of the peace for arbitrarily, obstinately, and unreasonably refusing to grant a license to one H. D. to keep an inn at Eversley. In the several discussions upon the motion, Lord Mansfield stated that though this was a matter left to the discretion of the justices, yet if their conduct appeared to be partial, oppressive, corrupt, or arbitrary, they might be called upon to show the reasons which guided their discretion. "Discretion," he said, "does mean, and can mean nothing else, but exercising the best of their judgment upon the occasion that calls for it; yet if this discretion be willfully abused, it is criminal, and ought to be under the control of this court." And again: "That this court had no power or claim to review the reasons of the justices of the peace upon which they form their judgments in granting licenses by way of appeal from their judgments, or overruling the discretion intrusted to them; but if it clearly appears that the justices have been partially, maliciously, or corruptly influenced in the exercise of this discretion, and have consequently abused the trust reposed in them, they are liable to prosecution by indictment or information; or even possibly by action, if the malice be very gross and injurious."

That a justice will not be punished for an error of judgment, is again reiterated in Rex v. Cox, 2 Burr. 785. In Harman v. Tappenden and others, 1 East, 556, it was held that without malice no action would lie against the members of a corporation who had excluded a fellow-corporator from the benefits to which he was entitled, the act having been done erroneously, but not maliciously. So, for refusing the vote of a person entitled to vote at an election, no action lies unless malice be shown, either express or implied: 2 Ld. Raym. 938, 958; 1 East, 562; 11 Johns. 114, 120. In Ashley v. White, it was agreed by three judges that the returning officers were not judges, but ministerial officers. In Jenkins v. Waldron, Mr. Justice Spencer admits that an action lies if the vote be refused fraudulently or maliciously. He considers the inspectors of elections as officers called upon to exercise their deliberative judgments, and says it would be opposed to all principle to allow them to be answerable for a mere mistake in law, when their motives are pure and untainted with fraud or malice.

In Smith v. Trawl, 1 Root, 165, an action was held to lie against a justice of the peace, in Connecticut, for granting a writ of replevin without requiring security. The plaintiff recovered in the county court, and the judgment was reversed in

AM. DEC. VOL. XXIV-4

the superior court, on the ground that the law had made the justice the judge of the sufficiency of the security. The judgment of the superior court was reversed in the supreme court of errors, on the ground that the party's bond was no security, and the act of the justice was compared to a sheriff letting a man to bail on his own bond. But in Phelps v. Sill, 1 Day, 315, it was held that an action will not lie against a judge of probate for neglecting to take security from the guardian of an infant, although the infant had personal estate, and the guardian was a bankrupt. The court place his indemnity from damages upon his judicial character, and that the omission on his part was by mistake.

On a review of these cases, the principle must be considered settled, that for a judicial act no action lies, but for an injury arising from the misfeasance or non-feasance of a ministerial officer, the party has redress in an action on the case; but in all cases where the defendant is sued for an act in which he was bound to exercise his discretion, the action will not be sustained, unless it appear that the act complained of was done willfully and maliciously. The strongest charge in the declaration in this case is, that the defendant, acting as justice of the peace, has unjustly and oppressively prevented the plaintiff from appealing, and thereby reversing a judgment rendered by him, etc. I incline to think this equal to a charge of corruption.

I am of opinion, also, that a justice, in approving or refusing to approve an appeal bond, does not act judicially; he does indeed exercise his discretion, but it is the same discretion exercised by every ministerial officer who takes bail. The taking security in such cases is rather a ministerial than a judicial act, and if he has acted corruptly an action lies. I am therefore of opinion that the judgment of the court of common pleas ought to be reversed, and that a venire de novo should be issued by Delaware common pleas; costs to abide the event.

