
 
 Resident e 
 
 in a fon gn country, effect of, on foreign sen tei livorce, 1 
 
 1 lONJUGAL RlOH 
 
 foreign • of, law of domicile not applicable to, L82 
 
 ' - 1 » i »* ■ ' oi ;7s 
 
 liabilit 00, 301
 
 t!)2 INDEX. 
 
 REVERSION i;V ESTOrPEL, 227, note (c), 22!» 
 doctrine of, 
 
 does not apply to trustees, 236, 237 
 
 nor to surrender of copyholds, 237, 238 
 
 did not apply in favour of cestui que use, 236 
 
 limits of, 236, 237 
 
 not regarded favourably in equity, 236 
 presumed to be a reversion in fee, 229, 236 
 
 Reversioner 
 
 has no privity with tenant for life, 53, 54 
 
 Rolls 
 
 alterable only during term, 21 
 importance of, 18 
 
 Rules of Supreme Court, 1883, 
 admissions under, 32, note (b) 
 confession of defence under, 28 
 discontinuance under, 29, 30 
 dismissal of action under, no bar to subsequent proceedings, 35, 
 
 note (t) 
 regulation of procedure by, 31 
 
 Rules oe Trinity Term, 1853, 
 effect of confession under, 28 
 
 Salvage, 
 
 effect of judgments on claims of, 83 
 
 Si UEDULE, 
 
 estoppel by statement on oath in, 318, 319 
 
 S< ire Facias, 
 
 effect of judgments in, 77, note (e) 
 
 estoppel in, after omission to raise defence to action, 36 
 
 Scotch Divorce 
 
 conclusive in England if the matrimonial domicile is throughout in 
 
 Scotland, 177 — 179 
 effect of, in England, in a subsequent prosecution for bigamy, 173 — 
 
 175 
 on legitimacy of issue of subsequent marriage, 
 176, 177 
 • fleet of, in Scotland, 175 
 
 effect of, on status of children of marriage dissolved, 1 75 
 See Foreign Sentences of Divorce.
 
 INDEX. I'.i.". 
 
 Scotland, 
 
 effect of dismissal of suit for declarator of marriage in, 62 
 
 Seceders, 
 
 estoppel on, 344, 345 
 
 Second Action, 
 
 when it may not be brought, 58 et teq. 
 
 IKXTIA CONTRA MATRIMONIUM NUNQUAM TRANSIT IN REM JUDI- 
 i ATAM, 
 
 statement of rule, -iT, note (</) 
 rule now obsolete, 409, note (/) 
 
 Si N 1 KM E9 
 
 in matrimonial suits, were proceedings of quasi record, 17 
 of college visitors, were proceedings of quasi record, IT, 18 
 
 courts martial. See <\mrt Martini. 
 
 deprivation and expulsion, conclusive effect of, 415, 4M 
 
 divorce, conclusive effect of, 4 1 _* 
 
 d court could not be pleaded as estoppels, 418 
 
 nullity, conclusive effect of, 84, 121 
 
 Settlement, 
 
 adjudications of, 76, 91— 
 
 delusive effect of certificate of, 305 
 of action, estoppel by authorising, o\y 
 
 ■ !M. ' I.IM'II K'AI'K, 
 
 effect of issue of. See Company. 
 
 Shareholder, Estoppel on, 
 
 by acknowledging the ownership of shares, :'A-i. 313 
 quiescence, 3 
 laches, :;I7, not . .; I 8, :;!'.» 
 
 negligence, 364 
 
 non-payment oi calls, after forfeiture ol sh 
 paj men! of calls, 321 , 38*7 
 
 i i j . t of <li\ idends on shares, ' s 7 
 registration as owner of Bhares, 387 
 
 -II \l:l>, 
 
 difference between irregulai and invalid allotment of, ; v ^ 
 
 ;■ ! ■ ReTI 
 
 • in in action for making a w pong ret 
 10 
 
 ;. m», 1 1 
 u ;lv con< lui shei in* in othei > • ions, 1 1
 
 1.94 INDEX. 
 
 Sign v.ture 
 
 cannol be ratified if forged, 282 et seq. 
 effecl of acknowledgment of, 2N9 
 
 forgery of, where bill is subsequently negotiated, 289, 290 
 
 in cases of negligence, 290, 291 
 ratification of, 282 et seq. 
 
 Spiritual Court, Sentences of, 
 ai'e judgments in rem, 91 
 are not matters of record, 37 
 could not be pleaded as estoppels, 418 
 effect of, in cases of nullity of marriage, 84 
 
 Stamp Act, 1870, 
 
 conclusive effect of decisions of commissioners under, 99 
 
 Statutory Towers, 
 
 judgments and orders made by courts of summary jurisdiction under, 
 
 77, 93—98 
 generally under, 77, 98 — lOi 
 
 Stock Exchange, 
 
 quaere whether loss of remedy thereon, is sufficient damage to raise 
 an estoppel, 310, no to (e) 
 
 Strangers 
 
 bound by estoppels by record, if they would not be disinherited by 
 them, 54, note (u) 
 f< >rmerly by sentences of the ecclesiastical court in favour of 
 
 marriage, 412 
 by judgments in rem, 2, note (d) 
 effect of fraud on, 71, 72 
 
 See Fraud. 
 not usually bound by estoppels, 5, 305 
 
 records inter partes, 54, 55 
 not bound by proceedings to -which they were not parties, 420, 421 
 not bound by statements in private Acts of Parliament which pre- 
 judice their interests, 39 
 reason why they cannot take advantage by estoppel of record upon 
 verdict, 54, note(0 
 
 Subsequent Action, 
 
 facts noviter peracta et ad notitiam perventa may be introduced in, 01 
 
 Summary Jurisdiction, Judgments of Courts of, 
 effect of conviction for non-repair of highway, 94
 
 INDEX. L95 
 
 Summary Jurisdiction, Judgments of Courts of, — continued. 
 
 effect of dismissal of summons, under Public Health Act, forexpenses 
 
 of paving, i)o — 98 
 order for repair of highway, 93, 94 
 huts necessary to give jurisdiction must appeal on the face then 
 
 99 
 uiay operate as an estuppol between the parties, !)(> 
 not conclusive on matters incidentally coguixable, 97 
 
 unless court had jurisdiction, 96, !»7 
 under special statutory powers. 77. 93—98 
 See Statutory /'.<<■■ 
 
 per Visum Corporis, 
 effect of coroner's inquisition, 1 1.3, 1 1 6 
 
 Si perior Court, 
 
 conclusive effect of record of, 1!' 
 
