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legal_language:allegans_contraria_non_est_audiendus_204020122018

Allegans contraria non est audiendus

Contrary allegations are not to be heard.

A WITNESS will not be allowed to contradict himself, nor a party to contradict his own witness : a landlord distraining shall not be allowed to deny that a tenancy existed ; nor shall a tenant dispute his landlord's title.

It is upon this principle that a notice to quit by either land- lord or .tenant cannot be waived but by some act by both parties, differing in this respect from a waiver of forfeiture of a lease or other interest in land by breach of covenant, which the lessor alone may do without the concurrence of the lessee. And so it is that the receipt by the lessor, after breach of covenant by the lessee, of rent accruing due after breach is a waiver of a forfeiture then known to him, notwithstanding that he may at the time protest against its being such waiver. So, if a landlord receive or distrain for rent accruing due after the expiration of notice to quit, it is a waiver of the notice ; though a demand of rent without actual receipt is not necessarily so, but it is in such case a question of intention. It is in accordance with this principle, also, that in legal proceedings a party cannot take advantage of an irregularity of his opponent after having himself taken another step in the cause ; that he is estopped from denying his own deed, or setting up another deed inconsistent with it ; that he is estopped from denying the authority of his servants, agents and others, to do such acts as the law presumes such persons to have authority to do. The law presumes a man to intend the natural or ordinary consequences of his acts, and he will not be permitted to allege the contrary where the interests of a third party or the public are concerned ; and this applies negatively as well as affirmatively; for, a man standing by without objecting will be considered as consenting, and will not be allowed to allege to the contrary.

The action of trover furnishes a simple instance of the application of the maxim. A man cannot recover in trover and also in debt for goods and for the price for which they have been sold, for in suing for the price of the goods he consents to the conversion, and the count in trover fails ; he cannot expect to have both the money and goods. So a verdict in trover is a bar to an action for money had and received brought for the value of the same goods. So a judgment in trespass in which the right of property is determined, is a bar in an action of trover for the same taking.

So the doctrine of estoppel furnishes many like instances. A recital in a deed is evidence against the party executing it of the matters therein recited, and is a bar to an action on the deed in respect of such recited matters, if pleaded. A recital in a bill of sale by the sheriff of the writ of execution and of the seizure and sale of the goods levied is evidence against him of those facts. An admission on the record in an action between the same parties is conclusive evidence against them, and need not be proved, and cannot be disproved. A misrepresentation by the plaintiff of the property or ownership in goods, whereby the defendant is deceived, precludes the plaintiff from denying such property or ownership in an action respecting the same goods — he being estopped by his willful misstatement from disputing a state of facts upon the faith of which another has been induced to act to his prejudice.


Jenk. Cent. 16 ; Com. Dig. Ev. (B 5) ; Com. Dig. Action (K 3) ; Shaw v. Pioton, 4 B. & C. 729 ; Evans v. Oglevie, 2 Y. & J. 79 ; Wood v. Dwarris, 11 Exck. 501 ; Taylor v. Best, 14 C. B. 487; Ex parte Mitchell, De Gex B. C. 257 ; Blyth ». Dennett, 13 C. B. 178 ; Brewer v. Sparrow, 7 B. & C. 310 ; Woodward c. Larking, 3 Esp. 286 ; Carpenter v. Butler, 8 M. & W. 212 ; Hitchin v. Campbell, 2 W. Bl. 827 ; Croft v. Lnmley, 6 H. L. Cas. 672 ; Charter v. Cordwent, 6 T. H. 219.


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