
    Eurotas P. Hastings, Administrator of Elliott Gray, v. Orlando H. Allen.
    It is an error in the court to assume to find a disputed fact, and, on that assumption, to arrest from the jury evidence which otherwise would be competent.
    One intrusted with personal property, may, in an action of replevin, contest the right of ownership and possession, without a redelivery of possession.
    This is a motion for a now trial, in an action of replevin, reserved in the county of Cuyahoga.
    The facts in the case appear in the motion, of which the following is a copy:
    And now, after verdict and before judgment, comes the said Orlando H. Allen, by Andrews, Foot & Hoyt, his attorneys, *and moves the court to grant a now trial in this cause, for the following reasons, to wit:
    The plaintiff offered in evidence the depositions of Samuel Lewis and others, for the purpose of proving, by the declarations of the defendant, that a few weeks previous to the commencement of this suit, the defendant had obtained possession of the schooner mentioned in the declaration, under a verbal agreement to sail her for Elliott Gray, the original plaintiff, during the sailing season of 1836; that the defendant, under the direction of Gray, immediately after obtaining possession of said schooner, made one trip in her to the upper lakes, and on his return, instead of reporting himself to the said Gray, secretly and clandestinely took said schooner to Buffalo, in the State of New York, and delivered her to Barker & Holt, of that city; that he afterward took two trips in her to Cleveland, and that, in the second trip, while he was at Cleveland, she was replevied in this suit by the said Elliott Gray; and upon this testimony the plaintiff rested his case.
    The defendant denied that there was any agreement, or sufficient proof of any agreement to sail the vessel for Elliott Gray, as claimed by the plaintiff; and offered to prove, by various witnesses and depositions, that the said schooner was built by Barker & Holt and others, in the year 1833; that the said Barker & Holt, who were the real defendants in the case, owned a majority of the shares of stock in said schooner ; and from the time she was built until within a few days of making the pretended agreement, the said Barker & Holt had the control and management of said vessel; and that during all that time the defendant had been in command of her as master, under the said Barker & Holt; that a few days before the making said pretended agreement, the said Elliott Gray forcibly and wrongfully took possession of said schooner from the said defendant; and that after the defendant returned from the upper lake trip, by the direction of the said Barker & Holt, he took said schooner to them at Buffalo, and under their directions sailed her between Buffalo and Cleveland, until *sho was replevied in this suit; that the said Elliott Gray never had any interest in, or title to said schooner, or right to the possession of her, before or at the time of the commencement of this suit.
    To the introduction of the above evidence the plaintiff, by his counsel, objected, alleging that as the proof showed that the defendant had obtained possession of the said schooner under an agreement to sail her during the season for the plaintiff, neither the defendant, nor the owners defending in his name, could refuse the plaintiff’s right to the possession of said vessel.
    
      The court held that the objection was well taken ; that the proof showed an agreement by tho defendant to sail the schooner for the said Elliott Gray, and that the defendant, and the owners defending in his name, were estopped by said agreement from disputing said Gray’s right to the possession of said schooner.
    Tho testimony was accordingly excluded by the court; and the jury, under tho direction of tho court, found a verdict, with nominal damages, for tho plaintiff.
    For tho improper exclusion of the defendant’s testimony, as aforesaid, this motion is made.
    Andrews, Foot & Hoyt, and J. B. Prentiss, in support of the motion :
    The question whether there was an agreement or not, and if so, what it was, were matters of fact for the jury. Assuming that such an agreement as that claimed" by the plaintiff, would, if proved, have estopped the defendant from denying the plaintiff’s title, it afforded no ground for tho exclusion of the testimony in tho first instance. The evidence should have gone to the jury with instructions to disregard it, if they found the agreement.
    *The agreement, if proved, would not estop the defendant showing title in a third person, at the time suit was brought.
    In replevin for a horse sold by defendant to plaintiff, it was held that defendant might defeat tho action by showing property in a third person. Boies v. Witherill, 8 Greenl. 162.
    So a warehouseman receiving goods from a consignee who had actual possession of them, to be kept for his use, may, nevertheless, refuse to deliver them, if they are tho property of another; and Heath, Justice, remarks that, “ It is peculiar to the action of ejectment, that one who is intrusted with tho possession of land, must deliver it back to his lessor; but that rule extends to no other action.” Ogle v. Atkinson, 5 Taunt. 759.
    So receiptors of goods to the sheriff may show, in an action brought by him, that the goods wore not the property of the debtor. Larned v. Bryant, 13 Mass. 224.
    A parol agreement can never ha pleaded as an estoppel. It may be given in evidence to the jury ; and, if conclusive at all, is conclusive only upon such things as are plainly expressed in it. It can not have greater effect as evidence, than it would have if under seal and specially pleaded. Matter of inference or argument can not operate as an estoppel. Co. Lit. 355, b.
    
