deed, received part of the purchase money and 46. A was confessedly the owner of a cerfraudulently concealed his own claim;-Held, tain number of acres off the south end of a lot at law, that he was estopped from setting up of land, and B of the balance of the lot, but the his claim against the second grantee. Icers v. parts were not distinguished by any line or Chandler, 1 D. Chip. 48. S. C., N. Chip. 61. boundary. They employed a surveyor to run 40. B, a second mortgagee, stood by and and mark the line between them, and he, by saw the mortgagor induce A, a first mortgagee, mere mistake of measurement or calculation, to release his mortgage and take an assignment ran and marked the line too far south. Held, of another security which he supposed to be that the parties were not concluded therebynext to his own, but which was in fact subse- the true boundary not being disputed, indefinite, quent to B's mortgage. B was an attesting or uncertain. Burnell v. Maloney, 39 Vt. 579. witness to the assignment, and for a long time 47. It is indispensable to the creation of an treated it as prior to his own claim, and led A estoppel by representations, that the party to into that belief. Held, that such substituted whom the representations are made, should rely security should be preferred to B's mortgage. and act upon them. Ib. Stafford v. Ballou, 17 Vt. 329. 48. Where A, using an alley as a way to his 41. Where the defendant, occupying the lot, saw B erecting a barn across the alley so as position of a mortgagor, had surrendered the entirely to close the same, without objection or premises to the orator, who occupied the posi- notice of any claim of right in the alley, but tion of a mortgagee and had paid for them their protested against extending the building four full value, and the orator had conveyed the inches upon A's lot ;-Held, that A was estopped property with covenants of warranty, being from thereafter claiming a right of way in the induced by the acts, declarations and conduct alley against B and his grantees. Dodge v. of the defendant so to do, and upon the pro- Stacy, 39 Vt. 558. fessed surrender by the defendant of all claim 49. A parol declaration or stipulation of the to the premises ;-Held, that the defendant was former owner of lands as to his possession,—as estopped from asserting any claim to the prem- that he should not claim the land by possession, ises, or right to redeem them, after they had-does not estop his grantee, who took his deed become enhanced in value. Wheeler v. Willard, while his grantor was in possession and without 44 Vt. 640. knowledge of such stipulation. Hodges v. Eddy, 41 Vt. 485. 42. Effect upon one's title as mortgagee in lands, by silence as to his claim, when he wit 50. A party occupying lands by consent of nesses the sale to another as free from any another, is estopped from setting up an adverse claim, reads and witnesses the deed, and knows title in an action against him for use and occuthat the purchaser believes it to be unincum-pation. Clough v. Horton, 42 Vt. 10. bered-see Miller v. Bingham, 29 Vt. 82, 89. 51. A party may vary his liability and rights 43. The rule as to an estoppel in pais appli- as fixed by a written contract, by what he may cable to personal property, was held, in an action agree or do after the making of it, and so as to of ejectment, to apply equally to real property, be estopped from insisting upon the interpretaand a title of record was defeated thereby. tion apparent on its face. Montpelier & Wells Shaw v. Beebe, 35 Vt. 204. |River R. Co. v. Langdon, 45 Vt. 137. 44. An estoppel in pais, as affecting a legal 52. Requisites. An estoppel in pais exists title, is quite as effectual in a court of law, as where a party makes a statement to another, in a court of equity. A resort to equity, in which that other relies and acts upon, and such case, was held unwarranted. Vt. Copper which it would be a fraud in the party making Mining Co. v. Ormsby, 47 Vt. 709. the statement to afterwards controvert, so far as 45. Where A and T owned certain land in the statement affects the other's pecuniary common, and their respective titles were spread rights. Aldis, J., in Shaw v. Beebe, 35 Vt. upon the town records, and T mortgaged the 208. entire premises, and A being present drew up 53. A man who has induced a course of and signed the mortgage note as surety for T, action in another by his conduct or declarations, and drew the mortgage, filled up the certificate must stand by them, whether true or false. of acknowledgement, and witnessed the execu- Redfield, J., in Soper v. Frank, 47 Vt. 368. tion of the mortgage ;-Semble, that the mort- 54. If one man has made a representation, gagee and his assignee were chargeable with which he expects another may or will act upon, notice of the real title of T, and that A would and the other does in fact act upon it, he is estopnot be estopped from setting up his title, there ped to deny the truth of the representation. This being no legal fraud; and held, that the defend- is in order to preserve good faith and prevent ant's levy of an execution upon the share of A fraud, and is almost the only ground of an esin the land, as it appeared on the records, was toppel in pais. Redfield, J., in Hicks v. Cram, good as against the mortgage, Bigelow v. 17 Vt. 455. 