circumstances, under which the adverse party is precluded, by his own acts, or by the relation in which he stands, from setting up or introducing evidence of a defence, or of a claim, which, but for the existence of those circumstances, might have been tenable. An estoppel may be either of record, or in pais, i. e., it may arise in respect of unrecorded acts or declarations of the parties. The former, when established, is conclusive, and cannot be countervailed by argument. See Mersereau vs. Pearsall, 19 N. Y., 108. Its consideration will be entered upon in the next subdivision of the section. The present will be devoted to that of the latter.

Estoppel in pais is purely a defence of fact, and not of law—a rule of evidence, and not a mode of enforcing contracts. "Its use is to preclude a party from maintaining by evidence, what he has before denied: or disproving that which he has before admitted; when the other party has acted upon the faith of the admission or denial, in such a manner that he will be injured, unless the same be held conclusive."

It is essential, therefore, to every estoppel in pais, that it relate to some matter of fact, previously admitted or denied by the party sought to be estopped. An admission as to the law, or the legal effect of a contract, is never held to work one. It is also necessary that the fact should be one, of which the party claiming the benefit of the estoppel was ignorant. The basis of an estoppel in pais is fraud. It is not, it is true, essential that there should have been an intention to deceive. But, there must have been a confidence reposed, which would be betrayed to the injury of one party, if the other is permitted to retract his admission or denial. See Crawford vs. Lockwood, 9 How., 547 (550, 551), per Selden, J.

The general nature of estoppel is thus further defined by Hogeboom, J., in Lounsbury vs. Depew, 28 Barb., 44 (48, 49): “The whole doctrine of estoppel rests upon this foundation, that a party has refused to speak when he ought to have done so, and has omitted to make known important facts, the knowledge of which would have induced a differ ent course of action, from what would have taken place, if all the facts had been disclosed. Although the doctrine of estoppel is not always carefully expressed, the cases all go upon the assumption that the party estopped is guilty of a false statement or of a concealment of material facts, at a time when he has an opportunity, and is called upon to speak, which representation or concealment has had a material influence upon the conduct of a third party, who would now suffer injury, without fault on his part, if the real truth were disclosed and allowed to have its legitimate effect" (a number of decisions being then referred to).

To work an estoppel in pais, therefore, the admission or conduct

relied on must be in respect of matter of fact, and not of law or of contract; it must have been designed by the one party to influence the conduct of the other, or that of his privy in blood or estate, under whom he claims; and it must actually have had that effect, and been actually relied on. Carpenter vs. Stilwell, 1 Kern., 61 (73, 74); Griffith vs. Beecher, 10 Barb., 432; Hunt vs. Moultrie, 1 Bosw., 531; De Lancey vs. Ganong, 5 Seld., 9 (25); Ackley vs. Digert, 33 Barb., 176; Van Ness vs. Bush, 22 How., 481; 14 Abb., 33; Blivin v2. Bleakley, 23 How., 124. And, to work an equitable estoppel, there must also be an intention to mislead, as well as a misleading. See Jewett vs. Miller, 6 Seld., 402.

As to the doctrine of equitable estoppel in general, and as to the principle that ignorance of law constitutes no excuse, and that, to create one, actual fraud is not absolutely essential, but that, on the contrary, a person acting in ignorance or mistake may, by his conduct, estop himself or his privies in blood or estate, if such conduct cause injury to the other party, see Tilton vs. Nelson, 27 Barb., 595. See, as to the giving erroneous information, inducing action working an estoppel, though honestly given, Kingsley vs. Vernon, 4 Sandf., 361.

Being a defence which tends to exclude the truth, estoppel is not favored, and a strict construction will be applied. Lounsbury vs. Depew, 28 Barb., 44, supra. See especially, as to this defence not being favored in equity, unless there is a strict estoppel at law; and that, to be available, an estoppel must be both certain and direct, and also mutual, Dempsey vs. Tylee, 3 Duer, 73 (100). See likewise generally, Catlin vs. Grote, 4 E. D. Smith, 296; Andrews vs. Bond, 16 Barb., 633 (641); Mechanics' Bank vs. New York and New Haven Railroad Company, 3 Kern., 599 (638); Campbell vs. Hall, 16 N. Y., 575.

