rial, except perhaps, when the communication is confidential. It is the fact that the declaration has been acted upon by others that constitutes the liability to them. It makes no difference in the operation of the rule, whether the thing admitted be true or false-it being the fact that it has been acted upon that renders it conclusive. If it is a case of innocent mistake, still if it has been acted upon by another it is conclusive in his favor. Where the plaintiffs were induced to bring an ejectment suit by the false statement of the defendant, the latter was held to be estopped to set up an otherwise good defense to the action. 9 Cal. 205–207.

SEC. 6. It is a general presumption that a debtor is trusted upon the faith of his property, and his possession of property is prima facie proof of ownership. Where, therefore, one permits another to deal with his property as if it belonged to the latter, and by his declarations permits others to be misled, such declarations must be considered as addressed to every one in particular who may give credit upon the strength of them, and the party making them must be concluded. This is the same case as where a man holds out to the world that a certain woman is his wife; in a suit for her debts, he will not be allowed to deny the marriage. So if a party permits his name to be used as one of a copartnership, he is liable to a stranger who believed him to be a partner. In all such cases, the partner is estopped, on grounds of public policy and good faith, from repudiating his own representations. 3 Cal. 307.

SEC. 7. When a party pursues a certain line of conduct, by which he has induced others to act, he is estopped from afterwards avoiding the consequences of his conduct. Before a party can urge an estoppel against another, he must be misled by the conduct of the party, in a case where he is ignorant of facts known to the party against whom the estoppel is alleged. If he knows the facts himself, or has the means of knowing them within his own control, he has no right to throw the labor of communicating them upon others. 8 Cal. 115, 115.

SEC. 8. If A permits B to act in his own name and to hold himself out to C in a false character, and has enjoyed the supposed advantages of this conduct, A is estopped to deny the character assumed by B. 7 Cal. 285.

SEC. 9. The supreme court held, in the case of Kidd vs. Laird, that a general verdict does not operate as an estoppel, except as to such matters as were necessarily considered and determined by the jury. Our further examination of the question in this case has not changed our opinion, but furnishes us many additional reasons in favor of its correctness. "In order to constitute an estoppel," says chief justice Shaw, in Eastman vs. Cooper (15 Pick. 276), "the same point must be put in issue upon the record and directly found by the jury. Wherever a point of fact has been so put in issue and found by a jury, then the record is regarded as conclusive of that fact whenever it is agåin drawn in question by the parties or their privies." In Gilbert vs. Thompson (9 Cush. 348), the law is declarged to be well settled "that a judgment in a former action is conclusive only when the same cause of action has been adjudicated between the same parties, or the same point has been put in issue upon the record, and directly found by the verdict of the jury." It was held in Porter vs. Baker (19 N. H. 166), that "a fact found by a verdict and judgment, to constitute an estoppel, must be res judicata, that which was necessarily and immediately found according to the pleadings, not that on which the verdict was merely based-a fact in issue as distinct from a fact in controversy." It is too well settled to be controverted that a verdict is never conclusive upon immaterial or collateral issues. 1 Story, 474; 18 Wend. 107; 7 Pick. 146; 15 Cal. 148, 161.

SEC. 10. Admissions which have been acted on by others are conclusive against the party making them in all cases between him and the person whose conduct he has thus influenced. It is of no importance whether they were made in express language to the person himself or implied from the open and general conduct of the party. For in the latter case the implied declaration may be considered as addressed to every one in particular who may have occasion to act upon it. In such cases the party is estopped on grounds of public policy and good faith from repudiating his own representations. There is no such doctrine in the law of evidence as that a casual or other declaration or act, made or done by a party which another may happen to

hear of, which would authorize the latter, without seeking further information, to go on and act as if it were true and hold the author concluded by it. If this were so, the number of parol estoppels might be so enlarged as to make almost every act or admission an estoppel. It would be scarcely safe to say or do anything in reference to his rights. or property lest he might be held to some estoppel in favor of parties who had no relations with him at the time of these acts or declarations. 11 Cal. 349.

