#### Bain v. Hunt.

Fi’om Cabarrus.

Assumpsit will not lie on a judgment rendered by a Justice of the Peace.

Wilson, at a former term, read an affidavit made by the defendant, setting forth that a verdict had been rendered against him, and that he had intended to move fora new trial, but was prevented by the following facts. Court adjourned on Friday of the term to meet on the morning of the next day at the hour of eight, but the Judge left the county on Saturday morning at six for his next court, and consequently defendant could not move for a new trial. On this affidavit, a certiorari was moved for.

Per curiam. Let a certiorari issue as prayed for. And now, on the return of the writ at this term,

The proceedings in this case appeared to have been very irregular. It seemed to have commenced in Cabarrus County Court by a writ in case, and afterwards to have *573been amended by changing the writ to debt: a verdict was returned for defendant in the County Court, and the plaintiff appealed to the Superior Court, where the declaration was in case, and the jury found that the defendant did assume, and assessed plaintiff’s damages to six dollars and a half cent and costs. Plaintiff then made an affidavit, that when suit was commenced, his demand was just for more than sixty dollars, as it was also when the suit was tried, but that he had failed to establish it from the unexpected production of a witness whom he could have discredited: and judgment was rendered pursuant to the finding, whereupon there was an appeal to this Court. The declaration was for work and labour done, and for a judgment for g!4 obtained before a Justice of the Peace. And now,

J. Martin, for the plaintiff,

said, that it was to be considered here as a motion in arrest of judgment, and the only point of law intended to be presented, as he presumed, was, whether assumpsit will lie on a justice’s judgment. And on this point he said, that this form of action might he sustained on a foreign judgment of a court of record; Walker v. Witter, [Doug. 4.) and that in that case, judgment of courts not of record, and foreign judgments of courts of record, were placed on the same footing. The verity of both must be inquired inco by a jury, (3 Bl. Com. 24.) and in point of dignity they rank with debts by simple contract.

Taylor, Chief Justice.