Where statements have been made, in relation to part only of a cause of action, they are binding, only to the extent to which they have been acted upon, by the party setting up the estoppel. Merrill vs. Tylee, C. A. Seld., Notes, April 12th, 1853, p. 47.

The rules to be adopted in pleading a defence of this description flow naturally from the principles above laid down, and are simple in their

nature.

The act or omission relied on as constituting an estoppel, must of course be clearly and distinctly averred, according to the ordinary principles governing the averment of facts; and its connection with the cause, or with the portion of the cause of action sought to be estopped, must be clearly shown. That act or omission must be charged to have been meant to influence, and to have actually influenced the conduct of the party setting up the defence, and his ignorance of the real truth

must be stated. His reliance on it, and action based on that reliance, and consequent loss and injury, must be also distinctly pleaded, and, fraud being the virtual basis of the defence, fraud, wherever the facts admit of it, should be directly charged.

Where the transaction was not between the actual parties, but between their or one of their privies in blood or estate, the connection of the party pleading, with the actual parties to the transaction, should be distinctly shown, and a claim that the adverse party is estopped had better always be made in terms, so as to give clear notice that the defence is relied on; the more so, as, not being a favored one, that defence may the more easily be held to have been waived.

It would be idle to attempt to give a digest of all the cases bearing upon this complicated subject. It may be convenient, however, to give, as on former occasions, a short synopsis of the more recent decisions relating to the principle in question, without going into minor details, but arranging them in broad and general classes.

A party who has received the benefit of a contract, will, as a general rule, be estopped, in an action brought upon that contract, from controverting its validity, whilst he retains, or when he has appropriated that benefit to his own use. Palmer vs. Laurence, 3 Sandf., 161; Steam Navigation Company vs. Weed, 17 Barb., 378; Eagle Works vs. Churchill, 2 Bosw., 166.

On similar principles, it was held that a party who, in one proceeding, had elected to annul and disaffirm a note as void, on the ground of usury, could not afterward claim the benefit of the same note, in another action, as constituting a payment. Central City Bank vs. Dana, 32 Barb., 296.

And especially is this the case, when the dealing is with a company, disqualified from a peculiar course of dealing by the terms of its incorporation. Same cases. A party dealing with such a body or its officers, admits, by such dealing, its legal incorporation and its capacity to contract, and cannot afterward question either. White vs. Coventry, 29 Barb., 305; Leavitt vs. Pell, 27 Barb., 322; Mott vs. United States Trust Company, 19 Barb., 568; Palmer vs. Smith, 6 Seld., 303; Eagle Works vs. Churchill, 2 Bosw., 166; Ogden vs. Raymond, 5 Bosw., 16. So also a stockholder, participating in the management of such a body, cannot question the regularity of its proceedings for incorporation, in an action against him by a creditor. Eaton vs. Aspinwall, 6 Duer, 176; 13 How., 184; 3 Abb., 417; affirmed, 19 N. Y., 119; Abbott vs. The Same, 26 Barb., 202; Mead vs. Keeler, 24 Barb., 20. Nor can a surety for such a body question its existence. People vs. McCumber, 27 Barb., 632. Nor can a stockholder or member of a corporation de' facto, when sued for calls or dues, avail himself of a similar objection,

that it is not a corporation de jure. Mechanics' Building Association vs. Stevens, 5 Duer, 676; Brouwer vs. Appleby, 1 Sandf., 157; Schenectady and Saratoga Plank Road Company vs. Thatcher, 1 Kern., 102. See however Macedon and Bristol Plank Road Company vs. Lapham, 18 Barb., 312.

Nor can an individual, assuming the name, and exercising the functions of such a body, question the legitimate consequences of his own acts or dealings in a corporate name. Patchin vs. Ritter, 27 Barb., 34. And such an incorporation cannot deny or avoid its own acts or dealings in its corporate name, though in excess of its legitimate powers, as against a holder in good faith, without notice, or where its own representations, or those of its authorized officers, have induced the dealing. Bridgeport City Bank vs. Empire Stone Dressing Company, 30 Barb., 421; 19 How., 51; Bank of Genesee vs. Patchin Bank, 3 Kern., 309; Same case, 19 N. Y., 312; City Bank of New Haven vs. Perkins, 4 Bosw., 420; Bissell vs. Michigan Southern and Northern Indiana Railroad Companies, 22 N. Y., 258; Parish vs. Wheeler, 22 N. Y., 494. Nor can such a body, purchasing or selling property, deny its liability for the price, on the ground of want of power. See case last cited. See also De Graff vs. American Linen Thread Company, 24 Barb., 375 (379); Steam Navigation Company vs. Weed, supra; and cases, especially Sackett's Harbor Bank vs. Lewis County Bank, 11 Barb., 213, there cited.

