fraudulent grantor being estopped by his own act, Moore vs. Livingston, 14 How., 1.

A vendee, who has resold the right transferred to him, cannot afterwards set up want of value, in an action against him for the purchasemoney. Thomas vs. Quintard, 5 Duer, 80.

A chattel mortgagee, who had agreed to hold it as collateral security for a party who purchased a note, part of the consideration, was held estopped from setting up payment, by foreclosure of the security, as against such party. Baker vs. Seely, 17 How., 297.

A bill of lading estops the giver from questioning the title of the party to whom it is given, to the goods comprised in it. McGaw vs. Adams, 14 How., 461; Dows vs. Rush, 28 Barb., 157. A party who has given his note, in settlement of a claim asserted by action, cannot afterwards, in the absence of fraud, go behind it, and attack the original consideration. Magee vs. Badger, 30 Barb., 246.

Though a receipt be explainable, as regards the amount for which it is given (see Renard vs. Fiedler, 3 Duer, 318), yet, in its operation as a contract or as an admission, it cannot be contradicted by parol evidence. See Coon vs. Knapp, 4 Seld., 402; Egleston vs. Knickerbacker, 6 Barb., 458; Wood vs. Whiting, 21 Barb., 190.

See, however, as to a receipt in full of all demands, obtained with a view to cover up a claim for repayment of money lost at play, being unavailing, Hendrickson vs. Beers, 6 Bosw., 639.

And a settlement, in full of an account and demand sued upon in a specific action, does not embrace any matter not included in the controversy, as disclosed by the pleadings therein. Bates vs. Cobb, 5

Bosw., 29.

Accepting payment of the admitted portion of an entire claim, may, though under protest, estop the claimant from maintaining an action for the balance. See Chase vs. County of Saratoga, 33 Barb., 603.

In Chegaray vs. Mayor of New York, 2 Duer, 521, it was held that the defendant, having admitted the receipt of taxes, the liability to which was in question, could not raise a technical objection as to the plaintiff's right to sue. N. B.-This point is not questioned in the general reversal, 3 Kern., 220. As to the effect of an admission on the face of the plaintiff's complaint, generally, or by way of estoppel, see Salters vs. Genin, 3 Bosw., 250; 7 Abb., 193; Andrews vs. Chadbourne, 19 Barb., 147. And a previous answer on oath, will estop a subsequent denial of the same matter. Sheppard vs. Hamilton, 29 Barb., 156. See also, as to the effect, by way of estoppel, of an actual admission in an answer, Crosbie vs. Leary, 6 Bosw., 312. But a petitioner's oath, in proceeding to obtain his discharge for insolvency, though untrue, was held not to

estop him from subsequently setting up a release, obtained from a creditor, though he had included such creditor in his schedule as unpaid. The parties were in pari delicto, and there was no reliance placed at the time.

In a proceeding to set aside the insolvency, however, the affidavit would have worked an absolute estoppel. Maybee vs. Sniffin, 2 E. D. Smith, 1.

A party, himself in fault, or chargeable with negligence in not making proper inquiries, will be estopped from taking advantage of his own fraud or default, and from setting up an objection which, with due diligence, he ought to have discovered, or which, but for his own default, might not have existed.

A judgment-debtor cannot set up part payment, as against an assignee, on his assurance that the whole amount was due. Rae vs. Lawser, 18 How., 23; 9 Abb., 380, note. A representation that property is unencumbered will not, however, prevent a defendant from setting up its exemption from sale on execution. Robinson vs. Wiley, 19 Barb., 157.

A clause in a promissory note, waiving such an exemption, does not operate by way of estoppel. It is a matter of contract in future, not a representation of fact at the time. Crawford vs. Lockwood, 9 How., 547; Harper vs. Leal, 10 How., 276. Nor do the words "value received" on a note, avail to exclude the defence of usury. Clark vs. Loomis, 5 Duer, 468.

A purchaser, who had wrongfully taken possession of work in an unfinished state, was held to be estopped from showing defects in its quality, in a subsequent proceeding for the price. Kidd vs. Belden, 19 Barb., 266. But, where a builder had failed in his performance of an entire contract, it was held that occupation of the finished portions by his employer, did not operate as a waiver of that performance, the question being one of intention. Smith vs. Brady, 17 N. Y., 173.

