OTIS vs. WARREN.

traversing this plea, is the same with a replication to a disclaimer, as provided by our statute of 1795, c. 75. This shows that the two pleas are substantially the same.

In the case before us, the demandant might have objected to the filing of this plea in abatement; but as she has demurred, there must be

Respondeas ouster awarded.

SARAH HOWARD versus EDWARD MITChell.

If, in the course of pleadings, the party who relies on matter of estoppel has no opportunity to plead it, he may show it in evidence; but when the matter to which the estoppel applies is distinctly averred or denied by one party, and the other takes issue on the fact, instead of pleading the estoppel, he waives the estoppel, and the jury are at liberty to find the truth.

THIS was an action of trespass for breaking and entering the plaintiff's close, and holding her out of the possession thereof from January 1, 1811, until October 23, 1815. The defendant pleaded in abatement, that one Hannah James was co-tenant with the plaintiff of the locus in quo, and that she, the plaintiff, has no title therein, except as tenant in common with the said Hannah, on which issue was joined.

At the trial of this issue, before Wilde, J., at the last October term in Plymouth, the defendant offered evidence

*to prove, and did prove, to the satisfaction of the jury, [242] that the said Hannah was co-tenant with the plaintiff, as alleged in the plea.

But the plaintiff objected to the admission of this evidence, on the ground that the defendant was by law estopped to prove that the said Hannah was tenant in common with the plaintiff, as the plaintiff had before sued the said Mitchell in a writ of entry for the same land described in her present writ, in which she claimed the same as sole proprietor thereof, and recovered judgment accordingly; a copy of which judgment was ready to be produced.

But the judge overruled the objection, and the jury returned a verdict for the defendant. If, in the opinion of the Court, this evidence ought not to have been received, the verdict was to be set aside, and a new trial granted; otherwise, judgment was to be rendered on the verdict.

Tillinghast and Baylies, for the plaintiff, contended that the

HOWARD vs. MITCHELL.

former judgment, which was between the same parties, and on the title to the same land, was conclusive on the defendant as to this action, which was brought for the mesne profits. (1)

The plea was inadmissible; and it is immaterial what replication the plaintiff makes, since the plea itself ought never to have been received. (2)

Whitman, for the defendant. If the plaintiff relied on the former judgment as an estoppel, she should have so pleaded it. But it can have no such effect. The writ of entry was dated in November, 1813. The judgment only proves that on that day she was owner of the land. She now claims as owner from January, 1811, and would rely on that judgment, as conclusive in favor of her title from the day last mentioned, which is plainly absurd. (3)

Per Curiam. The writ on which the former judgment was founded was tested in 1813; of course, the judgment could not conclude the defendant for any time prior to that date. So neither could it conclude him for any time subsequent to the [* 243] recovery; as the plaintiff *might have aliened the premises, or part of them, after that time.

But it is not necessary to consider whether this judgment might have estopped the defendant at all, or for what part of the time laid in the present declaration; because it is very clear that it cannot so operate, as these pleadings stand. The plaintiff should have replied it specially, and relied on the estoppel.

When, in the course of the pleadings, the party who relies on matter of estoppel has no opportunity to plead it, he may show it in evidence; and it will in general have the same effect as if pleaded. But when the matter to which the estoppel applies is distinctly averred or denied by one party, and the other, instead of pleading the estoppel, as he may in that case, takes issue on the fact, he waives the estoppel, and the jury are at liberty to find the truth.

This principle is recognized in Hobart, 207, and in the case of Trevison vs. Lawrence & Al., reported in 1 Salk. 276, and in several other books, (4) and has been uniformly considered as the settled law on this subject. (5) (a)

Judgment according to the verdict.

(1) 2 Burr, 665, Aslin vs. Parkin.-7 D. & E. 112, Denn vs. White & Ux. —3 Black. Comm. 205.-2 Peake's Evidence, 326.

(2) Vin. Abr., Mesne Profits, K.

(3) Bull. N. P. 87, Decosta vs. Atkins.

(4) 2 Lord Raym. 1051.—6 Mod. 256. — Holt's Rep. 228.

(5) 1 Chitty on Pleading, 575, 617 -1 Saund. 325, note 4.

(a) [Vooght vs. Winch, 2 B. & A. 662. — Doe vs. Huddart, 2 Cr. M. & R. 322. Hooper vs. Hooper, M Clel. & Y. 509.— Jones vs. Reynolds, 7 Cor. & P. 335. - Doa

HOWARD vs. MITCHELL.

vs. Harvey, 8 Bing 242.- Adams vs. Burnes, 17 Mass. Rep. 365. - Phil. & Am. Ev. 510-512.. - Greenl. Ev. 567, 568, 569, and cases there cited. Eastman vs.

Cooper, Pick.. -"It appears inconsistent,' says Mr. Phillips, "that the principle of the authority of a res judicata should govern the decision of a court when the matter is referred to them by pleading the estoppel, but that a jury should be at liberty to disregard this principle altogether, and that the operation of such an important principle as that of the res judicata should depend on the technical forms of pleading in particular actions." Ph. & A., ubi sup.-See cases cited in note to 5th Am. ed Chitty on Contructs, 788. — ED.]

