
    [ *527 ] *Elijah Hawley vs. Elijah B. Middlebrook.
    In a suit on a recognizance for costs, averred to have been entered into before a justice of the peace on the issuing of a writ of attachment, the defendant pleaded nul tiel record, with notice that lie, should offer evidence to show that he never entered into the. recognizance. The plaintiff replied that there was such a record, and the issue was closed to the court. On the trial the plaintiff offered in evidence the record, which was correct in point of form, and the defendant there upon offered parol evidence to show that he did not in fact appear before the justice and enter into the recognizance. The plaintiff objected to this evidence as contradicting the ■record, and further offered evidence to show that the defendant had, by his fraudulent .-conduct-and statements at the time, intentionally induced the plaintiff to believe that he had entered into the recognizance, and had thus prevented his moving for and obtaining another. The defendant objected to this evidence, but the court admitted it, and found that the- defendant had .thus conducted and misled the plaintiff, and held him to be estopped from denying that he entered into the recognizance. On a motion of the defendant for a new trial, in which he claimed that the evidence with regard to his conduct and statements was inadmissible because not specially . replied in the pleadings, it was held,
    1. That the plea of nul tiel record put in issue only the existence of the record, and not the truth of its statements.
    2. That the notice, in which alone the defendant had denied that he had entered into the recognizance, was no part of the plea, and did not require or properly admit of, an answer.
    3. That it was very questionable therefore, whether, upon this state of the pleadings, a replication would have been admissible, which should set up an estoppel against a denial, not of the existence of the record, but of the truth of its statements.
    4. But that, even if the pleadings would have admitted -it, it was not necessary that the estoppel should be replied, as would have been necessary in the case of an estoppel 'by deed or record; as an estoppel in pais results from facts not susceptible of being stated fully, clearly, and as a matter for legal adjudication, and depends upon equitable considerations which cannot be presented in the ordinary forms of pleading.
    Whether,'aside from the question of estoppel, it was competent for the defendant to impeach the recognizance, by showing that the statements of the record-were not true: (¿uere..
    
