ESTIMATION OF VALUES. As the value of most things is variable,
according to circumstances, the law in many cases determines the time at which
the value of a thing should be taken; thus, the value of an advancement, is to
be taken at the time of the gift. 1 Serg. & R. 425. Of a gift in
frank-marriage, at the time of partition between the parceners, and the bringing
of the gift in frank-marriage into hotchpot. But this is a case sui generis. Co.
Lit. §273; 1 Serg. & R. 426. Of the yearly value of properties; at the time
of partition. Tho. Co. Lit. 820. Of a bequest of so pieces of coin; at the time
of the will made. Godolph, 0. L. 273, part 3, chap. 1. §3. Of assets to make
lineal warranty a bar; at the time of the descent. Co. Lit. 374, b. Of lands
warranted; at the time of the warranty. Beames' Glanv. 75 n.; 2 Serg. &
Rawle, 444, see Eviction 2. Of a ship lost at sea; her value is to be taken at
the port from which she sailed, deducting one-fifth; 2 Serg. & Rawle, 258; 1
Caines, 572; 2 Condy. Marshall, 545; but different rules prevail on this subject
in different nations. 2 Serg. & R. 259. Of goods lost at sea; their value is
to be taken at the port of delivery. 2 Serg. & R. 257. The comparative value
of a life estate, and the remainder in fee, is one-third for the life and
two-thirds for the remainder in fee; and moneys due upon a mortgage of lands
devised to one for life, and the remainder in fee to another, are to be
apportioned by the same rule. 1 Vern. 70; 1 Chit. Cas. 223, 224, 271; Francis'
Max. 3, §12, and note. See Exchange, 3-2.
ESTOPPEL, pleading. An estoppel is a preclusion, in law, which
prevents a man from alleging or denying a fact, in consequence o his own
previous act, allegation or denial of a contrary tenor. Stepb. Pl. 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 has done some
act, or executed some deed, which estops or precludes him from averring any
thing to the contrary. 3 Cora. 308. Estoppels are odious in law; 1 Serg. &
R. 444; they are not admitted in equity against the truth. Id. 442. Nor can
jurors be estopped from saying the truth, because they are sworn to do so,
although they are estopped from finding against the admission of the parties in
their pleadings. 2 Rep. 4; Salk. 276; B. N. P. 298; 2 Barn. & Ald. 662;
Angel on Water Courses, 228-9. See Co. Litt. 352, a, b, 351, a. notes.
2. 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.
3. 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.
4. 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. & Ald. 682.
5. An example of an estoppel by matter in pays occurs when one man Las
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.
6. 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 contrary to what he before did or said.
This pleading is called pleading by way of estoppel. Steph. 240a
7. 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. It should be directly affirmative, and not by inference
nor against an estoppel. Co. Lit. 352, a, b; 1 R. 442-3; 9 Serg. & R. 371,
430; 4 Yeates' 38 1 Serg. & R. 444; Corn. Dig. Estoppel, C 3 Johns. Cas.
101; 2 Johns. R. 382; 8 W. & S. 135; 2 Murph. 67; 4 Mont. 370. 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, 509; 6 Day, R. 88.
See the following cases relating to estoppels by; Matter of record: 4 Mass. R.
625; 10 Mass. R. 155; Munf. R. 466; 3 East, R. 354; 2 Barn. & Ald. 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. 347; 5 Mass. R. 395; Id. 286; 6 Mass. R. 421; 3 John.
Cas. 174; 5 John. R. 489; 2 Caines' R. 320; 3 Johns. R. 331; 14 Johns. R. 193;
Id. 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; Id. 159; Id. 217; 1 Mass. R. 219. Matter in pays: 4
Mass. R. 181; Id. 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. 844; 1 Stark.
R. 192. And see, in general, 10 Vin. Abr. 420, tit. Estoppel; Bac. Abr. Pleas,
111; Com. Dig. Estoppel; Id. Pleader, S 5; Arch. Civ. Pl. 218; Doct. Pl. 255;
Stark. Ev. pt. 2, p. 206, 302; pt. 4, p. 30; 2 Smith's Lead. Cas. 417-460. Vide
ESTOVERS, estates. 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 estovers. 2 Bl. Com. 35; Dane's Ab. Index, h. t.;
Woodf. L. & T. 232; 10 Wend. 639; 2 Bouv. Inst. n. 1652 57.
ESTRAYS. Cattle whose owner is unknown.
2. In the United States, generally, it is presumed by local regulations, they
are subject to, being sold for the benefit of the poor, of some other public
use, of the place where found.
ESTREAT. This term is used to signify a true copy or note of some
original writing or record, and specially of flues and amercements imposed by a
court, and extracted from the record, and certified to a proper officer or
officers authorized and required to collect them. Vide F. N. B. 57, 76.
ESTREPE. 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 estrepemeut.
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.
2. 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 faciat 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.
3. This writ is sometimes directed to the sheriff and the party in possession
of the lands, in order to make him amenable to the court as for a contempt in
case of his disobedience to the injunction of the writ. At common law the
process proper to bring the tenant into court is a venire facias, and thereon an
attachment. Upon the defendant's coming in, the plaintiff declares against him.
The defendant usually pleads "that he has done no waste contrary to the
prohibition of the writ." The issue on this plea is tried by a jury, and in case
they find against the defendant, they assess damages which the plaintiff
recovers. But as this verdict convicts the defendant of a contempt, the court
proceed against him for that cause as in other cases. 2 Co. Inst. 329; Rast.
Ent. 317; Brev. Judic. 88; More's Rep. 100; 1 Bos. & Pull. 121; 2 Lilly's
Reg. tit. Estrepement; 5 Rep. 119; Reg. Brev. 76, 77.
4. 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. Pl. 17; 7 Com. Dig. 659.
ET CETERA. A Latin phrase, which has been adopted into English; it
signifies. "and the others, and so of the rest," it is commonly abbreviated,
2. Formerly the pleader was required to be very particular in making his
defence. (q. v.) B 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 jurisdictions 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 full or half defence. 2 Saund. 209, c.; Steph. Pl. 432;
2 Chit. Pl. 455.
3. In practice, the &c. is used to supply the place of words which have
been omitted. In taking recognizance, for example, it is usual to make an entry
on the docket of the clerk of the court, as follows: A B, tent, &c., in the
sum of $1000, to answer, &c. 6 S. & R. 427.
ET NON. And not. These words are sometimes employed in pleading to
convey a pointed denial. They have the same effect as without this, absque hoe.
3 Bouv. Inst. n. 2981, note.
EUNDO MORANDO, ET REDEUNDO. This Latin phrase signifies going,
remaining, and returning. It is employed in cases where a person either as a
party, a witness, or one acting in some other capacity, as an elector, is
privileged from arrest, in order to give him that freedom necessary to the
performance of his respective obligations, to signify that he is protected from
arrest eundo, morando et redeundo. See 3 Bouv. Inst. n. 3380.
EUNOMY. Equal laws, and a well adjusted constitution of
EUNUCH. 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 aggressor in such a
case. Wishard, 1 H. P . C. 81 Hawk. P. C. c. 31, §24, 25; Bac. Ab. Fraud, A.
2. An escape from custody.