 SUPPOSALS 
 
 did not create an estoppel, 32 
 
 at any rate after nou-suit, 7 
 effect of. 7, ■'!•_'. note (d) 
 
 Surety, 
 
 effect of acquiescence by, 349, 350 
 
 Surplusage 
 
 dues not act as an estoppel, 7 
 
 [TRRENDEB 
 
 by deed, 261 
 
 operation of law. 261 . 262 
 
 cannot be occasioned by a void Lease, 265 
 
 difficulty as to wbat constitutes, in the case of corporeal heredita- 
 ments, 263, 264, 267 
 
 distinction between cases where tic new tenanl is admitted by the 
 landlord before, ami after, communication with the old one. -jot, 
 268 
 
 toppi 1 arising from, 261 
 planation of, 262, 2i 
 
 illustrations of, 265, '.i>>> 
 
 mere demise of incorporeal hereditaments to :. with ten. tut' 
 
 consent, insufficient to constitute, 267 
 
 no bai respecting ( ■! action which arose prior to urrei 
 
 rule respecting, -''.i 265 
 til;.-- effeel as in e toppel in /•■
 
 I'.C INDEX. 
 
 SURRENDER OJ < lOPYHOLDS, 
 
 doctrine of feeding the estoppel does not apply to, 237 
 no estoppel arises from, 238 
 
 Tenant 
 
 estopped from disputing his landlord's title, 241 et seq. 
 See also Landlord and Tenant. 
 
 Cen \vr at Will, 
 estoppel on, 247 
 
 Tenant by the Curtesie, 
 estoppel on, 5 
 
 Tenant by Sueferan* e, 
 estoppel on, 247 
 
 Tenant for Life 
 
 has no privity of estate with reversioner, 53, 54 
 
 Tenant from Year to Year, 
 estoppel on, 247 
 
 Tenant in Dower, 
 estoppel on. 5 
 
 Terms, 
 
 provisions of Judicature Act respecting, 20, note (»» 
 
 Testament 
 
 proved under seal of ordinary, not conclusive except as to authen- 
 ticity of will, 37 
 
 Title 
 
 by estoppel, 304, 305, 373 
 effect of pleading, 31 
 
 Tl: \I>IN*. 
 
 by bankrupt, effect of, 351 — 353 
 
 Transit in rem judicatam, 
 
 origin of maxim, '!•'; 
 
 Trk 
 
 action of, no bar to an action in detinue or account, 31 
 oppel in actions of, 248
 
 INDEX. 497 
 
 Ultra Vii 
 
 application of doctrine of, to acts of compani< -. •'. 58—390 
 
 corporations, 380 
 effect of doctrine of, on contracts by corporations and companies, 
 
 207, 208, 385, note (//) 
 when it -odd answer to the plea of estoppel, 208, et s< . 
 - mpany. 
 
 UNAUTHORISED SIGNATURES TO BlLLS, &< , 
 
 ratification of, 282 ■' -■,.. 295,296 
 
 DERTAKING 
 is not a r< as to create an estoppc I 339 
 
 Under-tenant, 
 
 estoppel on, 24 1. note (n) 
 
 Urban Authority, 
 
 ippel on, arising from a statutory notice to execute improvement-. 
 ■■vr-;. 32 
 
 . 'M> « i' I UPATTON, 
 
 eft' piration of landlord's title as to part only of the premises, 
 
 - K), note (a) 
 toppel in action for, 243, 244, 248,251 
 
 boppel on, -~i I. 305 
 
 Verdu r 
 
 ainsl am estor, i stoppel on heii . 53 
 
 iii' !'|"1 nl1 administratoi 
 
 ■ toppel "ii executoi . 53 
 wife, i stoppel "ii future husband, 53 
 between parson and occupier, evidence between bJ anil 
 
 otbei oci upier, 3 1 
 criminal, effeel of, in uienl criminal case, III, note (m) 
 
 t evidence in a subsequent civil case, 108 ill 
 
 evidence in a civil i asi 
 109—111 
 
 [ A( qniital. 
 Lween effeel of, when ^iven in a civil and in a criminal 
 • ■ . 112 
 
 in i imiiniloi ma
 
 1','S [NDEX. 
 
 mtinued. 
 in order thai it maybe evidence for or against anyone claiming 
 
 under a party, claim must have been acquired 
 subsequently to verdict, 27 
 operate as an estoppel, the- matter must have 
 been actually in issue, 26, note (h) 
 inter partes is not usually evidence against strangers, 21. mite (e) 
 reason why strangers are not bound by, <V> 
 m i toppel upon the same matter afterwards arising between the 
 same parties, 26 
 may work an estoppel, even though false, 20 
 of guilty, in what respects different from a confession, 112, note (o) 
 
 on indictment for non-repair of road, conclusive evidence 
 on subsequent indictment for same offence, 113 
 on issues in chancery suit, creates no estoppel apart from decree and 
 
 pleadings, 27 
 on matters in issue, is evidence for and against parties and privies, 
 
 •27 
 whereon an attaint lies, estops parties and privies, 26 
 without judgment, works no estoppel, 2ii 
 
 works no estoppel, in other actions, respecting facts that are not 
 
 inconsistent therewith, 33 
 upon points not comprised there - 
 in, 33 
 Visitobs of Colleges, 
 
 sentences of deprivation by, 76, 88, 89 
 See College Visitors. 
 