45 Vt. 137. Topliff, 25 Vt, 273, 55. Thus, where one suffered himself to be held out to the world as a partner in a firm, he|—Held, that his omission to give notice of such was held liable for all debts contracted by the facts to the holder and of his intention to avail firm upon the joint credit of themselves and himself thereof, was not a waiver of such dehim. Ib. 449. See Davis v. Bradley, 24 Vt. fense, where the holder had not been induced 64. to alter his course by not having notice. Russell v. Buck, 14 Vt. 147. 56. So, when A, knowing that B was proposing to purchase a piece of land adjoining A's 62. A promise by a debtor to an assignee to land, pointed out to B the division line, and B pay the claim assigned, but which was made made his purchase relying upon A's represen- without consideration, and was not made a tations as to the line, A is estopped from dis- ground of action, and which the assignee had puting B's title up to that line. Spiller v. Scrib- not been induced to act upon to his prejudice, ner, 36 Vt. 245. Halloran v. Whitcomb, 43 Vt. was held not to operate as an estoppel to the 306. setting up, in equity, of an equitable set-off against the assignee, which existed against the assignor at the time of the assignment. Foot v. After the 57. By arrangement between the defendant (the maker of a promissory note indorsed to the plaintiff bank), and F (the president of said Ketchum, 15 Vt. 258. bank), it was for F to pay the note. When the 63. The plaintiff was in possession of three note fell due, the defendant and his indorser cows, two of which the defendant, an officer, called at the bank to attend to it, and they were attached upon a writ in favor of G. then told by the bank's cashier that F had attachment, but before sale on the attachment, informed him that the note was for F to pay, the plaintiff told G's attorney that he owned all and that F had directed it to be charged to him three of the cows. Afterwards, but before the in his account with the bank, and that this had sale, he told the defendant that one of the cows been so done, and they need give themselves attached belonged to his father, and the other no further trouble about it. Relying upon this was his own, and was his last and only cow, as true, the defendant afterwards paid over to and forbade the sale of it; but the defendant Fa sum of money belonging to him in the proceeded to sell it. In an action of trespass defendant's hands, nearly enough to satisfy the for the taking and conversion of the cow;note. In fact, F had not paid the note, and Held, that the plaintiff was not estopped by his it was not charged to him in his account with declaration to G's attorney, from claiming that the bank, and he died insolvent Held, that this was his last and only cow; because, rethe bank was estopped from recovering upon garding the attachment as the trespass, the the note, even any balance which might be due admission was made subsequent to it, so that from the defendant to F upon a settlement of accounts, although the cashier did not know, when he made those representations, that the defendant had F's money in his hands. Manufacturers' Bank v. Scofield, 39 Vt. 590; and see Hickok v. Farm. & Mech. Bank, 35 Vt. 476. 58. To give one's declaration the force of an estoppel in pais as against his claim, it should appear that such declaration was made with the intent of leading the other party to believe that such claim would not be enforced, and thereby such party has been led to do, or to omit to do, something in regard thereto that has been to his injury. White v. Langdon, 30 Vt. 599. Strong v. Ellsworth, 26 Vt. 366. the attachment could not have been made on the faith of it; and, regarding the sale as the trespass, the defendant took the risk as to which of the declarations of the plaintiff should prove to be true. Robinson v. Hawkins, 38 Vt. 693. 64. The defendant, administrator of a lessee of a farm and of stock in which the estate of the intestate had some interest, while proceeding to have the stock appraised and inventoried, inquired of the plaintiff (the lessor) if he claimed any of the property, and the plaintiff replied that he had no interest in it; whereupon the defendant proceeded and had the appraisal and inventory made, and returned and accepted by 59. An equitable estoppel, or estoppel in the probate court; but before the defendant pais, cannot be set up, unless it appears that had sold any of the property, the plaintiff the action of the party setting it up was influ- claimed it of him and forbade the sale. In an enced by the act, declaration or omission action of trover for a subsequent sale;-Held, claimed to constitute the estoppel. Wooley v. that the plaintiff was not estopped of his claim. Edson, 35 Vt. 214. Turner v. Waldo, 40 Vt. 51. 