THE INHABITANTS OF NANTUCKET, Complainants, versus JOSIAH COTTON.

No appeal lies from an order of the Court of Common Pleas, for assessing the relatives of a pauper for his support, pursuant to the statute of 1793, c. 59, § 3.

THIS was a complaint of the inhabitants of Nantucket, under the provision of the statute of 1793, c. 59, § 3, to the Court of Common Pleas for the county of Plymouth, praying the said court to assess upon the respondent a reasonable sum for the support of his son, who had become chargeable to the town of Nantucket. That court, after hearing the parties, assessed a certain sum; and the respondent, conceiving that his ability had been overrated by the court, and finding himself aggrieved thereby, appealed to this Court from the order of the Common Pleas.

* Thomas, for the respondent, prayed the Court to hear [* 244 ] the parties, and their evidence, with a view to have the said assessment reduced.

Baylies, for the complainants, contended that no appeal was provided in the case; and, in support of this position, he cited and relied upon the cases of Lowell vs. Spring, (1) and Smith & Al. vs. Hubbard. (2)

Per Curiam. The jurisdiction given to the Common Pleas by the statute, under which this process was instituted, is very special. It is plain that the legislature intended to confine the proceedings to that court, and that its orders on the subject should be final. This is a very convenient arrangement; and we see no constitutional objection to it. The appeal is dismissed.

(1) 6 Mass. Rep. 398.

(2) 11 Mass. Rep 24.

211

CASES

ARGUED AND DETERMINED

IN THE

SUPREME JUDICIAL COURT,

FOR THE

COUNTY OF BERKSHIRE, SEPTEMBER TERM, 1817, AT LENOX.

PRESENT:

HON. ISAAC PARKER, CHIEF JUSTICE.

HON. CHARLES JACKSON,

JUSTICES.

WILLIAM BRIDGE versus AZARIAH EGGLESTON.

Jurors are not to be permitted to testify to the motives or inducements upon which they have joined in a verdict.

The conduct and declarations of a grantor, respecting the estate conveyed, and tending to prove a fraudulent intention on his part before the conveyance, is proper evidence for the jury, upon an inquiry into the validity of such conveyance by a creditor or subsequent purchaser, who alleges it to be fraudulent.

THIS was a writ of entry, in which the demandant counted upon his own seisin of the estate demanded within thirty years, and upon a disseisin by the tenant.

Trial was had upon the general issue before Putnam, J., April term, 1816. The demandant claimed under an execution, which he levied upon the demanded premises, as the property of Joseph Goodwin, on the 15th of November, 1811, in due form of law. The tenant claimed to hold the premises under a deed of conveyance

BRIDGE VS. EGGLESTON.

from the same Goodwin, dated the 6th of October, 1809, acknowledged and recorded.

The demandant undertook to prove that the said deed was made without a good and valuable consideration, and was not bonâ fide, but made to delay or defeat the creditors of the said Goodwin.

* It was admitted that the demandant, on the 6th of [* 246 ] October, 1809, and long before, was a creditor of said Goodwin; his claim originating in consequence of the liability of Goodwin and other directors of the Berkshire Bank, in their individual capacity. The demandant proved that the said bank stopped payment in August, 1809; and he was permitted to give in evidence the confessions of Goodwin, made when Eggleston was not present, prior to the said 6th of October, provided the knowledge thereof was brought home to Eggleston before that time; the tenant objecting to the admission of such evidence.

One witness testified that, in the spring of 1809, Goodwin told him that the bank would fail; that there was not much property belonging to the directors; that he had an idea of their individual liability, and that was the worst of all; that it would be a question with him, whether he should give up all his property and pay as much as he could, or save what he could to live on and pay as little as he could; that he seemed to think it would be best to pay as little as he could; that it would be a question whether he should go to jail here in Albany, or in some other place.

Another witness testified that, in August, 1809, he conversed with Eggleston, who told the witness that the directors could not pay twenty-five cents on a dollar. A third witness swore that, in August, 1809, Eggleston said to the witness, that the failure of the directors would be the consequence of the failure of the bank; adding, that it would take every cent they had. A fourth witness testified that he was present at a conversation between Goodwin and Eggleston in August, 1809, when Goodwin observed that the notes of the bank were not worth a cent on a dollar, nor were the directors worth a cent. It was in evidence that Eggleston was present at a meeting of the directors of the bank on the 4th of October, 1809, and that he observed that the directors had long faces.

There was evidence that Eggleston gave two promissory notes, dated on the same day with the deed, for [* 247 ] 5000 dollars each, payable respectively in three and six years, as a consideration for the land conveyed to him by Goodwin; and that one of these notes had been sued by Robert Center, an endorsee, and that the judgment recovered thereon was satisfied by an extent on Eggleston's real estate.