
    The State of Ohio, for the use of Monroe County, v. John H. Daily and Lemuel S. Rucker.
    In an action of debt on. recognizance, a special plea in bar that the defendants did not acknowledge the recognizance, is insufficient.
    A special plea that the recognizance was obtained by the fraud and covin of the justice, before whom the same purported to be taken, is bad on special demurrrer. ,
    No fact can be specially pleaded which amounts to the general issue only.
    This is an action of debt on recognizance, reserved in the county of Monroe.
    The facts in the case are these: The defendants appeared before a justice of the peace, in the county of Monroe, on. December 30, 184-1, as it is averred in the declaration; and, together with one Abel Dailey, not served with process, ^entered into recognizance in the penal sum of §1,000, conditioned for the appearance of the said Abel Dailey before the court of common pleas next thereafter to be holden in said Monroe county, etc., to answer to a charge of assaulting Catharine Stevens, of said county, with intent to commit a rape, etc., and to abide the judgment, etc.
    It is also averred that said recognizance was, by said justice, returned to the court of common pleas and recorded, as the statute requires, and defaulted for.tho non-appearance of the said Abel, in compliance with its condition.
    The defendants pleaded, firstly, nul tiel record, on which issue is joined ; secondly, that they never acknowledged themselves to owe the State of Ohio; thirdly, that the said recognizance was obtained by the said justice, by falsely and fraudulently taking, writing, and returning the same to the court of common pleas, etc., when the defendants, or either of them, then and there, never acknowledged to owe the. said State of Ohio in manner and form, etc.
    
    To the two last pleas, the plaintiff demurred specially, and, among others, set down as special cause of demurrer, that it was incompetent to the defendants to controvert the facts contained in the record by special plea; that the facts could only be denied by the general issue of nul tiel record, which put in issue the existence of the record itself.
    
      The questions arising on the demurrer were reserved for consideration in this court.
    B. S. Cowen, for plaintiff:
    The declaration is upon a record. Swan’s Stat. 652, sec. 24, 8. The second and third pleas admit the existence of that which the statute says “shall be considered as of record” in the court of common pleas.
    *It is an ancient and invariable rule that a record imports absolute verity, and can not be impeached. The only answer to a declaration upon a record, allowable by the rules of pleading-, is nul tiel record. All the reasoning, authorities, and arguments of Mr. Kennon, in support of his positions, relate, as I understand them, not to matter of pleading, but matter of evidence. What may be proved under the plea of nul tiel record¶
    