    Under,th.e statute, (Rev. Stat., tit. 1, § 139,) which authorizes a justice of the peace, after the expiration of his term of office, to perfect his records, a ■ justice whose term has expired and -who has removed .from,,the .state, may perfect his records in another state. . ,
    .Debt, on a recognizance. The declaration ¿lleged that the defendant, on the 7th of August, 1855, entered into a recognizance in the sum of fifty dollars, before John H. Whiting, *Esq., then a justice of the peace for the county [ *528 ] of Fairfield', upon a writ of attachment issued by the justice in favor of one David B. Wells against the present plaintiff, for the payment of all damages to the defendant in the suit, if the plaintiff therein should fail to prosecute 1ns suit to effect? and that a judgment was recovered in the superior court in that case by the present .plaintiff for costs of suit, exceeding the amount of the recognizance. The defendant’s plea was as follows:
    “ The defendant defends, pleads and says that there is not any record of the said supposed recognizance, in the said declaration mentioned, remaining with said Justice Whiting, or in said superior court, or elsewhere, in manner and form as the plaintiff in his declaration has alleged, and this the defendant is ready to verify. By S., his attorney.
    “ The plaintiff will take notice that the defendant denies ever having entered into, or in any manner having executed, said pretended recognizance, and will offer evidence to prove that the said pretended record of said recognizance was never made in Bridgeport, where it purports to have been made, nor elsewhere by said Whiting in pursuance of’any power or authority to make such record, and that the signature of said Whiting to said pretended record was obtained by false and fraudulent representations. By S., his attorney.”
    The plaintiff replied that there was such a recognizance, and prayed that it might be examined by the court.
    On the trial to the court, the plaintiff offered in evidence a document, which he claimed to be the original record of the recognizance, which was as follows :
    “ David B. Wells v. Elijah Hawley. Action of trespass. Fairfield County, ss. Bridgeport, August 1th, 1855. Be it remembered that on this day personally appeared before me, John H. Whiting, a justice of the peace for said Fairfield county, Elijah B. Middlebrook, of said Bridgeport, and acknowledged himself bound to the adverse party, the said Elijah Hawley, in a recognizance in the sum of fifty dollars, conditioned that the said David B. Wells shall prosecute his *said [ *529 j action to effect and answer all damages in case he fail to make his plea good. Before me,
    John H. Whiting, Justice of the Peace.”
    To the admission of this document in evidence the defendant objected, on the ground that it was not a legal record; that it was not made at the time and place mentioned in it, nor while Whiting was a justice of the peace, but that it was made in May, 1858, at Orange, in the state of New Jersey, where Whiting then resided, and to which place he had before that time removed from this state ; and that his term of office as justice of the peace expired on the 4th of July, 1856, and that he was never after reappointed to the office; and the defendant offered evidence to prove these facts, and claimed that. Whiting had no power at the time to make the record, or do any official act as justice of the peace, and prayed the court so. to decide. But the court, on the objection of the plaintiff, excluded the evidence, and decided that Whiting had power, as justice of the peace, while so residing in New Jersey, to make up the record of the recognizance from minutes and memoranda of the taking of the same made by him at the time the recognizance was entered into, and while he was a justice of the peace residing at Bridgeport; and it appearing that the recognizance was so extended from the minutes of the taking thereof, which were inserted in the writ and signed by the justice while he was so residing at Bridgeport and was a justice of the peace, the court admitted the record in evidence. The defendant thereupon claimed, and offered to prove by parol testimony of himself and others, that the record was false, and that he never in fact appeared before the justice and entered into the recognizance. The plaintiff objected to this evidence, and offered evidence on his part, (to which the defendant also objected,) to prove, and on the evidence so introduced the court found, that the defendant, being conversant with the fact that a suit was about to be commenced .by Wells, and that he was insolvent, and being desirous to aid him in the prosecution of the suit, was so far instrumental in causing the suit to be commenced, as to agree that he would give bonds for the prose- £ *530 j *cution, and did in fact become responsible for, and afterwards pay, the officer’s fees for the service oi the writ, and that at the time of the service, he knew that his name appeared in the writ as the person who had given bonds for prosecution in the sum of fifty dollars, and that, although he knew that the defendant in that suit relied entirely on the validity of his recognizance for security for his costs, he took no measures to inform him that he was not liable thereon, but on the contrary, on his examination as a witness for the plaintiff on the trial of the case, testified that he had given bonds for prosecution. The 'court, upon this evidence, was of opinion, and found, that the defendant, by this fraudulent conduct and false testimony, had intentionally misled the plaintiff, by inducing him to believe that a valid and legal recognizance had been entered into for the prosecution of Wells’ suit, to secure the defendant in that suit for his costs, and had thereby prevented him from moving for and obtaining a good bond of recognizance ; and that the defendant was therefore now estopped to deny the validity of the recognizance; and on that ground, held the evidence going to impeach the validity of the recognizance to be inadmissible, and rendered judgment for the plaintiff. The defendant thereupon moved for a new trial.
    
