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for years, though the number of years should exceed the ordinary limits of human life: and it is deemed an estate for years though it be limited to less than a single year. An estate for life is higher than an estate for years, though the latter should be for a thousand years. Co. Litt. M, a; 2 Kent, Com. 278; 1 Brown's Civ. Law, 191; 4 Kent, Com. 85; Cruise's Dig. tit. 8; 4 Rawle's R. 126; 8 Serg. & Rawle, 459; 13 lb. 60; 10 Vin. Ab. 295, 318 to 325.

ESTER EN JUGEMENT,— French law. Stare in judicio. It is to appear before a tribunal either as plaintiff or defendant.

ESTOPPEL, in pleading. An estoppel is a preclusion, in law, which prevents a man from alleging or denying a fact, in consequence of his own previous act, allegation or denial of a contrary tenor. Steph. PI. 239. Lord Coke says, "an estoppel is, when a man is concluded by his own act, or acceptance, to say the truth." Co. Litt. 352, a. And Blackstone defines "an estoppel to be a special plea in bar, which happens where a man hath done some act, or executed some deed, which estops or precludes him from averring any thing to the contrary." 3 Com. 308. An estoppel may arise either from matter of record; from the deed of the party; or from matter in pays, that is, matter of fact. Thus, any confession or admission made in pleading, in a court of record, whether it be express, or implied from pleading over without a traverse, will forever preclude the party from afterwards contesting the same fact, in any subsequent suit with his adversary. Com. Dig. Estoppel, A 1. This is an estoppel by matter of record. As an instance of an estoppel by deed, may be mentioned the case of a bond reciting a certain fact. The party executing

that bond, will be precluded from afterwards denying in any action brought upon that instrument, the fact so recited. 5 Barn. & Aid. 682. An example of an estoppel by matter in pays occurs when one man has accepted rent of another. He will be estopped from afterwards denying, in any action with that person, that he was, at the time of such acceptance, his tenant. Com. Dig. Estoppel, A 3; Co. Litt. 352, a.

This doctrine of law gives rise to a kind of pleading that is neither by way of traverse, nor confession and avoidance: viz. a pleading, that, waiving any question of fact, relies merely on the estoppel, and, after stating the previous act, allegation, or denial, of the opposite party, prays judgment, if he shall be received or admitted to aver to what he before did or said. This pleading is called a pleading by way of estoppel. Steph. 240.

Every estoppel ought to be reciprocal, that is, to bind both parties: and this is the reason that regularly a stranger shall neither take advantage or be bound by an estoppel. Com. Dig. Estoppel, C; 3 Johns. Cas. 101; 2 Johns. R. 382. Privies in blood, privies in estate, and privies in law, are bound by, and may take advantage of estoppels. Co. Litt. 352; 2 Serg. & Rawle, 508; 5 Day, R. 88.

See the following cases relating to estopels by—

Matter of record: 4 Mass. R. 625; 10 Mass. R. 155; Munf. R. 46tf; 3 East, R. 354; 2 Barn. & Aid. 362, 971; 17 Mass. R. 365; Gilm. R. 235; 5 Esp. R. 58; 1 Show. 47; 3 East, R. 346.

Matter of writing: 12 Johns. R. 357; 5 Mass. R. 395; lb. 286; 6 Mass. R. 421; 3 John. Cas. 174; 5 John. R. 489; 2 Caines's R. 320; 3 Johns. R. 331; 14 Johns. R. 193; lb. 224; 17 Johns. R. 161; Willes, R. 9, 25; 6 Binn. R. 59; 1 Call, R. 429; 6 Munf. R. 120; 1 Esp. R. 89; lb. 159; lb. 217; 1 Mass. R. 219.

Matter in pays: 4 Mags. R. 181; lb. 273; 15 Mass. R. 18; 2 Bl. R. 1259; 1 T. R. 760, n.; 3 T. R. 14; 6 T. R. 62; 4 Munf. 124; 6 Esp. R. 20; 2 Ves. 236; 2 Camp. R. 344; 1 Stark. R. 192.