    Evidence will be received, in actions upon records, to show want of jurisdiction. This shown, and the supposed record, as to the defendant or party showing it, is no record. The authorities are not uniform in support of this position. Those sustaining it, or in favor of receiving evidence, dehors t’ho record upon jurisdictional questions, do so upon the ground that it is to the issue upon nul tiel record, and received to show, not that what is upon a record is false, but that what is declared upon it is not a record. Starbuck v. Murray, 5 Wend. 158; 3 C. & II. Phillips’ Ev. 800, and cases there cited. Judge Marey, in Starbuck v. Murray, has stated the grounds upon which the evidence, as to jurisdiction, is received, very fully and forcibly.
    Whether a record is forged or altered, may be inquired into, upon nul tiel record. 1 Pick. 362. So, whether a recognizance purporting to have been taken before one officer, was not taken before another. 13 Serg. & Rawle, 254. This is done by inspection ; but, if not satisfied by inspection, it may be shown by parol. 1 Pick. 368.
    The second plea concludes to the country, and, if unsustained, puts the plaintiff, upon the proof of the truth of the record, by a plea, not even supported by affidavit.
    The argument drawn from the danger of fraud in the justices of the peace, if sound, would apply with equal force to all the docket entries of that numerous class of officers. If the principle contended for prevails, for that reason, the hundreds of thousands of judgments recorded upon the dockets of our justices of the peace, will be subject to reversal, or to be avoided by parol proof, and that not to a question of jurisdiction, but to the ground and causo of the original suit.
    *The third plea avers that the recognizance was falsely and fraudulently made, and that defendants never acknowledged to owe the State of Ohio as alleged. If this can be shown by proof, it may be done under the plea of nul tiel record. The ground of the action is, that there is a recognizance recorded. In an action upon a judgment, the plaintiff avers that there is a judgment recorded. If the court had not jurisdiction of the defendant, there is no judgment. If there be no recognizance, there is no record of a recognizance, as alleged in the plaintiff’s declaration, and therefore no such record as declared upon.
    But how can defendants prove that there is no such recognizance? Not by the testimony of the justice, unless that it is a forgery of his name. Will they prove an alibi? That there was no case authorizing the justice to require or take the recognizance? These'are to the matter of jurisdiction, first of the person, and second of the subject matter. This may as well be proven under nul tiel record, as want of jurisdiction could be under the same pica, in an action on a judgment in Starbuck v. Murray, 5 Wend. 158.
    William Kennon, Jr., for defendant:
    Did tlie court below err in sustaining the demurrer ? If either or both picas be a good defense to the action, then the court erred in sustaining the demurrer.
    The statute of Ohio calls many papers executed according to its requirements, recognizances. If a capias issues in a civil suit, and the defendant not ready for trial, but continues for a time, he gives a recognizance. Swan’s Stat. 509, sec. 21.
    Bond given for stay of execution is called a recognizance. Swan’s Stat. 517, sec. 63.
    On an appeal from a justice’s judgment, the appellant gives a recognizance. Swan’s Stat. 512, sec. 41.
    The putative father of a bastard child gives • recognizance. Swan’s Stat. 156, sec. 3.
    *The sheriff has power to take recognizances. Swan’s Stat. 856, sec. 2; 722, sec. 8 ; 721, sec. 3.
    Justices require and can take recognizances in a variety of cases; both civil and criminal. Swan's Stat. 542, sec. 31; 544, sec. 33; 538, sec. 12. In these and many other eases, both civil and criminal, the statute requires recognizances to be given before officers having the power of holding a court, as well as those having no power to hold a court, or keep a record.
    All these recognizances stand, it is believed, upon the same ground, and against which the same defense can be made when, suit is instituted. Will it be contended that a recognizance for the stay of execution or for an appeal, can not, as to its execution,, be controverted. Non est factum will be a good plea to either of these recognizances — any plea in bar may plead — and yet both are executed upon the docket of tho justice of the peaeo, and can lay all claim to be a record, that can be claimed for a paper purporting to be a recognizance, and such as that upon which the plaintiff counts
    A recognizance given by a putative father of a bastard child may be controverted by plea of non est factum, as well as other special pleas in bar. The People v. Haddock, 12 Wend. 475. In this case the defendant plead non est factum, and three special picas in bar.
    Infants and married women can plead against a recognizance. And why not others ? 1 Chit. Crim. L. 91; Petersdorff on Bail., 10 Law Lib. 287; 2 Hawk. P. C. 115.
    A recognizance is in most respects like another bond, tho difference being chiefly that the bond is the creation of a fresh debt or obligation de novo, tho recognizance is án acknowledgment of a former debt upon record. 2 Black. Com. 341.
    Will the court hold the defendants liable, when they deny by their second plea, and the demurrer admits the fact, that they never acknowledged to owe the debt?
    The defendant may jilead either in bar or in abatement to the recognizance, or any other defense, which would be proper in an action of debt. Petersdorff on Bail., 10 Law. Lib. 214; Alice v. Gale, 10 Mod. 112.
    ^Payment or release to the principal or bail may be pleaded. Petersdorff on Bail., 10 Law Lib. 204.
    If infancy, coverture, payment, release-to the principal or bail, or that the jirineipal rendered himself or was rendered by his bail before the return of the ca. sa. sued out, or that the principal died before default was made, be a good defense to the recognizance, why is it that a defense can not be made of the fact that the defendants never acknowledged the recognizance?
    Can it be the law of this state that the justice can write and return a recognizance upon whomsoever he pleases without consulting them, and that his act is binding upon them?
    "Will it bo said that the defendants have a remedy against the justice for misconduct? The remedy may be of no value; the justice may not be worth one cent, and the recognizance, as in this case, for a large sum.
    This plea denies that the defendants were ever in court; in effect that they ever acknowledged the recognizance, and no subsequent act of the justice or .of the court of common pleas, in entering the recognizance of record, could render valid that which was beforo invalid.
    Great difference exists between the obligatory force of a recognizance in England and in this state; there it was a lien upon the land; here it is.not. Dewitt v. Osborn, 5 Ohio, 485.
    That such a defense as is set up in this plea can be made against a recognizance, is decided in the case of Ohio v. Wellman, 3 Ohio, 14. The court say: “If taken under any circumstances that .would legally affect its obligatory force, the defendants could avail themselves, by way of defense, of such circumstances, though no reference was made to jbem in the recognizance.”
    To what circumstances could the court refer in the case of Ohio v. Wellman, as constituting a good defense, unless that set up by these defendants would bar the recovery. If the fact that these ■defendants had no knowledge of the recognizance whatever,were never consulted, had no notice until long after they were defaulted in the common- pleas (the first notice *being a suit upon the recognizance), will not constitute a good defense to this action, it is difficult to see what would.
    The third is a plea of fraud, which will constitute a good defense to the action, whether founded upon a judgment, decree, or recognizance. It can not be said in answer to this plea, that it is pleaded against a record ; and if it were, this plea, as well as the second, goes to the recognizance at a time anterior to its becoming a record. .The return to the clerk of the court of common pleas, and entry there in pursuance of the statute, is that which gives it the claim to be a record. Both these pleas go to the act of the justice of the peace, in taking the recognizance.
    