JUDICIAL LIABILITY.-The note to Yates v. Lansing, 6 Am. Dec. 303, contains an extended discussion of this subject. See, also, Cunningham v. Bucklin, 18 Id. 432; Evertson v. Sutton, 21 Id. 217, and Rogers v. Mulliner, 22 Id. 546, and the notes thereto for other cases in the American Decisions on the same point. That an officer vested with a discretion or acting judicially, is not liable for errors of judgment, or for neglect, unless it is willful and maficious, is held, approving the doctrine of Tompkins v. Sands, in Stewart v. Hawley, 21 Wend. 555; Adsit v. Brady, 4 Hill, 635; Mayor etc. of New York v. Bailey, 2 Denio, 448, per Hand, senator; Harman v. Brotherson, 1 Id. 590; and Stephenson v. Hall, 14 Barb. 231. So in Houghton v. Swarthout, 1 Denio, 590, the general principle that for a judicial act no action lies, but that case

lies for the misfeasance or non-feasance of a ministerial officer, is approved In Livingston v. Hollenbeck, 4 Barb. 16; S. C., 3 How. Pr. 349, it is held, citing Tompkins v. Sands, that assessors are personally liable for the faithful and honest discharge of their duty. In Wickware v. Bryan, 11 Wend. 545, 546, it is held, citing the principal case, that although it is the duty of a justice to accept an appeal bond if the security is such as should be approved, yet case will not lie against him for negligently or carelessly, but without fraud or evil intent, giving a party about to take an appeal erroneous information of the amount of the judgment, whereby his appeal is lost. In Hogan v. Devlin, 2 Daly, 186, on the authority of the principal case, it was said that a justice is bound to approve or disapprove an undertaking for the removal of a cause to the common pleas, under the statute, before entertaining a motion to amend. The foregoing decision is referred to also in Van Vleck v. Burroughs, 6 Barb. 341, 344, as an authority for the position that case against a justice for willfully refusing to issue execution may be brought before another justice.

WELLAND CANAL COMPANY v. HATHAWAY.

18 WENDELL, 480.]

CORPORATION PLAINTIFF MUST PROVE ITS DUE INCORPORATION by competent authority where the general issue is pleaded.

ESTOPPEL IS SO CALLED because a man is concluded from saying anything, even the truth, against his own act or admission.

TECHNICAL ESTOPPEL CAN ONLY BE BY DEED or matter of record.

ESTOPPELS IN PAIS CAN NOT BE PLEADED, but are given in evidence, and may operate as effectually as a technical estoppel under the direction of the

court.

PARTY IS GENERALLY CONCLUDED FROM DENYING HIS ACTS or admissions to the prejudice of one whose conduct they were expressly designed to influence and did influence.

PARTY CONTRACTING WITH AN ASSOCIATION AS A CORPORATION, and giving it a receipt as such, is not estopped thereby from denying its corporate existence in a suit brought by it on such contract.

EVERY ESTOPPEL OUGHT TO BE RECIPROCAL and binding on both parties. ONE CONTRACTING WITH AN ASSOCIATION STYLING ITSELF THE "W. C. COMPANY," does not thereby admit it to be a duly constituted corporation. ADMISSIONS OF A DEFENDANT SUED BY A CORPORATION are incompetent to prove that it is a corporate body duly constituted where better evidence is attainable.

COPY OF THE CHARTER DULY AUTHENTICATED must be produced to prove the incorporation of such a body, unless the absence of such evidence is legally accounted for.

PARTY'S ADMISSIONS CAN NOT BE SUBSTITUTED FOR RECORD or written evidence, so as to dispense with the same.

SUCH ADMISSIONS RANK ONLY WITH ORAL TESTIMONY, and are competent against the party making them only where parol evidence would be admissible.

SPECIAL VERDICT IS IRREGULAR and unauthorized which presents only the question of the competency of the evidence offered to prove the incorpo ration of the corporation plaintiff.