    
      “Estoppels must be certain to every intent; for no one shall be denied setting up the truth, unless it is in plain and clear contradiction to his former allegations and acts.” Greenl. Ev. 26, and ' the cases there cited. These rules apply with peculiar force to a merely verbal agreement.
    Now the agreement relied upon in this case, contained no express admission of the plaintiff’s title or right of possession, nor any promise to return the vessel to the plaintiff. If, therefore, any such admission or promise is relied upon, it must be by way of inference, and could not in any contingency havo the effect of an estoppel.
    If, however, the agreement admitted anything, it was the plaintiff’s right to possession, and not an absolute title in him; *and the defendant ought to havo been allowed to show an interest in third persons, in mitigation of damages, if he could not do so to defeat the action.
    The defendant offered to show that, at the time the pretended agreement was made, he was lawfully entitled to the possession of the vessel; that he had been fraudulently and wrongfully dispossessed of her by the plaintiff, and that the plaintiff had no right or interest in hor whatever. If this were so, the agreement was void for want o'f consideration, for the plaintiff was legally bound to deliver the vessel to the defendant, and his doing what it was his duty to do, constituted no consideration for the undertaking of the defendant. He parted with no right, and the defendant acquired none. “Periormanee of an act which the party was by law bound to perform, is not a sufficient consideration for a promise.” 1 Wheaton’s Selw. 38; Still v. Myrick, 2 Camp. N. P. 317; Harris v. Watson, Peake’s N. P. 317.
    A voluntary restoration of what the law would compel a man to restore, is not a consideration for a promise. McDonald v. Neilson, 2 Cow. 139.
    Had the plaintiff been an owner of the vessel, the defendant should have been permitted to show that there were other owners; for the legal effect of the agreement was to run her for the benefit of all the owners; and, even if this were not so, there was no admission of title in the plaintiff, inconsistent with his being co-tenant with others. The evidence offered was material, because, in replevin, all the owners must join. Hart v. Fitzgerald, 2 Mass. 509.
    
      Tho suit was in effect a suit against the owners of the vessel, through brought of necessity against the person in possession, and they had a right to make any defense which they could have made had they been parties to the record. If they had been permitted to defend, the judgment would have concluded them. Kinnersly v. Orpe, Doug. 56; Kip v. Brigham, 6 Johns. 157; Bender v. Frembarger, 4 Dall. 436 ; 7 Johns. 168.
    It is, perhaps, superfluous to add that estoppels aro not favored *in law; that they are not to be extended, and that the inclination of courts is to discountenance them because tljoy may exclude the truth. 4 Mass. 181, 273; Garnett v. Ball, 3 Stark. 160.
    Payne & Wilson, for plaintiff, against tho motion:
    We contend that the acts and contract of the defendant operate as an estoppel, and preclude him from interposing the defense offered on tho trial.
    