      Sturges, in support of the motion.
    1. The defendant having given the requisite notice that he denied the execution of the recognizance, it devolved on the plaintiff, not only to produce a recognizance extended in due form, but to prove that the defendant entered into it. This could have been done only by proving that the writing produced was a record, and whether it was a record or not involved the question of jurisdiction. Harrison v. Southampton, 17 Eng. L. & Eq., 364. Sears v. Terry, 26 Conn., 273. Gurnsey v. Lovell, 9 Wend., 319. Whiting’s term of office having expired, and he having removed from the state, he was not empowered, by the statute authorizing justices of the peace to perfect their records after the expiration of their terms of office, to make the record in question. The statute intended only cases where the justice should continue to ^reside in the state, and be liable to punishment here [ *531 ] if the record is falsely made. It continues the justice in office for certain purposes, and he remains therefore under the obligation of his official oath, while after his removal from the state he can not be considered any longer as retaining his official powers for any purpose. Even if the recognizance, being correct in form, was prima facie evidence, still the court erred in rejecting evidence offered by the defendant to show the invalidity of the record by reason of its having been made in New Jersey.
    2. The testimony offered by the defendant to prove that the record was false, and that the defendant never appeared before the magistrate, was admissible. A justice of the peace in issuing writs acts only by virtue of a special statutory power, and not as a court of common law jurisdiction whose records import absolute verity. Sears v. Terry, supra. Schermerhorn v. Talman, 14 N. York, 134. And he acts only in a ministerial capacity and not in a judicial one. But the record of a court of common law jurisdiction may be shown to be void for want of jurisdiction of the parties. 4 Phil. Ev., (C. & H.) 113 et seq. Smith v. The State, 19 Conn., 493. No court can acquire jurisdiction by the mere assertion of it. The People v. Cassels, 5 Hill, 168. Harris v. Hardeman; 14 How., 334. Whiting could not acquire jurisdiction of the defendant unless he appeared before him, and this appearance must be voluntary, being thus unlike suits at law, in' which-jurisdiction can be acquired by giving notice. -
    3. The defendant was not estopped, by the facts stated, in the motion, from denying the record. 1st. I-f the admission of the defendant was an estoppel, the plaintiff has waived it by not replying to it. This doctrine is as applicable to estoppels in pais as to those by deed or record. ’ Shelton v. Alcox, 11 Conn., 240. Veale v. Warner, 1 Saund., 323. Regina v. Vincent, 9 Eng. L. & Eq., 547. The plaintiff had an'opportunity to‘plead the estoppel, for the defendant’s .plea concluded with a verification-; but if it had not, an estoppel could have been replied. Veale v. Warner, supra. Matthew v. Osborne, 20 [ *532 ] Eng. L. & Eq., 238. Wilkinson v. Kirby, 26 *id., 371. Doe v. Wright, 10 Adol. & El., 763. 2d. The defendant is not' estopped by the admission that he had given bond, because a paról admission of this fact would, not be competent evidence. Welland Canal Co. v. Hathaway, 8 Wend., 480. 3d. If the facts found‘were competent evidence, they do not constitute añ estoppel. An estoppel-must be certain to every intent, and nothing shall be taken by argument or inference. Coke Litt., 352 b. -It does not appear from the evidence that the declarations influenced, or were Intended to inr fluence, the conduct of the plaintiff, both of which .are necessary to constitute the acts of the defendant an estoppel. Welland Canal Co. v. Hathaway, supra. Taylor v. Ely, 25 Conn., 250. The defendant may have supposed that he had given bond legally. He may 'have mistaken the law. The inference of the court from the evidence is immaterial,-for-the law. of estoppel forbids such inferences. The declaration that he had given bond was a conclusion of law and fact, which does not amount to an estoppel. Brewster v. Striker, 2 Comst., 41. Morgan v. Couchman, 24 Eng. L. & Eq., 321. Besides the declaration was made in court, as a witness under compulsory process, which is enough to prevent its operating.as'ail estoppel. Kimberly v. Ely, 6 Pick., 452. Doolittle v. Dwight, 2. Met., 566. 4th. The admissions do not amount, to an estoppel,- because .the estoppel would not be'mutual.' Com. Dig., Estoppel. C. Coke Litt., 352 a. This rule is as applicable to’-estoppels in pais-as to those by deed. Cohoes Company v. Goss, 13 Barb., 137.
    Belden, contra.
    
