founded on, or in harmony with, a sound knowledge of the physiology of the brain, although it appeared to me to be well administered.

The Auburn system of social labor is better, in my opinion, than that of Pennsylvania, in so far as it allows of a little more stimulus to the social faculties, and does not weaken the nervous system to so great an extent: but it has no superiority in regard to providing efficient means for invigorating and training the moral and intellectual faculties. The Pennsylvania system preserves the convict from contamination by evil communications with his fellow prisoners, and prevents his associates from knowing the fact of his being in prison. These are advantages that go so far to compensate the evils of solitude, but do not remove them.'

1 While these remarks are passing through the press, I have seen an excellent work entitled "The Philosophy of Human Life," by Amos Dean, Professor of Medical Jurisprudence in the Albany Medical College; on page 158 of which, there is a statement of improvements on prison discipline, suggested by the late Edward Livingston, which coincide very closely with the views expressed on pages 325 and 326. I have not seen Mr. Livingston's own remarks; but I am gratified to find that Mr. Dean, in his able and instructive work, advocates principles similar to those in the text. [Albany, N. Y., January, 1840.]

ART. V.-ESTOPPEL.

IF, as has been asserted, "the science of law is the perfection of reason," every effort, the tendency of which is to render that science perfect, ought to be regarded with favor. By multiplying those rules and principles, which are of general application, and narrowing the exceptions to them, we approximate to a system worthy the name of a science; a science, which has the most direct bearing upon human interests and human happiness. When it is considered, that our nation is formed of many distinct sovereignties, each

with its separate legislature and distinct judiciary department, framing and expounding its own code of laws, fears have been entertained that such a want of uniformity, such an incongruity would be the result, as forever to preclude the hope, or at least, the expectation of realizing one harmonious system, pervading all, or even the greater portion, of the United States.

It is, however, satisfactory to find, so far as our brief experience and observation have extended, that such is not the result. There are at present not less than twenty-four of our states, the decisions of whose courts are regularly reported, and from an examination and comparison of which, we are enabled to determine, whether the general character of the principles adopted and promulgated by them, tend rather to produce one harmonious system, or to be divided into many. So far as we have been enabled to institute this inquiry, our conclusions are in the highest degree favorable. And although there may be found, in the decisions of the courts of every state, some local law, some peculiarity of practice, still, in all those states which have adopted the English common law as the basis of their several systems, there is a wonderful uniformity in the application of the great and fundamental principles which are embodied in that law, or which are deducible from it. The perfect comity and respect, with which the decisions of the first court in any one state are generally received and treated by the courts in every other; the total absence of all disposition to disparage foreign decisions when cited, are some among the many favorable auspices and indications, tending to prove, that our laws are becoming more and more national and not diverging into separate systems. Such is the result of a comparison of the decisions of the reports of those states, which have fallen under our notice; and more especially such has been the tendency and effect of the commentaries of Chancellor Kent, and of the various and numerous publi

cations of Mr. Justice Story. It is in that way that those distinguished jurists have rendered a service to our common country, far greater than they could have done, merely in their judicial stations.

In selecting one, among the many artificial rules of the common law, for discussion in the present article, there is perhaps no one of more frequent application, none where uniformity is more desirable, or of greater practical importance, than that of the principle of estoppel. And yet it is one, with respect to which, very different and somewhat contradictory opinions have been entertained. The extended application of this principle has been objected to, as tending to shut out the truth. But the reason of the rule evidently supposes, that although such may be its operation in certain cases, its more general tendency is to exclude falsehood.

Estoppels are divided by lord Coke into three kinds : matter of record, as by letters-patent, fine, common recovery, &c; matter in writing, as by deed indented; and by matter in pais, as by livery, entry, acceptance of rent, &c.

Some of these have no application in this country, or at least in New England; such as the process of fine, and common recovery, that mode of conveyance not having been here adopted. Others have a common application to cases arising in this country and in England; and among those cases, perhaps, none are of more frequent occurrence than that of estoppel by deed. We will select a single example. It is a familiar principle, that a person who makes a deed with a general warranty, having no title at the time, but subsequently acquiring one, is estopped to set up that title against his own deed. Nothing can be more consonant to sound principles of justice than this; and, if thus applied, the correctness of the rule could never be properly questioned. But the rule is not limited to the party making the deed, but to all persons claiming under him after the estoppel, which may operate with great severity upon a bonâ fide

purchaser; and, to a certain extent, defeats the security intended to be conferred by our acts of registry.

The legislature, by providing a public registry and requiring deeds to be recorded, intended, that by a careful examination of the various successive conveyances, the title by deed, at least, might be ascertained with a great degree of certainty. But this is not the case. Let us suppose, that at a given time, the undisputed title was in A; B having no title, makes a deed with general warranty, to C. Nothing passes by the latter deed, B having no title to convey. After this, say on the first day of January, 1840, A conveys to B. By the operation of the rule, this conveyance enures to the benefit of C, B being estopped by his deed from claiming. But suppose B, on the second day of January, should make a deed to D. The latter would take nothing. And yet D. had ascertained that the title of A was good, that there was no conveyance on record from him until the first of January, when he conveyed to B, and that there was no conveyance from B subsequent to that time, to be found in the registry. But this examination, however carefully made, would not, within the rule, avail to render his title of any value. He would have to examine, not only as to all time subsequent to the time of the conveyance from A to B to see whether any conveyance was made by him, but also to ascertain whether B had not conveyed before he purchased of A, and before he had any title; and how far prior would he have to examine? There is no limitation.

In England, where there has been no registry established by law, that security for purchasers has not been relied upon. The reasons, therefore, for establishing the rule in that country were stronger than with us. Still the principle has been too long recognised here, and too often applied, to be now drawn in question in those cases where the conveyance is by a deed with a general warranty. And in the case of

Comstock v. Smith,' the application of the rule was thus limited; it being rejected in a case where the warranty was restricted to the grantor and all persons claiming under him. Although in a note in 4 Kent's commentaries, 261, third edition, it is said, "that a release or other deed, when the releasor or grantor has no right at the time, passes nothing, and will not convey a title subsequently acquired; unless it contains a clause of warranty; and then it operates by way of estoppel, and not otherwise." If by "a clause of warranty," was intended a warranty against the releasor only, as that which would be sufficient to render it effectual as a conveyance, it would be at variance with the case of Comstock v. Smith, and less sound in its operations. We trust, therefore, that the doctrine of the latter case will continue the established rule in this state.

2

The application of the principle of estoppel has been carried somewhat farther in another respect, by the supreme judicial court of the state of Maine, in the case of Steele v. Adams, where the bargainor, by a deed poll, was precluded from recovering the consideration money, on the ground of the usual acknowledgment expressed in the deed, of the receipt of the consideration. There was no receipt on the back of the deed of the money, and proof that it was designedly left unpaid was rejected as inadmissible, by reason of the supposed estoppel contained on the face of the deed. And what is the more remarkable, this decision is ostensibly grounded on the supposed authorities, as established in England. In that country, however, the vendor has a lien on the estate sold, for the purchase money, which he may enforce by process in equity. The law upon this subject is clearly stated by chancellor Kent." "Prima facie the lien exists without any special agreement for that purpose, and it remains with the purchaser to show, that from the circum

113 Pick. R. 116.

2 1 Greenl. R. 1.

3 4 Com. 151.