
    Sarah Howard versus Edward Mitchell.
    If, in the course of pleadings, the party who relies on matter of estoppel has no opportunity to plead it, he may show it in evidence; but when the matter to which the estoppel applies is distinctly averred or denied by one party, and the other takes issue on the fact, instead of pleading the estoppel, he waives the estoppel, and the jury are at liberty to find the truth.
    This was an action of trespass for breaking and entering the plaintiff’s close, and holding her out of the possession thereof from January 1, 1811, until October 23, 1815. The defendant pleaded in abatement, that one Hannah James was co-tenant with the plaintiff of the locus in quo, and that she, the plaintiff, has no title therein, except as tenant in common with the said Hannah, on which issue was joined.
    At the trial of this issue, before Wilde, J., at the last October term in Plymouth, the defendant offered evidence * to prove, and did prove, to the satisfaction of the jury, that the said Hannah was co-tenant with the plaintiff, as alleged in the plea.
    But the plaintiff objected to the admission of this evidence, on the ground that the defendant was by law estopped to prove that the said Hannah was tenant in common with the plaintiff, as the plaintiff had before sued the said Mitchell in a writ of entry for the same land described in her present writ, in which she claimed the same as sole proprietor thereof, and recoveied judgment accordingly ; a copy of which judgment was ready to be produced.
    But the judge overruled the objection, and the jury returned a verdict for the defendant. If, in the opinion of the Court, this evidence ought not to have been received, the verdict was to be set aside, and a nfew trial granted ; otherwise, judgment was to be rendered on the verdict.
    
      Tillinghast and Baylies, for the plaintiff,
    contended that the former judgment, which was between the same parties, and on the title to the same land, was conclusive on the defendant as to this action, which was brought for the mesne profits. 
    
    The plea was inadmissible; and it is immaterial what replication the plaintiff makes, since the plea itself ought never to have been received. 
    
    
      Whitman, for the defendant.
    If the plaintiff relied on the fonnei judgment as an estoppel, she should have so pleaded it. But it can have no such effect. The writ of entry was dated in November, 1813. The judgment only proves that on that day she was owner of the land. She now claims as owner from January, 1811, and would rely on that judgment, as conclusive in favor of her title from the day last mentioned, which is plainly absurd. 
    
    
      
       2 Burr, 665, Aslin vs. Parkin. — 7 D. E. 112, Denn vs. White & Ux. —3 Black. Comm. 205. — 2 Peake's Evidence, 326.
    
    
      
      
        Vin. Abr., Mesne Profits, K.
    
    
      
      
        Bull. N. P. 87, Decosta vs. Atkins.
      
    
   Per Curiam.

The writ on which the former judgment was founded was tested in 1813 ; of course, the judgment could not conclude the defendant for any time prior to that date. So neither could it conclude him for any time subsequent to the recovery ; as the plaintiff * might have aliened the premises, or part of them, after that time.

But it is not necessary to consider whether this judgment might have estopped the defendant at all, or for what part of the time laid in the present declaration; because it is very clear that it cannot so operate, as these pleadings stand. The plaintiff should have replied it specially, and relied on the estoppel.

When, in the course of the pleadings, the party who relies on matter of estoppel has no opportunity to plead it, he may show it in evidence; and it will in general have the same effect as if pleaded. But when the matter to which the estoppel applies is distinctly»averred or denied by one party, and the other, instead of pleading the estoppel, as he may in that case, takes issue on the fact, he waives the estoppel, and the jury are at liberty to find the truth.

This principle is recognized in Hobart, 207, and in the case of Trevison vs. Lawrence & Al., reported in 1 Salk. 276, and in several other books, and has been uniformly considered as the settled law on this subject. ,

Judgment according to the verdict. 
      
       2 Lord Raym. 1051. —6 Mod. 256. — Holt's Rep. 228.
     
      
       1 Chitty on Pleading, 575, 617 —1 Saund. 325, note 4.
     
      
      
        [a) [Vooght vs. Winch, 2 B. & A. 662. — Doe vs. Huddart, 2 Cr. M. & R. 322. — Hooper vs. Hooper, M'Clel. & Y. 509. — Jones vs. Reynolds, 7 Cor. & P. 335. — Doe 
        vs. Harvey, 8 Bing 242. — Adams vs. Barnes, 17 Mass. Rep. 365.—Phil, Am. Ev. 510—512.— Grecnl. Ev. 567, 568, 569, and cases there cited. — Eastman vs. Cooper, Pick. — “ It appears inconsistent,” says Mr. Phillips, “ that the principle of the authority of a res judicata should govern the decision of a court when the matter 'is referred to them by pleading the estoppel, but that a jury should be at liberty to disregard this principle altogether, and that the operation of such an important principle as that of the res judicata should depend on the technical forms of pleading in particular actions.” — Ph. A., ubi sup. — See cases cited in note to 5tli Am. ed Chitty on Contracts, 788. — Ed.]
     