And see, in general, 10 Vin. Abr. 420, tit. Estoppel; Bac. Abr. Pleas, I 11; Com. Dig. Estoppel; lb. Pleader, S 5; Arch. Civ. PI. 218; Doct. PI. 255; Stark, Ev. pt. 2, p. 206, 302; pt. 4, p. 30; 2 Smith's Lead. Cas. 417—460. Vide Term.

ESTOVERS, estates, is the right of taking necessary wood for the use or furniture of a house or farm, from off another's estate. The word bote is used synonymously with the word stovers. 2 Bl. Com. 35; Dane's Ab. Index, h. t.; Woodf. L. & T. 232.

ESTRAYS, are cattle whose owner is unknown. In the United States generally it is' presumed' by local regulations, they are subject to being sold for the benefit of the poor or some other public use of the place where found, after certain formalities of advertising, &c, have been performed.

ESTREAT. This term is used to signify a true copy or note of some original writing or record, and specially of fines and amercements imposed by a court, and extracted from the record, and certified to a proper officer or officers authorised and required to collect them. Vjde F. N. B. 57, 76.

ESTEPE. This word is derived from the French, estropier, to cripple. It signifies an injury to lands to the damage of another, as a reversioner. This is prevented by a writ of estrepement.

ESTREPEMENT. The name of a writ which lay at common law to prevent a party in possession from

committing waste on an estate the title to which is disputed, after judgment obtained in any real action, and before possession was delivered by the sheriff. But as waste might be committed, in some cases, pending the suit, the statute of Gloucester gave another writ of estrepement pendente placito, commanding the sheriff firmly to inhibit the tenant "ne facial vastum vel strepementum pendente placito dicto indiscusso." By virtue of either of these writs the sheriff may resist those who commit waste or offer to do so; and he may use sufficient force for the purpose. 3 Bl. Com. 225, 226. In Pennsylvania by legislative enactment the remedy by estrepement is extended for the benefit of any owner of lands leased for years or at will, at any time during the continuance or after the expiration of such demise, and due notice given to the tenant to leave the same, agreeably to law, or for any purchaser at sheriff or coroner's sale of lands, &c, after he has been declared the highest bidder by the sheriff or coroner; or for any mortgagee or judgment creditor, after the lands bound by such judgment or mortgage, shall have been condemned by inquisition, or which may be subject to be sold by a writ of venditioni exponas or levari facias. Vide 10 Vin. Ab. 497; Woodf. Landl. & Ten. 447; Archb. Civ. PI. 17; 7 Com. Dig. 659.

ET CETERA, a Latin phrase which has been adopted in English; it signifies, and the like, and so of the rest; it is commonly abbreviated, dfc. Formerly the pleader was required to be very particular in making his defence, (q. v.) By making full defence, he impliedly admitted the jurisdiction of the court, and the competency of the plaintiff to sue; and half defence was used when the defendant intended to plead to the jurisdiction, or disability. To prevent the inconveniences which might arise by pleading full or half defence, it became the practice to plead in the following form; "And the said C D, by E F, his attorney, comes and defends the wrong and injury, when, &c, and says," which was either for full or half defence. 2 Saund. 209, c; Steph. PI. 432; 2 Chit. PI. 455. In practice the <5{c. is used to supply the place of words which have been omitted. In taking a recognizance, for example, it is usual to make an entry on the docket of the clerk of the court as follows: A B, tent, <Sfc. in the sum of $1000, to answer, fyc.

EUNUCH, is a male whose organs of generation have been so far removed or disorganized, that he is rendered incapable of reproducing his species. Domat, Lois Civ. liv. prel. tit. 2, s. 1, n. 10.

EVASION, a subtle device to set aside the truth, or escape the punishment of the law; as if a man should tempt another to strike him first, in order that he might have an opportunity of returning the blow with impunity. He is nevertheless punishable because he becomes himself the agressor in such a case.

EVICTION, contracts, is the loss or deprivation of the buyer of the thing he has bought in consequence of the right of a third person established in a competent tribunal. Vide Bac. Ab. Rent, L.; 1 Saund. R. 204, n. 2; lb. 322, a, n. 2; Poth. Vente, n. 82. As to damages on eviction, 4 Kent, Com. 462, et seq. Poth. Vente, n. 119.