 Void Deeds, 
 
 no estoppel arises from, 203- 2()~> 
 
 Vom Lease 
 
 cannot create a surrender in law of a prior valid and subsisting lease, 
 265 
 
 Vodd Recoveries 
 
 might create an estoppel, 38 
 
 Voidable Deeds 
 
 may create an estoppel, 205, note {u) 
 
 Waives oi Rigb i -. 
 
 ppel by, 319, 343, :;i I, note (/ ) 
 
 : RlGH ; 
 
 i. 13, no
 
 INDEX 199 
 
 Waw houseman, 
 
 estoppel on, 272, 273 
 
 W M.i.AXI OF A I TORNEY, 
 
 toppel by, l 
 
 WARRAH DTES VND I" rOPPEl 
 
 difference betweeu, 9, 10 
 
 W.vkkaxi i.i: ( '.un.i:. 
 writ of, 10 
 
 W iRRANTY, 
 
 ■ of, a.- a representation, 
 
 Warranty of Neui rat.tty, 
 
 foreign sentence in Admiralty conclusive agaiust, 183 — 186 
 except in certain cases, is;, 188 
 
 Warrant* of Title by Bailee, 
 cl of, 270, note (/) 
 
 Widow 
 
 continuing in pi mi after bu ba"-r . iK-vtb, e toppel on, 4 
 
 Will 
 
 oi ancestor binds beir, 19a 
 
 Writing, 
 
 toppel by matter of, i 
 
 Wrong-] >oi 
 
 I judgnv nt agaiu t one of two or more, ofi 
 
 mi" END. 

 
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 Edition. Edited by Haeey Gbeenwood, M.A., LL.D., Esq., 
 Barrister-at-Law. Roy. 8vo. 1897. 1/. 
 
 " We should like to see it placed by his principal in the hands of every articled 
 clerk. One of the most useful practical works we have ever seen." — Law Stu. Jo. 
 
 Hood and Chailis'Conveyancing,Settled Land, andTrustee Acts, 
 and other recent Acts affecting Conveyancing. With Commentaries. 
 Sixth Edition. By Peecy F. Wheelee, assisted by J. I. Stieling, 
 Esqrs., Barristers-at-Law. Royal 8 vo. 190). \l. 
 
 "This is the best collection of conveyancing statutes with which we are 
 acquainted. . . . The excellence of the commentaries which form part of this 
 book is so well known that it needs no recommendation from us." — Law J" 
 
 Jackson and Gosset's Precedents of Purchase and Mortgage 
 Deeds. — By W. Howland Jackson and Thoeold Gosset, Esqrs., 
 Barri^t'Ts-at-Law. Demy 8vo. 1899. Is. 6d. 
 
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 itself, so that no dipping about and adaptation from other purts of the book are 
 necessary." — Law Journ 
 
 Prideaux's Precedents in Conveyancing — With Dissertations on 
 its Law and Practice. 18th Edition. By John Whitcombe and 
 Benjamin Lennaed Cheeey, Esqrs., Barristers-at-Law. 2 vols. 
 Royal 8vo. 1900. Zl. 10$. 
 
 " ' Prideaux ' is the best work on Conveyancing." — Law Journal. 
 " Accurate, concise, clear, and comprehensive in scope, and we know of no 
 treatise upon Conveyancing which is so generally useful to the practitioner." — 
 Law Times. 
 
 Strachan's Practical Conveyancing. By Waltee Steachan, Esq., 
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 Webster. — Vide " Vendors and Purchasers." 
 
 CORONERS.— Jervis on Coroners.— The Coroners Acts, 1887 and 
 lSirJ. With Forms and Precedents. Sixth Edition. By R. E. 
 Melshkmee, Esq., Barrister-at-Law. Post 8vo. 1898. 10s. 6d. 
 
 COSTS.— Hough's Handy Guide to County Court Costs— Con- 
 taining tin- Scales of (Justs and Fees authorized in County Courts ; 
 with useful Precedents of Bills of Costs on Ordinal y and Default 
 Bummonses, Employers' Liability, Companies Winding Up, Re- 
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 with Praotici Not < and Notes of Decisions; together with extracts 
 
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 ot I '.III- of ' k>8r| - tie rounder, ami of I loste of Appeal from the County 
 
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 1 I between Solicitors and their Clients ; with Orders 
 
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 By H I -. nv.ti i. Jomraoir, Esq., Barri 
 
 [ . n , >■ oond Edition. B • ■. al Bto. 1901. II. 1 5 , 
 
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 •,• ^/ / •• li ork»ar$ktpt in Stook, in lau> ca{f and othtr bindings.
 
 8 STEVENS AND SONS, LIMITED, 
 
 COSTS— continued. 
 
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 *#* A thin paper edition in 1 Vol. may be had, price 25s. 
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 CRIMINAL LAW. — Archbold's Pleading, Evidence and Practice in 
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 " ' Archbold ' is the one indispensable book for every barrister or solicitor who 
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 Kenny's Outlines of Criminal Law. Demy 8vo. 1902. 10s. 
 
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 Part III. DEBENTURES AND DEBENTURE STOCK, including 
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 DIARY.— Lawyers' Companion (The) and Diary, and London and 
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 nd Edition. By P. Sxaotrxt, Esq., Barrister-at-Law. 8 vols. 
 I; . 8vo. I «. l». 
 
 Note. It is belii ■■• d this work is unique. It had no predecessor and 
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 well as singli thai Language has received interpn 
 
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 Oas< an cited in support of every definition. 
 
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 i m\ ■ 1 1 j ■ i .1 ■ . nut only as ii labour 
 
 inc. but as a real contribution to legal literaturi Mr. Stroud's work is a 
 i hi 1 i\v." Late * . I leo. ' s . I'" •'■'• 
 
 " [tmay be called an authoritative dictionary of thi i n • 1 1 li language."— / 
 1904. 
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 B
 
 10 STEVENS AND SONS, LIMITED, 
 
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 The Pocket Law Lexicon— Explaining Teclmical Words, Phrases 
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 By Hknry G. Rawson and James F. Remnant, Esqrs., Barristers- 
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 DIGESTS. 
 MEWS' DIGEST OF ENGLISH CASE LAW.— Containing the Reported 
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 " The practice of the law without Mews' Annual would be almost an impos- 
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 Mews' Digest of Cases relating to Criminal Law down to the 
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 Law Journal Quinquennial Digest, 1896-1900.— An Analytical 
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 Woods and Ritchie's Digest of Cases, Overruled, Approved, or 
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 DISTRESS.— Oldham and Foster on the Law of Distress.— A 
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 DISTRICT COUNCILS.— Chambers' Digest of the Law relating 
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 "The practitioner's standard work on divorce practice." — Law Quar. Rev. 
 
