Judges： Shaw
Filed Date： 9/15/1840
Status： Precedential
Modified Date： 11/10/2024
It may be a doubt whether the strict doctrine of estoppel ought to apply to a case in which the fact is not stated with precise accuracy, and where the return itself is doubtful or ambiguous. But without laying much stress upon this consideration, the court are of opinion, that the rule cannot apply to a proceeding like the present. The power to grant a review is given to the court, in the broadest terms, in all cases, if they shall think it reasonable. Rev. Sts. c. 99, § 19. One of those cases may be, where the party has been so trammelled by the application of technical rules, as to have lost the benefit of a trial, which the law intended he should have. Technical rules are framed with a view to promote justice, and secure to parties their rights, and in general they will tend to accomplish that great object. But a general rule may often, in its application to a particular case, work injustice ; and one main purpose of equity is to relieve against such operation. Estoppels, for instance, generally apply where a party has admitted some fact to be true, or has assumed and acted upon it as true, or, which is nearly the same, has agreed to consider it as true, whether true or not, or even if he knows that it is not true. As where one agrees to be bail, he is estopped to deny the arrest. Bean v. Parker, 17 Mass. 591. In all such cases, estoppels tend to promote justice, though they may exclude truth. But it is evident that the general application of these rules may, in some instances, reach a case, where the exclusion of the truth would tend to injustice. Such a rule, therefore, ought not to be acted upon, in a case where a large, equitable, judicial discretion is
Some illustrations may render this more clear. A party is bound by his agreement made, by himself or his attorney in the cause. Suppose an attorney has, in a particular case, consented to a default, and judgment has been rendered. It turns out afterwards, by the clearest proof, if the defendant is not precluded from offering it, that the principal instructed his attorney to appear for him in two causes, to consent to a default in one, and make a defence in the other on the merits. This mistake, without fault of the attorney, is afterwards shown to the court, together with plenary evidence of a good defence. We think the evidence would be admissible, and that it would be the duty of the court to grant a review.
One of the rules of law is, that a party cannot deny the record. In this case, it is shown by the record that the petitioner appeared to the former action by his attorney ; but he has shown, and we think, for the reasons already assigned, it was competent for him to show, that such appearance was made at the request of his brother, without any instruction from the petitioner, and that the latter in fact had no actual notice of the suit.
It is said that the petitioner would have a remedy upon the officer for a false return, and, on showing his defence to the first action, recover back from him the amount he had been compelled to pay. Supposing he could, which may be doubted, the result would be, that the present respondent, the original plaintiff, would have a sum of money, which, in the case supposed, he had no just claim to recover, and the officer would be compelled to pay a like sum, for a slight and perfectly innocent mistake. An officer goes to a house to leave a summons- with John Smith ; not knowing the person, he is led to believe, without fault of anybody, that his brother James Smith is the man he is looking for, and he leaves the summons with him and makes his return accordingly. This is a false return. If somebody must necessarily suffer loss, in consequence of this mistake, "t is no doubt right that it should fall on him who made it. But
Petition granted.