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M. T. 1847. license. Issue joined on the first plea. Replications traversing the Exch.of Pleas.

*** remaining pleas, and issue joined thereon. NOWLAN

The plaintiffs proved the taking by the defendant, and the value of the property. It appeared that Benjamin Gibson deceased, the father of the defendant, had demised the lands in question to one John Nowlan the father of the plaintiffs, for forty-one years from 29th of September 1799. The interest of Benjamin Gibson vested in the defendant, and that of John Nowlan in the plaintiffs, and payment of rent by John Nowlan and the plaintiffs for several years under the lease was proved.

In September 1845 the defendant served on the plaintiffs a notice to quit, in the alternative, requiring possession on the 25th of March or at the end of the year of tenancy next after six months, and as of Easter Term 1846 brought his ejectment thereupon. Defence was taken on the 4th of June, but not in time, and on the same day a judgment by default was entered, and, an habere having issued, possession was taken by the defendant on the 10th of June 1846. But on the 27th of June it was ordered by Burton, J., that the judgment and all subsequent proceedings be set aside, upon terms of paying the costs of marking judgment, the subsequent proceedings and the motion; and that upon payment of such costs, the defence should stand and a writ of restitution issue; and by a further order of the 15th of August 1846, it was ordered that a writ of restitution should issue on terms of forthwith paying the costs awarded by the order of the 27th of June, giving security for costs and furnishing a copy of the plaintiff's lease. A vacate was not entered upon the judgment, but a writ of restitution issued and possession was taken thereunder. This ejectment was not further proceeded with, but the defendant afterwards recovered possession in a new ejectment, brought subsequent to the 29th of September 1846. The plaintiffs proved that the defendant derived under a lease made to his father for nine hundred and ninety-nine years.

The defendant proved that the costs awarded by the order of June 1846 were taxed and demanded, but not paid before the July Assizes. Under these circumstances the jury, by direction of the learned Baron, assessed the damages, and found a verdict for the

defendant; to be turned into a verdict for the plaintiff, if the Court M. T. 1847.

Exch.of Pleas. should think that under the above circumstances he was entitled to

NOWLAN maintain the action; and now

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Martley and F. Meagher moved, pursuant to the reservation at the trial, that a verdict be entered for the plaintiff for the damages assessed; or for a new trial, on the ground of misdirection, and that the verdict was against law and the evidence and the weight of evidence; and contended that the judgment in ejectment was not a bar to this action ; that it was got rid of by the orders of the Court of Queen's Bench and the execution of the writ of restitution; and that, at all events, if the judgment in ejectment could be considered conclusive as a bar to the action, it was not admissible in evidence under a plea of the general issue, but ought to have been specially pleaded by way of estoppel: Taylor v. Horde (a); Doe v. Huddard (6); Vooght v. Wynch (c).

Rolleston and D. Lynch, contra, insisted that the fact of a writ of restitution having been granted did not get rid of the effect of the judgment in ejectment and habere, as it was only granted upon the terms of the present plaintiff's paying the costs of marking judgment and subsequent proceedings; but though the costs were taxed, the plaintiff failed to pay them (d).

Cur. ad. vult.

1848. April 27.

Pigot, C. B.

Three questions arise upon the arguments which have been addressed to us in this case :~First, whether the judgment in the former ejectment could have been so used as to constitute a conclusive defence by way of estoppel to this action ? Secondly, whether the defendant could have successfully relied on the writ of habere under which he entered into possession, as establishing that he was not a trespasser, and consequently that the plaintiff

(a) I Bur. 60.

(6) 2 Cr. M. & R. 316.
(c) B. & Ald. 662.
(d) See Armstrong v. Norton, 2 Ir. Law Rep. 96.

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E. T. 1848. cannot maintain this action by reason of such entry? And thirdly, Exch.of Pleas.

whether the defendant can rely upon either of these defencesNOWLAN

either the estoppel of the judgment, or the protection of the writunder the plea of the general issue ?

In the view which I take of this case it is unnecessary to decide either of the two first questions.

Upon the third the case is to be considered—first, in reference to the judgment ; secondly, in reference to the writ of habere.

First, with respect to the judgment in ejectment—assuming that it was a judgment substantially between the same parties, and that, though a judgment against the casual ejector, it bound the plaintiff, he having been served with the declaration or summons in ejectment–I consider the question closed by authority. It is not, as I conceive, a question now open for discussion, whether, when a party might have concluded his adversary from denying a fact by relying against him on an estoppel, but omits to do so, and takes or tenders an issue upon the fact, he can afterwards rely on the estoppel in evidence. It must be taken now as settled law that if he waives the estoppel, and so pleads as to raise an issue on the fact, the truth of the fact may be found by the jury notwithstanding the estoppel.