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 DOMESDAY BOOK AND BEYOND— Three Essays in the Early 
 
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 EASEMENTS. — Goddard's Treatise on the Law of Easements. — 
 
 By John Leybotjbn Goddaed, Esq., Barrister-at-Law. Fifth 
 
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 Innes' Digest of the Law of Easements. Seventh Edition. By 
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 •• 'i pre-emirj 
 
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 82
 
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 ELECTIONS.— Rogers' Law and Practice of Elections— continued. 
 
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 Pollock and Maitland's History of English Law before the time 
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 METROPOLIS BUILDING ACTS.-Craies' London Building Act, 
 1894; with Introduction, Notes, and Index, and a Table showing 
 how the Former Enactments relating to Buildings have been dealt 
 with. — By W.F.Ceaies, Esq., Barrister-at-Law. RoyalSvo. 1894. 5*. 
 
 MINES AND MINING.— Cockburn.— Ti^ " Coal." 
 
 MORALS AND LEGISLATION.— Bentham's Introduction to the 
 Principles of Morals and Legislation. — By Jeeemy Bentham, 
 M.A., Bencher of Lincoln's Inn. Crown 8vo. 1879. 6*. 6d. 
 
 MORTGAGE. — Beddoes' Concise Treatise on the Law of Mort- 
 gage. — By W.F. Beddoes, Esq., Barrister-at-Law. 8vo. 1893. 10s. 
 
 " We commend the work as a reliable and useful little manual."— Laiv 
 Students' Journal. 
 
 " We can cordially recommend this work to a practitioner who likes to have 
 small compact books at hand on all subjects." — Law Notes. 
 
 Coote's Treatise on the Law of Mortgages. — By the late Richaed 
 Holmes Coote, Esq., Barrister-at-Law. Seventh Edition. By 
 Sydney Edward Williams, Esq., Barrister-at-Law, Author of 
 "The Law relating to Legal Representatives," "The Law of 
 Account," &c. 2 vols. Royal 8vo. 1904. (Nearly ready.) Zl.Zs. 
 
 MOTOR CARS. — Bonner's Law of Motor Cars, Hackney and other 
 Carriages. — An Epitome of the Law, Statutes, and Regulations. 
 By G. A. Bonner, Esq., Barrister-at-Law. Demy8vo. 1897. 7s. 6d. 
 
 "The book is full of useful information, and will undoubtedly prove of service 
 to those who require advice on this subject." — Law Times. 
 
 MUNICIPAL CORPORATIONS.— Bazalgette and Humphreys.— 
 
 Vide " Local and Municipal Government." 
 
 NAVY.— Manual of Naval Law and Court Martial Procedure; 
 in which is embodied Thring's Criminal Law of the Navy, together 
 with the Naval Discipline Act and an Appendix of Practical 
 Forms. — By J. E. R. Stephens, Esq., Barrister-at-Law, C. E. 
 Gifford, Esq., C.B., Fleet Paymaster, Royal Navy, and F. 
 Haeeison Smith, Esq., Staff Paymaster, Royal Navy. Demy 8vo. 
 1901. 15s. 
 
 "Well written, excellently arranged, and fully comprehensive."— Law Journal. 
 
 " Well up to date .... May be thoroughly relied upon." — Law Times. 
 
 NEGLIGENCE,— Smith's Treatise on the Law of Negligence. 
 
 Second Edition. By Horace Smith, Esq. 8vo. 1884. 12s. 6d. 
 
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 119 & 120, CHANCERY LANE, LONDON, W.C. 21 
 
 NISI PRIUS,— Roscoe's Digest of the Law of Evidence on the 
 Trial of Actions at Nisi Prius. — Seventeenth Edition. ByMAUBiCK 
 Powell, Esq., Barrister-at-Law. 2 vols. DemySvo. 1900. 21. 2s. 
 
 " Continues to be a vast and closely packed storehouse of information on 
 practice at Nisi Prius." — Law Journal. 
 
 " Almost invaluable to a Nisi Prius practitioner. . . . We have nothing 
 but praise for the new edition." — Law Quarterly Revieu: 
 
 NOTARY. — Brooke's Treatise on the Office and Practice of a 
 Notary of England. — With a full collection of Precedents. Sixth 
 Edition. By James Ceanstoitn, Esq., Barrister-at-Law. DemySvo. 
 1901. 11. 5s. 
 
 "The book is an eminently practical one, and contains a very complete 
 collection of notarial precedents. The editor is to be congratulated upon the 
 execution of a very thorough piece of work." — Law Journal. 
 
 OATHS.— Stringer's Oaths and Affirmations in Great Britain and 
 Ireland; being a Collection of Statutes, Cases, and Forms, with 
 Notes and Practical Directions for the use of Commissioners for Oaths, 
 and of all Courts of Civil Procedure and Offices attached thereto. By 
 Francis A. Steingee, of the Central Office, Royal Courts of Justice, 
 one of the Editors of the "Annual Practice." Second Edition. 
 Crown 8vo. 1893. 4*. 
 
 " Indispensable to all commissioners." — Solicitor? Journal. 
 
 ORANGE RIVER.— The Statute Law of the Orange River Colony, 
 
 — Tran>latcd. Royal Svo. 1901. 21. 2s. 
 
 OTTOMAN CIVIL LAW.— Grigs by's Medjelle, or Ottoman Civil 
 Law.— Translated into English. By W. E. Geigsby, LL.D., Esq., 
 Barrister-at-Law. Demy Svo. 1895. II. Is. 
 
 PARISH LAW.— Humphreys' Parish Councils.— The Law relating 
 to Parish Councils, being the Local Government Act, 1894 ; with 
 an Appendix of Statutes, together with an Introduction, Notes, and 
 a Copious Index. Second Edition. By Geoege Humphreys, Esq., 
 Barrister-at-Law. Royal 8vo. 1895. 10s. 
 
 Steer's Parish Law. Being a Digest of the Law relating to the 
 Civil and Ecclesiastical Government of Parishes and the Relief of the 
 Poor. Sixth Edition. By W. H. Macnamaea, Esq., Assistant 
 Master of the Supreme Court, Registrar of the Court constituted 
 under the Benefices Act, 1898. Demy 8vo. 1899. U. 
 
 "Of great service both to lawyers and to parochial officers." — Solicitors' Jour. 
 
 " A most useful book of reference on all matters connected with the parish, 
 both civil and ecclesiastical." — Law Journal. 
 
