1852. FOSTER v. CRABB. given under the general issue; and the plaintiff therefore could not have known that a defence would be attempted to be set up which the defendant was estopped from making. Lord Coke, in Co. Litt. 352. a., speaking of estoppel by matter in pais, refers to estoppel by acceptance of rent; and it may be said that this naturally would be matter of evidence: but, looking at the whole of the context, he appears to me to be treating it as being on the record, rather than as a matter for the jury." So, in Freeman v. Cooke, 2 Exch. 654, where this matter was very much discussed, Parke, B., says, "It is certain that estoppels by record and by deed must, in order to make them binding, be pleaded, if there be an opportunity, otherwise the party omitting to plead it waives the estoppel, and leaves the cause at large, on which the jury may find according to the truth: Treviban v. Lawrence, 2 Ld. Raym. 1036, 1048, 1 Salk. 277; Magrath v. Hardy, 4 N. C. 782, 6 Scott, 627. With respect to estoppels in pais, in certain cases, there is no doubt they need not be pleaded, in order to make them obligatory. For instance, where a man represents another as his agent, in order to procure a person to contract with him as such, and he does contract, the contract binds in the same manner as if he had made it himself, and is his contract in point of law; and no form of pleading could leave such a matter at large, and enable the jury to treat it as no contract. The same rule appears to apply to all similar estoppels in pais, as the learned editor of Williams's Saunders (Vol. 1, p. 326, n. 2) expresses his opinion." All the authorities are clear, that, to give any effect to matter of estoppel, it must be pleaded by way of estoppel. The same doctrine is laid down by Parke, B., in The General Steam Navigation Company v. Guillou, 11 M. & W. 877, 894. And see 1 Wms. Saund. 325 a, n. (4). Here, the court cannot see from the record how the deed came into the hands of the defendant,—whether by delivery from the plaintiff, or by trover. If he obtained it by a trover or in any other way than by actual delivery from the plaintiff on a bailment to return it on request, he is justified in detaining it; Swindall's authority to him to hold it being sufficient as against Swindall's co-trustee. Swindall may clearly do by his agent what he might do himself. In Com. Dig. Attorney (C. 1.), it is laid down, that "a man may make an attorney for a special purpose; as, to make or take livery:" Co. Litt. 52; 2 Roll. 8, 1. 25: "And, in all cases where a man has a power, as owner, or in his own right, to do a thing, he may do it by attorney; as, cestui que use, after the statute 1 R. 3, c. 1, and before 27 H. 8, c. 10, might dispose of his land by attorney:" Combes's Case, 9 Co. Rep. 75. b. [Jervis, C. J. You say that the inducement to the special traverse may be altogether disregarded: if so, what is the use of it?] In Stephen on Pleading, 5th edit. p. 204, it is said that "the general design of a special traverse, as distinguished from a common one, is, to explain or qualify the denial, instead of putting it in the direct and absolute form:" and this the learned author illustrates at great length. The special traverse must be sufficient of itself. [Jervis, C. J. No doubt.] Suppose the plaintiff joined issue upon this traverse, and the jury found that Swindall did not deliver the deed to the defendant, in manner and form as alleged, and there was a motion in arrest of judgment,-would not the plea be held good without the allegation which this replication traverses? Maule, J. Independently of the question of form, you must contend, that, where there are two tenants in common of a deed, and a third person holds it against one who complains, and the defendant pleads that he holds it by the authority of the other co-tenant, without shewing how he got it, it would be no answer for the plaintiff to reply, that the defendant got 1852. FOSTER ย. CRABB. 1852. FOSTER v. CRABB. it from him, to hold for him, and to be re-delivered on request.] If the plaintiff delivered a deed to the defendant in which the former claimed the sole property, the latter could not, when it was re-demanded of him, set up the jus tertii. But that is not quite this case: the defendant does not deny the property of the plaintiff, but claims to hold the deed under the authority of one having equal title with the plaintiff. It has been doubted whether detinue is properly an action of contract or tort. In Chitty on Pleading, Vol. 1, p. 135 (7th edit.), it is said: "This is an action somewhat peculiar in its nature, and it may be difficult to decide whether it should be classed amongst forms of action ex contractu, or should be ranked with actions ex delicto. The right to join detinue with debt, and to sue in detinue for not delivering goods in pursuance of the terms of a bailment to the defendant, seem to afford ground for considering it rather as an action ex contractu than an action of tort. On the other hand, it seems that detinue lies although the defendant wrongfully became the possessor thereof in the first instance, without relation to any contract. And it has recently been considered as an action for tort, the gist of the action not being the breach of a contract, but the wrongful detainer; for which reason, although a declaration in detinue has stated a bailment to the defendant, and his engagement to re-deliver on request, and the defendant has pleaded that the bailment was a security for a loan, the plaintiff may, without being guilty of a departure, reply that he tendered the debt, and that the defendant afterwards wrongfully withheld the goods:" Gledstane v. Hewitt, 1 C. & J. 565, 1 Tyrwh. 445. And the editor adds in a note," So, the action of detinue is so far considered an action of tort, that, if one joint-tenant bring the action, the objection of non-joinder of the others can only be taken by plea in abatement: Broadbent v. Ledward, 11 Ad. & E. 209, 3 P. & D. 45." In Hand v. Daniels, (a) See The Earl of Falmouth v. Penrose, 6 B. & C. 385, 9 D. & R. 452. 1852. FOSTER V. CRABB. 1852. FOSTER ย. CRABB. such last-mentioned request and authority.] That is a mere argumentative traverse of the detention with Swindall's authority. John Gray, contrà. The real question is, whether it is material from whom the defendant obtained the deed. It is submitted that it is, and therefore that the traverse is a material one. The introductory matter must be looked at with reference to that to which it is pleaded. The plea contains three distinct allegations which go to make up the defence,-first, that Swindall had possession of the deed, secondly, that, being so possessed of the deed, Swindall delivered it to the defendant, to be by him kept, and to be re-delivered to Swindall, on request, -thirdly, that the defendant holds the deed under the title so derived from Swindall. That, it is submitted, is a good plea: but, strike out the second allegation, and the plea is no answer to the action. Suppose Swindall lost the deed, and the plaintiff picked it up, and delivered it to the defendant, to be re-delivered to him on request,can any one say, that, if the defendant refused to re-deliver it on request, the plaintiff would not have a good right of action against him? And, is not that state of things consistent with this plea, the second allegation being struck out? That allegation, therefore, was a material one to traverse. [Jervis, C. J. Are you not, on special demurrer, bound to have both the inducement and the special traverse good?] I find no authority for that. If the traverse is material, you may pass by the introductory matter. If the introductory matter presents an answer, and the traverse is immaterial, the latter may be passed over. By the 13th of the Pleading Rules of Hilary Term, 4 W. 4, it is declared that "All special traverses, or traverses with an inducement of affirmative matter, shall conclude to the country: Provided that this regulation shall not |