      What is an estoppel ¶
    
    In Greenleaf’s Ev. 25, sec. 22, it is laid down, “A man is said to be estopped, when he has done some act which the policy of the law will not permit him to gainsay or deny. Tho law of estoppel is not so unjust or absurd as it has been too much the custom to represent. Its foundation is laid in the obligation which every man is under to act and speak the truth; and, in the policy of the law, to prevent the great mischiefs resulting from uncertainty, confusion, and want of confidence in tho intercourse of men, if they were permitted to deny that which they have deliberately and solemnly asserted and received as true.”
    Again, at page 33: “Another class of estoppels are £admissions ’ which have been acted upon, or those which have been made to influence the conduct of others, or to derive some advantage to the party, and which can not afterward be denied without a breach of good faith. This class comprehends not only all of those declarations, but also that line of conduct by which tho party has induced others to act, or has acquired any advantage to himself.”
    Again, at page 240, see. 207: “Admissions, which have been acted upon by others, are conclusive against tho party making them in all cases between him and tho person whoso conduct he *has thus influenced. It is of no importance whether they were mado in express language to the person himself, or implied in the general and open conduct of the party; for, in the latter case, tho implied declaration may be considered as addressed to every one in particular who may have occasion to act upon it. In such cases, the party is estopped, on grounds of public policy and good faith, from repudiating his own representations.” The same doctrine may be found in 7 Stark. Ev., 7 Am. ed. 22.
    In the case before the court, Allen had, by his declarations, promises, and conduct, both induced Gray to act, and secured an advantage to himself. And that this case comes within the rule as above laid down, is clearly shown by reference to the following cases.
    When a man has cohabited with a woman and treated her in the face of the world as his wife, he can not afterward object to a creditor who had supplied her with goods, that she was .not his wife. 2 Esp. 637; 1 Camp. 245 ; 4 Camp. 215. So, when a man has held himself out to the world in a particular character, he can not afterward divest himself of it, in order to claim that to which he is not entitled under the assumed character. 2 Esp. 637; 1 Camp. 245.
    A man who acquiesces several years in a commission of bankruptcy, and elicits the votes of creditors in the choice of assignees, can not afterward dispute the commission. 6 Esp. C. 20; 2 Ves. 236; 6 Esp. 61.
    So a petitioning creditor can not dispute the debt in an action by the assignees. 1 Moore, 300. So a defendant is estopped, by the recognizance of bail entered into for him by the name by which he is sued, from pleading a misnomer, although he is no party to the recognizance. Merideth v. Hodges, 2 N. R. 453. So a tenant can not dispute his landlord’s title, nor can a copyhold tenant dispute the title of the lord of the manor. 5 B. & A. 626 (7 Eng. Com. L, 214). A tenant is concluded by the statement he makes to his landlord, as to the time of entry. 2 Esp. C. 635. ^Respondents obtaining a respite of appeal, can not afterward object the want of notice. 4 B. & A. 535.
    When one being asked his name previous to issuing out a process against him, represents it to be John, he can not, in an action against the sheriff for trespass, insist that his name is William. Price v. Howard, 3 Camp. 108; Bass v. Cline, 4 M. & S. 13. When a plaintiff signed himself/1 M. D.,” it was hold that he was to be taken as a physician, and that he could not maintain an action for fees. 2 Camp. 441; 4 Term, 317. So when one has knowingly permitted his name to be hold out to the world as one of a trading firm, in an action by a stranger for credit given upon the faith of his being such partner, he is estopped from denying that he was such partner. 10 B. & O. 128, 140, 141; 6 Bing. 776, 794; 10 B. & C. 20; 2 Camp. 302. So one assuming to act in an official or professional capacity is bound by it, even to incurring penalties. Greenl. Ev., sec. 195, etc.
    This doctrine is also applied to the relation of bailor and bailee, the cases being in principle the same. 7 Bing. 399; 8 Wend. 610; 3 N. Hamp. 290; 1 Conn. 248; 1 McCord, 392 ; 2 B. & C. 540; 2 Camp. 344; 3 Pick, 38, 44, 317; Story on Bail. 78, sec. 102; 6 Al. & El. 515.
    Also, to the relation of principal and agent. Story on Agency, 207, 208, and notes; 9 Bing. 382, and note.
    Thus, also, the indorsement or acceptance of a note or bill is a conclusive admission against the indorser or acceptor of the genuineness of the preceding signatures, and of the authority of the agent when it was drawn by px-ocuration. 9 Watts,.273; Greenl. Ev. 243.
    Again, it makes no difference in the operation of this rule whether the thing admitted be true or false, it being the fact that it has been acted upon that renders it conclusive; e. g., the two •brokers instructed to effect an insurance, wrote that they had effected two policies. In an action of trover for the policies, they are held estopped to deny the existence of the policies. Peck on Ins. 4. See also 8 Wend. *483; 9 Ib. 147; 3 Pick. 38, 44; 3 C. & P. 136; 3 Hawk. 479; 2 Esp. 635; 1 B. & A. 650; 3 Camp. 108; 1 C. & P. 614; 1 B. & Ald. 712. Even in the case of an innocent mistake, if it has been acted upon by another, it is conclusive in his favor. Salem Bank v. Gloucester Bank, 17 Mass. 1, 27.
    In suppox’t of this doctrine, as applied to the landlord and tenant, a host of authorities, English and American, might bo cited, but the rule is too firmly settled by this court to require it.
    The reason of it is, that the tenant having derived a benefit, that is, having received this possession from the landlord, it would be a bx’each of good faith to permit him to repudiate that isolation until he restox’es the possession.
    It will be observed that none of the authorities place it upon the ground that the thing possessed is real estate. The rule is clearly defined by Justice Nelson, in Willard Canal Co. v. Hathaway, 8 Wend. 483. We quote the language of the court in that case:
    “As a general rule, the party will be concluded from denying his own acts or admissions which were expressly designed to influence the conduct of another, and did so influence it, and when such denial will operate to the- injury of the latter. The case of-the First. Presbyterian Congregation of Salem v. Withers striningly illustrates the general proposition. To an inquiry for rent and property liable to distress, the tenant replied that he had none. In ejectment for the premises, he was estopped from disputing the truth of his admission, by showing that he bad property out of which the rent could have been collected. All the cases I have seen in which the acts or admissions of the party are adjudged to operate against him in the nature of an estoppel, are generally cases where, in good conscience and honest dealing, he ought not to be permitted to gainsay them.”
    And in Davidson v. Franklin, 20 Eng. Com. L. 363, when the obligor of a judgment note had stated to the assignee of the obligee, before he bought it, that it could be paid; on a *motion to set aside the judgment on the ground that the note was given for a gaming debt, the court held him estopped, by his admission, from showing the illegality of the contract. Lord Tenterden remarked: “I think, according to the maxim that no man ought to be permitted to allege his own misconduct, we ought not to make this rule absolute. By so doing, we should enable the defendant to defeat the judgment by his own fraudulent misconduct, and to injure a person who had advanced money upon the faith that his representations were true.”