 PARTNERSHIP.— Pollock's Digest of the Law of Partnership. 
 Seventh Edition. With an Appendix of Forms. By Sir Frederick 
 Pollock, Bart., Barrister-at-Law, Author of "Principles of Con- 
 tract," "The Law of Torts," &c. Demy8vo. 1900. 10s. 
 "of the execution of the work we can speak in terms of the highest praise. 
 The language is simple, concise, and clear." — f.fir M.i.j.i ;,„■. 
 
 "Praiseworthy in design, Bcholarly and complete in execution." — Sat. Reviru-. 
 
 PATENTS.— Edmunds on Patents. — The Law and Practice of Letters 
 
 Patent for Inventions. By Lewis Edmunds, Esq., K.C. Second 
 
 Edition. By T. M. Stevens, Esq., Barrister-at-Law. Roy. 8vo. 
 
 1897. 1/. 12s. 
 
 " We have nothing but commendation for the book." — Solicitors' Journal. 
 
 " It would be difficult to make it more complete." — Law Times. 
 
 Edmunds' Patents, Designs and Trade Marks Acts, 1883 to 
 
 1888, Consolidated -.villi an Index. Second Kdition. By Lewis 
 
 Edmunds, Esq., K.C., D.Sc, LL.B. Imp. 8vo, L895. Net2s. 6rf. 
 
 Gordon's Monopolies by Patents and the Statutable Remedies 
 
 available to the Public. By J. W. Gordon, Esq., Barristor-at- 
 
 Law. DemySvo. [897. 18s. 
 
 "Must take a unique plaoe in our legal literature." — Law Timet. 
 
 Gordon's Compulsory Licences under the Patents Acts. By 
 
 J. W. (Jokdon, Esq., Barrister-at-Law. Demy 8vo. 1899. 15«. 
 
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 PATENTS— continued. 
 
 Johnson's Patentees' Manual. — A Treatise on the Law and 
 Practice of Patents for Inventions. Sixth Edition. By James John- 
 son, Esq., Barrister-at-Law ; and J. Henry Johnson, Solicitor and 
 Patent Agent. DemySvo. 1890. 10s. Gd. 
 
 Johnson's Epitome of Patent Laws and Practice. Third Edition. 
 Crown 8vo. 1900. Net, 2s. Gd. 
 
 Morris's Patents Conveyancing. — Being a Collection of Precedents 
 in Conveyancing' in relation to Letters Patent for Inventions. 
 With Dissert at ions and Copious Notes on the Law and Practice. By 
 Robeet Morris, Esq., Barrister-at-Law. Royal 8vo. 1887. R 5s. 
 
 Thompson's Handbook of Patent Law of all Countries.— By 
 Wm. P. Thompson. Twelfth Edition. 12mo. 1902. Net, 2s. Gd. 
 
 Thompson's Handbookof British Patent Law. Eleventh Edition. 
 12mo. 1899. Net, Gd. 
 
 PAWN BROKING.— Attenborough's Law of Pawnbroking, with 
 the Pawnbrokers Act, 1872, and the Factors Act, 1889, and 
 Notes thereon, By Chaeles L. Attenbokotjgh, Esq., Barrister- 
 at-Law. Post 8vo. 1897. Net, 3s. 
 PLEADING.— Bullen and Leake's Precedents of Pleadings, with 
 Notes and Rules relating to Pleading. Fifth Edition. Revised and 
 Adapted to the Present Practice in the Queen's Bench Division of 
 the High Court of Justice. By Thomas J. Bullen, Esq., Barrister- 
 at-Law, Cyeil Dodd, Esq., K.C., and C. W. Clifford, Esq., Bar- 
 rister-at-Law. DemySvo. 1897. U. 18s. 
 
 " The standard work on modern pleading." — Law Journal. 
 
 " A very large number of precedents are collected together, and the notes are 
 full and clear." — Law Times. 
 
 " The Editors have in every way preserved the high standard of the work, 
 and brought it down to date effectively and conscientiously."— Law Magazine. 
 Odgers' Principles of Procedure, Pleading and Practice in Civil 
 Actions in the High Court of Justice.— Fifth Edition. By W. 
 Blake Odgers, LL.D., K.C., Recorder of Plymouth, Author of "A 
 Digest of the Law of Lihel and Slander." Demy 8vo. 1903. 12s. Gd. 
 
 " The student or practitioner who desires instruction and practical guidance 
 in our modern system of pleading cannot do better than possess himself of 
 Mr. Odgers' book." — Law Journal. 
 
 " Includes a careful outline of the procedure in an ordinary action at law. 
 This sketch will be of the utmost value to students, and ought to win the ap- 
 proval also of examining bodies, as it is remarkably free from any adaptability to 
 the purposes of the mere crammer." — Literature. 
 
 "An invaluable book." — Law Notes. 
 
 " Terse, clear and pointed." — Law Quarterly Review. 
 
 FOISONS.— Reports of Trials for Murder by Poisoning.— With 
 Chemical Introductions and Notes. By G. Latham Beowne, Esq., 
 Barrister-at-Law, andC. G. Stewaet, Senior Assistant in the Labo- 
 ratory of St. Thomas's Hospital, &c. Demy 8vo. 1883. 12s. Gd 
 
 POWERS. — Farwell on Powers. — A Concise Treatise on Powers. 
 Second Edition. By Geoege Faewell, Esq., Q.C. (now a Justice 
 of the High Court), assisted by W. R. Sheldon, Esq., Barrister- 
 at-Law. Royal 8vo. 1893. U. 5s. 
 
 PR I NCI PAL AND AG ENT.— Wright's Law of Principal and Agent. 
 By E. Blackwood Weight, Esq., Barrister-at-Law. Second Edition. 
 DemySvo. 1901. 18s. 
 
 " Clearly arranged and clearly written." — Law Times. 
 
 " May with confidence be recommended to all legal practitioners as an accu- 
 rate and hanc i on the .-ubjects comprised in it." — Solicitors 1 Journal. 
 "An excellent book."— Law Quarterly Review. 
 
 PRIVY COUNCIL LAW.— Wheeler's Privy Council Law: A Synop- 
 i f all the Appeals decided by the Judicial Committee (including 
 Indian Appeals) from 1876 to 1891. Together with a precis of the 
 Cases from the Supreme Court of Canada. ' By Geoege Wheeler, 
 Esq., Barrister-at-Law, and of the Judicial Department of the Privy 
 Council. Royal 8vo. 1893. U. lis. Gd. 
 
