1846.

STEWART

V.

TODD.

ter of estoppel should, at the conclusion, rely on the Queen's Bench. estoppel, it is said to be "not merely matter of form to conclude an estoppel with relying upon it. For by not doing so the party may often lose that advantage of the estoppel which the law gives him:" and Speake v. Richards (a) is cited. The finding of the jury in the former action, not being so relied on, does not get rid of the objection that the judgment was recovered for a sum smaller than that now confessed. Suppose in an action of debt the defendant had waged his law, and had succeeded, and afterwards another action were brought for the debt: he might plead, by way of estoppel, judgment on the wager of law; but, if he confessed the debt, and merely pleaded the judgment on the wager of law by way of avoidance in the common form, he would fail. In Vooght v. Winch (b) Bayley J. said that a former judgment "decides nothing unless by way of estoppel." [Maule J. An ordinary plea in bar need not begin by an express confession. Does not a plea in estoppel confess more than an ordinary plea?] In Stephen on Pleading, 250 (5th ed.), it is said that pleadings in estoppel "are pleadings, which, without confessing or denying the matter in fact, adversely alleged, rely merely on some matter of estoppel as a ground for excluding the opposite party from the allegation of the fact." They pray if the plaintiff shall be admitted to say that defendant was indebted &c.; as in Palmer v. Temple (c). "Every estoppel, because it concludeth a man to allege the truth, must be certain to every intent, and not to be taken by argument or inference;" Co. Litt. 352 b.: and, in the same place, it is said:

(a) Hob. 206. 207. 5th ed. (c) 9 A. & E. 508.

(b) 2 B. & Ald. 662. 670.

VOL. IX. N. S.

3 n

Volume IX. 1846.

STEWART

V.

Todd.

"where the verity is apparent in the same record, there the adverse party shall not be estopped to take advantage of the truth." The question therefore is, whether a recovery of a judgment for 1s. may be made a satisfaction of an admitted debt of 400l. by a general averment of identity of the cause of action. A judgment in an action in one form, as trover, might constitute an answer to an action in another form, as debt; but then the special facts which identify the two should appear on record. In Lacon v. Barnard (a) the plaintiff brought trover for 100 sheep, and the defendant pleaded that plaintiff had sued defendant and S. for taking and driving away one hundred sheep, to which they had pleaded Not guilty as to eleven, and a justification as to eighty nine, on which plaintiff had taken issue, had a verdict, and recovered 2d. damages; and the plea averred that the taking and driving were all one with the conversion now sued upon, and that the judgment was yet in force: and the plaintiff replied that the 2d. was not assessed for the value and the conversion of the sheep, and the taking and driving was not the same trespass, quoad the conversion: and, upon demurrer to the replication, the plaintiff had judgment, by three Judges against one. Here the recovery pleaded is only of damages for a breach of promise. Suppose the former action had been in debt, and the recovery had been only of a shilling damages for the detention. [Tindal C. J. Would that be a good judgment?] The debt might have been paid after action brought. [Maule J. Your argument would be as strong if the damages had been 4001.] In Ashbrooke v. Snape (b) all the

1846.

STEWART

V.

Todd.

Judges agreed that, if a man bound by obligation Queen's Bench. promise to pay the money, assumpsit lies; " and if he recover all in damages, this shall be a bar in debt upon the obligation." Here all is not recovered. [Parke B. Suppose a former judgment were pleaded, not by way of estoppel, and that it was found that nothing was due.] That would be no answer. Down v. Hatcher (a) is a clear affirmance of the principle that a plea which confesses a claim to a certain amount, and sets up satisfaction only by payment of a less amount, is bad. In Beckwith v. Nott (b) it was said: "It is at the discretion of the jury, whether they will find the entire sum in damages, or only so much as is due. But when they give the entire damages, as here, Doderidge said, that it is with an averment that it is given for the entire sum; and it shall be a good bar in a new action on the case upon that promise." Now here the first judgment appears not to be given for all which is admitted to be due. [Maule J. You admit that the judgment might be pleaded as an answer by way of estoppel do you recollect any instance of a plea setting up, by way of estoppel, a judgment in favour of the plaintiff?] There may be none such: where the judgments are for the same sum, the judgment may always be pleaded in bar. But there is no precedent of a plea of judgment recovered by the plaintiff for a smaller sum. An assessment of damages for not performing a contract cannot operate as an extinguishment of a debt. [Maule J. May it not extinguish the right to complain?] It is not so pleaded here. [Maule J Suppose a cognovit for half the amount: might not

:

(a) 10 A. & E. 121.

(b) Cro. Jac. 504. (4th. ed.)

Volume IX. 1846.

STEWART

V.

TODD.

that be full satisfaction?] Not if the full amount were liquidated, as here, by the admission. [Tindal C. J. It would give a remedy against the land.] It might therefore, perhaps, be formally pleaded as accord and satisfaction: but that is not done here. [Platt B. You say that the judgment can be used only as judgment against the plaintiff for all not recovered; and that this should be put as an estoppel.] That is the effect of the argument. Suppose detinue were brought for two cows and two horses, and judgment were recovered for the two cows: would that be pleadable in bar in an action of trover for the two horses? It could not be shewn by way of confession and avoidance, though possibly it might by way of estoppel. If, in the first action, there had been a plea denying the plaintiff's property in the horses, and a verdict on that for the defendant, such a verdict might have been pleaded as an estoppel, but not by way of confession and avoidance.

Butt, in reply. The defence is properly pleaded, because it was necessary to aver identity of causes of action, which averment is traversable: and this was the form in King v. Hoare (a) and Lord Bagot v. Williams (b). "If the whole rights and merits of the case have been discussed and determined in one action, the judgment in it may be pleaded in bar to the other;" note (1) to Wilbraham v. Snow (c). In Lacon v. Barnard (d) the record shewed that the first recovery was not in respect of the subject matter of the second action. The authorities cited to shew that an estoppel cannot be

(a) 13 M. & W. 494.

(c) 2 I'ms. Saund. 47 bb, cc.

(b) 3 B. & C. 235. (d) Cro. Car. 35.

relied on unless formally pleaded are inapplicable: the Queen's Bench. defence here is that the debt is merged in the judgment.

1846.

PARKE B., in this term (November 11th), delivered the judgment of the Court.

The question in this case arises on a writ of error from a judgment of the Court of Queen's Bench non obstante veredicto, on a plea in an action of debt on simple contract for 400l. As to 431. 6s. 9d., there was a plea of payment; as to the residue, 356l. 13s. 3d., a plea &c. (His Lordship here read the 3d plea). There was a replication to this plea, that the residue of the causes of action in the declaration mentioned were not the causes of action in the third plea mentioned, in respect of which the judgment was recovered: and on this issue the jury found for the defendants, that the residue of the causes of action in the declaration mentioned were the residue of the causes of action in the said plea mentioned, and for and in respect of which the judgment was recovered. There was another similar plea, stating the payment of the sum recovered, with a similar replication, and a verdict thereon for the defendants; and several pleas, the issues on which were found for the plaintiffs. On a motion for judgment non obstante veredicto, the Court of Queen's Bench thought the plea was not a good answer to the part of the declaration to which it was pleaded, because, a debt certain to the amount of 356l. 13s. 3d. being admitted, the difference between that sum and the amount for which judgment was recovered, viz. 3147. 8s., was wholly unanswered.

It is to be observed that the plea is not in the ordinary

Todd.