Atwater, J.
By the Court. Cleophas Auger and Joseph Hebert, the Plaintiffs below, bring an action against the Defendant Caldwell, Sheriff" of Bamsey county, for the recovery of the possession of a certain barge, alleged to belong to the Plaintiffs, and to have been wrongfully taken by the Defendant.' The answer denies ownership in the Plaintiffs, and alleges part ownership of the boat in one Eoret, and avers that the Defendant levied on the boat by virtue of an execution [221] held by him against said Eoret, The taking was alleged to hare been on the 7th of June, 1860.
On the trial of the case the Plaintiffs introduced in evidence a bill of sale from Eoret to Auger, dated May 27th, 1858, conveying one-fourth interest in the boat. Other evidence was introduced, showing that previous to this, the boat was owned by the Plaintiffs and Foret.
Evidence was introduced on the part of the Defendant tending to show that the officer went to the boat with the exeeution against Foret, intending to levy on some wood on the same belonging to Foret, or which it was supposed belonged to him, that he there saw the Plaintiffs, and was informed by Auger that the wood did not belong to Foret, and that Hebert said one half or third of the boat belonged to Foret, and asked why he did not levy on the boat — that thereupon the officer, (Deputy Sheriff,) levied upon the boat, etc.
The Judge charged the jury among other things as follows: “ that under the pleadings the admissions and declarations of the parties were evidence as to Foret having an interest in the boat, but that the admissions of Hebert, unless ratified by or assented to by Auger, would not impeach the bill of sale as to Auger, nor defeat his right under it, and not operate to estop Auger, nor the Plaintiffs.”
Had the last three words been omitted, this part of the charge to the jury would have been unobjectionable, but including them, it is too broad, and tended to mislead them. Hnder the pleadings and evidence, there were two principal points presented for the consideration of the jury, to wit: did Foret actually own an interest in the boat-; and 2d, have the Plaintiffs estopped themselves from claiming that he had not. An affirmative finding on either of these points, would entitle the Defendant to judgment. For under the pleadings the Plaintiffs must show a joint interest in the boat, and entire ownership by them, and a failure to do this would defeat the action.
The subject of estoppels in pais is fully discussed in Doe vs. Oliver (Duchess of Kingston's case), 2 Smith's Lead. Cas. 435, and it is only necessary to advert to the principle there stated, and whiGh may be considered as the settled law upon the sub[222] ject. As to wbat constitutes an estoppel, the statement of Lord Denman is in that case cited with approval, as given in 6 Ad. & Ell. 475, as follows : “ The rule of law is clear, that where one, by his words or conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.” And in Dazell vs. Odell, 3 Hill 219, the same rule in substance is recognized, Bronson, <L, stating that to constitute an estoppel m pais as against a party, there must be, 1st, an admission inconsistent with the evidence which he has proposed'to give, or the title or claim which he proposes to set up; 2d, an action by the other party upon such admission; 3d, an injury to him, by allowing the admission to be disproved. See also Phil. on Ev. 1, p. 360; Greenleaf on Ev. 1, Sec. 207; 8 Wen. 480; 23 Wen. 222; 9 Cow. 277; 16 Maine 146. If the jury should find that Hebert did in fact make the statement that Eoret owned an interest in the boat, at the time the officer came to make the levy, and that the officer acted upon such statement in making the levy, then I think the case falls within the rule above laid down, and that he cannot be permitted on the trial to show a state of facts inconsistent with such statement to the Deputy Sheriff. Having induced the Defendant to levy upon the boat by such representation, it would be manifestly unjust to permit him now to turn round, and show that his statement was untrue to the prejudice of the Defendant. He is justly estopped from setting up a title to the boat, to the exclusion of that of Eoret.
It is claimed by the counsel for the Respondents, that under the Code an estoppel in pans should be pleaded, in order that it may be given in evidence. It is not claimed, nor is it true, that this was necessary under the old system of pleading. Nor do I find, either on principle or authority that such pleading is required under the Code. The principles of pleading under both systems are the same. Thefacts upon which the parties relied, were not less required to be pleaded under the old system than under the new. Em fact necessary here to be pleaded and proved is, that Eoret owned an interest in the boat, and [223] as to Iiebert, it is one and tbe same thing, whether the Defendant shows the allegation to be actually true, or that the Plaintiff himself at a certain time, admitted it to be true, for the result is the same in the eye of the law. It is in effect, making the declaration of the Plaintiff conclusive proof o"f the allegation in the answer, and the pleading of the statement of Hebert, would in fact, be pleading the proof, which, under any system, would be bad. Hebert cannot object that a fiction of law (as it is termed by counsel) is pleaded, for as to him, it is true.
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Atwater, J.
By the Court. Cleophas Auger and Joseph Hebert, the Plaintiffs below, bring an action against the Defendant Caldwell, Sheriff" of Bamsey county, for the recovery of the possession of a certain barge, alleged to belong to the Plaintiffs, and to have been wrongfully taken by the Defendant.' The answer denies ownership in the Plaintiffs, and alleges part ownership of the boat in one Eoret, and avers that the Defendant levied on the boat by virtue of an execution [221] held by him against said Eoret, The taking was alleged to hare been on the 7th of June, 1860.
On the trial of the case the Plaintiffs introduced in evidence a bill of sale from Eoret to Auger, dated May 27th, 1858, conveying one-fourth interest in the boat. Other evidence was introduced, showing that previous to this, the boat was owned by the Plaintiffs and Foret.
Evidence was introduced on the part of the Defendant tending to show that the officer went to the boat with the exeeution against Foret, intending to levy on some wood on the same belonging to Foret, or which it was supposed belonged to him, that he there saw the Plaintiffs, and was informed by Auger that the wood did not belong to Foret, and that Hebert said one half or third of the boat belonged to Foret, and asked why he did not levy on the boat — that thereupon the officer, (Deputy Sheriff,) levied upon the boat, etc.
The Judge charged the jury among other things as follows: “ that under the pleadings the admissions and declarations of the parties were evidence as to Foret having an interest in the boat, but that the admissions of Hebert, unless ratified by or assented to by Auger, would not impeach the bill of sale as to Auger, nor defeat his right under it, and not operate to estop Auger, nor the Plaintiffs.”
Had the last three words been omitted, this part of the charge to the jury would have been unobjectionable, but including them, it is too broad, and tended to mislead them. Hnder the pleadings and evidence, there were two principal points presented for the consideration of the jury, to wit: did Foret actually own an interest in the boat-; and 2d, have the Plaintiffs estopped themselves from claiming that he had not. An affirmative finding on either of these points, would entitle the Defendant to judgment. For under the pleadings the Plaintiffs must show a joint interest in the boat, and entire ownership by them, and a failure to do this would defeat the action.
The subject of estoppels in pais is fully discussed in Doe vs. Oliver (Duchess of Kingston's case), 2 Smith's Lead. Cas. 435, and it is only necessary to advert to the principle there stated, and whiGh may be considered as the settled law upon the sub[222] ject. As to wbat constitutes an estoppel, the statement of Lord Denman is in that case cited with approval, as given in 6 Ad. & Ell. 475, as follows : “ The rule of law is clear, that where one, by his words or conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.” And in Dazell vs. Odell, 3 Hill 219, the same rule in substance is recognized, Bronson, <L, stating that to constitute an estoppel m pais as against a party, there must be, 1st, an admission inconsistent with the evidence which he has proposed'to give, or the title or claim which he proposes to set up; 2d, an action by the other party upon such admission; 3d, an injury to him, by allowing the admission to be disproved. See also Phil. on Ev. 1, p. 360; Greenleaf on Ev. 1, Sec. 207; 8 Wen. 480; 23 Wen. 222; 9 Cow. 277; 16 Maine 146. If the jury should find that Hebert did in fact make the statement that Eoret owned an interest in the boat, at the time the officer came to make the levy, and that the officer acted upon such statement in making the levy, then I think the case falls within the rule above laid down, and that he cannot be permitted on the trial to show a state of facts inconsistent with such statement to the Deputy Sheriff. Having induced the Defendant to levy upon the boat by such representation, it would be manifestly unjust to permit him now to turn round, and show that his statement was untrue to the prejudice of the Defendant. He is justly estopped from setting up a title to the boat, to the exclusion of that of Eoret.
It is claimed by the counsel for the Respondents, that under the Code an estoppel in pans should be pleaded, in order that it may be given in evidence. It is not claimed, nor is it true, that this was necessary under the old system of pleading. Nor do I find, either on principle or authority that such pleading is required under the Code. The principles of pleading under both systems are the same. Thefacts upon which the parties relied, were not less required to be pleaded under the old system than under the new. Em fact necessary here to be pleaded and proved is, that Eoret owned an interest in the boat, and [223] as to Iiebert, it is one and tbe same thing, whether the Defendant shows the allegation to be actually true, or that the Plaintiff himself at a certain time, admitted it to be true, for the result is the same in the eye of the law. It is in effect, making the declaration of the Plaintiff conclusive proof o"f the allegation in the answer, and the pleading of the statement of Hebert, would in fact, be pleading the proof, which, under any system, would be bad. Hebert cannot object that a fiction of law (as it is termed by counsel) is pleaded, for as to him, it is true.
Assuming the estoppel to be found against Hebert, it remains to consider its effect upon the parties to the action. It may be remarked that there was evidence sufficient for the consideration of the jury as to whether both Plaintiffs were not estopped by the declarations of Hebert.' If it shall be found that Auger was present, heard and understood the statements of Hebert with reference to the interst of Eoret in the boat, and made no objection thereto, he would be equally estopped with his co-Plaintiff. But aside from this, how stands the case ? The Plaintiffs sue as joint and sole owners of the boat. The separate interest of either is not stated, and is not in issue. Hebert, it is true, cannot by his statements prejudice the interest of Auger, unless the latter has in some manner assented to or ratified them. But he may prejudice his own, and place himself in such a position that his interest may be levied upon and sold as that of Eoret. Auger, by joining Hebert with him, as Plaintiff, has admitted that the latter owned a share in the boat, and if that share, or any part of the same, may be taken as that of Eoret, Auger is estopped from saying that Eoret has not an interest. Auger may not necessarily be estopped from showing that Eoret has not the interest admitted by Hebert, or that the latter has not as great an interest as that which he stated Eoret owned, but he is estopped from showing that neither had any at all. And if the Plaintiffs are estopped from showing that Eoret had no interest, then the Sheriff was justified in levying upon the boat. Where an officer has an execution against one part owner of a chattel, he must seize the whole chattel, though he can sell only the interest of the Defendant in the execution. [224] And this, whether the ownership be by virtue of a partnership relation or as tenants in common. (Mersereau vs. Norton, 15 John. 179; Phillips vs. Cook, 24 Wen. 389, 23 Wen. 606; Waddell vs. Cook, 2 Hill 47; Walsh vs. Adams, 3 Denio 125.) We therefore think the Judge erred in his charge to the jury on this point, and that the judgment below should be reversed and a new trial granted.