A defendant, himself in fault, cannot object on the ground of default of the plaintiff. Bailey vs. Western Vermont Railroad Company, 18 Barb., 112.

Where, for want of proper inquiry, a loss had been paid by insurers, in ignorance of grounds on which they might have resisted, they were held estopped in a subsequent action to recover back the amount. Mutual Life Insurance Company of New York vs. Wager, 27 Barb., 354. See also, as to a purchaser being similarly estopped, where he has failed to make due inquiry, White vs. Seaver, 25 Barb., 235. Nor can he raise an objection, where he has not been, in fact, misled. Jewett vs. Miller, 6 Seld., 402.

A party who has misled another, and thereby induced his adoption of a particular form of action, will be precluded from changing his

ground on the trial, and setting up another. Walrath vs. Redfield, 18 N. Y., 457.

A party may also be estopped, by proceedings inconsistent with a right he might otherwise have claimed. Thus, a judgment for the value of property converted, was held to transfer the title, and to estop a claim to the property itself. Bank of Beloit vs. Beale, 11 Abb., 375; 20 How., 331; 19 How., 91.

Voluntary proof of debt, and receipt of a dividend from the estate of the acceptor, under a foreign insolvency, was held, by discharging him, to estop proceedings against the drawer, in Gardner vs. Oliver Lee's Bank, 11 Barb., 558.

The subject as to who will, or will not, be considered as privies in blood or estate, so as to be bound by an estoppel, will be found very fully considered in Campbell vs. Hall, 16 N. Y., 575. It was there held, that a second encumbrancer was not affected by the result of a subsequent controversy, between his mortgagor and a prior mortgagee, but might still litigate the amount of the latter's security. Nor will a bond of indemnity, formerly given to a remote grantor, preclude a defendant from asserting his legal title in ejectment. Dwight vs. Peart, 24 Barb., 55. A defendant, in a suit of that description, cannot impeach a deed from which the plaintiff's title is derived, as fraudulent, unless he stands in the position of a creditor, or party otherwise entitled to attack it on that ground. Mosely vs. Mosely, 15 N. Y., 334.

A principal will be estopped by the acts or representations of his gent, when acting within the scope of his authority. Plumb vs. Cat'araugus County Mutual Insurance Company, 18 N. Y., 392; City Bank of New Haven vs. Perkins, 4 Bosw., 420. See also Anderson vs. Broad, 12 L. O., 187, as to whether the declarations of a subagent, whose action has been adopted by the principal, may not have the same effect. As to such being the case, where a contract, made in terms with the agent, is, in fact, performed by the principal, see St. John vs. Griffith, 13 How., 59; 2 Abb., 198.

But, where the acts or representations of an agent are not within the scope of his authority, the principal will not be affected. New York Life Insurance and Trust Company vs. Beebe, 3 Seld., 364; New York Car Oil Company vs. Richmond, 19 How., 505; 10 Abb., 185; Mechanics' Bank vs. New York and New Haven Railroad Company, 3 Kern., 599.

An agent, on the other hand, will be estopped from denying the title of his principals. Crosbie vs. Leary, 6 Bosw., 312.

In Thomas vs. Hubbell, 15 N. Y., 405, it was held that the general sureties of a deputy sheriff were not estopped from setting up a defence to the original liability, by a judgment against the sheriff in respect of

their principal's misconduct, no opportunity of defending the suit having been afforded to them.

Where, however, by the terms of the security, the surety agrees to be bound by the event of a suit between third parties, or that his principal shall obey all orders of a court or officer, he will be estopped from questioning the validity of a judgment or order against that principal. See Baggott vs. Boulger, 2 Duer, 160; Westervelt vs. Smith, 2 Duer, 449. This last case is, however, questioned, in Thomas vs. Hubbell, supra.

An account delivered, will not necessarily estop the plaintiff from subsequently altering the amount of his demand. Williams vs. Glenny, 16 N. Y., 389. See also, as to the omission to object at once to an account stated, not being an estoppel or necessarily conclusive, Lockwood vs. Thorne, 18 N. Y., 285.

The doctrine of estoppel is not applicable to an infant, under any circumstances, not even where he has obtained goods by a fraudulent representation that he was of age at the time of obtaining them. Brown vs. McCune, 5 Sandf., 224. See also Ackley vs. Dygert, 33 Barb., 176.