SEC. 11. Where a party purchased real estate, at an execution sale, upon the faith of the representations of the judgment creditor that his judgment was the first on the property, when, in fact, there were prior incumbrances on it of more than its value, the purchaser should be relieved and the judgment creditor should be estopped from claiming an advantage resulting from his own misrepresentations. It makes no difference whether the misrepresentations were made willfully or ignorantly or that the action against the purchaser was brought in the name of the sheriff. Although the maxim, caveat emptor, applies to sheriff's sales, it has never been carried to the extent that such a sale could not be impeached on the ground of fraud or misrepresentation. The maxim only applies thus far, that the purchaser is supposed to know what he is buying and does so at his risk; but this presumption may be overcome by actual evidence of fraud, or it may be shown that, in fact, the party did not know the condition of the thing purchased, and was induced to buy upon the faith of representations made by those who, by their peculiar relations to the subject, were supposed to be thoroughly acquainted with it. 8 Cal. 21, 26.

SEC. 12. Warehousemen who give their receipt for goods on storage are estopped from setting up a want of segregation of the goods receipted for from other goods, in an action against them, by the holder of the receipt, for a conversion of the goods by a seizure in an action against a vendor of the plaintiff; and this, although the warehousemen are the attaching creditors, and although the sheriff making the seizure is not liable, by reason of there being no segregation. 6 Cal. 541.

SEC. 13. A mortgage executed by the defendant operates an estoppel to a defense of want of consideration. According to well-established principles of public policy, for the security of good faith and fair dealing, a party is not allowed to controvert the declarations which he has made by deed or to deny the enforcement of rights which he has thus attempted to confer. 3 Cal. 266.

SEC. 14. The doctrine of estoppel in pais is applied to prevent a wrong-doer from asserting claims against his declarations or conduct, not to prevent an innocent party from enforcing his rights. It is the wrong-doer who is estopped, upon the principle that he shall not take advantage of his own wrong. A man may tell a lie and induce action by inducing the belief that it is the truth, but the liar cannot prevent the person to whom the lie was told from showing the truth. It would, indeed, be against common honesty and common sense to permit a party to allege that he had done wrong; that he had made false representations; had obtained money from an innocent party thereby and had used it; and being in consequence estopped from denying the truth of his representations, the innocent party is also precluded from questioning their truth. 16 Cal. 627.

SEC. 15. Only a technical estoppel is required to be specially pleaded, and a technical estoppel is by deed to the party pleading or to one under whom he claims or by matter of record. 3 Cal. 307. Estoppels in pais cannot be pleaded but are given in evidence to the court and jury, and may operate as effectually as a technical estoppel, under the direction of the court. 3 Cal. 308.

CHAPTER XLVI.

ESTRAYS.

SECTION 1. The general estray law provides that every citizen householder, who shall find an estray horse, mare, mule, jack, jennet or any neat cattle, sheep or goats, or any number of such animals upon his farm or premises, who

shall desire to take up the same shall, at any time after the expiration of twenty days from the finding of the same, go before some justice of the peace in his township or, if there be no acting justice therein, then before some justice of a neighboring township, and make oath as follows:

1st. That he has made diligent inquiry throughout his neighborhood to ascertain the ownership of such estrays, and that he has also put up, ten days previously, a written notice in one or more of the most public places in his township [naming the place or places in his township] setting forth all the information in his possession concerning the said animals, embracing a description of the marks and brands thereof, and that he has examined the county records of marks and brands, and that he found none of the marks or brands of such animal or animals upon record and that he was about to post the same.

2d. He shall, also, at the same time, make oath that the marks and brands of said animal or animals have not been altered since they came to his farm or premises and that the owner or owners are unknown to him. Gen. Laws, 2607.

[The counties of San Diego, Santa Barbara, San Luis Obispo, San Bernardino, Los Angeles and Monterey, are not included in the foregoing section, nor does the provision in regard to sheep and goats apply to the counties of Trinity, Tuolumne and Sacramento. See Gen. Laws, 2628, as to the last three counties.]

SEC. 2. Form of notice to be posted at least ten days before going before a justice of the peace:

Estray Notice.

There is now on my premises, in .... township, county of

state of

[here state the number and class of animals, their color and brands or marks]. Said animal or animals were first discovered by me on my premises on the .... day of ...., 18... I have examined the county records of marks and brands and have found none of the marks or brands of said animals upon record, and I am about to post the same.

SEC. 3. The following is a form of affidavit which the taker-up must make at the expiration of ten days from the time of posting the above notice and after the expiration of twenty days from the finding of the animals on his farm or premises: