
    [Sunbury,
    June 24, 1828.]
    MARTIN and others against IVES and others.
    IN ERROR.
    It seems, that if the plaintiff appeals from an award of arbitrators, he cannot, under the act of assembly, afterwards suffer a-nonsuit without the written consent of the defendant.
    If a defendant give in evidence as a judgment, an award in his favour in ejectment, he is afterwards estopped from reversing it on error.
    Estoppels are favoured where they promote equity, and a party may be estopped by giving a matter in evidence as well as by pleading it.
    This was a writ of error to the Court of Common Pleas of Tioga county, in an ejectment for four hundred and forty acres of land; brought by John Ives and others, defendants in err.or and plaintiffs below, against William Martin and others, plaintiffs in error and defendants below.
    The cause was arbitrated under the act of the 20th of March, 1810, at the instance of the defendants, and an award made, that the plaintiff had no cause of-action. The plaintiffs appealed. The defendants moved the court below to strike off this appeal, but the court refused. Afterwards, the cause heing at issue, and a ]ury sworn and affirmed, the plaintiffs suffered a nonsuit, and judgment was entered accordingly by the court.
    The plaintiffs in error now assigned for error, that the plaintiffs in the court below were permitted to withdraw their appeal from the award of arbitrators without the written consent of the adverse party.
    The defendants'in error pleaded in nullo es't erratum, and for further plea, that at a Court of Common Pleas of Tioga county, held at Wellsborough, in said county, in the term of February, A.D. 1826, the present plaintiffs in error, in connexion with a Verdict and judgment between the same parties in another action for the land claimed in this suit, gave in evidence as a good and valid judgment, in bar of .the action, the award, appeal and judgment returned on this writ of error, which he now seeks to reverse for the errors assigned, and so is estopped, &c.
    The plaintiffs in error demurred to the defendants’ special plea.
    
      Willetson, for the plaintiffs in error,
    insisted that by the judgment of nonsuit they were deprived of making their avvard as operative as a verdict: and, that the matter confessed in the plea did not operate as an estoppel. ' ' .
    
      Lewis, contra.
    
    It does not appear that the’nonsuit was voluntary — it may have been adverse, which is very different from withdrawing an appeal. But a man who pleads a matter as true, cannot deny it afterwards. 4 Com. Dig. 76. 13 Co. 62.
    
   The opinion of the court (Huston, J. takirig-no part in consequence of a remote interest in the cause,) was delivered by

Gibson, C. J.

Whether the suffering of a nonsuit be within the purview of the act, we do not positively determine. It certainly produces the consequences of a retraxit, by depriving the defendant of his remedy against the plaintiff, and stands in equal mischief. To prevent the' plaintiff from eluding further responsibility by shifting his ground and setting up the avvard, after the defendant may have been induced to forego the right of appealing for himself, seems to have been the main object of the act. A nonsuit may be one way of withdrawing an appeal, as it certainly is one way'of withdrawing from the consequences of it. In using general terms, the legislature might well be supposed to have had in view, all cases obnoxious to the same mischief. This supposition is strengthened by the undoubted fact, that it was a case of nonsuit sustained by this court in Moore v. Hamilton, (not reported,) which led to the,enactment of the law.

But granting this point to the plaintiff in error, still it is clear, that he has ratified the nonsuit and is estopped from denying the legality of it. Had hepleaded, the avvard as a final judgment, instead of giving it in evidence, there could not have been a doubt on the subject, an affirmation of record being conclusive against afterwards denying the fact. So of any other act of record; as the acknowledgment and enrolment of a deed, which precludes the plea of non est factum; or, the levying of ii fine, which precludes an allegation that the parties had nothing. But a party may be estopped as effectually by matter in'pais, as by matter .of record. .Thus, a widow, who has recovered a dower, shall not, claim land settled on her in jointure; and a party may be estopped by the acceptance of rent, or by entry, or livery. References, to the authorities for these instances, are to be had in Com. Dig., title Estoppel. Here, in an action between the same parties, the plaintiff in error relied on the award, as having, by force of the arbitration act, the effect of a verdict and judgment, which it could not have, if‘the appeal were still depending; and he shall, not controvert what he himself directly asserted. .

Estoppels are sometimes said to be odious; and it has been affirmed, that there is no such thing as an equitable estoppel. But the doctrine of election, which prevents a party fro.m claiming in repugnant rights, and which has been so advantageously introduced into courts of equity, is manifestly an extension of the principle. In courts of law they are for the most part, reconcileable to the purest morality, and when they produce neither hardship nor injustice, they merit indulgence, if not favour. The conclusiveness of judgments which conduces so essentially to peace and repose, has no other foundation. The plaintiff in error had the benefit of the award as far as it would serve him, and shall not now disaffirm his solemn act in a court of record.

Judgment affirmed.  