ISRAEL S. LOVE, survivor of S. G. BAKER, Plaintiff in Error, vs. WILLIAM S. ROCKWELL, Defendant in Error, 1 Wis. 382

By the Court, Wimw, C. J. We do not think that the defendant is entitled to set up the matters stated in his plea, as a defence to this action. 'The recognizance on which the suit was brought, was entered into by the defendant, and the defence sought to be interposed to the action is, that the recognizance is void, because the justice before whom it was taken, had no . 0 . 7-i . . authority to take it, as no appeal lay from his decision.

The plea admits that the recognizance was entered into for the purpose of perfecting an appeal of the case to the County Court; but the defendant insists that no appeal lay from the decision, and that the proceedings before the justice, subsequent to the rendition of the judgment, are consequently void. We suppose there can be no doubt of the correctness of these positions of the defendant. The statute did not authorize an appeal of the case to the County Court; and when, by law, no appeal can be had, we do not see how any legal consequences can follow from proceedings taken to perfect it.

But this does not meet the difficulty. The recognizance was entered into by the defendant, together with Abbott, and recites the fact of the recovery of the judgment, and that an appeal had been taken to the County Court. To allow the defendant to set up and prove these facts to contradict his own recognizance, would be to allow him to obtain a delay in the issuing of the execution upon the judgment rendered by the justice, and then, when the delay has been obtained, insist that the recognizance which procured it, created no legal obligation.

While we think this is a case where it would be gross injustice to allow the defendant to avail himself of the defence set up in his plea, we are equally well satisfied, that it is a case where the doctrine of estoppel applies, as laid down in the authorities. 1 .Roll's Abr., 872; id., 873; Lainson vs. Tremere, 1 Adolph. & El., 782; Bowman vs. Taylor, 2 Adolph. & El., 278. in the case of Lainson vs.

Tremere, above referred an. action was hronght upon a bond, the condition of which recited, that bv indenture of lease, made between the plaintiff’s testator and the defendant, the plaintiff’s testator demised certain premises to the defendant for the term of thirty-one years, at the yearly rent of one hundred and seventy pounds; and the condition of the bond was stated to be the payment of the yearly rent of one hundred and seventy pounds, <fcc.

The defendant pleaded, that by the indenture of lease in the condition mentioned, the yearly rent reserved was one. hundred and forty pounds; that he had entered by virtue of the demise, and had well and truly paid to the plaintiff’s testator the said sum of one hundred and forty pounds, &c.

In giving the opinion of the court, Lord Denman observed: “Upon what appears in the record, there is no doubt; but if an action of covenant had been brought on the lease, only one hundred and forty pounds could have been recovered ; and there certainly is an apparent incongruity in saying that different sums are to be recovered, according as the proceeding is on the bond or on the lease.” But the court held that the defendant was estopped from saying that there was no such lease as was stated in the bond, and that to permit him to show a lease at a rent of one hundred and forty pounds, would be the same thing.

So the plaintiff had a judgment. We think that the defendant in this case is estopped from saying, as he has attempted in his plea, that there was no appeal taken from the judgment of the justice, and that therefore the recognizance is void. The judgment of the County Court must therefore be reversed.