    But it is claimed that, admitting that this doctrine of estoppel is applicable to the case, provided the supposed relation between the parties is established, yet the existence of such relation was a question exclusively for the jury ; and that the testimony offerod should have gone to the jury, under a direction from the court to disregard it, if they found such relation did, in fact, exist.
    Hero it will be noticed that the court distinctly stated to defendant’s counsel that it was competent for them to introduce any evidence tending to impeach or rebut the plaintiffs proof of such relation, and defendant’s counsel as distinctly stated in reply that they had no such proof to offer. The decision of the court was merely this: that the plaintiff had prima facie made out a ease, which, until explained or repelled, precluded the kind of defense proposed to be made. The court so far pass upon the testimony as to say that, unimpeached, it proves certain facts. And this right, it is claimed, the court do not possess. It is not the exercise of that power, but the question of its existence, that is a matter of surprise. As a matter of convenience in expediting the trial of issues, courts have, from the earliest period, exercised, the right of deciding upon the extent and effect of testimony. Whether the plaintiff’s testimony sustains the allegations in his declaration, or whether there is any testimony at all which requires an answer from the defendant, must be determined by the court on' every motion for a nonsuit. In many other cases, as in the one at bar, the court are compelled to decide whether the testimony adduced ^establishes, prima facie, certain -facts or relations, with a view to the admission or rejection of particular modes of defense. In suits upon indorsed promissory notes, the court, upon inspection of the note offered in evidence, the relation of the parties to each other, whether that of indorser- and indorsee, holder or maker, etc., thereupon admit or exclude further testimony in accordance with such relation. In the familiar case of the Indorsor v. Maker of a negotiable promissory note or bill, which the plaintiff claims to have been indorsed to him before due, upon the defendant’s offering to prove a failure of consideration, the court will find from the testimony whether the plaintiff was a bona fide holder before due, in order to the admission or rejection of the proposed defense.
    In all cases of a joint trespass or joint conspiracy, the question whether the declarations of one are competent testimony against his co-defendants depends upon the fact of a certain relation between him and them, which the court must first find, at least, prima facie established. So in ejectment by and between landlord and tenant. When the lease is produced in evidence, the court find that the relation of landlord and tenant is prima facie established’; and thereupon, unless the proof is rebutted, exclude all defense which is not pertinent to an issue between parties sustaining that i*elation to each other. Many more examples might be given. A single one will suffice. ( Take the case of Vendor v. Vendee; as the case of Butler’s Lessee v. Wilde, above named. The contract produced in evidence, and the testimony to show that possession was taken and held under it by the defendant, aro for the consideration of the jury. But the court unhesitatingly pronounce upon this proof that the relation of vendor and vendee is prima facie made out, and, unless first repelled, the defendant is estopped to show title in a third person. Indeed, the court may with propriety charge the jury that the plaintiff upon that proof is entitled to a verdict. Yet it is the jury that finally pass upon the testimony, and award the verdict.
    Now that is precisely the case at bar. The depositions clearly prove a certain relation between the plaintiff and defendant, *which relation was created by the declaration, contract, and conduct of the defendant, and his express recognition of the plaintiff’s title. This is to be finally submitted to the jury, and this case was so submitted. Nor do the court say that such relation is absolutely established; on the contrary, they merely find that it is prima facie made out, and will entitle the plaintiff to a verdict, unless impeached or rebutted by the defendant; and that, without such impeachment, the proposed defense is inadmissible.
    Andrews, Foot & Hoyt, in reply:
    It is not pretended that the mere delivery of a chattel by one man to another, estops the latter from denying the title of the former. If this were so, a man who should deliver a borrowed article to its true owner, would acquire a title to it by estoppel. It depends, then, upon the agreement accompanying the delivery; neither is it every agreement that estops a man, for upon that principle, a delivery on a contract of sale could estop the vendee from disputing the vendor’s title. But the question of estoppel depends upon the nature and terms of the agreement; where the contract is in writing, and its validity is admitted. As on demurrer to a special plea or otherwise, the court can pronounce upon its legal effect. But where no agreement is before the court, but only evidence from which an agreement may be presumed, there the question is for the jury, and whether there is an agreement or not, depends upon the inference which they draw from the testimony. It is said, however, that the court always pass upon testimony in cases of nonsuit.
    When a single item of evidence is offered, it is often impossible to tell whether it tends to prove the issue or not. Its effect may depend upon other testimony.
    But when the plaintiff has closed his case, and the testimony does not tend to prove the issue, the court will directa non-suit, not upon the ground that there is insufficient proof, but upon theground that there is no proof before the jury. Where *the evidence conduces to prove the issue, it goes invariably to the jury, and they are the sole judges of its sufficiency to prove the facts it is adduced to prove. So in the case of a suit brought by the indorsee of a promisory note; if the indorsement is admitted, the court will decide upon its legal effect, and not permit the defendant to go into the original consideration. But if the indorsement is denied, the defense goes to the jury, and they will be directed to disregard it if they find the indorsement.
    In this case, it is not pretended that there was any agreement before the court, but only evidence from which the jury might presume one. Suppose, then, it were law that the defendant could be estopped by an agreement, would he be estopped by mere evidence that tended to prove an agreement ?
    Again, supposing that the defendant was estopped from denying Gray’s right of possession at the time he received the vessel, would he be estopped from showing that, at the time of the replevin, Gray had parted with his interest? As, for instance, that he had sold her to a third person for whom the defendant then held her? Now by reference to the motion, it will bo seen that the defendant offered to show that at the time suit was brought, Gray had neither the right of property nor the right of possession; but this if was held he could not do.
   Birchard, J.

