The judgment of a Court of Domicile is binding on the Courts of Nationality as to any question of nationality arising between the same parties (†). The probate of a will is not conclusive evidence of the domicile of the testator. "It is conclusive evidence that the instrument proved was testamentary according to the law of this country; but it proves nothing else" (u). A decree of divorce pronounced by a foreign court having jurisdiction will be recognized as valid in England, although the marriage may have been solemnized in England, and although it may have been dissolved for a cause which would not have been sufficient to obtain a divorce in England (x).

II. The next species of estoppel is by instruments under seal; and this kind of estoppel, as in the case of estoppel by record, is equally binding on the parties to the deed and those who claim under them. "The principle is, that where a man has entered into a solemn engagement by deed under his hand and seal, as to certain facts, he shall not be permitted to deny any facts which he has so asserted" (y); but this only applies in an action or proceeding based on the deed in question; in a collateral action there is

(t) Doglioni v. Crispin, L. R., 1 E. & I. 301; 35 L. J., P. & M.

129.

(u) Per Lord Cranworth, Whicker v. Hume, 7 H. L. Cas. 156. (x) Harvey v. Farnie, L. R., 8 App. Cas. 43; 52 L. J., P. D. & A. 33; 31 W. R. 433.

(y) Per Taunton, J., Bowman v. Taylor, 2 A. & E. 291.

no such estoppel (z). There is probably an estoppel by record created by letters patent between the Crown and the grantee, but this does not extend so as to give all her Majesty's subjects the benefit of such estoppel (a). A lease is evidence for and against a lessee of the terms on which he holds, and also for or against an assignee who claims under him (b). So, a recital in a deed is evidence against him who executed the deed, and against every person claiming under him (c). It may be here remarked, that the substance of a recital carries with it the context; and, in a record, is conclusive evidence of collateral matter which was necessary to support the groundwork of the judgment (d). In construing recitals in deeds, and determining how far they operate as estoppels on the parties, the effect must be gathered from the apparent intention of the instrument (e). But there must be a positive statement of a fact in a deed or order for it to operate by way of estoppel in relation to such fact (ƒ). The recital in a deed of a former deed between the same parties proves, as be

(-) See judgment of Wood, V.-C., in Carter v. Carter, 3 K. & J.

644.

(a) Per Fry, L. J., Cropper v. Smith, L. R., 26 Ch. D. 712; 53 L. J., Ch. 898; 33 W. R. 63.

(b) Houghton v. Kanig, 18 C. B. 235.

(c) Gwyn v. Neath, L. R., 3 Ex. 209; 37 L. J., Ex. 122; 16 W. R. 1209.

(d) R. v. Hartington, 4 E. & B. 780.

(e) Stronghill v. Buck, 19 L. J., Q. B. 209.

(f) General Finance Discount Co. v. Liberator Building Society, L. R., 10 Ch. D. 15; 27 W. R. 210.

tween such parties, so much of the former deed as is recited, and no more (g). Whenever it is alleged by a party to a deed or his privy that the recitals in such deed are untrue, the burden of proving them falsehoods rests upon such party or privy who is prima facie bound by such recitals or admissions (h).

A recital is conclusive evidence against parties only where it is distinctly antecedent to, and related to, the substance of the deed. The law on this point is thus laid down by Parke, B., in Carpenter v. Buller (i). "If a distinct statement of a particular fact is made in the recital of an instrument under seal, and a contract is made with reference to that recital, it is clear that as between the parties to such instrument and in an action upon it, it is not competent for the party bound to deny the recital." The same learned judge also lays down that a recital, even in an instrument not under seal, may be conclusive to the same extent. In other cases recitals are treated as primâ facie evidence which may be rebutted. A covenant will not create an estoppel ().

A party to a deed is not estopped from showing that it is void from fraud or illegality, or from having been executed by him while under duress or while a minor. When an educated person, who, by very simple means, might have ascertained what are the

(9) Gillett v. Abbott, 7 A. & E. 783.

(h) Melbourne Banking Corporation v. Brougham, L. R., 7 App. Cas. 307; 51 L. J., P. C. 65; 30 W. R. 925.

(i) 8 M. & W. 212; cf. Lainson v. Tremere, 1 A. & E. 792.

(k) See General Finance Discount Co. v. Liberator Building Society, L. R., 10 Ch. D. 15; 27 W. R. 210.

contents of a deed, is induced to execute it by a false representation of such contents, it is doubtful whether he may not, by executing it negligently, be estopped between himself and a person who innocently acted upon the faith of the deed being a valid one (1). Infants are not bound by recitals in deeds executed by their gurrdians (m), but married women are estopped by recitals in deeds by which they are bound (n), and à fortiori by such deeds. The engrossment of a deed tendered for execution will operate as an admission by, but not as an estoppel against, the party tendering it (0).

III. Estoppels by matter of pais. In Lyon v. Reed (p), Parke, B., says of such estoppels:-"They are all acts which anciently really were, and in contemplation of law have always continued to be, acts of notoriety, not less formal and solemn than the execution of a deed, such as livery of seisin, entry, acceptance of an estate, and the like. Whether a party had or had not concurred in an act of this sort, was deemed a matter which there could be no difficulty in ascertaining, and then the legal consequences followed." But the courts, both of law and equity, have extended the doctrine to cases where the noto

(1) Per Mellish, L. J., Hunter v. Walters, L. R., 7 Ch. 75; 41 L. J., Ch. 175; 20 W. R. 220.

(m) See Milner v. Lord Harewood, 18 Ves. 274.

(n) Jones v. Frost, L. R., 7 Ch. 776; 20 W. R. 793.

(0) Bulley v. Bulley, L. R., 9 Ch. 739; 44 L. J., Ch. 79; 22 W. R. 779.

(p) 13 M. & W. 309.

riety is less solemn and formal. Hence the doctrine, "when 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 previous position, the former is concluded from averring against the latter a different state of things as existing at the same time" (q). By the term "wilfully" in the above rule it has been laid down (~), that "we must understand, if not that the party represents that to be true which he knows to be untrue, at least that he means his representation to be acted upon and that it is acted upon accordingly, and if, whatever a man's real intention may be, he so conducts himself that a reasonable man would take the representation to be true and believe that it was meant that he should act upon it, and does act upon it as true, the party making the representation would be equally precluded from contesting its truth and conduct by negligence or omission where there is a duty cast upon a person, by usage of trade or otherwise, to disclose the truth, may often have the same effect. As, for instance, a retiring partner omitting to inform his customers of the fact, in the usual mode, that the continuing partners were no longer authorized to act as his agents, is bound by all contracts made by them with third persons on

(2) Per Lord Denman, Pickard v. Sears, 6 A. & E. 474; cf. Attorney-General v. Stephens, 1 K. & J. 724.

(r) Per Parke, B., Freeman v. Cooke, 2 Ex. 663. Approved in McKenzie v. British Linen Co., L. R., 6 App. Cas. 82; 29 W. R.