60. The declarations of a party cannot ope- 65. Assumpsit for two yoke of oxen that rate as an estoppel in favor of a person having the plaintiff claimed to have sold to the defend. no knowledge of them, and consequently in no ant, through the plaintiff's agent. The defendway misled by them. Bucklin v. Beals, 38 Vt. ant claimed that he bought the oxen as the 653. agent of his son, and that the plaintiff's agent 61. Where the conditional guarantor of a knew this at the time of the trade. The plainnote became acquainted, after his guaranty, tiff called on the defendant for pay, and the with facts which constituted a defense for him; defendant replied that he could not pay the money, but offered his note, and said nothing collateral security for such new obligation indicating that the debt belonged to his son to assumed by A. In an action upon the note pay. The plaintiff, in reply, said it was a cash brought for the benefit of A;-Held, that the trade and he wanted the money, and refused defendant was not bound by the admission so the note. The defendant's son afterwards made by him, by reason of A's suppression of became bankrupt. It not appearing that the the fact that the debt was paid for which it had defendant then understood that the plaintiff been first given as collateral; and that the claimed that he was primarily liable, nor that plaintiff could not recover. the conduct of the plaintiff was influenced by geant, 18 Vt. 371. Sargeant v. Sarthe admissions or conduct of the defendant ;— 71. Where one is inquired of as to a matter Held, that the defendant was not estopped in respect to which his answer may affect his from denying his liability. Ripley v. Billings, pecuniary interest, he has a right to know 46 Vt. 542. whether the person making the inquiry has an 66. A party is not bound or estopped by an interest which entitles him to make it, and admission or statement, when made in good what the object of the inquiry is, and that the faith, or under a mistaken impression of its answer will be relied upon. Unless so informed, nature or extent in fact. In order to an estoppel and where he may think that mere inquisitivethereby, it must appear affirmatively that the ness, or idle or impertinent curiosity prompts declarations were made with an intent to induce the question, then his answers should not a line of conduct which the other party would affect his legal rights, or pecuniary interests. not otherwise have taken, and that in reliance Hackett v. Callender, 32 Vt. 97. upon those declarations that line of conduct 72. H purchased and paid for land, taking was pursued-so that, if the fact stated or ad- a deed in the name of F, but took and mainmitted were allowed to be disproved, it would tained possession as apparent owner. W, an operate as a fraud and injury to the party rely- attorney, having for collection a demand against ing upon it. Wakefield v. Crossman, 25 Vt. H, inquired of him if he owned the land, and H replied that it belonged to F. Afterwards, 298. 67. No party is estopped by an admission W, having a demand for collection against F, made in ignorance of his rights, induced by an innocent mistake of facts in material points. Thrall v. Lathrop, 30 Vt. 307. again inquired of H if he had any claim to the land, and H answered substantially that he had not, but the land belonged to F; whereupon 68. An estoppel in pais was held not to W attached it for the debt of F and set it off on apply to a case where there was no intent to execution. It appearing that W made no disdeceive by the representations made, and where closure to H of the object of his inquiry, and the party's attention was not called to the that his intent was to keep H ignorant of his material fact in question. Church v. Fair-purpose ;-Held, in a bill by H to enjoin the brother, 38 Vt. 33. setting up of such levy, that he was not con 69. A party cannot be covertly led into a cluded by his answer so, under the circumdeclaration which shall operate as an estoppel stances, given, and that they were not sufficient in pais, or equitable abandonment of a claim, a to rebut the notice of equitable title raised by kind of perpetual disclaimer. In order to this, his possession. Ib. he should be made fully aware of the interest of the party making the inquiry, or that the declaration is going to be, or will be likely to be, relied upon by some one. Wooley v. Chamberlain, 24 Vt. 270. V. PLEADING, and Giving In EVIDENCE. 