      1. Justices of the peace, while in office, always had the right to perfect their records from the files. By the statute of 1850, the same right is conferred on all persons who have held the office of justice of the peace. Rev. Stat., tit. 1, § 139. The statute therefore places those in office and those who have formerly held the office, in this particular on the same footing, and has given- both the same power; and no exception is made of those persons who have formerly held the office and have removed from the state. The records so perfected from *the files have relation back to the time and place of [ *533 ] the original transaction, so that it is immaterial where the record is perfected, if made up from the files and memoranda in the case. The record so perfected must be certified by the person in the same capacity in which he acted when the transaction was had, for otherwise it would not be evidence. Therefore the evidence offered bj' the defendant, going to show that Whiting had no power to perfect the record in New Jersey, was properly excluded by the court. The facts found by the court, from the evidence offered by the laintiff of the acts and declarations of the defendant, estopped him from denying the validity of the recognizance. Brown v. Wheeler, 17 Conn., 345. Roe v. Jerome, 18 id., 138. Dyer v. Cady, 20 id., 563.
    3. It is not necessary that estoppels in pais should be pleaded. They are of such a character as not to admit of being pleaded like estoppels by deed and record. Shelton v. Alcox, 11 Conn., 240. Danbury and Norwalk R. R. Co. v. Wilson, 22 id., 450.
   Storks, C. J.

Whatever may be the right of a justice of the peace at common law to perfect his records while he holds his office, in regard to the place where it should be done, we are of the opinion that, by a just construction of the act (Rev. Stat., tit. 1, § 139,) authorizing a justice of the peace removed from, or not reappointed to office, for other cause than the commission of some crime, he has a right, as occasion may require, to exercise that power at any place, whether within or without this state. The act is entirely unrestricted as to the place where the power may be exercised, and, by imposing the restriction claimed by the defendant, its object would frequently be entirely defeated or a compliance with it rendered extremely inconvenient, while we perceive no possible benefit which can result from confining the exercise of the power to any particular place; and we think that we further the design of the legislature in giving to the statute in this respect a broad construction. The court below therefore properly excluded the evidence offered by the defendant on this point.

*The record of the recognizance on which- the suit was brought being thus properly before the court, the defendant offered, by parol testimony, to disprove' the statement in that record that he appeared before the justice and entered into the recognizance ; which testimony was objected to by the plaintiff, as being inadmissible from the character of the record which it was offered to contradict, and also because the defendant was estopped to deny the validity of the recognizance in consequence of the facts which he then proceeded to prove; and on those facts being found true by the court, it decided that the defendant was so estopped, and thereupon rejected the evidence thus offered by him for the purpose of impeaching the validity of the recognizance. We are strongly inclined to think that, independently of the question of estoppel, it was not competent for the defendant to impeach the recognizance by showing the statement in it which has been mentioned to be untrue, but it is unnecessary to decide this point, because we are fully of the opinion that the defendant %vas, by the facts found by the court, estopped from thus falsifying the record of the recognizance, and that therefore the evidence offered for that purpose was properly rejected. This court found upon that point that he, by his fraudulent conduct and false testimony, had intentionally misled the plaintiff, by inducing him to believe that he, the defendant, had entered into a valid recognizance for the prosecution of the suit in which it was represented to have been taken, to secure the defendant in that suit, the present plaintiff, for his costs, and had thereby prevented the latter from moving for and obtaining a good bond of recognizance for the prosecution of that suit. Upon these facts ,we have no doubt that, on the principles which we have repeatedly adopted in regard to estoppels in pais, it was not competent for the defendant to deny the validity pf the recognizance. The plaintiff in that suit was a bankrupt, and this was known to the present plaintiff, and he would have moved for and obtained a sufficient bond for the prosecution £ *535 ] of the suit *against him if he had not believed that one-had already been given by the present defendant, who was stated in the writ to have given such a bond ; and the latter, knowing all these facts, took no measures to undeceive the plaintiff, but, on the contrary, on his examination as a witness on the trial of that cause, testified-that he had given bonds for its prosecution. We have no doubt that the court below was fully warranted in its finding on the subject, and also in its conclusion of law that the facts thus found precluded the defendant from denying that he had entered into such a recognizance. But the question here is not, whether that court properly weighed that evidence and was justified by it in its finding, but whether the evidence was admissible for the purpose for which it was offered ; and on that point there can be no doubt that it conduced to prove the facts found by the court, and was therefore properly received. This disposes of that objection to the evidence.