And the same principle extends also to the officer of such a body, who cannot, when sued in his private capacity, deny the effect of his acts as such officer. See Moss vs. Averill, 6 Seld., 449. Nor can a privy of the dealings of such a body, as an accommodation indorser, set up a defence, from which the company itself would be precluded. Hungerford's Bank vs. Potsdam and Watertown Railroad Company, 9 Abb., 124.

The defence thus precluded was that of usury, which, under the act of the 6th of April, 1850, chapter 172, p. 344, cannot be set up by a cor poration, or by its receiver. See Curtis vs. Leavitt, 15 N. Y., 9; Same case, 17 Barb., 309; Butterworth vs. O'Brien, 28 Barb., 187; 16 How., 503; 7 Abb., 456. And this, whether such corporation be foreign or domestic. Southern Life Insurance and Trust Company vs. Packer, 17 N. Y., 51.

As to whether a municipal corporation is or is not estopped from questioning the validity of its own legislative acts, see Britton vs. The Mayor of New York, 21 How., 251; 12 Abb., 367, note, maintaining the negative; and Mayor of New York vs. Second Avenue Railroad Company, 21 How., 257; 12 Abb., 364, holding the affirmative of the proposition.

A subsequent dealing, and receipt of consideration assuming the existence of a contract, may also be held as a waiver of a forfeiture previously incurred. Viall vs. Genesee Mutual Insurance Company, 19 Barb., 440.

And the receipt and retainer of consideration for an executed contract, may also be held to preclude even a disqualified person from denying that contract, whilst that retainer continues. Bartholomew vs. Finnemore, 17 Barb., 428.

Nor can a beneficiary under a partly executed contract, question that part of it for which he has received consideration, though, as to the residue, it may be void. Dart vs. McAdam, 27 Barb., 187.

A vendor, who has annulled a sale, by repossessing himself of the subject matter by process of replevin, cannot afterwards maintain an action for the purchase-money. Morris vs. Rexford, 18 N. Y., 552. But the fact that a defendant in replevin has given an undertaking to obtain or retain possession of the property, works no estoppel. See Andrews vs. Shattuck, 32 Barb., 396. See also, as to judgment for the value of property in the same form of action, and collection of the amount adjudged, effecting a transfer of title to the property itself, and estopping a subsequent denial of that title, Russell vs. Gray, 11 Barb., 541. See, as to a similar transfer of title to property purchased with money misapplied, by taking judgment for such money, as wrongfully converted, Bank of Beloit vs. Beale, 11 Abb., 375; 20 How., 331.

A party cannot impeach his own acts, or the legitimate consequences which flow from them.

But, to work an estoppel, the action of the party estopped must be complete, and not merely possible or inchoate. Thus, an agreement to submit all differences under a building contract to arbitration, was held to be no bar to a suit, where it appeared that both parties had waived their rights under the provision. Sinclair vs. Tallmadge, 35 Barb., 602. An untechnical release of a debt, if acted upon by the releasee, will estop the releasor from subsequently maintaining an action for the amount. Cornell vs. Masten, 35 Barb., 157.

A grantor of property with warranty, will be estopped from setting up, as against his grantee, any other title to the premises, subsequently acquired by him from other parties. But such estoppel will not extend to a title acquired by him, as against such grantee, by adverse possession, commenced subsequent to the execution of his conveyance, and surrender of the property under it. Kent vs. Harcourt, 33 Barb., 491. A public officer will be estopped from controverting his own return, or that of his authorized deputy. Sheldon vs. Payne, 3 Seld., Kuhlman vs. Orser, 5 Duer, 242; Bliven vs. Bleakley, 23 How., 124. See also, as to his being estopped from denying the title to goods

453;