73. Matter of estoppel, not relied on as such in the pleadings, cannot be urged to the 70. The defendant gave the plaintiff a exclusion of evidence of fraud in procuring the promissory note for bis accommodation and instrument claimed to be an estoppel. Sawyer without consideration, to be used by him as v. Hoyt, 2 Tyl. 288. collateral security for his debt to A, and it was 74. Where the matter does not amount to a so used. The plaintiff paid that debt. After- full and complete estoppel, and cannot be wards, and while the note was overdue, A, pro- pleaded as such, or the party has no opportunity posing to take the same note as collateral secur- to plead it, he may show it in evidence. Dorset ity for a new obligation for the plaintiff, v. Manchester, 3 Vt. 370. inquired of the defendant whether the note was 75. Where a party has opportunity to plead due and whether there was any offset to it, but matter in estoppel, he is bound so to plead it; did not inform him that the debt for which it and, if he omits it, the jury will not be bound was originally used as collateral was paid, nor by the estoppel, but may find according to the did the defendant know that fact. The defend- fact. If, however, there has been no opporant replied that the note was due, and that tunity to plead the matter as an estoppel, it there was no offset to it. Thereupon A took may, in general, be given in evidence, and it an assignment of the note from the plaintiff as will have the same conclusive effect as in cases where it is pleaded. Isaacs v. Clark, 12 Vt.[ 692; and see 17 Vt. 419. 19 Vt. 144. 35 Vt. 530. Lord v. Bigelow, 8 Vt. 445. 76. A party cannot be estopped to plead the general issue. An estoppel can be replied only where the defendant pleads some particular fact or matter as to which he is concluded as party, or privy. On trial under the general issue, the matter relied upon as concluding the defendant can only be given in evidence. v. Cook, 2 Aik. 342. Fry 77. Where a former adjudication is relied upon as having determined the entire merits of the controversy now in hand, it need not be pleaded as an estoppel, but may be treated as an equitable defense, like payment, &c., and in some actions, as assumpsit, &c., may be given in evidence under the general issue; in others, as trespass, &c., it need only be pleaded as in any other plea in bar, and not as an estoppel. Gray v. Pingry, 17 Vt. 419. 1. Measure of proof. There is no middle where the evidence to warrant a conviction must exclude all reasonable doubt, and that of ordinary civil cases, where a bare balance suf 78. The greatest strictness is required in pleading, estoppels. Every fact necessary to I. NATURE, Kinds and Effect, in General. create the estoppel must be alleged with the strictest certainty, and that all these facts appear by the record which is vouched as an estoppel; rule of evidence between that of criminal cases, and the plea in its conclusion must rely upon the estoppel. The court then determines the matter on inspection of the plea, if demurred to, or of the record, if that be denied. Ib. fices. But in civil cases, whenever the act 79. Where a former adjudication is relied alleged involves fraud, dishonesty or crime, the upon as settling some collateral fact involved legal presumption of innocence which prevails in the present trial, and this is pleaded in estop- equally in all cases, criminal or civil, must be pel, it must appear by the record of the former overcome by evidence by the party who asserts judgment vouched in the plea, in order to be the contrary. The stricter rule applied to conclusive, that that fact was put distinctly in criminal trials is on account of the penal conissue and was determined. Ib. sequences of a conviction. Bradish v. Bliss, plied to an action of trespass for burning a barn, which involved the crime of arson. Ib. ;-and to an action of slander, where the plea justified charge of forgery. Briggs v. Cooper. Ib. 329. 80. In order to estop a party from proving 35 Vt. 326. a fact because the fact had been found against 2. This ordinary rule in civil cases was aphim in a former suit, it must appear that the precise question was adjudicated in such suit. If, from the record relied upon, it appears possible that the question was left undecided, there is no estoppel, for an estoppel must be certain to every intent. Aiken v. Peck, 22 Vt. 255. EVIDENCE. 3. Good character. Evidence of general good character is not admissible in defense in civil causes, except where the question of character is directly in issue and material to the amount of damages, -as in slander, and seduction. Aldis, J., in Wright v. McKee, 37 Vt. 161. I. NATURE, KINDS AND EFFECT, IN 4. Held, not admissible in an action of tro- II. III. TIVE. PRESUMPTIONS-BURDEN OF PROOF. IV. ADMISSIONS AND DECLARATIONS. V. HEARSAY. 1. In general. 5. Affirmative. As a general rule, other things being equal, affirmative testimony is entitled to more weight than negative. Bates v. Cilley, 47 Vt. 1. Barrett, J., in Hine v. 2. Declarations of deceased per- Pomeroy, 39 Vt. 219. son8. 3. Recital in deed. 4. Reputation. 