28 Conn. 527 | Conn. | 1859
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.
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
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.