      If the justice has taken and returned his recognizance in bad faith, having no jurisdiction of the persons of these securities, and in fraud of the law as well as of the defendants, then the recognizance is not binding.
    Fraud may be pleaded against a judgment or record, or where it is obtained in invasion of the laws of the country. Jackson v. Jackson, 1 Johns. 424; Borden v. Fitch, 15 Johns. 121; Burford v. Burford, 4 Munf. 241.
    A want of notice of the proceeding of whatever kind, even as against a judgment, is a traversable fact, and is a good plea. Mills v. Duryee, 7 Cranch, 481; Shumway v. Stillman, 4 Cow. 294; 6 Wend. 447; Andrews v. Montgomery, 19 Johns. 162; Starbuck v. Murray, 5 Wend. 154; Bissell v. Briggs, 9 Mass. 467; Aldrick v. Henry, 4 Day’s Conn. 380.
    “A recognizance is an obligation of record, entered into befope the magistrate duly authorized for that purpose, with conditions to appear at the session or assizes — it is a matter of record as soon as taken and acknowledged.” 1 Chit. Crim. Law, 90.
    In this state a recognizance is not a record when taken by the justice; it is not oven entered upon his docket; and if it were, his court is not a court of record for that purpose; and hence the law applicable to recognizance in England can not be applicable in this state.
    *Both these pleas go to the recognizance before it became a record; they go to the act of the justice of the peace; and if void in its commencement, no subsequent proceeding can make it obligatory. x
    E. Archbold also submitted an argument for the plaintiff.
   Wood, C. J.

It appears to us that the history of a proceeding before a justice of the peace, in a case clearly within his jurisdiction, and when acting in his judicial capacity, is a record. W. S. C. 38, 428. Not for the reasons that the justice has the power of fine and imprisonment, is allowed a clerk, or uses a seal to verify the transcripts of his decisions; but because copies of his docket, unpretending, simple, and informal as they are,-are evidence of so high a nature that they import absolute verity; and unless lost or destroyed, can not be proved per notiora, nor can they be contradicted at all. In this respect they are of equal validity with the court rolls of parliament, or the exemplifications of the highest judicial tribunals of our own country. The idea is not to be tolerated for a moment that domestic court records aro prima facie evidence only of the facts they contain. Judgments may bo impeached, it is true, but not for fraud or falsehood, in the judicial tribunal by whom they are rendered ; nor, as a general rule, in a collateral proceeding. It may be done in a suit by the party injured, or a prosecution against the tribunal, or in a suit directly instituted against the party through whose means, and by whose procurement a fraudulent judgment is obtained. Even a sheriff’s return is conclusion between the parties to a suit, and can only be impeached in a suit against him; so is a constable’s.

If it bo said the recognizance is the ministerial act of the justice only, and not a record, the answer is, the statute requires it to be returned to the court of common pleas; a memorandum of it made, to be considered as of record in that court, and sued by process out of that court, in the same manner as if *taken then, and it therefore becomes a record in that court. Swan, 652. That this recognizance is not a judgment, makes no difference, in our view, as to the manner in which it may or may not be impeached ; for every fact required to be found, and every act required to be done, when recited in a record, is beyond the reach of contradiction. From necessity, to this extent, does the law repose confidence in its judicial officers.

But the question is asked by the defendants: Will the court hold us responsible, when we deny, by our second plea, and the demurrer admits the fact, that ice never acknowledged to owe the debt? The answer is, that a demurrer admits nobbing, except it be well pleaded; and as, in our opinion, this fact can not be averred against the record, it is not admitted.

It is true a recognizance is not a judgment, but it is a contract of record; and, when sanctioned in its creation, by both magistrate and court, having competent jurisdiction, it can not be impeached nor affected-, is tried by inspection, and under the plea only of nul tiel record. Tf it exist, there is the end of the controversy.

Authorities are cited to show that a release of the principal or security may be pleaded, or infancy, coverture, or payment; or that the principal surrendered himself, or was surrendered by his bail, before the return of the ca. sa. sued out, or that the principal died before the default of the recognizance; and the inquiry is made, if such defense can be pleaded, why not that the defendants never acknowledged, the recognizance? The reason appears to us obvious — release, infancy, coverture, or payment, surrender or death of the principal, do not contradict the record, but only avoid its effect, while the pleas in question, put the facts found by the record directly in issue, but do not deny its existence.

The case of Ohio v. Wellman, 3 Ohio, 14, is cited in support of those special pleas. Keeler was discharged from imprisonment on his recognizance, and Wellman was his surety. Wellman plead to the scire facias, that Keeler was not legally imprisoned, to which plea the plaintiff demurred, and judgment *was given for the state. The only point decided by the court was, that the question made by the plea could not be raised in that way.

If the defendants did not in fact acknowledge this recognizance, there is no difficulty in framing a plea to meet the case, without violating any legal rule. They may plead that they are not the same identical defendants, but other persons of the same name, and may meet the plea by such proofs, positive or circumstantial, as will sustain it; and such defense would avoid, as to them, the effect of the record, but not contradict it.

If an instrument which is set up in the declaration as a record be a forgery; or if the court had no jurisdiction of the subject matter, or if there be anything to defeat it as a record; such facts may be shown under the general issue of nul tiel record; but they can not be specially pleaded, because it is a rule of law that nothing shall be plead specially, ivhich amounts to the general issue, and no more. The demurrer to the pleas is sustained, with costs. The cause will be remanded, with leave to defendants to amend their pleas, if desired; and, if not, for trial on the issue of nul tiel record.  