This rule of law appears to follow from the nature of an estoppel, and from the obligation of the jury. An estoppel proves nothing ; it only precludes the party from alleging or denying a fact, whether the allegation or denial would or would not be true. When it is relied on in pleading, the question of fact is withdrawn from the jury; there is no issue upon it; the act, the deed or the record, which constitutes the estoppel, or the subject of the averment by which the estoppel is applied, becomes the only matter in controversy for a jury. The question of law arises, to be determined by the Court, whether that matter amounts to an estoppel, precluding the party from affirming a fact which he seeks to establish, or from denying a fact which he seeks to dispute. But when the opposite party, instead of relying on the estoppel by his pleading, takes or tenders issue on the fact to be tried by a jury, the jury (whose obligation is upon their oaths to find the truth according to the evidence) are left at large to perform their sworn duty of so finding. The

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older cases are to be found in Com. Dig. tit. Estoppel, and tit. E. T. 1848. Pleader, S, 5, and in Viner's Abridg. tit. Estoppel, L, 2. The one

NOWLAN recent cases are Outram v. Morewood (a); Vooght v. Wynch (6); Stafford v. Clarke (c); Hooper v. Hooper (d); Magrath v. GIBSON. Hardy (e); Doe v. Huddert (f); Jones v. Reynolds (g).

The words of Lord Tenterden in Vooght v. Wynch (h) show that what is laid down in so many books, about the effect of an estoppel in evidence, must not be taken as law, in the unqualified manner in which it is so stated. His words are these :-“I am aware that in Bird v. Randall, Lord Mansfield is reported to have said, that a “ former recovery need not be pleaded, but will be a bar when in “ evidence. I cannot, however, accede to that; for the very first “thing I learned in the study of the law was, that a judgment “recovered must be pleaded : that has so strongly engrafted itself “on my mind as a general principle, that nothing I have heard in "argument to-day has shaken it."

In Trevivian v. Lawrence (i), this distinction is taken :-“The “Court took this difference, that where the plaintiff's title is by “estoppel, and the defendant pleads the general issue, the jury are “ bound by the estoppel ; for here is a title in the plaintiff that is a "good title in law, and a good title if the matter had been dis“closed and relied on in pleading ; but if the defendant pleads the “ special matter, and the plaintiff will not rely on the estoppel when “ he may, but takes issue on the fact, the jury shall not be bound “ by the estoppel, for then they are to find the truth of the fact “which is against him. Thus, in debt for rent on an indenture “of lease, if the defendant plead nil debet, he cannot give in evi“dence that the plaintiff had nothing in the tenements ; because, “if he had pleaded that specially, the plaintiff might have replied " the indenture and estopped him. And if the defendant pleads

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E. T. 1848. “nihil habuit, &c., and the plaintiff will not rely on the estoppel, Exch.of Pleas.

“but reply habuit, &c., he waives the estoppel, and leaves it at

"large; and the jury shall find the truth, notwithstanding the indenGIBSON. “ture.” The passage is cited by Tindal, C. J., in Magrath v.

Hardy (a); it is observed upon by PENNEFATHER, B., in Armstrong v. Norton (6); and it is adopted by the learned editors of the last edition of Saunders's Reports, p. 325 a, note d.

It is upon the distinction suggested by the rule as laid down in Trevivian v. Lawrence, that, as I understood the defendants Counsel, they mainly relied against the weight of the other authorities. It was said, that the defendant could not have pleaded the judgment in ejectment by way of estoppel, because the right there determined, and the right claimed by the plaintiff in the present action, were not the same. It was argued, as I understood the reasoning, that in the ejectment, the right determined was the title of the feigned lessee of the present defendant to the possession of the land ; and that the right asserted in the present action is the title of the present plaintiff to the possession of the same land ; therefore, the judgment upon the one could not be pleaded as an estoppel against the operation of the other. And if it could not be so pleaded, then (it was contended) the rule laid down in the cases did not apply; and the defendant was entitled to rely on the judgment as concluding the plaintiff, although it was not pleaded, but first appeared in the defendant's evidence.

If the argument were well founded, it would prove, not that the estoppel, though existing, could not be pleaded, but that there is no estoppel at all. For, to use the language of Lord Ellenborough, in Outram v. Morewood (c)—"It is not the recovery, but the matter “alleged by the party, and upon which the recovery proceeds, “which creates the estoppel. The recovery itself, in an action of “ trespass, is only a bar to the future recovery of damages for the “same injury; but the estoppel precludes parties and privies from “contending to the contrary of that point or matter of fact, which,

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