He cannot, however, disaffirm an executed contract, without first restoring the consideration. Bartholomew vs. Finnemore, 17 Barb., 428. See also, as to ratification by him, after majority, Taft vs. Sergeant, 18 Barb., 320; Jones vs. Phanix Bank, 4 Seld., 228; Forman vs. Marsh, 1 Kern., 544.

Nor will a widow be estopped, in an ejectment for dower, even though she have actually received one-third of the rents of the property in question. In order to bar her claim, under these circumstances, it must be proved that the rent assigned to her will endure for her life. Ellicott vs. Mosier, 11 Barb., 574; affirmed, 3 Seld., 201.

The whole of the above decisions are, it may be said, universally predicated on the absence of fraud in the party setting up the estoppel. If he be himself in fault, he can no longer invoke the principle as against his adversary.

(b.) Former ADJUDICATION.

This description of estoppel presents itself, in the next place, for consideration. It differs from the former, in that, once established, the defence is absolute, and admits of no question. "An estoppel by record cannot be countervailed by argument, however conclusive." Mersereau vs. Pearsall, 19 N. Y., 108.

However erroneous it may appear to be, even on its face, the judg ment of another court, having jurisdiction of the question, is, therefore, whilst unreversed, conclusive, as regards the same controversy. It cannot be collaterally impeached, save only for want of jurisdiction,

apparent on the record, or by some matter dehors that record, which can be shown, without contradicting it. Buell vs. Trustees of Lockport, 11 Barb., 602; affirmed, 4 Seld., 55; Wheeler vs. New York and Harlem Railroad Company, 24 Barb., 414; Harriott vs. New Jersey Railroad and Transportation Company, 2 Hilt., 262; 8 Abb., 284.

See, as to the conclusiveness of judgment, on an accounting between partners, and the impossibility of reopening that account, by means of another suit, the only remedy being by a bill in the nature of a bill of review, Hayes vs. Reese, 34 Barb., 151.

Thus, the decree of a surrogate admitting a will to probate is, in a collateral action, conclusive evidence of its execution, even though that execution be manifestly defective. Vanderpoel vs. Van Valkenburgh, 2 Seld., 190. See also, as to conclusiveness of a surrogate's decree on other points, Ball vs. Miller, 17 How., 300; Morrill vs. Dennison, 8 Abb., 401; Hill vs. Burger, 10 How., 264; Bolton vs. Brewster, 32 Barb., 389; Rigney vs. Coles, 6 Bosw., 479.

The trial of an issue on the validity of a will of personal estate, on its admission to probate, will bar any contest on the same point, in a subsequent proceeding between the same parties. Nichols vs. Romaine, 3 Abb., 122. A will of real estate stands on a different footing, probate not being essential to the validity or carrying into effect of the devises or provisions contained in it.

of

See, generally, as to the operation of a former judgment, by way positive estoppel, on issues embraced within the record, Bates vs. Stanton, 1 Duer, 79; Birckhead vs. Brown, 5 Sandf., 134. And this, although the determination of the court may have been given on an issue of law. Same cases.

See further, as to the same principles, Potter vs. Rowland, 4 Seld., 448; Davis vs. Talcott, 2 Kern., 184; Clark vs. Downing, 1 E. D. Smith, 406; Wilkiming vs. Schmale, 1 Hilt., 263; Harris vs. Hammond, 18 How., 123; Gallarati vs. Orser, 4 Bosw., 94; White' vs. Merritt, 3 Seld., 352; St. John vs. St. John's Church, 15 Barb., 346; Embury vs. Conner, 3 Comst, 511 (522). The same rule holds good also, as to a judgment entered on confession. Woodworth vs. Woodworth, 21 Barb., 343.

And, whilst unreversed, the judgment of an inferior court is equally a bar, even when rendered in a suit commenced subsequently to that in which it is pleaded. Higgins vs. Mayer, 10 How., 363. See also Tyler vs. Willis, 35 Barb., 213; 13 Abb., 369. And even a verdict rendered in such a court, is pleadable, though, by omission of the justice, judgment cannot be entered thereon. Kane vs. Dulex, 3 E. D. Smith, 127.

And the reversal of a judgment will be equally conclusive, even