The judgment which is declared on in this case, is compared to a foreign judgment, on which assumpsit will lie; but if this position be correct, it follows that it is only prima fade evidence of the debt, and that upon the general issue of non-assumpsit, it is competent to the defendant to impeach the justice of the judgment by showing it to have been irregularly or unduly obtained; for in this action any thing may be given in evidence that shows that nothing is due. [Bull. N. P. 152.) *574But I think it may he collected from the acts on this subJec*’ ^‘e legislature meant to give the judgments rendered by the magistrate a conclusive effect between the parties, as to the subject matter of them, until reversed or set aside, to prevent the merits of them from being overhaled in an original suit; if they were not already recorded in the strict technical meaning of the term, to give them as much force as judgments rendered in any court of the state. I derive this inference, in the first place, from the language of the act of 1802, ch. 609. which provides that when judgment shall be had, and execution not issued within twelve months thereafter, it shall be lawful to sue for and recover the same by warrant before a Justice of the Peace, and that the former judgment shall be evidence of the debt, subject to such deductions as the defendant may make appear on trial to have been paid in full or in part of said former judgment. By making it evidence of the debt, must be understood conclusive evidence, especially where it is farther prescribed that the effect of such evidence shall be avoided only by posterior payments. Thus it receives the qualities of a record, which cannot be impeached by any supposed defect or illegality in the contract, on which it is founded, the circumstances of which need not be stated. No averment can be made against the validity of a record; therefore no matter of defence can be pleaded, which existed anterior to the recovery of the judgment. That the legislature considered such judgment as a debt of record, farther appears from the act of 1803, ch. 627". which withholds the stay of execution where the evidence of a debt on which the judgment is founded shall be that of a former judgment. And the subsequent act of 1820, ch. 1053. which limits judgments to three years, prevents their being revived by action, suit, scire facias or other process after that time. Though I am not aware of any act authorizing such judgment to he revived by scire facias, yet it had grown into practice before the law *575of 1820, authorized an original warrant; and as a scire Jadas can be founded only on some matter of record, and to which the defendant cannot plead any matter which he might have pleaded in the original action, it farther shows the light in which justices’ judgments were received. In addition to this it may be remarked, that these judgments have ever been considered as debts of record in the administration of assets, and have stood upon the same footing with those rendered by the Courts. Evidence of the same effect is furnished by the act of 1797, ch. 477. which allows, under regulations providing for its authenticity, an execution to issue to another county from the judgment of a justice. The extensive civil jurisdiction conferred upon justices of the peace in this state, far from producing ihe public convenience, and aiding in the administration of justice in the degree intended, would be a positive evil, and the source of endless litigation, if their judgments were of no higher validity than simple contracts. A dissatisfied party against whom a recovery was had, instead of appealing or pursuing some other legal course to have the judgment reexamined, would issue a new warrant to recover back the money; and if the principle were once established that a judgment might be opened, and the cause of action again tried by another justice, on the suggestion of mistake or injustice in the former trial, the consequences would be most mischievous. It is essential to the common security and peace, that a principle sanctioned by so many adjudications should be maintained and enforced: that what has been regularly decided by a competent tribunal, with regard to the same cause of dispute, and between the same parties, or those succeeding to their rights, shall be conclusively regarded as true. Thus a recovery in any one suit upon issue joined or matter of title, is conclusive upon the subject matter of such title, and a judgment in such species of action is conclusive upon its own subject matter, by way of bar to future litigation, for the thing thereby decided. (3 *576 East. 346.) And not only is an actual adjudication binding upon the parties, but even when a person who had paid a debt but after being sued for it, could not find the receipt, and paid it over again, it was ruled that he could not afterwards, upon finding the receipt, maintain an action to recover it back. (7 Term 369.) It is better to suffer a private inconvenience, than a public mischief; and as every human judgment, let it terminate when it will, may be subject to error, the possibility of it ought not to annul its validity unless in a course of appellate examination. That a rule so wise and well calculated to promote the tranquility of society, by shortening litigation, should be adopted in the code of all civilized nations, seems to have been expected. Accordingly we find it to be a part of the Roman law, as explained by Justinian, (Nov. 33.) and transplanted thence into the jurisprudence of most of the continental nations. In the civil law. as it is in force in France, it is stated by Pothier, that “ the authenticity of res judicata induces a presumption that every thing contained in the judgment is true, and this presumption being juris et de jure, excludes every proof to the contrary, res judicata pro veritale accipitur. For instance, the party who is condemned to pay any thing, is presumed really to owe it; the party in whose favour judgment is given, may consequently, after signifying it, compel the other to pay the money by the seizure and sale of his effects, and no prool can be received from him in contradiction of the debt. (1 Pothier 550.) This is exactly conformable to the principle of the common law in relation to the plea of nul tiel record before remarked on. All the Courts in this state, from the highest to those held by individual magistrates, administer the general law of the land, and have both civil and criminal jurisdiction. According to the definition of law writers, they are all Courts of record; for although the proceedings of none of them are enrolled in parchment, yet a written memorial of them is, or ought to be, preserved. Ail *577Courts of record, are in England said to be the King’s Courts, and therefore no others have authority to fine and .... imprison* so that the erection of a new jurisdiction with power to fine and imprison, makes it instantly a Court of record. (2 Sulk, 200.) Courts not of record are said to be those of private men, whom the law will not entrust with any discretionary power over the lives and fortunes of others. The proceedings of these Courts are not enrolled, but their existence, as well as the truth of the matters contained in them, must, if disputed, be tried and determined by a jury. They cannot take cognizance of any matters cognizable by the common law, unless under the value of forty shillings, nor of any trespasses, having no process to arrest the person of the defendant.; 2 Ins. 311.) This description of courts is unknown to us, and if the test of a court ol record be, that it has power to fine and imprison, magistrates here must be so considered; for the power of giving judgment for fines, amercements and penalties, is conferred upon them in various instances. They were originally appointed as conservators of the peace, and their power at this day is chiefly conversant about the punishment and suppression of offences. The civil jurisdiction which they exercise in this state, is, in England, distributed among a great variety of inferior tribunals; but it cannot be inferred from the enlargement of their jurisdiction here, that the authenticity of their acts is invalidated. They have, from the earliest times, been deemed judges of record, “ and a memorial made by them, of things done before them judicially, in the execution of their office, shall be of such credit that it shall not be gainsayed. One man may affirm a thing, and another may deny it; but if a record once say the word, no man shall be received to aver or speak against it; for if a man should be admitted to deny the same, there never would be amend of controversies.” (3 Burns 3.)

The other Judges concurred.

Judgment reversed.