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Leonard v. Putnam.

ian and ward, page 604, while declaring the practice to be to recog nize the nomination of executors in a foreign testament, asserts that they must be required to "go through the form of taking out confirmation, at all events, before they can extract decree, in any action raised by them to recover Scotch estate."

It is manifest that the weight of American authority is very strong against the right of the present plaintiff to maintain this action by his guardian, deriving authority solely from the laws of New York.

The indulgence of a liberal comity might authorize us to retain jurisdiction of the present suit, and to permit the infant plaintiff to prosecute it by a guardian appointed by this court, ad litem; but we are not inclined to depart from the established practice, founded, as we regard it, upon strong considerations of convenience, uniformity, and certainty, amounting nearly to necessity, and in a sound policy plainly indicated by our laws, in the various and specific provisions enacted for the protection and security of the property and estate of minors, and for the control of those charged with the trust of guardianship. See Gen. Stats., chap. 166; chap. 165, §§ 11-21; chap. 170, § 3.

The plaintiff, in support of his claim to prosecute this suit, invokes the aid of the constitution of the United States, article 4, section 1, which declares that "full faith and credit shall be given in each State to the public, acts, records, and judicial proceedings of every other State."

But it is clear that this provision was not intended to prevent an inquiry into the right of the foreign State to exercise authority over the parties or the subject-matter. The constitution does not confer any new power upon the States, but it intends simply to regulate the effect of their acknowledged jurisdiction over persons and things within their territory. It does not make foreign judgments domestic judgments to all intents and purposes, but only gives a general faith, credit, and validity to them as evidence. Story's Const., chap. 29; Story's Confl. of Laws, § 609; Cooley's Const. Lim. 17, note 1. See Thurber v. Blackbourne, 1 N. H. 242; Hall v. Williams, 6 Pick. 232.

We have shown that no legal privity exists between the administrator here and the guardian deriving his authority from a foreign governinent, and it is clearly settled that without such privity nc right of action accrues. Talmage v. Chapel. 16 Mass. 71; Aspden

Horn v. Cole.

▼. Nixon, 4 How. 467; Stacy v. Thrasher, 6 id. 44; Taylor v. Barron, 35 N. H. 498; Cooley's Const. Lim. 48, 49.

It may deserve consideration whether the probate court may not, in a judicious exercise of power, direct the payment of the fund in this case into the hands of the foreign guardian. It is suggeste that in the exercise of such power the court should take a special bond for the safety of the fund and the due account thereof to the heir, unless the court should be satisfied that the general guardian and his sureties would be responsible for the fund in the State where the appointment of guardian was made. See Baker v. Andrews' Heirs, 3 Humph. 592.

It would seem that by such order an administrator would be protected. But this case is not an application to the probate court, and this action cannot be maintained as a matter of right.

HORN V. COLE.

(51 N. H. 287.)

Estoppel-when one is estopped by false representations.

Defendant caused plaintiff's goods to be attached, relying on his representa tions that they were the property of another. Held, that plaintiff was estopped to show that his representations were false, though made without notice of the debt due the attaching creditor and without any intention to deceive him.

ACTION of trover against Cole and Green for feather beds, glassware, crockery, etc. Plaintiff contemplated removing to the west. Chares E. Horn, his son, had gone there before and lived at Jeffer son, Ill. Plaintiff packed a box of goods directed to his son at his residence. They were delivered to the railroad agent at East Milan, to be sent as freight. Defendant Cole had a note against Charles E. Horn; brought suit and attached said box at Northumberland, August 29. 1864. The defendant Green was the officer executing the process. September 3, 1864, plaintiff had the goods receipted, and they were forwarded. The suit was settled and plaintiff brings this action for damages for the detention. The plaintiff testified that the goods

Horn v. Cole.

belonged to him when shipped. The defendant Cole testified that as plaintiff was passing with the box he said to him: "Are you going to leave us, Horn?" and plaintiff answered "No; but Charles had some things at my house, and I took them and put a few of my things with them into the box and am sending them to Charles." Defendant Cole marked the box for plaintiff, and relying upon this representation as true, procured the attachment of the box as against Charles E. Horn. The plaintiff was not indebted to Cole and there was no evidence to show that he knew that Charles E. Horn was so indebted.

The jury gave defendants a verdict.

Mr. Fletcher, for plaintiff, cited Andrews v. Lyons, 11 Allen, 349; Coggill v. H. & N. H. Railroad, 3 Gray, 549; Osgood v. Nichols, 5 id. 420; Audenried v. Betteley, 5 Allen, 384; Plumer v. Lord, 9 id. 455; Langdon v. Doud, 10 id. 437.

Mr. Ray, for defendants.

PERLEY, C. J. There is no complaint that the rulings and instructions of the court on the trial were erroneous or improper, provided the evidence warranted the jury in returning a verdict for the defendants; and the verdict must stand, if the evidence was competent to prove such representations by the plaintiff as would estop him to set up his title to the goods attached as the property of Charles E. Horn.