ASSUMPSIT, the declaration containing the common money counts. Plea, the general issue. The object of the action was to recover a sum of money claimed to have been overpaid by the Welland Canal Company to the defendant for work done by him as a contractor. From a special verdict found by the jury it appeared that the defendant contracted to construct a part of the canal for the company, and that the plaintiffs introduced a receipt given by him, as follows: "Received from Wm. Hamilton Merrit, agent W. C. C.," etc., the jury finding that "W. C. C." stood for the Welland Canal Company, and that Merrit was their agent. Various other facts relating to the work done, etc., were also found, but the jurors stated that they were ignorant, and prayed the advice of the court as to whether, upon the whole matter, the plaintiffs were a body corporate, etc., which was the only question presented.

J. C. Spencer, for the plaintiffs.

Greene C. Bronson, attorney-general, for the defendant.

By Court, NELSON, J. That the plaintiffs must, at the trial, prove themselves duly incorporated by competent authority, on the plea of the general issue, is not to be contested at this day in this court: 19 Johns. 300; 1 Wend. 555; this is conceded by the counsel for the plaintiffs, but it is contended that the receipt of the defendant and his contract with the agent of the company ought to estop him from denying their legal existence; or, at least, are prima facie evidence of that fact, subject to be rebutted. There is a dictum of C. J. Thompson, in the Dutchess Cotton Manufactory v. Davis, 14 Johns. 245 [7 Am. Dec. 459], which is relied on by the plaintiffs. In that case, there was a demurrer to some of the counts in the declaration, and one of the causes assigned was the want of an averment that the plaintiff's were a body corporate, duly organized in pursuance of the law, which the learned judge was considering when the opinion was pronounced. The remark, therefore, "the defendant having undertaken to enter into a contract with the plaintiff's in their corporate name, he thereby admits them to be duly constituted a body politic and corporate under such name," was not necessary to the point under consideration. The case

of Henriques v. The Dutch West India Company, 2 Ld. Raym. 1535, was there cited, and is relied upon in this case as an authority for the plaintiffs. Upon examination, I think, it will be found rather favoring the defendant's position. The Dutch West India Company sued Henriques in the C. B. in England,

for money borrowed of them in Holland, and recovered. See the case before the C. B. on questions reserved at the trial by Ld. C. J. King, 1 Stra. 608. From this report, it appears that the cause went to the K. B. and House of Lords, and was affirmed. From the case in Ld. Raymond, it appears that a scire facias was brought in the C. B. against the bail of Henriques in the above suit upon their recognizance. The bail pleaded there was no record of such recognizance as set forth in the scire facias, to which the company replied there was; and upon this issue, the court rendered judgment for the plaintiffs. This judgment was carried to the K. B., and two objections taken to its correctness by the plaintiffs in error, neither of which touches the question under consideration. The judgment was affirmed in the K. B., except as to damages for the delay of execution, fifth July, 1728. On the twenty-fifth of April, 1730, the cause having been brought into the house of lords, was there heard, and the counsel for the plaintiffs in error for the first time raised the question that no recognizance could be given to this company in England, as the law does not take notice of a foreign corporation, nor can a foreign corporation, in their corporate name and capacity, maintain an action at common law, and, therefore, the recognizance was void. To this the counsel for the company answered that the plaintiffs were estopped by their recognizance to say there was no such company; and the judgment was affirmed. The correctness of this decision may be safely admitted without affecting in any way the question now before the court. It was clearly not competent for the bail to draw into litigation the right of the company to sue them in their corporate name, in that particular case, after a recovery against their principal in the suit in which they had entered into the recognizance in question, and this, no doubt, was what the counsel meant in their answer to the objection before the house of lords. In a note to this case, the reporter states that Ld. C. J. King, who tried the cause of the Company v. Henriques, told him he made the plaintiffs give in evidence the proper instruments by which, according to the laws of Holland, they were created a corporation. The report of the case, 1 Stra. 608,' also shows this fact. The circumstances under which this company were constituted a body corporate, and their privileges, are there briefly stated. The species of the evidence by which the facts were shown does not appear, but that is supplied by the note above. The whole case, therefore, I think, must be

1. 1 Stra. 612.