The merits of this motion depend upon the,solution of one question :

Did the court err in ruling out the evidence offered by defendant?

Admitting that the agreement claimed by plaintiff to have been proved, would, if found to exist, have estopped the defendant from denying his title, it should nevertheless have been left to the jury to find its existence, with instruction, in that event, to disregard the proof that was overruled. Or, if no such agreement was found, then to give to such rejected evidence the consideration to which it was entitled. In assuming *lo find this matter of fact for the jury, and acting upon it, wo think there was error.

The evidence ruled out was, however, legitimate for the purpose of showing that the title and right of possession was in Barker and Holt. The principle that one who is intrusted with property must redeliver it before bo can contest the right to it, is peculiarly applicable as between landlord and tenant in actions of ejectment, but is not applicable to the state of facts made by the plaintiffs proof, and the evidence offered by the defendant. The proof offered, with that rejected, did not make a case of estoppel in pais. Such estoppels are where the party has acquired some advantage by the acts relied upon to estop him, and the opposite party has been defrauded of some right. Courts apply this doctrine on grounds of public policy, and to prevent fraud and imposition to the prejudice of another. The acts and admissions which operate against one by way of preventing him from proving the truth, should be such as in equity and good conscience he ought not to deny.

The proof offered, tended to show that Gray was a mere trespasser, without any right to the possession of the vessel, and that his retention of it from the rightful owner, could have been of no advantage to him ; that he parted with nothing of his own, with nothing that ho could lawfully retain when he placed her in the possession of Allen, and of course that he was not defrauded. By the law, the individuals owning the majority of interest in a vessel, have the right to control her. They may appoint the master, compel him to account to them for her earnings, and may direct the manner of her employment. To these rules Allen was subject, and Gray must be presumed to have known it when he placed him in .command; and if so, the agreement relied on by him, if conscientious on his part, must be understood to have been limited accordingly. New trial granted.  