| Ill. App. Ct. | May 20, 1884
That the fifth plea, setting up an estoppel in pais, and to which the court below sustained a general demurrer, is good in substance, can scarcely admit of doubt. It presents with sufficient certainty all the necessary - elements of an estoppel in pais, and if true, amounts to a defense to the action. To sustain a demurrer to it was there-lore error, if the defendants were justified under the rules of pleading in filing it; and it is error which should reverse the judgment below, unless this court is bound to presume that the defendants filing it had the benefit of the same defense as fully, under some other plea.
It was said in The Welland Canal Co. v. Hathaway, 8 Wend. 482, that estoppels in pais can not 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. That question, that is, the question -whether an estoppel in pais could be pleaded, was not involved in that case, and the observation, though very nearly correct, may be regarded as mere dictum. The English courts, seemingly without taking any distinction between those actions which admit of a general issue under which different affirmative defenses may be given in evidence, such as assumpsit and case, and such actions as admit of no such general issue, suchas replevin and trespass, hold, that at common law, estoppel in pais may, but need not, be pleaded. Sanderson v. Collman, 4 Man. & Gr. 209; Phillips v. Thorn, 114 E. C. L. 400.
But it is entirely clear that under section twenty-nine of our Practice Act (Ií. S. 1874, p. 778) the defendant may plead an estoppel in pais as a matter of right; such special plea will, however, be subject to the same tests and rules of practice, as in other cases. It has repeatedly been decided in this State that where a demurrer has been sustained to a special plea which set out a good defense, yet, if the action was one which admitted of a general issue, under which affirmative defenses and such as were thus specially pleaded might be given in evidence, then the appellate court would presume that the defendant had the benefit of such defense under the general issue, unless the contrary were shown by the bill of exceptions, and would affirm the judgment, no other error appearing. Warner v. Crane et al., 20 Ill. 148" date_filed="1858-04-15" court="Ill." case_name="Warner v. Crane">20 Ill. 148; Stevenson v. Sherwood, 22 Ill. 238" date_filed="1859-04-15" court="Ill." case_name="Stevenson v. Sherwood">22 Ill. 238.
How, the action of replevin admits of no such general issue; and while we are not prepared to say that the estoppel in pais set up by the special plea was not admissible in evidence, under the plea of property in Scheiderer, yet we do not feel justified in holding that this.court should extend the doctrine of presumption recognized in the above cited cases to such a case as this, and upon the strength of it, hold that the error in sustaining the demurrer to the special plea in question could not have prejudiced the defendants, unless the contrary is made to appear by the bill of exceptions. The Supreme Court has not, so far as we can ascertain, ever applied such a doctrine of presumption in an action of replevin. Oil the contrary, in Leeper v. Hersman, 58 Ill. 218" date_filed="1871-01-15" court="Ill." case_name="Leeper v. Hersman">58 Ill. 218, that court reversed the judgment in replevin, because the court below had improperly sustained a demurrer to a special plea of estoppel. It is true that the plea there set out a deed which might be held to operate as a technical estoppel, which must be pleaded if there be opportunity to do so. But it also set out matter of estoppel in pais, and it is evident from the' opinion that the plea was regarded as one of estoppel in pais.
We think it is the better view that the plea in question here was properly interposed; and, as it was good in substance, it was error to sustain the demurrer, which requires a reversal of the judgment, and sending the cause back.
Reversed and remanded.