Anthony, Dennison & Co. v. Brayton

7 R.I. 52

• Court: Supreme Court of Rhode Island
• Decided: September 6, 1861
• Status: Published

Opinion

Ames, C. J.

The question submitted to us upon the first plea in abatement is, not whether the facts proved and admitted estop the defendant from contesting the validity of the attachment of the defendant’s goods and consequent due service of the writ, but, whether they support the plaintiffs’ traverse of the facts averred in the plea. The defendant pleads, in substance, that at the time of the attachment of his property, he was openly at large in the county of Bristol, in which case, under our statute, as his body could have been arrested, his goods were not attachable. The plaintiffs traverse this fact, and upon this traverse the issue is made up between the parties.

Now, it is old law, that when a party does not rely in his pleading, upon an estoppel, but himself opens the truth or falsehood of the facts which he claims that the other party is estopped to aver or deny, and makes the truth of those facts the very issue which the jury are called upon to try, the jury, and so, here, the court who are substituted, by agreement, for the jury, are bound to find according to the real truth of the facts proved before them. Goddard’s Case, 2 Coke, 4; Speake v. Richards, Hob. 206; Treviban v. Lawrence, 2 Lord Raym. 1048; S. C. 1 Salk. 276; and see, Wilson v. Butler, 4 Bingh. N. C. 748; Magrath v. Hardy, Ib. 782; Cannam and another v. Farmer, 2 Car. and Kirw. 746; Young and another v. Raincock, 7 Mann., Grang. and Scott, 310. The rule is equally applied to estoppels in pais, as to estoppels by record or deed. Thus, in Gannam and another v. Farmer, sup., the issue was, whether the defendant, who was sued as maker of three promissory notes, was, at the time of making them, the wife of James Parmer, who was .still living; she having pleaded these facts in her defence, and the plaintiffs having traversed them. The fact of the marriage of the defendant with James Parmer, previous to the giving of the notes, having been proved by an examined copy of the parish register of the marriage, and it being also proved that James Parmer was alive at the time the notes were given, the plaintiffs relied upon her representation, by signing the notes, “ Anne Farmer, widow," as an estoppel to her right to aver herself to be, at that time, a married woman. Baron Alderson ruled, that upon the pleadings, the fact of her being a married woman having been admitted, or proved to the satisfaction of the jury, her representation was no answer to the defence.

An estoppel of any kind may, indeed, be found by the jury, though not specially averred in the pleadings, where it comes in support of the declaration, or in answer to some matter proved in defence, under the general issue; Com. Dig. Pleader, S. 4, and cases supra; but where a fact is specially averred in the pleadings, against an estoppel, the matter in estoppel must be replied; and the joining of issue upon the truth of the fact averred is construed as a waiver of the estoppel. Treviban v. Lawrence, 2 Lord Raym, 1048; S. C. 1 Salk. 276; Magrath v. Hardy, 4 Bingh. N. C. 782.

For these reasons we must find, according to the written admission of the parties, that the defendant was openly at large in the county of Bristol at the time of the service of this writ, by attachment, and, therefore, that the writ must abate for want of legal service.