Sherwood v. Johnson

1 Wend. 443

• Court: New York Supreme Court
• Decided: October 15, 1828
• Status: Published

Opinion

By ilia Court,

Savage, CI>. J.

The replication is good, and according to approved precedent. (2 Chittty, 611, n. o.) It is sufficient to allege fraud and covin generally, without shewing such fraud specially. In Green v. Wilcocks, (Cro. Eliz. 462,) it was held that the plaintiff in his replication, must not only reply fraud and covin, but must traverse that the judgment was given for a just debt; but a different rule prevails now. (1 Lut. 662. 2 Sound. 50, n. 3.) The court there say, the plaintiff may traverse.the. special matter, or rely on the fraud generally ; and either way is good.

The next question is upon the plea; and the question is, simply, whether a judgment before a justice of the peace is a debt of record. All judgments in courts of record are of equal dignity in the payment of debts. (Toller, 263.) It has frequently been held by this court, that justices’ courts are not courts of record, though they possess many of the powers of courts of record. They are very important tribunals; but the legislature have not constituted them courts of record. They are, in legal" acceptation, inferior courts. Of course, judgments in those courts must be postponed to judgments in courts of record. In 16 Johns. R. 233, this court said, that a justice’s judgment was equivalent, at least, to a specialty, and that debt was the proper action to be brought upon it. In Witherwax v. Averill, (6 Cowen, 590,) we held that a justice’s judgment is not to be tried by the record upon a plea oinul tiel record, but by a jury; and that it ranks as a specialty. Of course it cannot be pleaded as a debt of record. The plea is bad. The plaintiff is entitled to judgment on the demurrer.