But the defendant claims that the matter which created the estoppel could not be shown by the plaintiff, because it was not set up by way of replication to the defendant’s plea. We are inclined to think that, as no such objection was made when the evidence was offered, it is not now competent, under our rules, for the defendant to avail himself of it. But however that may be, this objection is, in our opinion, not well founded.

In the first place, the plea in this case was nul tiel record, which tendered an issue only as to the existence of the record of the recognizance mentioned in the declaration. The notice accompanying that plea, that the defendant would prove under it that he never appeared before the justice or entered into the recognizance, is to be disregarded on the present point, as it formed no part of the plea or of the record in the case, and therefore did not require, nor was it the subject of, an answer by the plaintiff. Now, if it were practicable and admissible on the issue thus tendered by this plea, to reply an estoppel in pais arising from the conduct or representations of the defendant, against a denial by him even of the existence of the record, it is very questionable, under *the rules of [ *536 ] pleading with regard to estoppels, whether a replication of that character would be good, which is an answer to a plea containing no affirmative matter, and which sets up only such conduct or declarations of the defendant as were inconsistent, not with the non-existence of the record, but only with the falsity of the statements it contains, and therefore at the most only by implication admitted its existence. It would seem, from the great strictness required in pleadings of this peculiar description, that the estoppels which they set up should be of a direct, explicit and unequivocal character, and not such as are created by mere implication or inference. But, in the next place, we think that it was not practicable, consistently with the established rules of pleading, to frame a replication in this case in such a manner as to present fully, clearly, and as a matter for legal adjudication by the court, the facts constituting the estoppel claimed by the plaintiff in this case; and hence that it does not fall within the general principle requiring estoppels to be pleaded in order to make them binding, which does not apply to cases where there is no opportunity to do so. The estoppel relied on here, unlike those created by deed or record, to which that general principle, applies, and which are of a strictly legal character, is founded on the existence and influence of conduct and declarations of a party which are not susceptible from their nature of that precision and accuracy of statement which is required.in technical pleadings, and moreover depends on equitable considerations which do not admit of being presented according to the prescribed formulas of legal statements. The question of the necessity of pleading an estoppel in pais, like the one now before us, was decided in Freeman v. Cooke, (2 Excheq., 654,) and, in our opinion, correctly. That was an action of trover, brought by the assignees of a bankrupt ágainst a sheriff for the conversion of the bankrupt’s goods seized under a fi. fa against G. & 'D., and under the plea of “not possessed” it appeared that immediately before the seizure the bankrupt told the officer that the goods were the property of C, and immediately afterwards contradicted that statement and [ *537 ] said that *they were the goods of D. The jury found that the goods were in reality the bankrupt’s, but that he represented the goods to the officer as the goods of G, so as to induce the officer by that false representation to seize them • and to the claim of the defendant, that the conduct and declarations of the bankrupt would estop him, and consequently estopped his assignees, from claiming that the property of the goods was in the bankrupt, the objection of the plaintiff that, supposing that to be so, the facts creating the estoppel ought to have been pleaded, was overruled, on the ground that such an estoppel need not be pleaded. Parke, Baron, in giving the opinion of the court says, “It is certain that estoppels by record and deed must, in order to make them binding, be pleaded, if there be an opportunity, otherwise the party omitting to plead it waives the estoppel, and leaves the matter at large, on which the jury may find according to the truth. With respect to estoppels in pais', in certain cases there is no doubt they need not be pleaded in order to make them obligatory. For instance, where a man represents another as his agent, in order to procure a person to contract with him as such, and he does contract, the contract binds in the same manner as if he made it himself, and is his contract in point of law, and no form of pleading could leáve such a matter at large, and enable the jury to treat it as no contract. The same rule appears to apply to all similar estoppels in pais, as the learned editor of Williams’ Saunders, (Yol. 1, p. 326, n. 4,) expresses his opinion. The estoppel therefore, if .it be one created by the conduct of the bankrupt in this case, is hot opened by the omission to plead it; and the only question is whether it be an estoppel ? ”

We therefore do not advise a new trial.

In this opinion the other judges concurred; except IIinman, J., who having tried the case in the court below, did not sit.

New trial not advised.  