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were first heard on the ground of the verdict being against Exch. of Pleas,

1841. the evidence, but the Court refused to set aside the verdict, saying there was evidence on both sides, and that CARPENTER it was a question for the jury.- Then as to the deed of BULLER. the 9th of June 1837. The recital did not operate as an estoppel against the plaintiff, and therefore evidence was admissible to explain the admission it contained. Although it may have been strong evidence against the plaintiff, it was not conclusive; it was still open to him to shew that it was incorrect, and made under a misapprehension of the fact. The object of the deed was collateral, and the effect of the evidence was not to alter or contradict the recital, but only to shew that it was made under a mistake. The deed was not intended to apply to the locus in quo, or in any way to affect the title to the land. The adit, to which alone the deed relates, does not even run through it. No doubt it was evidence against the plaintiff, but it was not conclusive, and the learned Judge was right in admitting the evidence tendered to explain it.

Bompas, Serjt., Crowder, and Bere, contrà.—The recital operated as a complete estoppel, and the evidence ought not to have been received. Where the words of a deed are clear and intelligible, evidence is not receivable to shew that the party using them did not mean what they express, since that would amount to a denial of the deed. The evidence in effect contradicts the deed, and is introduced for the purpose of depriving it of effect. [Parke, B.-We entertain a strong impression that the recital did not operate as an estoppel in this action ; but we will look at the cases before we deliver our judgment.]

Cur. adv. vult.

The judgment of the Court was now delivered by

PARKE, B.—During the sittings after the last term, the

Exch. of Pleas, Court disposed of the principal question in this case, by 1841.

refusing to make the rule absolute for a new trial, on CARPENTER the ground that the verdict was against evidence. The BULLER. only question reserved for consideration was, whether my

Brother Coleridge was right in holding, that the recital, in an indenture of 9th June 1837, between the plaintiff and defendant, that the locus in quo was then the property of the defendant, estopped the plaintiff from saying in this action that it was not. We are all of opinion, that the plaintiff was not estopped by that recital in the present suit, and that such recital was merely evidence.

It might be sufficient for the present purpose, to say that the circumstance of the estoppel not having been pleaded as such, leaves the matter at large before the jury, according to the authority of Vooght v. Winch (a), Bowman v. Rostron (6), and other cases.

But independently of that consideration, we think the admission is not conclusive in the present case.

If a distinct statement of a particular fact is made in the recital of a bond, or other instrument under seal, and a contract is made with reference to that recital, it is unquestionably true, that, as between the parties to that instrument, and in an action upon it, it is not competent for the party bound to deny the recital, notwithstanding what Lord Coke says on the matter of recital in Coke Littleton, 352. b; and a recital in instruments not under seal may be such as to be conclusive to the same extent. A strong instance as to a recital in a deed, is found in the case of Lainson v. Tremere (c), where, in a bond to secure the payment of rent under a lease stated, it was recited that the lease was at a rent of £170, and the defendant was estopped from pleading that it was £140 only, and that such amount had been paid. So, where other particular facts are men

(a) 2 B. & Ald. 662. (6) 2 Ad. & Ell. 295 ; 4 Nev. & M. 552.

(c) 1 Ad. & Ell. 792 ; 3 Nev. & M. 603.

tioned in a condition to a bond, as that the obligor and his Exch. of Pleas,

1841. wife should appear, the obligor cannot plead that he appeared himself, and deny that he is married, in an action CARPENTER on the bond : 1 Roll. Abr. 873, c. 25. All the instances BULLER. given in Com. Dig., Estoppel, (A.2,) under the head of “Estoppel by matter of writing,” (except one which relates to a release), are cases of estoppel in actions on the instrument in which the admissions are contained. By his contract in the instrument itself, a party is assuredly bound, and must fulfil it. But there is no authority to shew that a party to the instrument would be estopped, in an action by the other party, not founded on the deed, and wholly collateral to it, to dispute the facts so admitted, though the recitals would certainly be evidence; for instance, in another suit, though between the same parties, where a question should arise whether the plaintiff held at a rent of £170 in the one case, or was married in the other case, it could not be held that the recitals in the bond were conclusive evidence of these facts. Still less would matter alleged in the instrument, wholly immaterial to the contract therein contained; as for instance, suppose an indenture or bond to contain an unnecessary description of one of the parties as assignee of a bankrupt, overseer of the poor, or as filling any other character, it could not be contended that such statement would be conclusive on the other party, in any other proceeding between them.