6. The prisoner claimed that on a day named he was at a circus at B, and returned to R on the midnight train. As tending to contradict this;-Held, that the State might show by a habits for industry and sobriety was admissible. witness, who knew the prisoner, that he Hard v. Brown, 18 Vt. 87. attended the circus at B that day and returned 14. Where, as to a person coming from to R on the midnight train, was in and out of abroad and stopping at a particular place, the the circus several times and went through the question was, what was the character of his train, and did not see the prisoner. State v. Phair, 48 Vt. 366. II. CIRCUMSTANTIAL AND CORROBORATIVE. stay or abode at a particular time-whether temporary, merely, or permanent with a purpose and intent to make that his residence or home-his continuing to reside or board there after the date in question, was held admissible, 7. Relevancy-General rule. All facts as tending to show a purpose to remain there and circumstances upon which any reasonable from the beginning. Hulett v. Hulett, 37 Vt. 581. presumption or inference can be founded as to 15. Where the question was, whether or not the truth or falsity of the issue, or disputed one coming from the State of New York into fact, are admissible in evidence. Richardson this State had changed his domicile, evidence v. Royalton, &c., T. Co., 6 Vt. 496. that during his stay in this State he continued 8. Application. Where the defendant was to pay, in the State of New York, taxes upon under a written contract not to sell certain prop- his personal property, was held admissible, erty without giving the plaintiff ninety days' though in the absence of evidence as to the law notice, and likewise allowing him a preference of New York on the subject of taxation. Ib. in the purchase ;-Held, that such notice might 16. Evidence of a promise to pay a debt, be proved by circumstances, as also a waiver of not effective to take the case out of the statute such notice and preference. Wood v. Stewart, of limitations because not in writing, was admitted as tending to prove the original indebtedness-the judge so limiting the effect of the promise in his charge. Held correct. Brewin v. Farrell, 39 Vt. 206. 7 Vt. 149. 9. If one receives of another several chattels at the same time and under like circumstances, and uses and sells a part as his own, with the knowledge of such other and without claim on his part, this, as evidence of ownership of a part, is evidence as to all. Moon v. Hawks, 2 Aik. 390. 17. A fact that illustrates, as by an experiment, the condition of the subject matter of the issue in controversy, is not collateral to that issue, but is direct evidence bearing upon it-as, the condition of a highway, where the question is as to its sufficiency. Walker v. Westfield, 39 Vt. 246. Kent v. Lincoln, 32 Vt. 10. The poverty of an execution debtor was held admissible in evidence, as having some tendency to prove that the execution might have been delivered to the officer, with instructions 591. not to commit the debtor without express direction. 262. Downer v. Bowen, 12 Vt. 452. 17 Vt. 18. To prove the fact that B had purchased of A, and was the owner of, certain tan-bark delivered by A at B's tannery, evidence was 11. Where the plaintiff's testimony was that held admissible (A being dead), that immediately a certain lot of wood was mostly unsound, rot- after such delivery, A, on coming from the ten and crooked ;— Held, that it was competent direction of the tannery to a store a few rods for the defendant, in contradiction, to show distant, exhibited to the witness a note, signed that the standing timber from which the wood by B alone, for a sum which was the value of was cut was a good fair lot of timber. Green the bark. Henry v. Huntley, 37 Vt. 316. v. Donaldson, 16 Vt. 162. 19. The fact that a child at its birth had 12. In an action for services, the defense spasms and convulsions was allowed to be was that they were rendered under a special proved, as tending to show the condition and contract for a definite time, and that the plain-health of the mother during the latter part of tiff quit such service. The parties disagreed in her time of pregnancy, as affected by a personal their testimony, as to the terms of the contract. injury. Held correct. Earl v. Tupper, 45 The plaintiff was allowed to prove that the Vt. 275. defendant had said, that the plaintiff had left 20. The note sued upon being properly in him, "and he should set his long head to work evidence, and bearing an indorsement of part to cheat him out of what he had done." Held payment in the handwriting of the plaintiff, admissible; (1), as impeaching the testimony with other evidence of such payment and inof the defendant; (2), as tending to show the dorsement, the court charged that if the indorsedefendant's understanding of the contract. Hill ment was made in good faith and the money v. Powers, 16 Vt. 516. was actually paid by the defendant understand 13. Upon the question whether a person ingly to be applied as payment on the note, offered as surety upon a note was a sufficient this was a very strong circumstance tending to security-Held, that, in addition to evidence show that he executed the note. Held, not error. of his solvency and credit, evidence of his Wright v. Williams, 47 Vt. 222. |