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 PROBATE, — Nelson's Handbook on Probate Practice (Non-Con- 
 tentious), (Ireland). — By Howard A. Nelson, Esq., Barrister-at- 
 Law. DemySvo. 1901. 12s. 6d. 
 
 Powles and Oakley's Law and Practice relating to Probate and 
 Administration, By L. D. Powles, Barrister- at- Law, and T. W. 
 H. Oakley, of the Probate Registry. (Being a Third Edition of 
 "Browne on Probate.") Demy 8vo. 1892. ' U. 10s. 
 
 PROPERTY— See also " Real Property." 
 
 Raleigh's Outline ofthe Law of Property.— DemySvo. 1890. 7s.6d. 
 
 Strahan's General View of the Law of Property. — Third Edition. 
 
 By J. A. Steahan, assisted by J. Sinclair Baxter, Esqrs., Barris- 
 
 ters-at-Law. Demy 8vo. 1901. 12s. 6d. 
 
 " The student will not easily find a better general view of the law of property 
 
 than that which is contained in this book." — Solicitors' Journal. 
 
 " "We know of no better book for the class-room." — Law Times. 
 
 PUBLIC MEETINGS,— Chambers' Handbook for Public Meet- 
 ings. — Second Edition. By George F. Chambers, Esq., Barrister- 
 at-Law. Demy 8vo. 1888. Net, 2s. 6d. 
 
 QUARTER SESSIONS— See also "Criminal Law." 
 
 Pritchard's Quarter Sessions. — Second Edition. By V. Graham 
 Milward and Joseph B. Matthews, Esqrs., Barristers-at-Law. 
 DemySvo. 1904. (Nearly ready.) 11. lis. 6d. 
 
 RAILWAY RATES.— Darlington's Railway Rates and the Carriage 
 of Merchandise by Railway. — By H. R. Darlington, Esq., 
 Barrister-at-Law. Demy 8vo. 1893. II. 5s. 
 
 RAILWAYS.— Browne and Theobald's Law of Railway Com- 
 panies. — Being a Collection of the Acts and Orders relating to 
 Railway Companies in Great Britain and Ireland, with Notes of all 
 the Cases decided thereon. Third Edition. By J. H. Balfour 
 Browne, Esq., one of His Majesty's Counsel, and Frank Balfour 
 Browne, Esq., Barrister-at-Law. Royal 8vo. 1899. 11. Is. 
 
 " Contains in a very concise form the whole law of railways." — The Times, 
 "It is difficult to find in this work any subject in connection with railways 
 which is not dealt with." — Law Times. 
 
 " Practitioners who require a comprehensive treatise on railway law will find it 
 Incj li ." — Law .hmi': 
 
 Powell's Relation of Property to Tube Railways. — By Maurice 
 Powell, Esq., Barrister-at-Law. DemySvo. 1903. Nclls.Gd. 
 
 RATES AND RATING.— Castle's Law and Practice of Rating.— 
 Fourth Ivlition. By Edward James Castle, Esq., one of His 
 Majesty's Counsel, &c. Royal 8 vo. 1903. 11.5s. 
 
 " A sure and safe guide." — /."»• Magazine. 
 
 " .' ,, which lias earned the goodwill of the Profession on 
 
 acci ts lucidity, and its accuracy." — Law Times. 
 
 Hamilton and Forbes' Digest of the Statutory Law relating to 
 the Management and Rating of Collieries. — For tho use of 
 Colliery Owners, Viewers and Inspectors. By H. B. Hans 
 ii.ton and I r A. Forbes, Esqrs., Barristers-at-Law. 
 
 Demy 8vo. 1902. i\ ', 17s. 6d. 
 
 REAL PROPERTY. — Carson's Real Property Statutes, comprising, 
 
 among others, the Statutes relating to Prescription, Limitation of 
 
 Actions, Married Women's 1'mperty, Payment of Debts out of Real 
 
 Estate, Will-, Judgments, Convi tied Land, Partition, 
 
 Tru tees. Being a Tenth Edition of Shelford's Real Property 
 
 ites. By T. II. Caeson, Esq., E.G., and 11. B. BoairAS, Esq., 
 
 Barrister-at-Law. Royal 8vo. L902. 35s. 
 
 " Absoluti ly indi pern able to conveyancing and equity lawyers." 
 
 "'!- I itor and i '"i ■inn i i . ■ ■ . and 
 
 Hi. congratulation of both branches of the ] ion the product ton "i such 
 
 a useful work, so skilful] , both editors and iera."— 
 
 /,'/>/• .\" 
 
 *.* All standard Law Works are kept in Stock, in law calf and other bindings.
 
 24 STEVENS AND SONS, LIMITED, 
 
 REAL PROPERTY— contintied. 
 
 De Villiet-'s History of the Legislation concerning Real and 
 Personal Property in England during the Reign of Queen 
 Victoria.— Crown Svo. 1901. 3s. 6d. 
 
 Digby's History of the Law of Real Property. Fifth Edition. 
 Demy 8vo. 1897. 12s. 6d. 
 
 Lightwood's Treatise on Possession of Land : with a chapter on 
 the Real Property Limitation Acts, 1833 and 1874. — By John M. 
 Lightwood, Esq., Barrister- at -Law. Demy 8vo. 1894. 15s. 
 
 Maclaurin's Nature and Evidence of Title to Realty. A His- 
 torical Sketch. By Richard C. Maclauein, Esq., of Lincoln's Inn. 
 Demy Svo. 1901. 10s. M. 
 
 Shelford's Real Property Statutes.— Vide " Carson." 
 
 Smith's Real and Personal Property. — A Compendium of the Law 
 of Real and Personal Property, primarily connected with Con- 
 veyancing. Designed as a Second Book for Students, and as a 
 Digest of the most useful learning for Practitioners. Sixth Edition. 
 By the Authoe and J. Teusteam, LL.M., Barrister-at-Law. 2 vols. 
 Demy 8vo. 1884. 21. Is. 
 
 " A book which he (the student) may read over and over again with profit and 
 pleasure." — Law Times. 
 