EVIDENCE, is that which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue; 3 Bl. Com. 367; or it is whatever is exhibited to a court or jury, whether it be by matter of record, or writing, or by the testimony of witnesses, in order to enable

them to pronounce with certainty concerning the truth of any matter in dispute; Bac. Ab. Evidence, in pr.; or it is that which is legally submitted to a jury, to enable them to decide upon the questions in dispute or issue, as pointed out by the pleadings and distinguished from all comment or argument. 1 Stark. Ev. 8. Evidence may be considered with reference to, 1, the nature of the evidence; 2, the object of the evidence; 3, the instruments of evidence; and, 4, the effect of evidence.

[2-] § 1. As to its nature, evidence may be considered with reference to its being, 1, primary evidence; 2, secondary evidence; 3, positive; 4, presumptive; 5, hearsay; and, 6, admissions.

[ 3 ] 1. Primary evidence. The law generally requires that the best evidence the case admits of should be given; B. N. P. 293; 1 Stark. Ev. 102, 390; for example; when a written contract has been entered into, and the object is to prove what it was, it is requisite to produce the original writing if it is to be attained, and in that case no copy or other inferior evidence will be received. To this general rule there are several exceptions. 1. As it refers to the quality rather than to the quantity of evidence, it is evident, that the fullest proof that every case admits of, is not requisite; if, therefore, there are several eye witnesses to a fact it may be sufficiently proved by one only.—2. It is not always requisite, when the matter to be proved has been reduced to writing, that the writing should be produced; as if the narrative of a fact to be proved has been committed to writing, it may yet be proved by parol evidence. A receipt for the payment of money, for example, will not exclude parol evidence of payment. 4 Esp. R. 213; and see 7 B. & C. 611; S. C. 14 E. C. L. R. 101; 1 Campb. R. 439; 3 B. & A. 566; 6 E. C. L. 377.

[ 4 ] 2. Secondary evidence is that species of proof which is admissible on the loss of primary evidence, and which becomes, by that event, the best evidence. Before such secondary evidence can be received, proof must be made that the primary evidence cannot be had, and all the proper sources from which it can be obtained must be exhausted before the secondary evidence can be received.

The person who possesses it must be applied to, whether he be a stranger or the opposite party; in the case of a stranger, a subpoena and attachment, when proper, must be taken out and served, and, in the case of a party, notice to produce such primary evidence must be proved before the secondary evidence will be admitted. 7 Serg. & Rawle, 116; 6 Binn. R. 2^8; 4 Binn. R. 295, note; 6 Binn. R. 478; 7 East, R. 66; 8 East, R. 278; 3 B. & A. 296; S. C. 5 E. C. L. R. 291.

[ 5 ] 3. Positive evidence is that which, if believed, establishes the truth of a fact in issue, and does not arise from any presumption. Evidence is direct and positive, when the very facts in dispute are communicated by those who have the actual knowledge of them by means of their senses. 1 Phil. Ev. 116; 1 Stark. 19. In one sense there is but little direct or positive proof, or such proof as is acquired by means of one's own sense, all other evidence is presumptive, but, in common acceptation, direct and positive evidence is that which is communicated by one who has actual knowledge of the fact.

[ 6 ] 4. Presumptive evidence is that which is not direct, but where, on the contrary, a fact which is not positively known, is presumed or inferred from one or more other facts or circumstances which are known.

Vol. I.—15.

Vide article Presumption, and Rose. Civ. Ev. 13; 1 Stark. Ev. 18.

[ 7 ] 5. Hearsay, is the evidence of those who relate, not what they know themselves, but what they have heard from others. Vide Hearsay.

[ 8 ] 6. Admissions, are the declarations, which a party by himself, or those who act under his authority, make of the existence of certain facts. Vide Admissions.

[ 9 ] § 2. The object of evidence is next to be considered. It is to ascertain the truth between the parties. It has been discovered by experience that this is done most certainly by the adoption of the following rules which are now binding as law: 1. The evidence must be confined to the point in issue ;—2. The substance of the issue must be proved, but only the substance is required to be proved;—3. The affirmative of the issue must be proved.