The statement in the deed in question, the agreement of 1837, we are strongly inclined to think is of the latter description, so far as relates to the land in question. The ownership of Mr. Buller in that land, amongst others, is recited by comparing the deed with the plan; but the adit does not go through that particular land, and the language of the deed does not expressly confine the right to use the adit for the purposes of the lands so described only, or the obligation to repair it, through those lands; and the adit,

v. BULLER.

Exch. of Pleas, in the deed itself, is described as going to the Wheal Betsey 1841.

only. But whether the recital as to the lands in question CARPENTER in this action be immaterial or not, for the reasons above

given, we think that the statement in the deed and plans, though under seal, and evidence of ownership, is not conclusive in this case; and we have no doubt, that if it be not conclusive, the evidence of the circumstances under which such admission was made, was admissible, upon the ground already stated by the Court in the course of the argument. That evidence in no way contradicts the deed : it does not shew that such admission was not made, nor does it propose to alter it; but tends to prove that the admission therein contained was inconsiderately made, and is not entitled to weight as a proof of the truth of the fact which it is used to establish.

The rule therefore must be discharged.

Rule discharged.

The GRAND JUnction RAILWAY COMPANY v. WHITE. April 28.

TRESPASS for breaking and entering a close of the plainBy the 183rd Grand Junction tiffs, situate in the parish of Eccleshall, in the county of StafRailway Act ford, that is to say, a certain close called the Grand Junction (3 Will. 4, c. xxxiv.) it is en- Railway, and breaking down certain gates and fences, &c. acted, that the owners and of the plaintiffs, then being in the said close, whereby &c. occupiers of lands through which the railway should be made (except in cases in which the company should, at their own expense, have made communications from the land on the one side of the railway to the land on the other side thereof, according to any agreement with any owner or occupier thereof, or according to the provisions of the act”), at all times for the purpose of occupying the said land, without payment of toll, might pass and re-pass directly over and across such parts of the railway as should be made in or upon their respective lands. The 186th section prohibited all persons, except the company and their servants, from crossing the railway, “ except only directly crossing the same at places to be appointed for that purpose, for the necessary occupation of the respective lands through which the said railway should pass.” And by the 180th section, in case of dispute, the company are to make such communication as two or more justices of the peace shall, upon the application of any owners, &c, judge necessary and appoint: - Held, that until the coinpany had made a communication, the owners of severed lands had a right to cross the railway at any part within their respective lands.

GRAND JUNCTION

WHITE.

Plea, that the said close and railway in which &c., in Exch. of Pleas, the declaration mentioned, is part of a certain railway

1841. called the Grand Junction Railway, which said railway was made and formed under and by the authority and subject Railway Co. to the provisions of a certain act of Parliament, to wit, an act passed in the third year of the reign of his late Majesty, intituled "An Act for making a Railway from the Warrington and Newton Railway at Warrington, in the county of Lancaster, to Birmingham, in the county of Warwick, to be called the Grand Junction Railway ;” and that before and at the said several times when &c., in the said declaration mentioned, he the defendant was the occupier of a certain close or land through and over which the said railway was made and passed, and which said close or land had been and was by the said railway severed and divided into two parts, one part thereof being on the west side of the said railway, and the other part on the east side thereof; and the defendant says, that the plaintiffs (the said Grand Junction Railway Company) not having, after the said severance and division of the said close or land, at their own expense, made a communication from the said part of the said close or land lying on the west side of the said railway, to the said part of the said close or land lying on the east side thereof, according to any agreement with any owner or occupier of the said close or land, or according to the provisions of the said act in this plea above mentioned, he, the defendant, as such occupier of the said close or land, at the said several times when &c., for the purpose of occupying the said close or land, did pass from the said part of the said close or land of the defendant, lying on the west side of the said railway, directly, and not otherwise, over and across the said close and railway in which &c., in such part thereof, and such part only, as had been made in and upon, and then ran through the said close or land of the defendant, unto and into the said part of the said close or land of the defendant lying on the

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