The evidence reported in the case was competent to prove that the plaintiff made the representations on the occasion and in the circumstances testified to by Cole; that the plaintiff, though not indebted to Cole, was in debt to others; that Cole, believing the representations to be true, and relying on them as true, caused the goods to be attached as the property of Charles E. Horn; and, also, that the plaintiff made these representations, knowing them to be false, with the intention that all persons who were interested in the subject should take them to be true and act on them as such, and with the intention to mislead and deceive all to whom the representations were communicated, and induce them to act on them as true; that his intention was to deceive his own creditors, and prevent them. from taking the goods as his for the debts which he owed to them. These facts must be taken to have been established by the verdict.

Horn v. Cole. •

But, as there was no evidence that the plaintiff knew Cole had any demand against Charles E. Horn, we cannot infer that the plaintiff had Cole in his mind as an individual whom he meant to deceive by his false representations, or that he had an intent to prevert Cole from taking the goods for a debt which he owed to Cole, as he owed no such debt; and, on the evidence reported, the jury were not at liberty to find that the plaintiff had Cole in his mind as an individual whom he meant to deceive and defraud by inducing him to take the goods for his demand against Charles E. Horn. This raises the point, which the counsel for the plaintiff takes, whether to estop a party from showing that his representations were false, it is necessary that the false representations should have been intended to deceive and defraud the individual party who trusted to them and acted on them, provided there was a general intention to deceive and defraud all persons who were interested in the subject-matter of the false representations.

The ground on which a party is precluded from proving that his representations on which another has acted were false is, that to permit it would be contrary to equity and good conscience. This has been sometimes called an equitable estoppel, because the jurisdiction of enforcing this equity belonged originally and peculiarly to Courts of equity, and does not appear to have been familiarly exercised at law until within a comparatively recent date; and, so far as relates to suits at law affecting the title to land, I understand that in England and in some of the United States the jurisdiction is still confined to courts of equity. Storrs v. Barker, 6 Johns. Ch. 166, 168; Evans v. Bicknell, 6 Ves. 174, 178; Pickard v. Sears, 6 Ad. & Ellis, 469. The doctrine, however, is a very old head of equity, and is recognized and applied in a great number of the early cases. Dyer v. Dyer, 2 Ch. Cas. 108; Teasdale v. Teasdale, 13 Viner, 539; Hobbs v. Norton, 1 Vern. 136; Gale v. Lindo, id. 475; Hunsden v. Cheyney, 2 id. 150; Lamlee v. Hanman, id. 499; Raw v. Pote, id. 239; Blanchet v. Foster, 2 Ves. 264; East Ind. Co. v. Vincent, 2 Atkins, 83; Stiles v. Cowper, 3 id. 693; Farmer v. Webber, 13 Viner's Abr. 525; 2 Brown's Parl. Cas. 88; 2 Eq. Cas. Abr. 481; Neville v. Wilkinson, 1 Bro. C. C. 543; Storrs v. Barker, 6 Johns. Ch. 166; Strong v. Ellsworth, 26 Vt. 366.

Many of these cases related to underhand agreements in fraud of marriage settlements; but the principle is of general application. Fonblanque's Eq. 167, note x. Relief was given according to VOL. XII. - 15

Horn v. Cole.

the circumstances of the case, sometimes by enjoining suits at law, in which the legal title was set up, and sometimes by decreeing conveyances and the canceling of deeds and other instruments; but in all these cases relief was given in equity contrary to the strict legal rights of the defendants.

Thus, in the case of an equitable estoppel, a party is not allowed to assert his strict legal right, because, in the circumstances of the individual case, it would be contrary to equity and good conscience. Take the present case for an illustration. In trover, following the legal definition of the action, if the plaintiff proves property in himself and a conversion by the defendant, he has maintained his action, and is entitled to a verdict and judgment. It is conceded that the plaintiff owned the goods, and that the defendants converted them. The defense here set up appeals from the strict rule at law to the equitable doctrine that a party shall not be allowed to exercise his legal right of proving the facts, if, on account of his previous declarations or conduct, it would be contrary to equity and good conscience. So in a writ of entry: by the technical rules at law, if the demandant proves seizin in himself and a disseizin by the tenant within the time of limitation, he is entitled to judgment; but if the demandant, having a dormant title to the land demanded, concealed his title and encouraged the tenant to purchase from another, he is not allowed in our practice to set up his legal title, because it would be contrary to equity and good conscience.

It thus appears that what has been called an equitable estoppel, and sometimes with less propriety an estoppel in pais, is properly and peculiarly a doctrine of equity, originally introduced there to prevent a party from taking a dishonest and unconscientious advantage of his strict legal rights, though now with us, like many other doctrines of equity, habitually administered at law. But formerly the practice was different, and suits at law, the courts being incapable of giving effect to this equity, were often enjoined where the party insisted on his rights at law contrary to the equitable doctrine, as in Raw v. Pote, Stiles v. Cowper, and Farmer v. Webber, qua supra.

It would have a tendency to mislead us in the present inquiry, as there is reason to suspect that it has sometimes misled others, if we should confound this doctrine of equity with the legal estoppel by matter in pais. The equitable estoppel and legal estoppel agree indeed in this, that they both preclude from showing the truth in the individual case. The grounds, however, on which they do it.

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