HUGH McFARLAND, Plaintiff in Error, vs. JACOB ROGERS, Defendant in Error, 1 Wis. 452

By the Court, Whitok, C. J. We think the plaintiff in error is estopped from denying the matters set up in the defendant’s plea. The obtaining of the injunction by the plaintiff in error, is admitted in the replication which the plaintiff has filed, but the signing of the release of errors, he seeks to put in issue.

The statute (i?. 8. chap. 84, § 106) is in these words: “No injunction shall be granted to stay any proceedings at law until the complainant shall release all errors at law in the proceedings prayed to be enjoined.” The injunction was obtained and the proceedings were stayed ; but the plaintiff in error now seeks to show that this was done in violation of law, and claims, that after having obtained the injunction and enjoined the proceedings in the suit at law, he can take advantage of any error which was committed at the trial of the suit, in the same manner and with like effect as though the injunction had not been obtained.

We think that it would not only be gross injustice, but a violation of law, to allow him to do so. In the case of Love vs. Rockwell, decided at the present term of this court, we held that a party was estopped from denying that an appeal had been taken in a case decided by a justice of the peace in contradiction to his own recognizance, executed in conformity to the statute for the purpose of perfecting an appeal, although no appeal lay from the decision of the justice. This decision was made, on the ground that a party could not "be allowed to deny tlie fact recited in Ms recognizance.

In tins case, the plaintiff m error must be held to have complied with the statute when he obtained his injunction; he cannot be allowed to show that he committed a fraud upon the statute and upon the defendant in error, by obtaining the injunction without signing the release of errors, as the statute provides. A grantor in a deed is not allowed to show that he had no title to the land, which he has conveyed with warranty. (Eveleth vs. Cranch, 15 Mass. R. 307; Wilkinson vs.

Scott, 17 do. 249.) So an obligor in an administration bond, is estopped to deny the appointment of the administrator recited in the bond. (Cutler vs. Dickinson, 8 Pick. R. 386. In these cases, the party who was estopped had done

an act inconsistent with the one he attempted to prove, and it would have been contrary to equity and good conscience to allow him to avail himself of it. So here, the act of the plaintiff in error is entirely at variance with the fact attempted to be put in issue by the replication. It was insisted at the argument by the counsel for the plaintiff in error, that the defendant in error had waived the estoppel by demurring, and neglecting to file a rejoinder setting out the matter creating the es-toppel.

But this is not necessary when it appears on the record; in such cases the party relying on the estoppel may demur. (Kemp vs. Goodal, 1 Salk. 277; Palmer vs. Elkins, 2 Pd. Raym. 1554.) Here the matter constituting the estoppel appears in the replication, and a demurrer was proper. The demurrer must be sustained. [Mr. Justice Crawford dissented, on the ground that he thought the doctrine of estoppel did not apply, and that the fact of release of errors set up in the plea, should be traversed by the replication of the plaintiff m error.]