Page:Black's Law Dictionary (Second Edition).djvu/451

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ESTOPPEL

when parties, by deed or solemn act in pois, agree on a state of facts, and act on it, neither ahaii ever afterwards be aliovred to gainsny a fact so agreed on, or be heard to dispute it; in other words, bis mouth is shut, and he shaii not sly that is not true \\iliE‘i] he had before in a solemn manner asserted to be true. Armfield v. Moore, 44 N. C. 157.

—Collateral estoppel. The coilateral determination of a question by a court having xenerai jurisdiction of the suhject See Smaii v. llaskins, 726 Vt. 2U9.—Equitn.lile estoppel (or I§i_Uppei by conduct, or in puis) is the species of estoppei which equity puts upon a person who has made a false representation or o coneeaiment of material facts, with i(l.I0\.\'i(:‘(i_’:@ of the facts. to a party ignorant of the truth of the matter, with the intention tiiat the other party shouid act upon ‘ d with the result thnt such party is actiia y induced to act upon it_. ‘ iininge.


Bigelow, l top. 484. And see le l‘.inl-.ing Co. v. As er. (35 S. W. 831. Ky. Law Rep. ilitll-, Bank v. Marston, 85 c. . . Atl. 5 ltiehinan v. Baldwin. 21 l\'. J. Law, 403: I ‘id Co. v Perdne. 40 W. Va 4-12, 2] S. E. —Estop1Je1 by deed is where a party has exeultcd rt l1ll"(I. that is, a writing under seal (as a bond) reciting a eerrain fact, and is thereby precluded from after- \7lfl|'(iS denying, in any action brought upon that instrument, the fact so recited. ‘ 197.

Steph. Pi. A man shall alw-iys be cstopped by his own deed, or not permitted to aver or prove anivtliing in contradiction to what he has once so solemn- ly and deiiherateiy avowed. 2 Bl. Comm. 2 Plowd. 434: Hudson v Winslow Tp '\l Law, 441: Tuggm-t v. Risley. 4 Or. , An pm] of Waters, 35 Pa . ‘W’. 78 Am. Dec 354. —EsI:u1Jpel by election. An estoppei predicated on a voluntnrv and intelligent action or choice of one of several things which is inconsistent with another, the effect of the estoppel being to prevent the partv so choosing from afterwards reversing his election or disputing the state of nflfairs or rights of others resulting from his original ch ' e. Yates v. Hurd. S Coio. 343. 8 Pac. 51.: --Estoppel by judgment. The estoppel raised by the rendition of a valid judgment by a (onrt having jurisdiction, which prevents the parties to the action, and ali who are in privity with them. from after- wards disputing or drawing into controrc-rs_v the particular facts or issues on which the judgment VlflS based or which were or might have ' I

toppel by the conduct or admissions of the party; an cstoppei not arising from deed or matter of record. Thus, where one man has accepted rent of another, he will be estopped from afterwards denying, in any action with that person. that he was, at the time of such acceptance, iiis tenant. Steph. Pi 197. The doctrine of esloppels in pals is one which, so for at ieast as tiirit term is concerned. has grown up chieflv nithin the last few vears. But it is, and a uays was. a famiiiar principie in the law of contracts. It iies_ at the foundation of

rnorais, and is a cardiu.i1 point in the exposition of promises, that one shall be bound by the state of facts which he has induced another to act upon. Iterlfield, C. J., Strong v. Elisworth,

And see n

'35 Vt. 360, it Bank v. Ford. Conn. Am. Dec. I‘

Davis v. Davis, 26 Cal. a _ 83 Am. Dec lo . Bnnl: v. Dean. 60 N Y. Siiper. Ct. 299. 17 N. Y. Supp. 3: Coogler \'. Rogers. 25 Fla. 5453, 7 South. 301: i\l9l'cil1l!.llS' Nat. Bank v. State Nat. Bank. 10 ‘Vail. li- ly v. Wattersoii. 3!) Vi .. , . Barnard v. Seminary. 49 Mich. 444. 8l1.—I-Jstoppel by matter of record. An estoppel founded upon matter of accord; as a confession or admission made in pleading in a

West Winstesd S-iv. U

443


ESTRAY

court of record, wbich preciudes the party from afterwards contesting the same [act in the same suit. Steph. Pl. 197.—Estuppel by verdict. This term is sometimes applied to the estoppei arising from a former adjudication of the some fact or issue between the same parties or their privies. Chicago Theologicai Seminary v. Peo- ie. 189 I . 39, 59 N. . 977 Sivan]: v. {ailivay 61 Minn. 423, G3 3.. W. 1088. But this use is not correct, as it is not the verdict which creates an estoppel, but the judgment, and it is immateriai whether a jury participated in the triai or not.

t‘.

In pleading. A plea, replication, or other pleading, which, without confessing or denying the matter of fact adversely aileged, reiies merely on some matter of estoppei as a ground for exciuding the opposite party from the allegation of the fact. Steph. Pl. 219; 3 Bl. Comm. 30S.

A plea which neither admits nor denies the facts alleged by the plaintiff, but denies his right to allege them. Gould. I'l. c 2. § 30.

A special plea in bar, which happens where ii man has done some not or excl nted some deed which precludes him from averring any- thing to the eontrary. 3 Bl. Comm. 308.

Eatovex-la. aunt in-rlendi, armidi, conntrnendi et cleurlendi. 13 COKE. 68. E5- tovers are of firetiote. plow-bote, house-bote, and hedgebote.

ESTOVERIIS HALBENDIS. A Writ for

1 wife judicially separated to recover her alimony or estovers. Olisoiete.

ESTOVERS. An allowance made to a person out of an estate or other thing for his or her support, as for food and rainient.

An aiiowanee (more commonly called “all- mony") granted to a Woman divorceil a molten et more, for her support out of her husband's estate. 1 Bl. Comm. 441.

The right or privilege which :1 tenant has

to furnish himself with so much wood f1'om the demised premises as may be sufficient or necessary for his fuel, fences, and other agricnitnrai operations. 2 Bl. Comm. 35; Woodf. Landi. & Ten. 232: Zimniernian v. Shrecve, 59 Md. 3633; Lawrence v. Hunter, 9 Watts (Pa.) 78; Livingston v. Reynolds. 2 Hill (N. Y.) 159. —Commnn of estovers. A liberty of taking necessary wood for the use or furniture of ii house or farm from off nnother's estate, in com- mon with the owner or with others. 2 Bi. Comm. 35.

ESTRAY. Cattle whose owner is iin- known. 2 Kent, Comm. . Spclman: 20 Iowa, 437. Any heast. 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 wandering beast whose owner is nnknuwn to the person who takes it up. An estray is an aniinai that has es:-sped from its owner, and wanders or strays about; usually defined, at common iiiw, as a wandering animal whose owner is unknown. An animal cannot he an 1-stray \\ hen

on the range where it was raised, and peimitted