[ 10 ] 1. It is a general rule, both in civil and criminal cases, that the evidence shall be confined to the point in issue. Justice and convenience require the observance of this rule, particularly in criminal cases, for when a prisoner is charged with an offence, it is of the utmost importance to him that the facts laid before the jury should consist exclusively of the transaction, which forms the subject of the indictment, and, which alone, he has come prepared to answer. 2 Russ. on Cr. 694; 1 Phil. Ev. 166. To this general rule there are several exceptions, and a variety of cases which do not fall within the rule. 1. In general, evidence of collateral facts is not admissible; but when such a fact is material to the issue joined between the parties, it may be given in evidence, as, for example, in order to prove that the acceptor of a bill knew the payee to he a fictitious person; or that the drawer had general authority from him to fill up bills with the name of a fictitious payee, evidence may be given to show that he had accepted similar bills before they could from their date, have arrived from the •place of date. 2 H. Bl. 288.-2. Although when special damage sustained by the plaintiff is not stated in the declaration, it is not one of the points in issue, and evidence of it cannot be received; yet a damage which is the necessary result of the defendant's breach of contract, may be proved, notwithstanding it is not in the declaration. 11 Price's Rep. 19.—3. In general, evidence of the character of either party to a suit is inadmissible, yet in some cases such evidence may be given. Vide article Character.—4. When evidence incidentally applies to another person or thing not included in the transaction in question, and with regard to whom or to which it is inadmissible; yet if it bear upon the point in issue, it will be received. 8 Bingh. Rep. 376; S. C. 21 Eng. C. L. R. 325; and see 1 Phil. Ev. 158; 2 East, P. C. 1035; 2 Leach, 985; S. C. 1 New Rep. 92; Russ. & Ry. C. C. 376; 2 Yeates, 114; 9 Conn. Rep. 47.—5. The acts of others, as in the case of conspirators, may be given in evidence against the prisoner, when referable to the issue; but confessions made by one of several conspirators after the offence has been completed, and when the conspirators no longer act in concert, cannot be received. Vide article Confession, and 10 Pick. 497; 2 Pet. Rep. 364; 1 Brec. R. 269; 3 Serg. & Rawle, 9; 1 Rawle, 362, 408; 2 Leigh's R. 745; 2 Day's Cas. 205; 3 Serg. & Rawle, 220; 3 Pick. 33; 4 Cranch, j 75; 2 B. & A. 573, 4; S. C. 5 E. C. L. R. 381 —6. In criminal cases when the offence is a cumulative one, consisting itself in the commission of a number of acts, evidence of those acts is not only admissible, but

tial to support the charge. On an indictment against a defendant for a conspiracy, to cause himself to be believed a man of large property, for the purpose of defrauding tradesmen; after proof of a representation to one tradesman, evidence may therefore be given of a representation to another tradesman at a different time. 1 Campb. Rep. 399; 2 Day's Cas. 205; 1 John. R. 99; 4 Rogers's Rec. 143; 2 Johns. Cas. 193 7. To prove the guilty knowledge of a prisoner, with regard to the transaction in question, evidence of other offences of the same kind, committed by the prisoner, though not charged in the indictment, is admissible against him. As in the case where a prisoner had passed a counterfeit dollar, evidence that he had other counterfeit dollars in his possession is evidence to prove the guilty knowledge. 2 Const. R. 758; lb. 776; 1 Bailey, R. 300; 2 Leigh's R. 745; 1 Wheeler's Cr. Cas. 415; 3 Rogers's Rec. 148; Russ. & Ry. 132; 1 Campb. Rep. 324; 5 Randolph's R. 701.

[ 11 ] 2. The substance of the issue joined between the parties must be proved. 1 Phil. Ev. 190. Under this rule will be considered the quantity of evidence required to support particular averments in the declaration or indictment. And, first, of civil cases. 1. It is a fatal variance in a contract, if it appear that a party who ought to have been joined as plaintiff has been omitted. 1 Saund. 291 h, (n.); 2 T. R. 282; but it is no variance to omit a person who might have been joined as defendant, because the non-joinder ought to have been pleaded in abatement. 1 Saund. 291 d, (n.)—2. The consideration of the contract must be proved; but it is not necessary for the plaintiff to set out in his declaration, or prove on the trial, the several parts of a contract consisting

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