it is otherwise if the receipt be by deed, for then the law admits no evidence to the contrary, (see the judgment of the Court in Fetch v. Sutton, 5 East, 230.). Such is the nature of what we call an estoppel created by deed, the principle of which is explained by Mr. J. TAUNTON in Bowman v. Taylor, 2 Ad. & Ell. 278. "The principle, said his Lordship, "is not so unjust or "absurd as it has been too much the custom to 66 represent. The principle is that, where a man "has entered into a solemn engagement by and "under his hand and seal as to certain facts, he "shall not be permitted to deny any matter he "has so asserted." (a) and clearly that there has been a fraud by some person upon the plaintiff seeking to enforce the demand, and that the defendant was a party to the fraud: unless that be clearly made out the Courts will not interfere, and the release is conclusive. Phillips v. Claggett, 11 M. & W. 84. (a) Recent examples of estoppel by deed and record occur in Doe dem. Levy v. Horne, 3 Q. B. 760.; Darlington v. Pritchard, 4 M. & Gr. 783.; Carter v. James, 13 M. & W. 137.; Beckett v. Bradley, 8 Scott, N. R. 843. It may also arise on Bills of Exchange. Sanderson v. Colman, 4 M. & Gr. 209.; Ar C mani v. Castrique, 13 M. & W. 443. An estoppel may arise in matter of recital, but not in a collateral action between other parties than those to the instrument which contains the admission. In the case of Carpenter v. Buller, 8 M. & W. 209., it was held, that "if a distinct statement of a particular fact is made in the recital of a bond or other instrument under seal, and a contract is made with reference to that recital, it is unquestionably true that as between the parties to that instrument, and in an action upon it, it is not competent for the party bound to deny the recital, notwithstanding Merger. The next peculiarity in a contract by deed is its effect in creating a merger. This hap * * what Lord Coke says on the matter of recital in Coke Littleton, 352 b; and a recital in instruments not under seal may be such as to be conclusive to the same extent. A strong instance as to a recital in a deed is found in the case of Lainson v. Tremere, 1 Ad. & Ell. 792. * By his contract in the instrument itself, a party is assuredly bound, and must fulfil it. But there is no authority to shew that a party to the instrument would be estopped in an action by the other party, not founded on the deed, and wholly collateral to it, to dispute the facts so admitted, though the recitals would certainly be evidence; for instance in another suit, though between the same parties, where a question should arise whether the plaintiff held at a rent of 1707. in the one case, or was married in the other case, it could not be held that the recitals in the bond were conclusive evidence of these facts. Still less would matter alleged in the instrument wholly immaterial to the contract therein contained; as for instance, suppose an indenture or bond to contain an unnecessary description of one of the parties as assignees of a bankrupt, overseer of the poor, or as filling any other character, it could not be contended that such statement would be conclusive on the other party, in any other proceeding between them." In order to take advantage of an estoppel by deed or record, it must be pleaded, where there is an opportunity of doing so, otherwise the estoppel is waived. -2 Smith's L. C. 444. 457. ; Doe v. Huddart, 2 Cr. M. & R. 316. But an estoppel may arise from some act of the party estopped, as well as from matter of record; this is called an Estoppel estoppel in pais, as where one pais. man has accepted rent from another, in which case he is estopped from afterwards denying that such person was then his tenant. Stephen on Pl. 222. And a landlord is similarly estopped from treating as a tenant him whom he has required to enter into that relation with another instead of himself. Downs v. Cooper, 2 Q. B. 256. per Lord DENMAN, C. J. It appears by a subsequent decision that the acts in pais relating to pens when an engagement has been made by way of simple contract, that is, by words in writing not under seal, and afterwards the very same engagement is entered into between the same parties by a deed. When this happens the simple contract is merged, lost, sunk, as it were, and swallowed. up in that under seal, and becomes totally extinguished. Suppose, for instance, I give my creditor a promissory note for 50l., and then a bond for the same demand, the note is lost, swallowed up in the bond, and becomes totally extinct and useless. (See Bayley on Bills, 5th demises must be some "acts of notoriety not less formal and solemn than the execution of a deed, such as livery, entry, acceptance of an estate and the like." Lyon v. Read, 13 M. & W. 285., in which case, the doctrine held by BAYLEY J. in Thomas v. Cooke, 2 B. & Ald. 119. is questioned by the Court of Exchequer, and elaborately reviewed. See also Doe d. Levy, suprà, as to the knowledge of the parties. See also 3 Sug. Vend. & Purch. 428. 10th edit. Estoppels in pais may, but need not be pleaded. See Pickard v. Sears, 6 Ad. & Ell. 474., where the court laid down this rule: "Where one by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position; the former is concluded from averring against the latter a different state of things as existing at the same time." See also Sanderson v. Colman, 4 M. & Gr. 220., per TINDAL C. J.; Sheffield and Manchester Railway Company v. Woodcock, 7 M. & W. 574. 583.; Gregg v. Wells, 10 Ad. & Ell. 90.; Sandys v. Hodgson, 10 Ad. & Ell. 472. Examples of estoppels in pais also occur in Reg. v. Leominster, 5 Q. B. 640.; Reg. v. Westmoreland, 12 Law Journ., M. C., 113. Deeds charge the heirs of those bound by them. edition, 334, 335.) Another peculiar incident 66 Again, a deed has this further advantage of a simple contract, that in case of the death of the party bound by it, it charges his heirs (if the deceased bound his heirs by using words for that purpose in the deed) to the extent of any assets that may have descended to him. You will find the nature of the heir's liability fully explained in the notes to Jefferson v. Morton, 2 Wms. Saund. 6. n. 4. (a) If, indeed, the debtor had devised the land away, instead of allowing it to descend to his heir, the creditor could not at common law have sued the devisee. However, by stat. 3 W. 3. c. 14., usually called the Statute 3 W. 3. c. 14. of fraudulent Devises, the devisee was made liable as well as the heir, and the enactments of this statute have been repeated, with several improvements, in stat. 1 W. 4. c. 47., usually called Sir Edward Sugden's Act: and on the construction of which you may see Farley v. Briant, 3 Ad. & Ell. 839. While on this subject, it may as well be mentioned that, although the right of bringing an action against the heir or devisee is limited to specialty creditors, yet by a statute of 3 & 4 W. 4. c. 104. the simple contract creditors have a remedy against the real estate of the deceased in equity, where, however, their claims are, by the express enactment of the statute, postponed to those of creditors by deeds in which the heirs of the deceased are mentioned. In the administration of the personal effects also the specialty creditors have, as you are probably aware, a priority over those by simple contract. Lastly, with regard to the remedy upon a contract by deed: wherever a promise is made by (a) 2 Wms. Saund. p. 8 a. et seq. 6th edit. Remedies on Contracts by |