Page:Federal Reporter, 1st Series, Volume 4.djvu/377

 BEHE V. COHNBCTICUT MOT. LtFB INS. 00. . 863 �605, 608 ; Tipton v. Powell, 2 Cald. 19, 23; McCoy v. Pearce, Thomp. Cas. 145, 148; Seay v. Ferguson, 1 Tenn. Ch. 287; Ament v. Brennan, Id. 431; Nelson v. Claybrodk, (Jackson, 1880,) MSS. not yet reported. �But ail these cases show that it îs not an estoppel, because, with one accord, they say that, "if made inconsiderately or by mistake, the party ought certainly to be relieved from the consequences of his error." Now, the distinguishing feature of an estoppel is that .under no circumstances can it be averred against ; it is not susceptible of explanation and often speaks against the truth, and for this reason has been regarded as odious. It was given that name "because a man's own act or acceptance stoppeth or closeth up his mouth to allege oï plead the truth." Bigelow, Estop. 44. Such a sworn ad- mission may become an estoppel, as it may, -whether sworn to or not, if parties act on it, or -WDuld be prejudiced by it; and, perhaps, in cases where no explanation can be given, and the party is caught in deliberately attempting to cross himself in swearing two contrary ways about the same fact, it may, in one sensp, be called an estoppel to hold him to his first oath and not permit him to gainsay it. But this very case shows that it is misleading to call it so, and because it has been done we are now asked to predicate more upon the name given than is justified by the cases so much relied on, and to extend the principle settled by them far beyond what the supreme court ever intended. �It would make a most odious estoppel to forever hold a party to a falsehood, whether any one has been injured by it or not. After ail, it is only a question of the force and effect of the petition for divorce as a part of the proof, and when once it is admitted that, under any circumstances, the con- trary can be shown, it cannot be called an estoppel; and it seems to me to be giving the adverse party an unfair advah- tage to call it so, and likely to mislead the' jury to the detri- ment of One who may be innocent of false sWearing. In deference to these cases, which have established a rule of evidence binding on this court, as well as ail others in Ten- nessee, I charged the jury that the plaintiif here was bound ����