KFLCC Kingdom Law 2nd Ed.

443

ESTOPPEL

ESTRAY

court of record, which precludes the party from, afterwards contesting the same fact in the same suit. Steph. PI. 197.— Estoppel by verdict. This term is sometimes applied to the estoppel arising from a former adjudication of the same fact or issue between the same parties or their privies. Chicago Theological Seminary v. Peo ple, 189 111. 439, 59 N. E. 977; Swank v. Railway Co., 61 Minn. 423, 63 N. W. 1088. But this use is not correct, as it is not the ver dict which creates an estoppel, but the judg ment, and it is immaterial whether a jury par ticipated in the trial or not. In pleading. A plea, replication, or oth er pleading, which, without confessing or denying the matter of fact adversely alleged, relies merely on some matter of estoppel as a ground for excluding the opposite party from the allegation of the fact. Steph. PI. 219; 3 Bl. Comm. 308. A plea which neither admits nor denies the facts alleged by the plaintiff, but denies his right to allege them. Gould, PI. c. 2, § 39. A special plea in bar, which happens where a man has done some act or executed some deed which precludes him from averring any thing to the contrary. 3 Bl. Comm. 308. Estoveria sunt ardendi, arandi, con strnendi et claudendi. 13 Coke, 68. Es tovers are of fire-bote, plow-bote, house-bote, and hedge-bote. A writ for a wife judicially separated to recover her ali mony or estovers. Obsolete. An allowance made to a person out of an estate or other thing for his or her support, as for food and raiment. An allowance (more commonly called "ali mony") granted to a woman divorced a mensa et thoro, for her support out of her husband's estate. 1 Bl. Comm. 441. The right or privilege which a tenant has to furnish himself with so much wood from the demised premises as may be sufficient or necessary for his fuel, fences, and other agri cultural operations. 2 Bl. Comm. 35; Woodf. Landl. & Ten. 232; Zimmerman v. Shreeve, 59 Md. 363; Lawrence v. Hunter, 9 Watts (Pa.) 78; Livingston v. Reynolds, 2 Hill (N. Y.) 159. — Common of estovers. A liberty of taking necessary wood for the use or furniture of a house or farm from off another's estate, in com mon with the owner or with others. 2 Bl. Comm. 35. Cattle whose owner Is un known. 2 Kent, Comm. 359; Spelman; 29 Iowa, 437. Any beast, not wild, found with in any lordship, and not owned by any man. Cowell; 1 Bl. Comm. 297. Estray must be understood as denoting a wan dering beast whose owner is unknown to the person who takes it up. An estray is an animal that has escaped from its owner, and wanders or strays about; usually denned, at common law, as a wandering animal whose owner is unknown. An animal cannot be an estray when on the range where it was raised, and permitted ESTOVERIIS HABENDIS. ESTOVERS. ESTRAY.

when parties, by deed or solemn act in pais, agree on a state of facts, and act on it, neither shall ever afterwards be allowed to gainsay a fact so agreed on, or be heard to dispute it; in other words, his mouth is shut, and he shall not say that is not true which he had before in a solemn manner asserted to be true. Armfield v. Moore, 44 N. C 157. — Collateral estoppel. The collateral deter mination of a question by a court having gen eral jurisdiction of the subject. See Small v. Haskms, 26 Vt. 209.— Equitable estoppel (or estoppel by conduct, or in pais) is the species of estoppel which equity puts upon a person who has made a false representation or a conceal ment of material facts, with knowledge of the facts, to a party ignorant of the truth of the matter, with the intention that the other party should act upon it, and with the result that such party is actually induced to act upon it, to his damage. Bigelow, Estop. 484. And see Louisville Banking Co. v. Asher, 65 S. W. 831, 23 Ky. Law Rep. 1661; Bank v. Marston, 85 Me. 488, 27 Atl. 529; Richman v. Baldwin, 21 N. J. Law, 403; Railroad Co. v. Perdue, 40 W. Va. 442, 21 S. E. 755.— Estoppel by deed is where a party has executed a deed, that is, a writing under seal (as a bond) reciting a cer tain fact, and is thereby precluded from after wards denying, in any action brought upon that instrument, the fact so recited. Steph. PI. 197. A man shall always be estopped by his own deed, or not permitted to aver or prove anything in contradiction to what he has once so solemn ly and deliberately avowed. 2 Bl. Comm. 295; Plowd. 434; Hudson v. Winslow Tp., 35 N. J. Law, 441; Taggart v. Risley, 4 Or. 242; Ap peal of Waters, 35 Pa 526, 78 Am. Dec. 354. — Estoppel by election. An estoppel predi cated on a voluntary and intelligent action or choice of one of several things which is incon sistent with another, the effect of the estoppel being to prevent the party so choosing from afterwards reversing his election or disputing the state of affairs or rights of others resulting from his original choice. Yates v. Hurd, 8 Colo. 343, 8 Pac. 575— Estoppel by judg ment. The estoppel raised by the rendition of a valid judgment by a court having jurisdiction, which prevents the parties to the action, and all who are in privity with them, from after wards disputing or drawing into controversy the particular facts or issues on which the judg ment was based or which were or might have been litigated in the action. 2 Bl. Judgm. § 504; State v. Torinus, 28 Minn. 175, 9 N. W. 725.— Estoppel by matter in pais. An es toppel by the conduct or admissions of the par ty; an estoppel not arising from deed or mat ter of record. Thus, where one man has ac cepted rent of another, he will be estopped from afterwards denying, in any action with that person, that he was, at the time of such ac ceptance, his tenant. Steph. PI. 197. The doc trine of estoppels in pais is one which, so far at least as that term is concerned, has grown up chiefly within the last few years. But it is, and always was, a familiar principle in the law of contracts. It lies at the foundation of morals, and is a cardinal point in the exposi tion of promises, that one shall be bound by the state of facts which he has induced another to act upon. Redfield, C. J., Strong v. Ellsworth, 26 Vt. 366, 373. And see West Winstead Sav. Bank v. Ford, 27 Conn. 290, 71 Am. Dec. 66; Davis v. Davis, 26 Cal. 38, 85 Am. Dec. 157; Bank v. Dean, 60 N. Y. Super. Ct. 299, 17 N. Y. Supp. 375; Coogler v. Rogers, 25 Fla. 853, 7 South. 391; Merchants' Nat. Bank v. State Nat Bank, 10 Wall. 645, 19 L. Ed. 1008; Han ly v. Watterson, 39 W. Va. 214, 19 S. E 536; Barnard v. Seminary, 49 Mich. 444, 13 N. W. 811.— Estoppel by matter of record. An estoppel founded upon matter of record; as a confession or admission made in pleading in a