Majority
p. 53Andrews and others vs. Smith. NEW-YORK, May, 1832.
Headnote
A judgment in a justice’s court is not extinguished by a judgment subsequcntly obtained upon it in another justice’s court: the general principle governing in such cases is, that a security of a higher nature extinguishes inferior securities, but not securities of an equal degree.Error from the marine court of New-York. Andrews obtained a judgment in one of the ward courts of New-York against Smith, on which he commenced a suit against Smith in a justice’s court in the county of Kings, and obtained judgment. On this last judgment Andrews sued out an execution,
p. 54
on which Smith was arrested and imprisoned, and after 30 ¿¡ayS discharged; subsequent to which Andrews sued out an execution in New-York on the first judgment, and levied upon certain property of Smith, who sued Andrews and the officers in trespass for taking such property. On the trial of the action, the marine court refused to receive in evidence, in justification of Andrews, the judgment originally obtained by him. Smith obtained a verdict, and Andrews sued out a writ of error.
S. M. Fitch, for plaintiffs in error.
S. Campbell, for defendant in error.
By the Court,
The only question in this case is whether a judgment before a justice, rendered upon a judgment before another justice, extinguishes the judgment first obtained. As to judgments in courts of record, this question has been settled in the negative. 11 Johns. Rep. 517 , and cases there cited. 5 Wendell, 129, 222. The general principle of law governing in cases of this kind, and which applies to all securities, is, that a security of a higher nature extinguishes inferior securities, but not securities of an equal degree.
Judgment reversed.