 " Will be found of very great service to the practitioner." — Solicitors' Journal. 
 
 " A really useful and valuable work on our system of Conveyancing."— Late 
 Students' Journal. 
 
 Strahan. — Vide " Property." 
 
 REGISTRATION.— Rogers.— Vide" Elections." 
 
 Fox and Smith's Registration Cases. (1886—1895). Royal Svo. 
 
 Calf, net, 11. 10s. 
 Smith's (C. Lacey) Registration Cases. Part I. (1895-96). 
 
 Net, 6s. 6d. Part II. (1896), 5s. Part III. (1897), 4s. Part IV. 
 
 (1898-9), 6s. Part V. (1899-1900), 4s. Part VI. (1900-1901), 4s. 6d. 
 
 Part VII. (1902), 4s. 
 
 Lawson's Notes of Decisions under the Representation of the 
 People Acts and the Registration Acts.— By Wm. Lawson, 
 Barrister-at-Law. For 1894, 1895, 1896 and 1897, each net, 4s. 6d. ; 
 1898, net, 7s. 6d. ; 1899, 1900, 1901 and 1902, each net, 4s. 6d. 
 
 REQUISITIONS ON TITLE.— D\cW\ns.— Vide "Conveyancing." 
 
 RIVERS POLLUTION.— Haworth's Rivers Pollution.— The Statute 
 Law relating to Rivers Pollution, containing the Rivers Pollution 
 Prevention Acts, 1876 and 1893, together with the Special Acts in 
 force in the West Riding of Yorkshire and the County of Lancaster. 
 By Charles Joseph Hawoeth, Solicitor, B.A. (Cantab.), LL.B. 
 (London). Royal 12mo. 1897. 6s. 
 
 ROMAN LAW.— Abdy and Walker's Institutes of Justinian, Trans- 
 lated, with Notes, by J. T. Abdy, LL.D., and the late Bbtan "Walkeb, 
 M.A., LL.D. Crown 8vo. 1876. 16s. 
 
 Abdy and Walker's Commentaries of Gaius and Rules of Ulpian. 
 "With a Translation and Notes, by J. T. Abdy, LL.D., late Regius 
 Professor of Laws in the University of Cambridge, and the late 
 Beyan "Walkeb, M.A., LL.D. New Edition by Beyan "Walker. 
 Crown 8vo. 1885. 16«. 
 
 Barham's Students' Text-Book of Roman Law.— By C. Nicolas 
 Baeham, Esq., Barrister- at-Law. Demy 12mo. 1903. Net,1s.Sd. 
 "This little work, consisting of 119 pages, is a collection of notes, clearly and 
 dimply expressed, upon the principal topics of Roman Law as they are stated in 
 the Institutes of Gaius and Justinian. It is neatly arranged, and forms a 
 comphte outline of the subject." — Law Notes. 
 
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 119 & 120, CHANCERY LANE, LONDON, W.C. 25 
 
 ROMAN LAW— continued. 
 Goodwin's XII. Tables. — By Frederick Goodwin, LL.D. London. 
 Royal 12mo. 1886. 3*. 6d. 
 
 Greene's Outlines of Roman Law, — Consisting chiefly of an 
 Analysis and Summary of the Institutes. For the use of Students. 
 By T. Whitcombh Gbeene, Barrister-at-law. Fourth Edition. 
 Foolscap 8vo. 1884. 7s. 6d. 
 
 Grueber's Lex Aquilia. — The Roman Law of Damage to Property: 
 being a Commentary on the Title of the Digest " Ad Legem Aqui- 
 liam" (ix. 2). With an Introduction to the Study of the Corpus 
 Juris Civilis. By Ebwtn Getjebeb, Dr. Jur., M.A. 8vo. 1886. 10s. 6d. 
 
 Holland's Institutes of Justinian, — Second Edition. Extra fcap. 
 8vo. 1881. 5s. 
 
 Holland and Shadwell's Select Titles from the Digest of Jus- 
 tinian. — Demy 8vo. 1881. 14s. 
 
 Holland's Gentilis Alberici, LCD., I.C.P.R., de lure Belli 
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 Monro's Digest IX, 2. Lex Aquilia. Translated, with Notes, by 
 C. H. Monro, M.A. Crown 8vo. 1898. 5s. 
 
 Monro's Digest XIX, 2, Locati Conducti, Translated, with Notes, 
 by C. H. Moneo, M.A. Crown 8vo. 1891. 5s. 
 
 Monro's Digest XLVII, 2, De Furtis. Translated, with Notes, by 
 C H. Moneo, M.A. Crown 8vo. 1893. 5s. 
 
 Monro's Digest XLI. 1, De Adquirendo Rerum Dominio. Trans- 
 lated, with Notes, by C. H. Moneo, M.A. Crown 8vo. 1900. 5s. 
 
 Moyle's Imperatoris lustiniani Institutionum Libri Quattuor. — 
 Fourth Edition. Demy 8vo. 1903. 16s. 
 
 Moyle's Institutes of Justinian. Translated into English.— Third 
 Edition. Demy 8vo. 1896. Gs. 
 
 Poste's Elements of Roman Law, — ByGaius. With a Translation 
 and Commentary. Third Edition. By Edwaed Poste, Esq., 
 Barrister-at-Law. Demy 8vo. 1890. 18s. 
 
 Roby's Introduction to the Study of Justinian's Digest, con- 
 taining an account of its composition and of the Jurists used or 
 referred to therein. By H. J. Roby, M.A. Demy 8vo. 1886. 9s. 
 
 Roby's Justinian's Digest.— Lib. VII., Tit. I. De Usufructu, with 
 
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 Demy 8vo. 1884. 9s. 
 
 Or the Two Parts complete in One Volume. Demy 8vo. 18s. 
 
 Sohm's Institutes of Roman Law.— Second Edition. Demy 8vo. 
 1901. 18s. 
 
 Walker's Selected Titles from Justinian's Digest. — Annotated by 
 the late Beyan Walker, M.A., LL.D. 
 
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 Part III. I). G'cuidictionibus. Digest xii. 1 and 4 — 7, and 
 
 Digest xiii. 1—3. Crown 8vo. L881. 6s. 
 
 Walker's Fragments of the Perpetual Edict of Salvius Julianus. 
 Collected and annotated by Bryan Walker, M.A., LL.D. Crown 
 8vo. 1877. 6s. 
 
 Whewell's Grotius de Jure Belli et Pacis, with the Notes of Bar- 
 beyrac and others ; accompanied by an abridged Translation of the 
 Text, by W. Whewell, D.D. 3 vols. Demy 8vo. 1863. 12s. 
 
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 26 STEVENS AND SONS, LIMITED, 
 
 RULING CASES. — Campbell's Ruling Cases.— Arranged, An- 
 notated, and Edited by Robert Campbell, of Lincoln's Inn, Esq., 
 Barrister- at- Law, Advocate of the Scotch Bar, assisted by other 
 Members of the Bar. With American Notes by Irving. Browne, 
 formerly Editor of the American Reports, and the Hon. Leonard A. 
 Jones, A.B., LL.B. (Harv.). Royal 8 vo. 1894-1902. Half vellum, 
 gilt top. Complete in XXVI. Volumes. Price for the set, net, 25/. 
 J" Offered for a limited time at £21 cash with order. 
 
 * m * The Volumes sold separately, net, each \l. 5s. 
 
 I. — Abandonment— Action. 
 
 II. — Action— Amendment. 
 
 III. — Ancient Light— Banker. 
 
 IV.- Bankruptcy— Bill of Lading. 
 
 V.— Bill of Sale— Conflict of Laws. 
 
 VI.— Contract. 
 
 VII. — Conversion — Counsel. 
 VIII.— Criminal Law — Deed. 
 
 IX.— Defamation — Dramatic and 
 Musical Copyright. 
 
 X. — Easement— Estate. 
 
 XL— Estoppel -Execution. 
 
 XII.— Executor — Indemnity. 
 XIII. — Infant— Insurance. 
 
 XIV.— Insurance— Interpretation. 
 
 XV.— Judge— Landlord and Tenant. 
 
 XVI.— Larceny — Mandate. 
 XVII.— Manorial Right— Mistake. 
 XVIII.— Mortgage— Negligen.ee. 
 
 XIX. — Negligen.ee — Partnership. 
 
 XX.— Patent. 
 
 XXI.— Payment— Purchase for Value 
 
 without Notice. 
 XXII.— Quo Warranto— Release. 
 XXIII.— Relief— Sea. 
 XXIV.— Search Warrant— Telegraph. 
 
 XXV.— Tenant-Wills. 
 XXVI.— Table of Cases ; Index. 
 
 THIS SERIES PRESENTS- 
 
 The best English Decisions (in full), 
 
 From the earlier Reports to the present time. 
 
 Grouped under topics alphabetically arranged. 
 
 UNDER EACH TOPIC IS GIVEN- 
 
 A " Rule " of law deduced from the cases ; 
 The early or " leading " case (in full) ; 
 English notes abstracting collateral cases ; 
 American notes. 
 
 THE OBJECT OP THE SERIES IS- 
 
 To state legal principles clearly, 
 
 Through cases of accepted authority, 
 With sufficient annotation 
 
 To aid the application of these principles 
 to any given state of facts. 
 
 Extracts from Press Notices. 
 
 " A Cyclopedia of law .... most ably executed, learned, accurate, clear, 
 concise ; but perhaps its chief merit is that it impresses on us what the practising 
 English lawyer is too apt to forget— that English law really is a body of prin- 
 ciples." — The British Review. 
 
 " One of the most ambitious, and ought to be, when it is complete, one of the 
 most generally useful legal works which the present century has produced." — 
 Literature. 
 
 " A perfect storehouse of the principles established and illustrated by our 
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 " The general scheme appears to be excellent, and its execution reflects the 
 greatest credit on everybody concerned. It may, indeed, be said to constitute, 
 for the present, the high-water mark of the science of book-making." — Sat. Rev. 
 
 " A work of unusual value and interest. . . . Each leading case or group 
 of cases is preceded by a statement in bold type of the rule which they are quoted 
 as establishing. The work is happy in conception, and this first volume shows 
 that it will bo adequately and successfully carried out." — Solicitors' Journal. 
 
 "The English Ruling Cases seem generally to have been well and carefully 
 chosen, and a great amount of work has been expended. . . . Great accuracy 
 and care are shown in the preparation of the Notes." — Law Quarterly Review. 
 
 " The Series has been maintained at a high level of excellence." — 
 The Tim 
 
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 119 & 120, CHANCERY LANE, LONDON, W.C. 27 
 
 SALES. — Blackburn on Sales. A Treatise on the Effect of the Con- 
 tract of Sale on the Legal Rights of Property and Possession in 
 Goods, Wares, and Merchandise. By Lord Blackburn. 2nd Edit. 
 By J. C. Graham, Esq., Barrister-at-Law. Royal 8vo. 1885. II. Is. 
 
 SALVAGE. — Kennedy's Treatise on the Law of Civil Salvage.— By 
 William R. Kennedy, Esq., Q.C. (now a Justice of the High Court). 
 Royal 8vo. 1891. 12s. 
 
 SHERIFF LAW.— Mather's Compendium of Sheriff and Execu- 
 tion Law. Second Edition. By Philip E. Mathee, Solicitor and 
 Notary, formerly TJnder-Sheriff of Newcastle-on-Tyne. Royal 8vo. 
 1903. U. 10s. 
 
 " We think that this book will be of very great assistance to any persons who 
 may fill the positions of high sheriff and under-sheriff from this time forth. The 
 whole of the legal profession will derive great advantage from having this 
 volume to consult." — Law Times. 
 
 " The subject is one of great practical importance, and this edition will be 
 most valuable in the office of sheriffs and solicitors." — Law Journal. 
 
 SHIPPING.— Carver.— Vide" Carriers." 
 
 Marsden's Digest of Cases relating to Shipping, Admiralty, 
 and Insurance Law, down to the end of 1897. — By Reginald 
 G. Maesden, Esq., Barrister-at-Law, Author of "The Law of 
 Collisions at Sea." Royal 8vo. 1899. 11. 10s. 
 
 Pulling's Merchant Shipping Act, 1894. — With Introduction, 
 Notes, and Index. By Alexander Pulling, Esq., Barrister-at- 
 Law. Royal 8vo. 1894. Net, 6s. 
 
 Pulling's Shipping Code ; being the Merchant Shipping Act, 1894 
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